A determination of the second requirement of the statute, whether jeopardy has attached, is a more involved process. Although the trial court dismissed based on collateral estoppel grounds alone, the claims based on this doctrine have been recognized by several courts to be incorporated into the Fifth Amendment Double Jeopardy Clause. Under these circumstances, an appellate court determines whether it has jurisdiction by first looking to the merits of the claim. But of course the government's ability to retry the defendant is precisely what is at issue here. at worst then, we lack jurisdiction and must dismiss only if (the district court's) ruling is correct, and conversely, if the order below is in error, we have jurisdiction and must reverse. In short, the question of our jurisdiction is bound up with the merits, and it is to these that we now turn. United States v. Castellanos, 478 F.2d 749, 751 (2nd Cir. 1973). In People v. Allen, 41 Cal. App. 3d 821, 116 Cal.Rptr. 493 (1974), the California Supreme Court addressed a similar jurisdictional question pursuant to a statute, Penal Code section 1238(a)(8), mirroring Guam's. In Allen, the defendant was charged with attempted murder and assault with a deadly weapon. the jury acquitted the defendant on the attempted murder charge and found that he did not use a firearm in conjunction with the attempted murder. Id. at 823, 116 Cal.Rptr. at 495. The defendant entered a plea of having once been in jeopardy as to the assault charge and the trial court ruled in favor of the defendant on the former jeopardy plea. Id., 116 Cal.Rptr. at 495. the People filed an appeal pursuant to California Penal Code section 1238(a)(5). Id. at 824, 116 Cal.Rptr. at 495. Obviously, where the question presented on such an appeal is whether or not the defendant has been placed in jeopardy, an affirmative answer disposes not only of the merits of the appeal, but compels a holding that we cannot reach them. Conversely, a negative answer permits us to resolve the merits, without pausing to consider the jurisdictional question . . . . We therefore turn to the merits.