                                                             F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                                PUBLISH
                                                             MAR 10 1998
                     UNITED STATES COURT OF APPEALS
                                                         PATRICK FISHER
                                                                  Clerk
                             TENTH CIRCUIT



UNITED STATES OF AMERICA,

     Plaintiff-Appellee,

v.                                             No. 97-8047

JAMES L. McALEER,

     Defendant-Appellant.


UNITED STATES OF AMERICA,

     Plaintiff-Appellee,

v.                                             No. 97-8048

MARY A. GILMORE,

     Defendant-Appellant.


UNITED STATES OF AMERICA,

     Plaintiff-Appellee,

v.                                             No. 97-8049

SHIRLEY D. McALEER,

     Defendant-Appellant.
UNITED STATES OF AMERICA,

      Plaintiff-Appellee,

v.                                                            No. 97-8051

ANTHONY J. CARTA,

      Defendant-Appellant.



            APPEALS FROM THE UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF WYOMING
            (D.C. Nos. 96-CR-15-2, 96-CR-15-3, 96-CR-15-4, 96-CR-15-5)


David A. Kubichek and Lisa E. Leschuck, Assistant United States Attorneys (David D.
Freudenthal, United States Attorney, with them on the brief), Casper, Wyoming, for
Plaintiff-Appellee.

Scott J. Engelhard, Seattle, Washington, for Defendant-Appellant James L. McAleer.

James H. Barrett, Assistant Federal Public Defender, Cheyenne, Wyoming, for
Defendant-Appellant Mary A. Gilmore.

Thomas B. Jubin, Cheyenne, Wyoming, for Defendant-Appellant Shirley D. McAleer.

Jo Ann Fulton, Laramie, Wyoming, for Defendant-Appellant Anthony J. Carta.


Before TACHA, McWILLIAMS, and BALDOCK, Circuit Judges.


BALDOCK, Circuit Judge.


      Defendants appeal the district court’s denial of their respective motions to dismiss

the indictment on grounds that the Double Jeopardy Clause of the Fifth Amendment bars

                                            2
their retrial.1 Our jurisdiction arises under 28 U.S.C. § 1291. See Abney v. United

States, 431 U.S. 651, 662 (1977). We affirm.

                                              I.

       This case centers around a fraudulent investment scheme orchestrated by James

Gilmore to induce individuals to invest in a plan referred to as the “Master Transaction.”2

The “Master Transaction” involved $157 trillion allegedly held on deposit in various

European banking institutions by the Mafia, the United States Central Intelligence

Agency, the Vatican, and a mysterious group called the “Illuminati.” Potential investors

were told that once James Gilmore coordinated the release of these funds, investors would

receive a return on their investment at the rate of 2,000 to one. James Gilmore hired

International Trading, Inc., (hereinafter “ITI”) to sell shares in the “Master Transaction.”

       In October 1992, the Securities Exchange Commission (hereinafter “SEC”),

obtained a temporary restraining order prohibiting Gilmore from soliciting money through

ITI in violation of federal securities laws. Gilmore then began obtaining investors

through Morgan Investment Pool, Inc., which employed Defendant James McAleer, and

the Allington Association of Business Administrators (hereinafter “AABA”), of which

McAleer was a member of the board of directors. McAleer, along with his wife Shirley,

       1
         Although Defendants’ appeals were not consolidated, we address them
concurrently because Defendants were charged in a single indictment, tried together and
raise similar issues on appeal.

       The father of co-defendant Mary A. Gilmore, James Gilmore has remained in
       2

England throughout these proceedings. Attempts to extradite him failed.

                                              3
began soliciting investors for various Gilmore programs representing that investors would

receive a 2,000 to one rate of return once the “Master Transaction” or “European

Fortune” was completed. Incredibly, Defendants obtained large sums of money from

investors, including approximately $1,072,000 from AABA members.

