Fifth Amendment:
A. Prosecutor Conduct
B. Brady
C. Confessions and Testimonial Rights
D. Double Jeopardy
E. Miscellaneous Fifth Amendment
Double Jeopardy
Supreme Court
• Double Jeopardy - MistrialYeager v. U.S., 08-67 (6/18/09)
> In relation to the Enron collapse, defendant was charged with six fraud related counts and numerous insider trading counts. At trial, the jury acquitted defendant of the six fraud counts, and the district court entered a mistrial on the remaining counts because the jury could not reach a verdict. The government returned a superceding indictment charging only insider trading counts. Defendant moved to dismiss the indictment on double jeopardy grounds, claiming that the jury’s verdict regarding the fraud counts in the first trial necessarily decided that defendant had not engaged in the insider trading described in the superceding indictment. The district court denied the motion, and the Fifth Circuit affirmed. The court found that the jury verdicts were inconsistent, and this inconsistency in the verdict barred application of the Double Jeopardy Clause in the case. The Supreme Court granted certiorari.
* Holding: The Court held that counts upon which a jury is hung are non-events, and are not relevant to a determination of whether the Double Jeopardy Clause is applicable to a subsequent prosecution. Thus, the only appropriate inquiry for the lower courts was whether the superceding indictment presented any issue that was “necessarily decided” by the jury’s acquittal on the six fraud counts in the prior trial. In making this assessment, the lower courts may “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matters, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Accordingly, the Court reversed the lower courts’ rulings, and remanded the case for a proper determination in the first instance as to whether the acquittals on the fraud counts necessarily precluded the charges in the superceding indictment.
Sixth Circuit Decisions
• Double JeopardyU.S. v. DeCarlo, 04-5813 (1/17/06)
> Defendant was charged with traveling in interstate commerce to engage in a sexual act with a minor. The government charged defendant under two different statutes for the same conduct: 18 U.S.C. § 2241(c), and 18 U.S.C. § 2423(b). Defendant was convicted at trial of both counts and the district court imposed concurrent sentences for the two counts. Defendant appealed based upon double jeopardy grounds.
* Holding: Where a single act gives rise to more than one conviction under separate statutes, the court must conduct a two-part inquiry under the Double Jeopardy Clause. First, the court must consider whether Congress intended to punish each statutory violation separately. If congressional intent cannot be discerned, then the court must apply the Blockburger test to determine whether each offense requires an element that the other does not. The court should consider only the elements that apply to the case at hand, and not alternative elements in the statute that do not apply to the facts of the case. The court found that the only difference between the elements of the two statutes was that § 2241(c) required proof that the child was under 12, and § 2423(b) required proof that the child was under 18. The court concluded that the § 2423(b) offense was a lesser-included offense of § 2241(c). Thus, defendant could not be properly convicted of both offenses under the Double Jeopardy Clause, and the court vacated the lesser offense.
• Double Jeopardy
U.S. v. Jackson, 05-6014 (1/12/07)
> Defendant was charged with a drug conspiracy and the government introduced evidence at trial of a drug transaction that had been the subject of a separate state conviction of defendant. On appeal, defendant contended that admission of the drug transaction underlying the state conviction violated the Double Jeopardy Clause.
* Holding: Pursuant to the “dual-sovereigns doctrine,” the court held that the Double Jeopardy Clause does not prohibit criminal suits for the same offense by separate sovereigns. Accordingly, the conviction was affirmed.
• Double Jeopardy
U.S. v. Jones, 06-5551 (6/5/07)
> Defendant was convicted of eight counts of possessing crack with intent to distribute in violation of 21 USC § 841(a) and eight counts of distributing crack in a school zone in violation of § 860. Each of the eight counts pertained to the same conduct on the same occasions. Defendant was sentenced to concurrent sentences for each of the charges with mandatory $50.00 special assessments for each charge. Defendant appealed and argued that the convictions and sentences violated the Double Jeopardy Clause.
* Holding: Under the Blockburger test, the Double Jeopardy Clause prohibits punishing a defendant for the same act under two statutes unless each statute requires proof of an additional fact that the other does not. In the case, the § 841 counts were all lesser included offenses of the § 860 counts. Thus, the Double Jeopardy Clause prohibited conviction and sentence for both the § 841 and § 860 counts. The court noted that, even though the sentences were run concurrently, double jeopardy was violated by the imposition of multiple $50.00 assessments and the potential collateral consequences of the convictions. Accordingly, the § 841 convictions were vacated.
• Double Jeopardy
U.S. v. Koubriti, 06-1937 (12/12/07)
> Defendant was convicted of conspiracy to provide material support to terrorists, but after trial the government admitted to improprieties in the prosecution which led to a dismissal of the case without prejudice. The government subsequently indicted defendant for conspiracy to commit mail fraud for staging a car accident in an attempt to claim insurance benefits. Defendant moved to dismiss on double jeopardy grounds, the district court denied the motion, and defendant appealed.
