United States v. Cornelius J. Kehoe and Ray K. Bullock

THORNBERRY, Circuit Judge:

Presented for decision in this § 3731 appeal is a question expressly left open by the Supreme Court in its recent double jeopardy trilogy. In Serfass v. United States, 1975, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265, the Court declined to “intimate any view concerning the case put by the Solicitor General, of ‘a defendant who is afforded an opportunity to obtain a determination of a legal defense prior to the trial and nevertheless knowingly allows himself to be placed in jeopardy before raising the defense.’ ” 420 U.S. at 394, 95 S.Ct. at 1065, 43 L.Ed.2d at 277.…