Joshua Lee Howe was indicted and tried on charges of conspiracy to commit a robbery and kidnapping resulting in felony murder, in violation of 18 U.S.C. § 371; felony murder, in violation of 18 U.S.C. §§ 1111(a) & 2; kidnapping, in violation of 18 U.S.C. §§ 1201(a) & 2; being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1); and using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and (j)(1) in the Eastern District of Arkansas in relation to the robbery, kidnapping and murder of Jeremy Deshon Gaither.

Howe was acquitted of of felony murder and of using or carrying a firearm during and in relation to a crime of violence He was convicted of being a felon in possession of a firearm. The jury hung on on the conspiracy and kidnapping counts.

Over the objection of Howe the government’s motion to dismiss the indictment without prejudice to refiling charges was granted. Then he was reindicted on various charges including the conspiracy and kidnapping counts. He moved to dismiss the conspiracy and kidnapping charges on double jeopardy and collateral estoppel ground. His motion was denied and he appealed.

The Fifth Amendment provides that no one shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

Accordingly, once jeopardy has attached and terminated as to a particular offense, the government may not bring a new prosecution or punish the defendant again for the same offense.

But a defendant can be retried on charges where he/she has been placed in jeopardy but jeopardy has not been terminated. This is the case where the jury is hung. But it is not the case where the jury finds a defendant not guilty and then the government charges him/her with a lesser included offense. A lesser included offense is in which all of the elements of the offense are found in the greater offense, For example kidnapping is a lesser included offense of kidnapping resulting in felony murder. For both you must prove kidnapping but for the greater offense you must also proved that it resulted in felony murder.

The Eighth Circuit found that the charging of the lesser included kidnapping charge was not a successive prosecution to the kidnapping resulting in felony murder charge since jeopardy never terminated on the kidnapping resulting in felony murder charge. In the original trial the government charged both the greater offense and the lesser included offense. The jury in that case found him not guilty of the greater offense and hung on the lesser offense. Therefore jeopardy never terminated on the lesser offense and the government can recharge in the new indictment.

As to the conspiracy to kidnap resulting in felony murder in the original trial and the conspiracy to kidnap lesser included offense in the second trial, since the jury hung in the first trial, jeopardy did not terminate and the Fifth Amendment is not violated by pursuing the lesser included offense.

Collateral estoppel prevents the retrial of a charge where a jury in a prior trial necessarily found against the government on an element that the government must prove in the second trial. Since the original jury could have acquitted Howe on the felony murder charges by finding that he was not guilty of the robbery and by hanging on the kidnapping the jury did not necesarily find against the government on the kidnapping charge and the government is not collaterlally estopped from bringing the kidnapping charge in the second trial.