* Holding: The court held that the Double Jeopardy Clause is not implicated where a defendant is retried after the first trial ended in a mistrial because of a defect in the proceedings. The narrow exception to this rule is where the government goads a defendant into requesting a mistrial by committing intentional misconduct. In the case, the court ruled that the Double Jeopardy Clause was not violated because the first trial resulted in a dismissal without prejudice and there was no evidence that the government intentionally goaded defendant into requesting the mistrial. Accordingly, defendant’s conviction was affirmed.
• Double Jeopardy-Mutiplicitous Indictment
U.S. v Swafford, 06-5878 (1/17/08)
> Defendant was charged with distributing iodine to multiple purchasers, knowing that it was being used in the manufacture of meth. The indictment charged defendant with multiple violations of both 21 USC § 843(a)(6)(possession of certain items with intent of assisting the manufacture of illegal drugs) and 21 USC § 841(c)(2)(distributing a listed chemical knowing that it will be used to manufacture a controlled substance). Defendant was convicted after trial, and argued on appeal that the separate counts in the indictment were multiplicitous because they charged the same offense in more than one count of the indictment in violation of the Double Jeopardy Clause.
* Holding: An indictment is multiplicitous, and thus violates double jeopardy, where a single offense is charged in more than one count in an indictment, thus punishing a defendant twice for the same crime. In order to test for multiplicity, the court must determine whether Congress intended to punish each statutory violation separately. The general test for compliance with the double jeopardy standard, known as the Blockburger test, is whether each statutory provision requires proof of an element or fact that the other does not. In the case, the court held that the separate violations of § 843 and § 841(c) were multiplicitous because there were no elements of proof of § 843 that were not required elements of proof of § 841(c). Thus, the consecutive sentences imposed by the court for the separate violations were vacated, and the case was remanded with instructions to sentence defendant based solely on the § 841(c) violations.
• Double Jeopardy
Fulton v. Moore, 07-3434 (4/1/08)
> Defendant was charged with rape and gross sexual imposition regarding a minor. On the morning of trial, and after the jury was impaneled, the prosecutor moved to amend the indictment to change a date that the offense may have occurred by approximately one year. The trial court permitted the amendment over defendant’s objection, but granted a mistrial based upon the fact that defendant would need a significant amount of time in order to investigate and prepare, given the change in dates. The case went to trial approximately six months later and defendant was convicted. Defendant lost his state court appeal, and filed a federal habeas petition arguing that the second trial was barred by the Double Jeopardy Clause. The district court denied the petition and defendant appealed.
* Holding: In a jury trial, jeopardy attaches when the jury is impaneled and sworn. Thus, the court first found that jeopardy attached in defendant’s case. In order to determine whether reprosecution after the grant of a mistrial violates double jeopardy, the court must determine whether the trial court exercised “sound discretion in granting the mistrial.” This determination turns on three factors: (1) whether the trial judge heard the parties’ opinions regarding the propriety of a mistrial; (2) whether the court considered alternatives to a mistrial; and (3) whether the judge acted deliberately, as opposed to abruptly. The court ruled that the trial court adequately heard the parties’ arguments, implicitly considered alternatives, and acted deliberately in granting the mistrial. The court also noted that the retrial was not until six months later, that it was tried to the bench instead of a jury, that the state had not acted in bad faith, and that defendant alleged no prejudice as a result of the mistrial. Accordingly, defendant’s conviction was affirmed.
• Double Jeopardy
U.S. v. Wheeler, 05-3140 (8/1/08)
> Defendant was the leader of the Outlaw Motorcycle Club and he was indicted in the Northern District of Ohio for a RICO conspiracy, a substantive RICO violation, and a drug conspiracy. Defendant moved to dismiss the charges based upon the Double Jeopardy Clause because he was previously charged in the Middle District of Florida for drug and RICO violations. The district court denied the motion, defendant was convicted, and he appealed.
* Holding: In the context of successive RICO and drug prosecutions, the court applies a five factor totality of the circumstances test in order to determine if the Double Jeopardy Clause has been violated, considering the following: (1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged in the indictment; (4) the overt acts charged by the government; and (5) places where the events alleged as part of the offense occurred. Regarding the RICO violations, the court found substantial overlap between time, participants, acts, and places, and accordingly held that double jeopardy prohibited the Northern District of Ohio RICO prosecution. Regarding
the drug conspiracy charges, the court ruled that the drug conspiracy alleged in Ohio was a conspiracy separate and apart from the one charged in Florida. Thus, defendant’s conviction on the drug conspiracy was affirmed, and his RICO convictions were vacated.
• Double Jeopardy
U.S. v. Djoumessi, 07-1740 (8/20/08)
> Defendant was prosecuted in state court for, among other charges, kidnaping and conspiracy to kidnap. Defendant was acquitted on the charges, and the federal government then indicted him for involuntary servitude and conspiracy. Defendant moved to dismiss the prosecution based on double jeopardy grounds. The district court denied the motion, defendant was convicted, and he appealed.