      In October 1994, James McAleer formed another entity, the Rafter Lafter

Association (hereinafter “RLA”), to promote James Gilmore’s scheme. RLA hired

Defendant Anthony Carta to serve as a bodyguard for Defendant Mary A. Gilmore. Carta

and Gilmore traveled throughout the United States during 1994 and 1995 promoting the

“Master Transaction” and soliciting investors for RLA. During the four-year operation

of the scheme, Defendants collected approximately $1.8 million from investors. The

proceeds were distributed among Defendants and James Gilmore.3

      On January 26, 1996, Defendants were indicted for their involvement in the

“Master Transaction” scheme. Mary A. Gilmore was charged with violating 18 U.S.C.

§ 1956(h), conspiracy to launder money. Shirley McAleer was charged with violating 18

U.S.C. § 1956(h) and 18 U.S.C. §§ 1343, 2, wire fraud and aiding and abetting. James

McAleer was charged with violating 18 U.S.C. § 1956(h); 18 U.S.C. § 1343; 18 U.S.C.

§ 1341, mail fraud; and 15 U.S.C. §§ 77q(a)(1)-(3) & § 77x, securities fraud. Anthony


      3
         Between March 1994 and March 1995, Defendants distributed among themselves
the following amounts: James and Shirley McAleer, $252,000; Anthony Carta and Mary
A. Gilmore, $205,000; and James Gilmore, $245,000. During the course of the scheme,
Defendants also executed financial transactions totaling $780,000 in their efforts to
launder the proceeds from the scheme.

                                            4
Carta was charged with violating 18 U.S.C. § 1956(h) and 18 U.S.C. § 1343.

       The Defendants’ trial commenced on November 6, 1996. Almost six weeks into

the trial, during her cross-examination, the Government asked Mary Gilmore about the

assertion of her Fifth Amendment privilege against self-incrimination during earlier SEC

proceedings. Gilmore was asked if she remembered “taking the Fifth Amendment 41

times” during those proceedings. Counsel for Gilmore objected and moved for a mistrial.

The district court denied the motion and overruled the objection on the ground that the

questioning was relevant to Gilmore’s credibility. The cross-examination of Gilmore

resumed, with the Government referring approximately twenty-five times to Gilmore’s

use of her Fifth Amendment privilege during a 1992 SEC deposition and a 1994 civil

contempt proceeding against James Gilmore. The Government also asked Gilmore if she

had told her co-defendants that she had previously invoked her Fifth Amendment

privilege.

       The following day Defendants joined in a renewed motion for mistrial. The

district court denied the motion, but agreed to give a curative instruction directing the jury

to only use Gilmore’s assertion of her Fifth Amendment privilege in assessing Gilmore’s

credibility. On December 20, 1996, after a seven-week trial, a jury returned guilty

verdicts on all the counts.

       In various post-trial motions, all of the Defendants sought judgments of acquittal

or new trials. The Government conceded that its questioning of Gilmore regarding her


                                              5
Fifth Amendment privilege constituted clear error, and on February 14, 1997, the district

court granted Gilmore a new trial. On March 14, 1997, the district court conducted a

hearing regarding the remaining Defendants’ post-trial motions. On April 15, 1997, the

district court denied the motions for judgment of acquittal, concluding that the evidence

was sufficient to sustain the guilty verdicts. The district court granted Defendants’

motions for a new trial, however, holding that the attack by the Government on Gilmore’s

use of her Fifth Amendment privilege prejudiced all of Defendants and was not harmless

error. All of the Defendants then filed motions to dismiss the indictment on double

jeopardy grounds. On June 5, 1997, the district court denied Defendants’ motions and

this appeal followed.

                                             II.

       We review de novo the district court’s denial of a motion to dismiss the indictment

on double jeopardy grounds. United Sates v. Cordoba, 71 F.3d 1543, 1545 (10th Cir.

1995). The Double Jeopardy Clause of the Fifth Amendment protects defendants from

repeated prosecutions or multiple punishments for the same offense. United States v.

Dinitz, 424 U.S. 600, 606 (1976). As part of this protection, the Double Jeopardy Clause

affords a criminal defendant the right “to have his trial completed by a particular

tribunal.” Wade v. Hunter, 336 U.S. 684, 689 (1949). However, the Double Jeopardy

Clause does not “guarantee” that the State will enforce the criminal laws in one

proceeding. Oregon v. Kennedy, 456 U.S. 667, 672 (1982). Double jeopardy does “not


                                              6
go so far as to compel society to so mobilize its decisionmaking resources that it will be

prepared to assure the defendant a single proceeding free from harmful governmental or

judicial error.” United States v. Jorn, 400 U.S. 470, 484 (1971).

