
USCA1 Opinion

	




United States Court of Appeals
For the First Circuit






Nos. 02-1785

	02-1674

UNITED STATES OF AMERICA,


Appellee,


v.


WINSTON CUNNINGHAM,


Defendant, Appellant.




ORDER

Entered March 2, 2004


	The government has moved for clarification as to whether the
vacating of the conviction of Winston Cunningham, United States v.
Casas et al., 2004 U.S. App. LEXIS 763, at *67 (1st Cir. Jan. 20,
2004), results in entry of a judgment of acquittal of Cunningham or
whether the government is free to retry Cunningham.  The defendant
has replied only that this court has no power even to clarify the
earlier opinion because mandate has issued.  The argument is
mistaken: there is no request to alter the judgment.  We instead
are simply clarifying what should have been obvious from the
opinion in order to avoid unnecessary confusion or delay in the
proceedings on remand.  The government's motion is granted and we
clarify.

	This court's opinion did not vacate with instructions to enter
a judgment of acquittal.  Cunningham's conviction was vacated based
on trial error in the admission of certain testimony by Agent
Stoothoff.  This court did not hold that there was insufficient
evidence to convict, but only that we could not say the trial error
as to admission of evidence was harmless.  Indeed, Cunningham did
not argue on appeal that this evidence was insufficient and so has
waived the issue.  Nor was any other reason to prevent retrial
presented to us.  Under such circumstances, there is no Double
Jeopardy Clause bar to the government retrying Cunningham, should
it choose to do so, upon the vacating of the conviction.  Montana
v. Hall, 481 U.S. 400, 402 (1987); Burks v. United States, 437 U.S.
1, 6 (1978); Ball v. United States, 163 U.S. 662, 672 (1896).  

	So ordered.			
 

								By the court,


								____/s/__________________
								Mark R. Syska,
								Chief Deputy Clerk





























[Certified Copies Hon. Carmen Consuelo-Cerezo and Ms. Frances de
Moran, Clerk, United States District Court for Puerto Rico. Copies
to Ms. Silvers, Mr. Vega-Pacheco, Ms. Torres-Pabon, Mr. Perez-Sosa,
Mr. Fernandez-Torres and Mr. Vazquez.]
