                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.
                                                  No. 02-4684
EMANUEL GANDARILLA ALVAREZ;
BRUNO MORALES GONZALEZ,
            Defendants-Appellees.
                                        
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                Malcolm J. Howard, District Judge.
                             (CR-02-86)

                      Argued: September 25, 2003

                      Decided: December 4, 2003

   Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.



Vacated and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Michael and Judge Motz joined.


                             COUNSEL

ARGUED: John Stuart Bruce, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellant. Rosemary
Godwin, Raleigh, North Carolina, for Appellee Gonzalez; Johnny S.
Gaskins, Raleigh, North Carolina, for Appellee Alvarez. ON BRIEF:
Frank D. Whitney, United States Attorney, Raleigh, Anne M. Hayes,
Assistant United States Attorney, North Carolina, for Appellant.
2                     UNITED STATES v. ALVAREZ
                              OPINION

NIEMEYER, Circuit Judge:

   After the jury in the trial of Emanuel Alvarez and Bruno Gonzalez
on drug-trafficking charges became deadlocked, the district court
declared a mistrial. On the defendants’ subsequent motions for judg-
ment of acquittal, made pursuant to Federal Rule of Criminal Proce-
dure 29, the district court entered an order captioned "Judgment of
Acquittal," in which it concluded that there was "little likelihood that
any jury [would] ever convict either of the defendants on the charges
contained in the indictment." The court ordered that the defendants be
released from custody.

   On the government’s appeal from the judgment of acquittal, we
conclude that the district court did not base its "Judgment of Acquit-
tal" on the insufficiency of the evidence to establish factual guilt and
therefore its "judgment" is not in fact a judgment of acquittal that
would bar a new trial under the Double Jeopardy Clause. Accord-
ingly, we vacate the "Judgment of Acquittal" and remand this case for
a new trial. For the same reason, we also deny the defendants’ motion
to dismiss the government’s appeal, which was based mainly on the
contention that the government may not appeal a judgment of acquit-
tal. See 18 U.S.C. § 3731.

                                   I

    The government’s prosecution of Alvarez and Gonzalez for drug
trafficking rested in substantial part on the testimony of Michael
Wilkerson, who had himself been arrested for drug trafficking and
who had agreed to cooperate with the government. Law enforcement
officers planned a sting operation with Wilkerson in which Wilkerson
would buy crack cocaine from Alvarez and Gonzalez. Wilkerson tes-
tified that Alvarez had sold him crack cocaine at Wilkerson’s apart-
ment on about 20 previous occasions and that Gonzalez accompanied
Alvarez on about three of those occasions, helping count the money
received. As Wilkerson characterized their established practice,
Wilkerson would arrange for Alvarez to come to his apartment at 9:00
p.m., and Alvarez would usually come with a friend and sell Wilker-
son a quarter of a kilogram of crack cocaine for $7,000.
                      UNITED STATES v. ALVAREZ                        3
   Following this practice in the planned January 15, 2002 sting trans-
action, Wilkerson called Alvarez’ cell phone, and Alvarez’ wife cal-
led back to set up a 9:00 p.m. meeting for Wilkerson to look at "some
new films," "the kind you like." Wilkerson stated that "films" was
their code word for cocaine. As arranged, Alvarez arrived with Gon-
zalez at Wilkerson’s apartment about 9:00 p.m. and purportedly sold
Wilkerson a quarter kilogram of crack cocaine while in Wilkerson’s
living room. The police did not witness the transaction, as they were
hiding in two bedrooms. But they did hear something being unwrap-
ped and either Alvarez or Gonzalez say three times, "good shit."
Wilkerson testified that he then told the other two men that he "had
the money in the back," whereupon he walked into the room where
the police were hiding and handed them the 249 grams of crack
cocaine that he said Alvarez had handed him. The police testified at
trial that before that meeting, they had carefully searched Wilkerson’s
apartment to clear it of any guns and cocaine that Wilkerson himself
might have had. The police arrested Alvarez and Gonzalez, finding an
additional gram of powder cocaine and a gun on Alvarez. In a post-
arrest statement, Alvarez admitted that both the cocaine and the gun
were his but that this transaction was "the first time he had ever done
this."

   A grand jury indicted both Alvarez and Gonzalez for conspiracy to
traffic in 50 or more grams of crack cocaine and for possession of
more than 50 grams of crack cocaine with intent to distribute it, in
violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846, and 18 U.S.C.
§ 2. In addition, the grand jury indicted Alvarez for carrying a firearm
in furtherance of a drug-trafficking offense, in violation of 18 U.S.C.
§ 924(c).

