United States v. Hector Gerardo Gutierrez-Zamarano

Opinion by Judge CYNTHIA HOLCOMB HALL.

Appellant Hector Gutierrez-Zamarano (“Appellant”) was charged with conspiracy to possess cocaine with the intent to distribute and attempted possession of cocaine with the intent to distribute in violation of 21 U.S.C. §§ 841 (a)(1) and 846. A jury acquitted Appellant on the conspiracy count, but convicted him on the attempt count. The district court granted Appellant’s motion for a new trial. Appellant made pre-trial motions to dismiss the attempt count on the grounds of double jeopardy and collateral estoppel. In addition to arguing that the district court erred in denying these motions, Appellant contends that retrial is barred because he established entrapment as a matter of law at trial.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231 . We have jurisdiction over the interlocutory appeal of Appellant’s double jeopardy claim pursuant to 28 U.S.C. § 1291 , see Abney v. United States, 431 U.S. 651, 662 , 97 S.Ct. 2034, 2041-42 , 52 L.Ed.2d 651 (1977), and we affirm. We lack jurisdiction over Appellant’s entrapment claim and therefore dismiss this portion of the appeal.

I.

In March 1991, Agent Skaggs of the Drug…