The panel consists of Judges Kozinski, O'Scannlain, and Bybee. Judge O'Scannlain writes the opinion. It's a criminal case. The government has argued that the district court applied the wrong law and, on that basis, erroneously concluded that a particular sentencing enhancement didn't apply. The defendant argues that the Double Jeopardy Clause precludes the government from making that argument on appeal.
Judge O'Scannlain's opinion commences with a crisp and neutral recitation of the issue presented. He goes through the facts. He starts applying the law. The opinion starts to read like some of the defendant's claims aren't so crazy. Judge O'Scannlain doesn't expressly say that he agrees with these arguments, but the way the first four or so pages are written, it sounds like he's presenting the defendant's arguments as at least a tiny bit persuasive. Were the opinion written by a different author, on a different panel, you'd be thinking that it looks like the defendant's going to win.
But come on. This is Judge O'Scannlain. Alongside Judges Kozinski and Bybee. A criminal defendant's dream panel this is not. Especially on issues such as these. You know that the other shoe is inevitably going to drop sometime soon. You know that, down the road, the opinion is going to contain that critical paragraph that begins "However, . . . ." and that, at that point, the government's going to win. You turn the pages just waiting to read how Judge O'Scannlain is going to distinguish -- or critique -- existing precedent on this issue in order to find that the defendant's arguments are mistaken. It's a mystery that keeps you riveted, and keeps you reading and turning the pages.
Except for one thing. The other shoe never drops. Judge O'Scannlain finds for the defendant, and the panel unanimously concludes that the Double Jeopardy Clause does precisely what defendant claims that it does. And the government's appeal is accordingly dismissed.
Sometimes you can figure out where the panel's going just by who's on it. Other times, you can't. This is a darn good example of the latter.
P.S. - I loved, by the way, that the opinion was written this way. I really did keep turning the pages, waiting for the "But" that never came.
