Robert Jeffery Farmer was convicted of two murders in separate trials in Nevada and sentenced to death. Four circumstances in aggravation were alleged. But the three judge panel only made findings as to two statutory aggravating circumstances, both of which involved claims that the murder occurred during the commission of other felonies. ¹ It found both of these to be true. After he was sentenced the death penalty was vacated when the Nevada Supreme Court found the circumstance in aggravation unconstitutional. The prosecutors then tried to reinstate the two circumstances in aggravation for which the panel did not make findings. Farmer appealed alleging a violation of the Fifth Amendment’s ban on double jeopardy.

The Supreme Court has ruled that an aggravating circumstance in a capital case, like a criminal charge is subject to the double jeopardy clause.

If the three judge panel’s failure to make a holding on the two indicated that it found the allegations not true double jeopardy would prevent a retrial on the allegations. But if no such holding can be implied double jeopardy is not applicable.

In a case with similar facts, Poland v. Arizona, The Supreme Court held that where neither the trial court or the appellate court finds that the prosecution failed to meet its burden and where the trial court sentenced the defendant to death, the double jeopardy clause is not violated by retrying an alleged circumstance in aggravation where there was no finding on the circumstance in the trial court.

Recently we seem to be having a run of double jeopardy cases. I don’t believe we should credit the Roger Clemens case for the run but it did seem to start with him. Today, we look at a rather unique Ninth Circuit case.

Gabriel Alvarez-Moreno was charged in Federal Court with two counts of transporting undocumented immigrants for profit. Shortly before his trial his attorney and the Assistant U. S. Attorney agreed that a jury trial would be waived and a court trial would be held. However, Alvarez-Moreno never signed the necessary documents and the judge did not voir dire him to insure that the waiver was voluntary. He was convicted on both counts.

Shortly after the trial and before sentencing his attorney moved to vacate the sentence based on the failure to comply with the waiver requirements. The government suggested that the motion be considered an untimely motion for a new trial or in the alternative that the judge sua sponte declare a mistrial.Alvarez-Moreno objected to the new trial motion. The court ordered a new trial and Alvarez-Moreno appealed.

The Ninth Circuit Court of Appeals ruled that there are three occasions when a new trial can be ordered without violating the Double Jeopardy Clause. First, when the defendant appeals a conviction and the court orders a new trial. By appealing the defendant waives his/her right against double jeopardy. Second, when a mistrial is declared pursuant to federal Rules of Criminal Procedure Section 26.3. It only operates to permit a second trial if manifest necessity exists and there is no judicial or prosecutorial overreaching aimed at triggering the mistrial. Furthermore the court held that the mistrial must be declared before the verdict is reached. Finally a new trial is permissible if it is as a result for a motion for a new trial is made by the defendant. Again a motion for a new trial acts as a waiver of double jeopardy claims. None of these applied to Alvarez-Moreno and therefore a second trial was prohibited.

José A. García-Ortiz was convicted on three counts: Hobbs Act robbery; aiding and abetting the unlawful carrying and use of a firearm during and in relation to the robbery, and aiding and abetting the death of an accomplice in the commission of an armed robbery. He raised a number of issues on appeal, the most important of which was that convicting him of both using a gun in the commission of an armed robbery and aiding and abetting the death of an accomplice in an armed robbery violated the Fifth Amendment prohibition on double jeopardy.

The unlawful use of a firearm during a robbery is a lesser included offense of using a gun during the commission of an armed robbery resulting in the death of an accomplice. A lesser included offense is one that has all of the elements of the greater offense. All of the elements of using a gun during an armed robbery are also elements of aiding and abetting the death of an accomplice during an armed robbery. Of course the greater offense, aiding and abetting the death of an accomplice during an armed robbery has the additional element of the death of an accomplice. In other words anyone who commits the offense of aiding and abetting the death of an accomplice during an armed robbery necessarily also commits the offense of aiding and abetting the use of a firearm during an armed robbery.

Thus Garcia-Ortiz argued that he was convicted twice for the same offense. The First Circuit Court of Appeals did not rule directly on the double jeopardy issue. But it found that Congress did not intend to punish individuals twice for the same crime. Under Rutledge v. United States there is a presumption that Congress did not intend to punish for convictions on both offenses. Since the Court could find nothing to the contrary in the charged offenses, it remanded the case to the trial court to dismiss the lesser offense.

