*1 justice seriously doubt would observer tive case). Judge Baker’s STATES the UNITED in done could he had that it clear make statements se, it just when per insurance life beef vehicle. investment an passed off was life think he did not P. that directly stated and He GANOS Chris that he realized that Defendants-Appellants. and bad was insurance sum, do not we In people. helps many it and 91-3241. 91-3239 Nos. any on bias indicates record agree of the thus we are part; judge’s the not affect- was imposed the sentence that ed.7 April 1992.* Submitted in rooted of bias the other toAs probation put the to court’s refusal the this see how stand, fail to officer En Rehearing Banc Rehearing and defendant. against the prejudice shows May 1992. Denied by and appointed are officers Probation and court, 18 U.S.C. § the serve reasoning and con- rely on the to entitled to defen- subject reports, in their clusions 32. Coonce Rule challenges under dants’ probation offi- the to cross-examine wanted relationship with (Coonce’s) toas his cer interviewed. officer the victims the two the told officer, probation the victims’ not relied he had that

court conclusion. reaching his

statements any cross- Thus Sentencing Tr. have been point would on this

examination injured not was and Coonce meaningless, to as bias. he refers by what Cf. Barry, 938 un- was (allegation bias (D.C.Cir.1991) a full gave defendant judge where

founded PSR, even challenge the opportunity the him examine let did not though judge officer).

probation

CONCLUSION im- stated, the sentence reasons

For

posed

Affirmed. * assigned con- case was panel to which this seriously Coonce if also note 7. We pur- serve no argument would oral cluded that should have he bias the court's concerned about dis- defect jurisdictional light pose Judge removed Baker sought have assignment opinion. The in this stating cussed filing affidavit § U.S.C. vacated, argument is oral for case lends did not he That his fears. briefs on the basis decided case is suggests that dissat- holding and support to our record. "after fact.” judge came with the isfaction

X285 would violate the jeopardy double clause. States, Burks v. 1, 437 U.S. 2141, (1978). 57 L.Ed.2d 1 The United States contends jurisdiction that we lack appeals. entertain the An order setting a case for a sec ond trial is not final ordinary standards, so unless thé decision is a “collateral or der” scope within the of Cohen v. Benefi cial Industrial Corp., 541, Loan 337 U.S. 1221, 69 S.Ct. (1949), L.Ed. 1528 appeals are untenable. An order rejecting a claim of jeopardy double may be a collat Cohen, eral order under see Abney v. Unit States, ed U.S. 97 S.Ct. (1977), only but if the claim is colorable. United MacDonald, States v. 850, 862, 435 U.S.

L.Ed.2d 18 Courts of appeals may and should weed appeals, out frivolous facilitate prompt Klumb, jus administration Eric Atty., J. Asst. U.S. Milwau- in the tice kee, Wis., Abney, courts. 431 U.S. for the U.S. in No. 91-3239. at 662 n. 97 S.Ct. at 2042 n. 8. Klumb, Eric J. Asst. Atty., Charles Guadagnino, Milwaukee, Wis., for the U.S. jeopardy double urged in No. 91-3241. frivolous, us is which also defeats the exist Hansen, Milwaukee, Wis., Scott E. ence of Richardson v. United Chris Ganos. States, 468 U.S. (1984), L.Ed.2d 242 holds that the double Terry Mitchell, Mathie, E. James J. jeopardy prevent clause does not the hold Mitchell, Zieger, Milwaukee, Baxter & ing of a second trial when no court has Wis., for Jerome P. Chernoff. determined that the evidence at the first CUMMINGS, EASTERBROOK, Before trial was An appeal insufficient. in search Judges. of such a decision is not an clause; invocation jeopardy of the double PER CURIAM. ordinary challenge is an sufficiency to the of the evidence. jury explained: Richardson the criminal trial of Chris Ganos, logically “It follows holding today from our and five others jeopardy peti that claims of double guilty. returned a verdict such as Defendants longer tioner’s are post-verdict filed seeking motions ‘colorable’ double acquittal jeopardy claims ground appealed which be be of insufficient evidence and judgment.... fore final Since no ground a “mistrial” on the set of jurors support facts will viewed assertion of a claim during unauthorized materials jeopardy petitioner’s double like deliberations. The district court denied the future, there is no that a defen acquittal granted motion for the mis- jeopardy rights dant’s double will violat named motion for a mistrial. As the trial trial, a new and there is little need to a impossible, over mistrial was but interpose delay appellate review be grant court could and did a trial. new begin.” fore a second trial can 468 U.S. at commence, Before the retrial could Ga- 326 n. 104 S.Ct. at 3086 n. 6. appeal, nos and Chernoff filed notices of contending that a new trial after an initial precisely Ganos and Chernoff are in trial at which the evidence position facing was insufficient same a sec- Richardson: some elaboration set forth with not ob- (but have trial, they crave

ond that, given the Wood, I must conclude at the evidence tained) declaration a law, the in the case signposts available insufficient. first was is consistent reach here clause never holds that *3 Richardson. cases, so there trial in such second bars the Abney. appeal of an nois ignore Chernoff Ganos reply their opening briefs their

both argument in generalized Cohen

brief. ex- hardly survives brief reply of conclusion Richardson.

press for want of are dismissed

The appeals So UNITED STATES defendants, all the retrial proceed with forthwith. issue mandate will v. BRIMBERRY, Defendant- A. Janice concurring. Judge, Appellant. the court. judgment I concur No. 90-3754. v. Unit reading of Richardson

The court’s 82 States, 468 U.S. United States our compatible with (1984) is 242 L.Ed.2d analogous in somewhat earlier decisions Argued Sept. Anderson, v. States United contexts. See Cir.1990); (7th United States F.2d 1076 896 Cir.), (7th cert. F.2d Douglas, v.

denied, 493 U.S. (1989). It also accord is cir in the other authority weight Wood, 958 v. States cuits. United Cir.1992); (10th 963, 969-71 F.2d (5th Miller, F.2d Porter, 807 Cir.1992); denied, Cir.1986), (1st cert. 21, 23-24 95 L.Ed.2d admitted, our It must inexorably follow today does not Judge Baldock’s As

from Richardson. notes, opinion in

thoughtful Wood

Richardson’s, language suggests broad terminates event which

that an to a defendant’s precedent a condition jeopardy claim. of a double

assertion gives us little

However, Richardson events, other than

guidance on what jeopardy.

acquittal, terminate Indeed, our

Wood, 958 F.2d Circuit’s the Tenth

colleague from demonstrates, present state

amply hardly a jeopardy jurisprudence Nevertheless, garment.

seamless