       Defendants argue that under Oregon v. Kennedy, 456 U.S. 667 (1982), and the line

of cases preceding it, their retrial is barred. The district court, applying the analysis set

forth in Kennedy, determined retrial was not barred. In Kennedy, the Supreme Court

expounded on a prosecutorial misconduct exception to the general rule that if a mistrial is

declared at the defendant’s request, double jeopardy does not bar reprosecution for the

same offense. Kennedy, 456 U.S. at 673. This narrow exception articulated in Kennedy

provides that if governmental misconduct was intended to “goad” the defendant into

moving for a mistrial, double jeopardy does indeed bar reprosecution. Id. at 676.

       Defendants argue that the prosecutor’s repeated questioning of Mary Gilmore

about her Fifth Amendment privilege was intended to provoke them into seeking a

mistrial. Therefore, Defendants maintain, under the Kennedy exception for prosecutorial

misconduct, their retrial would violate double jeopardy. Defendants’ reliance on

Kennedy is misplaced, however, because no mistrial was declared in this case. The

district court never granted Defendants’ motions for a mistrial. The case proceeded to

the jury and guilty verdicts were returned. Defendants did not obtain a mistrial, but

instead succeeded in having the district court set aside the guilty verdicts. Although

Defendants attempt to characterize the district court’s order setting aside the jury verdicts


                                               7
and granting a new trial as the functional equivalent of a mistrial, Defendants miss a

crucial distinction. The Kennedy prosecutorial misconduct exception is a narrow one,

designed to protect the defendant’s right to “have his trial completed before the first jury

empaneled to try him.” Kennedy, 456 U.S. at 673. Without this exception a prosecutor

could intentionally provoke a defendant into requesting a mistrial and the defendant

would then be prevented from later invoking a double jeopardy bar to his retrial. Such a

result would render a defendant’s “valued right to complete his trial before the first jury”

a “hollow shell.” Id. Defendants, however, do not require such protection because

without the declaration of a mistrial, they were not deprived of their “valued right” to

have their case submitted to the first jury, and perhaps have the dispute end with an

acquittal.   For these reasons, we conclude that the mistrial exception for prosecutorial

misconduct set forth in Kennedy simply does not apply to Defendants.

       Having determined that the Oregon v. Kennedy line of cases does not bar

Defendants retrial, we now turn to an analysis of whether other double jeopardy grounds

bar Defendants’ retrial. We must decide whether under the circumstances a second trial

would subject Defendants to multiple prosecutions for the same offense. A separate line

of cases beginning with United States v. Ball, 163 U.S. 662 (1896), stand for the general

proposition that the Double Jeopardy Clause “imposes no limitation upon the power of

the government to retry a defendant who has succeeded in persuading a court to set his

conviction aside.” Kennedy, 456 U.S. at 676 n.6 (internal citations omitted). The


                                              8
principle that the Double Jeopardy Clause “does not preclude the Government’s retrying a

defendant whose conviction is set aside because of an error in the proceedings . . . is a

well-established part of our constitutional jurisprudence.” North Carolina v. Pearce, 395

U.S. 711, 720 (1969) (quoting United States v. Tateo, 377 U.S. 463, 465 (1964)).

       The facts of this case fall squarely within the Ball line of cases. At Defendants

behest and after trial, the district court set aside the jury verdicts against them. The

district court did so because of an error in the proceedings -- the prosecutor’s improper

cross-examination of Defendant Mary Gilmore. The district court’s decision to set aside

the jury verdicts at Defendants’ request nullified the original verdict just as a reversal on

appeal would nullify a conviction. As a result, the “slate has been wiped clean” and

double jeopardy does not bar retrial. See Pearce, 395 U.S. at 720-21.

       Furthermore, the protections of the Double Jeopardy Clause only apply “if there

has been some event, such as an acquittal, which terminates the original jeopardy.”