   After a two-and-one-half-day trial in August 2002, the jurors
became deadlocked during deliberations and were unable to agree on
a unanimous verdict. After giving an Allen charge, which did not
break the deadlock, the district court declared a mistrial. The next
day, August 20, 2002, the defendants filed motions for judgment of
acquittal in which they advised the court that they had interviewed
some of the jurors and learned that the jury had become deadlocked
at 10-2 in favor of acquittal on all charges. The following day, the
court received an unsolicited telephone call from the foreperson of the
jury, who notified the court that one of the two "holdout jurors" had
4                     UNITED STATES v. ALVAREZ
admitted talking during the trial to a friend who was a police officer.
The officer had advised the juror that "the defendants were guilty
since this is the way these things happen." The foreperson also
advised the court that this holdout juror "maintained close proximity
to the additional member" of the jury who had held out for a guilty
verdict. Another juror also confirmed that the foreperson’s report was
accurate.

   In granting the defendants’ motions for judgment of acquittal, the
district court detailed the jury misconduct and concluded:

    Having considered all of the evidence presented in this two-
    day trial; having received from several sources that the jury
    was deadlocked 10-2 for acquittal; having been informed
    that one of the two persons who were not unanimous for
    acquittal had discussed the matter with a police officer dur-
    ing the course of trial and/or deliberation; and, concluding
    that . . . there is little likelihood that any jury will ever con-
    vict either of the defendants on the charges contained in the
    indictment. Therefore, the court hereby grants a judgment of
    acquittal pursuant to Rule 29 of the Federal Rules of Crimi-
    nal Procedure as to each defendant.

   From this order, the government filed this appeal. The defendants
filed a motion to dismiss the appeal, contending principally that the
government is not entitled to appeal a judgment of acquittal because
of the Double Jeopardy Clause of the Fifth Amendment.

                                    II

   The government contends that the district court’s judgment of
acquittal could not justify an acquittal, nor a dismissal, because the
district court never evaluated the sufficiency of the government’s evi-
dence. It requests that we vacate the judgment of acquittal and remand
for a new trial. The defendants argue that the judgment of acquittal
ended their jeopardy on the charges and that any new trial would
place them in jeopardy for a second time, in violation of the Double
Jeopardy Clause.
                      UNITED STATES v. ALVAREZ                         5
   A judgment of acquittal based on the insufficiency of evidence is
a ruling by the court that as a matter of law the government’s evi-
dence is insufficient "to establish factual guilt" on the charges in the
indictment. Smalis v. Pennsylvania, 476 U.S. 140, 144 (1986); Fed.
R. Crim. P. 29(a), (c). And such a judgment of acquittal "terminate[s]
the initial jeopardy," Justices of Boston Municipal Court v. Lydon,
466 U.S. 294, 308 (1984), so that any further proceeding that would
subject the defendant to factfinding on the defendant’s guilt or inno-
cence violates the Double Jeopardy Clause of the Fifth Amendment,
Smalis, 476 U.S. at 145. Moreover, any appeal that could lead to such
post-acquittal factfinding would serve no proper purpose and would
therefore have to be dismissed. Id. at 145-46 ("[T]he Double Jeopardy
Clause bars a postacquittal appeal by the prosecution not only when
it might result in a second trial, but also if reversal would translate
into ‘"further proceedings of some sort, devoted to the resolution of
factual issues going to the elements of the offense charged"’" (quoting
United States v. Martin Linen Supply Co., 430 U.S. 564, 570 (1977)
(quoting United States v. Jenkins, 420 U.S. 358, 370 (1975))); United
States v. Scott, 437 U.S. 82, 91 (1978) ("A judgment of acquittal,
whether based on a jury verdict of not guilty or on a ruling by the
court that the evidence is insufficient to convict, may not be appealed
and terminates the prosecution when a second trial would be necessi-
tated by a reversal"); see also 18 U.S.C. § 3731. However, the princi-
ple that a retrial is barred when the judgment is based on the
insufficiency of evidence does not require dismissal of the govern-
ment’s appeal from an erroneous conclusion of law unrelated to fac-
tual guilt or innocence. See Scott, 437 U.S. at 100 n.13; 18 U.S.C.
§ 3731.