* Holding: The Double Jeopardy Clause does not prohibit parallel state and federal prosecutions. The one exception to this rule is based on the Supreme Court case Bartkus v. Illinois where the Court held that double jeopardy would bar a second prosecution if it was a “sham” prosecution by an “ostensibly different sovereign.” The court noted that the Bartkus exception was so narrow as to be virtually non-existent. Thus, even though the state had cooperated substantially with the federal government in its subsequent prosecution of defendant, the federal government had not “ceded its prosecutorial discretion” to the state control. Accordingly, the district court ruling was affirmed.
• Double Jeopardy
Klein v. Leis, 06-3949 (11/25/08)
> Defendant was charged in state court with burglary and other offenses, and he represented himself at trial. During his opening statement, defendant repeatedly made inappropriate statements regarding the court, the prosecutor, and the burden of proof. Further, defendant suggested that he could get the death penalty, even though the case was non-capital, and he showed the jury the stun-belt he was forced to wear because of his escape attempts. After repeated warnings, the state judge declared a mistrial. Defendant moved to bar a second trial based on double jeopardy grounds, and the court denied the motion. Defendant filed a federal habeas petition to block the second trial, and the district court denied the petition. Defendant appealed.
* Holding: A trial court’s decision to grant a mistrial is entitled to “special respect,” and a retrial will not offend the Double Jeopardy Clause as long as the trial court exercised “sound discretion.” In reviewing a trial court’s decision, the court of appeals must consider whether the trial court (1) heard the opinions of the parties regarding the mistrial, (2) considered the alternatives, and (3) acted deliberately instead of abruptly. In the case, the court held that the state court clearly considered other options and acted deliberately as exhibited through its repeated warnings to defendant prior to granting the mistrial. The court noted that the trial court did not permit defendant to argue against the mistrial, but nonetheless affirmed the trial court decision because of the “open and obvious prejudice” presented by defendant’s comments to the jury.
• Double Jeopardy
U.S. v. Simpson, 07-5193 (11/4/08)
> Defendant was sentenced to prison for a drug offense and he escaped. As a result, the Federal Bureau of Prisons administratively charged defendant with escape, and imposed a sentence of 60 days segregation, 40 days disallowance of good time credit, and 6 months loss of visitation. Defendant was subsequently indicted for escape, and he moved to dismiss the charge on double jeopardy grounds. The district court denied defendant’s motion and he appealed.
* Holding: The Double Jeopardy Clause prohibits a defendant from being subjected to multiple criminal punishments through application of either a criminal prosecution or a facially punitive statute. The court held that, in order to determine if an administrative statute is facially punitive, courts must consider two factors. First, a court must inquire as to whether the legislature indicated whether the statute was punitive or civil, in terms of its sanction. If the legislature intended to impose a civil sanction, then the court must consider whether the scheme is so punitive as to transform the civil remedy into a criminal penalty. In the case, the court held that the administrative remedies under the statute were clearly civil, and that there was no clear proof that the prison disciplinary measures were punitive in effect. Accordingly, the district court ruling was affirmed.
• Double Jeopardy
U.S. v. Deitz, 05-3410 (8/20/09)
> Defendant was charged in state court with possession of cocaine and he was acquitted on the charge. Subsequently, defendant was indicted federally as part of a major drug conspiracy, and the possession of cocaine charge was included within the drug conspiracy indictment. Defendant moved to dismiss on double jeopardy grounds, and the district court denied the motion. Defendant appealed.
* Holding: Based on the dual sovereignty doctrine, prosecution for the same offense in both state and federal court does not violate the Double Jeopardy Clause. An exception to this rule exists, however, where the state prosecution was a “sham prosecution” that was manipulated by federal officials to “achieve the equivalent of a second federal prosecution.” The court found no evidence in the record to suggest that the state officials did not make their own determinations in prosecuting defendant for the state possession of cocaine charge, and accordingly affirmed the district court’s ruling.
• Double Jeopardy
White v. Howes, 08-1458 (11/20/09)
> Defendant was convicted of the two separate Michigan offenses of “felon in possession of a firearm” and “possession of a firearm while being a felon in possession of a firearm.” Defendant was sentenced to consecutive terms for the two offenses, and he argued on appeal that his double jeopardy rights were violated. Defendant lost his state court appeal and filed a federal habeas petition. The district court granted the petition, and the state appealed.
* Holding: First, the court determined that the two state statutes punished the same offense twice. Second, the court held, however, that clear state law indicated the state legislature intended to impose multiple punishments for the same offense. Thus, the court held that no double jeopardy violation exists where a legislature has expressed an intent to punish the same offense multiple times. Accordingly, defendant’s convictions and sentence were affirmed.