Richardson v. United States, 468 U.S. 317, 325 (1984). The setting aside of a jury’s

guilty verdict by the district court does not terminate original jeopardy. United States v.

Wood, 958 F.2d 963, 970 (10th Cir. 1992). Thus, Defendants’ retrial will not subject

them to being twice put in jeopardy for the same offense. Accordingly, even though the

district court erroneously relied upon Oregon v. Kennedy, we affirm, albeit on different

grounds, the district court’s denial of Defendants’ motions to dismiss indictment. See

United States v. Knox, 124 F.3d 1360, 1362 (10th Cir. 1997) (court of appeals may affirm


                                               9
on any ground supported by the record).

                                             III.

        Defendant Shirley McAleer also appeals the district court’s denial of her motion

for judgment of acquittal due to the insufficiency of the evidence. Citing Burks v.

United States, 437 U.S. 1 (1978), McAleer argues that a second trial would violate the

Double Jeopardy Clause because the Government failed to present evidence sufficient to

support her conviction at the first trial. In Burks the Supreme Court held that the Double

Jeopardy Clause bars retrial once a defendant has obtained an appellate ruling that the

Government failed to introduce sufficient evidence to convict him at trial. Burks v.

United States, 437 U.S. at 18. Before reaching the merits of her claim, we must first

determine whether McAleer’s interlocutory appeal is properly before us.4 We conclude

that it is not.

        Because McAleer is not appealing a final order, her claim is appealable, if at all,

under the collateral order doctrine. Under this doctrine, an order is immediately

appealable if it is “too important to be denied review and too independent of the cause

itself to require that appellate consideration be deferred until the whole case is

adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

Although the denial of a pretrial motion to dismiss an indictment on double jeopardy



        4
         We note that in contravention of Fed.R.App.P. 28, counsel for McAleer failed to
include in the briefs a statement of appellate jurisdiction regarding this claim.

                                              10
grounds falls within the collateral order exception, only “colorable” double jeopardy

claims may be appealed before final judgment.5 Richardson, 468 U.S. at 325 n.6. To be

colorable, a claim must have some possible validity. Id. Because we rejected the

identical double jeopardy claim McAleer raises here in United States v. Wood, 958 F.2d

963 (10th Cir. 1992), we conclude that McAleer has not raised a colorable claim.

       In Wood, after the jury returned a guilty verdict, the defendant moved for a

judgment of acquittal or, in the alternative, for a new trial. The district court denied the

motion for judgment of acquittal and granted a new trial. The Government appealed the

district court’s order granting a new trial and the defendant cross-appealed the district

court’s denial of his motion for judgment of acquittal.6 The defendant argued that double

jeopardy barred his retrial because the evidence at the first trial was insufficient to support

his conviction. We rejected the defendant’s claim, holding that when a guilty verdict is

set aside on the defendant’s motion, original jeopardy has not been terminated and retrial

does not violate the Double Jeopardy Clause “regardless of the sufficiency of the

evidence at the first trial.” Id. at 971. We also recognized in Wood that future double

       5
         Although McAleer framed the issue by asserting that the district court erred in
denying her motion for judgment of acquittal, our jurisdiction arises, if at all, under the
double jeopardy collateral order exception; therefore, we review her insufficiency claim
in light of its double jeopardy implications.
       6
         In an earlier order denying the Government’s motion to dismiss the appeal for
lack of jurisdiction, and prior to addressing the merits, we determined that Wood had
raised a colorable double jeopardy claim which could be brought in an interlocutory
appeal under the collateral order doctrine. United States v. Wood, 950 F.2d 638 (10th
Cir. 1991) (per curiam).

                                              11
jeopardy claims like this one would no longer be colorable and would be subject to

summary dismissal when asserted in an interlocutory appeal. Wood, 958 F.2d at 972

n.12. In light of Wood, McAleer has failed to raise a colorable claim. Accordingly, we

dismiss McAleer’s interlocutory appeal of the district court’s denial of her motion for

judgment of acquittal.

       AFFIRMED IN PART, AND APPEAL DISMISSED IN PART.




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