   What constitutes a judgment of acquittal may not be determined
simply by the form or caption of the court’s order. "Rather, we must
determine whether the ruling of the judge, whatever its label, actually
represents a resolution, correct or not, of some or all of the factual
elements of the offense charged." Martin Linen, 430 U.S. at 571
(emphasis added). Indeed, an "appeal will be barred only when ‘it is
plain that the District Court . . . evaluated the Government’s evidence
and determined that it was legally insufficient to sustain a convic-
tion.’" Scott, 437 U.S. at 97 (quoting Martin Linen, 430 U.S. at 572).
We have interpreted this requirement that any ruling on sufficiency
of the evidence be "plain" to mean that "if a district court issues with-
6                      UNITED STATES v. ALVAREZ
out precision what it labels as a judgment of acquittal, but the record
. . . shows that the judgment is based on other than the issue of insuf-
ficiency of the evidence," the judgment is not an acquittal that will bar
the government’s appeal and potential new trial under the Double
Jeopardy Clause. United States v. Mackins, 32 F.3d 134, 138 (4th Cir.
1994). In Mackins, the district court had labeled its order "Judgment
of Acquittal" and had even discussed the evidence, but it had not
focused on the sufficiency of the evidence; rather, it had focused on
its admissibility. To review the sufficiency of the evidence, the court
"should [have] compare[d] the government’s evidence against the ele-
ments of the charged offense." Id.

   In this case, as in Mackins, the district court labeled its order a
"Judgment of Acquittal." The court also said that it had "considered
all of the evidence." Nonetheless, under Mackins, we must determine
whether the district court, in considering the evidence, reviewed it for
sufficiency and made the determination that the government failed to
prove an essential element the offenses with which Alvarez and Gon-
zalez were charged. Upon review of the district court’s order, we can-
not so conclude.

   In its order, the district court never expressly stated that it under-
took to review the sufficiency of the evidence, never recited the stan-
dard for acquittal — that the evidence was insufficient for any
reasonable jury to return a unanimous verdict of guilty — and never
discussed specific evidence or specific elements of the offenses
charged. Our difficulty in ascertaining the basis for the district court’s
order is further heightened by the district court’s extended discussion
of irrelevant issues. The court dedicated much of its order to discuss-
ing the possibility of juror misconduct, finally observing that "there
is little likelihood that any jury will ever convict either of the defen-
dants."

   Our charge is to determine whether "‘it is plain that the District
Court . . . evaluated the Government’s evidence and determined that
it was legally insufficient to sustain a conviction.’" Scott, 437 U.S. at
97 (quoting Martin Linen, 430 U.S. at 572). Because the district
court’s order never expressly addressed the sufficiency of the evi-
dence and instead was devoted primarily to an extended discussion of
issues unrelated to whether acquittal was warranted, it is not plain that
                      UNITED STATES v. ALVAREZ                        7
the district court evaluated the government’s evidence for legal suffi-
ciency. Indeed, the ambiguity of the district court’s order becomes
especially apparent when the court’s order is compared to the court’s
denial of Alvarez and Gonzalez’ first motion for judgment of acquit-
tal, made after presentation of the government’s case-in-chief. In
denying the first motion, the district court plainly reviewed the evi-
dence as to specific elements and assessed its sufficiency.

   Because it is not plain that the district court evaluated the govern-
ment’s evidence for sufficiency, we cannot find that the court in fact
issued a judgment of acquittal.

   In response to this conclusion, Alvarez and Gonzalez argue that the
district court corrected any deficiency in its judgment of acquittal by
recharacterizing the judgment in a later order that denied the govern-
ment’s motion for detention of the defendants. In the detention order,
the district court characterized its earlier judgment of acquittal as
holding that "there was insufficient evidence for any reasonable jury
to return a unanimous verdict of guilty." If that, in fact, had been the
basis for the district court’s judgment of acquittal, we would agree
with the defendants that this appeal would be barred. But the district
court’s post-hoc characterization of its earlier order did not change —
nor did it purport to change — the nature of its earlier entered "judg-
ment of acquittal." The detention order simply amounted to a later
characterization of the court’s judgment of acquittal.

   Because we conclude that the district court’s judgment of acquittal
was not in fact an acquittal, we vacate that judgment and remand this
case to the district court for a new trial. For the same reason, we deny
Alvarez and Gonzalez’ motion to dismiss this appeal based on the
judgment of acquittal. And to the extent that their motion is based on
the ground that the government failed to assemble and forward the
record on appeal in a timely manner, as required by Federal Rule of
Appellate Procedure 11(a), we find the argument to be without merit.

                                        VACATED AND REMANDED