Edgar Ayala and Oscar Velasquez are members of La Mara Salvatrucha (generally known as MS 13). They were convicted of various RICO and VICAR offenses in Maryland involving gang related murders, rapes and robberies. RICO is the Racketeer Influenced and Corrupt Organizations Act AND VICAR is the Violent Crimes in Aid of Racketeering statute.

Ayala was the Second Word, or second in command of the Sailors Locos Salvatruchos Westside section of MS13 and Velasques for the First Word or head of the the Teclas Locos Salvatruchos. Both sections were located in the Baltimore area. MS 13, originally found in Los Angeles is now spread throughout the country and Central America. It is known for its use of violence to maintain group discipline, turf control and opposition to other gangs.

Both defendants were convicted of conspiracy to participate in racketeering activity and a VICAR offense, conspiring to commit murder, Ayala was also charged with the VICAR offense of conspiracy to commit murder. On appeal Ayala claimed it was double jeopardy to charge him with both offenses since they were both based on the same conduct. But the Court found that the RICO offense and the VICAR offfenses are two different offenses and Ayala could be convicted of both even though the same conduct led to both convictions. Using the Blockburger test, the court ruled that since the RICO conspiracy and the VICAR conspiracy have at lease one element that is not held in common with the other, Congress in passing the RICO and VICAR sgtatutes want to punish different things and therefore a person could be convicted of both even though they are based on the same behavior.

The VICAR offense unlike the RICO offense requires an intent to elevate one’s position in the gang. The RICO offense, unlike the VICAR offense, requires proof of a pattern of racketeering activity. Thus while the same murder can be used to prove each offense, the offenses are different and according to the court one can be convicted of both without violating double jeopardy.

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.

The Eighth Circuit Court of Appeals upheld the conviction of Edward Lee Smith due to trial counsel failure to make a Franks motion.

A confidential informant told a Hennepin County (Minneapolis) detective that Smith was a leader of the Vice Lords gang and that he was selling drugs and guns from his residence. Detective Joe Poidinger did a computer search and confirmed the gang ties. He arranged but did not participate in a search of Smith’s garbage. In the garbage officers found evidence of drug sales. Based on this information Poidinger obtained a search warrant for Smith’s duplex.

Smith was tried, convicted, and sentenced to a mandatory minimum sentence of ten years in prison based on the quantity of drugs and his prior conviction.

On appeal he argued that probable cause did not exist for the search warrant and that double jeopardy existed since his sentence was aggravated due to a prior conviction.

The appellate court upheld the conviction. It ruled that probable cause existed for the search based upon his prior conviction and the garbage container search.

Smith argued that there was no evidence that the officers searched the correct trash can. He lived in a duplex and the units had adjoining garbage containers.

The appellate court ruled that Smith did not make a Franks motion in the trial court. Therefore the appellate court limited its review of suppression issues to whether or not probable cause existed on the face of the search warrant affidavit. Under Delaware v. Franks evidence seized as a result of “deliberate falsehood or of reckless disregard for the truth” in an affidavit supporting a search warrant must be suppressed. But in order to get a Franks hearing a defendant must show that

[t]here [are] . . . allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.

I have some problem with using the prior conviction. A prior conviction is not really relevant to whether drugs can be found in the defendant’s residence on a particular day. But when we ignore the Franks issues drug related trash in a garbage can is probably sufficient to a showing of probable cause for a search warrant.

The other issue raised by Smith is the mandatory minimum sentence based on his prior conviction. The court held that issue was not timely raised since it was not raised in the trial court. Secondly, the appellate court, relying on precedent, found that the ten year mandatory minimum was “a stiffened penalty for the latest crime, not an increased punishment for the earlier crime.” As a result the court that constitutional provisions against double jeopardy were not violated.

Yesterday we looked at a Fifth Circuit case exploring the Double Jeopardy Clause in a matter involving three Enron Corporation officials.

About ten hours after I wrote the post the Supreme Court issued a decision in another case involving an Enron official, F. Steve Yeager, on the Double Jeopardy Clause. Yeager was a vice president of Enron in charge of their broadband division. The company kept issuing positive reports about the division and stock kept going up in price. While the stock was selling well Yeager sold stock he owned in the company making a 19 million dollar profit. The positive reports were misleading since the division was not doing well and as we all know shortly thereafter Enron went into bankruptcy.

Yeager was charged with 126 counts in an indictment. In Count i he was charged with conspiracy to commit wire fraud and security fraud. In Counts 2 through 6 he was charged with various counts of wire fraud and security fraud. The rest of the counts involved insider trading and money laundering the profits from the insider trading.

He was acquitted on the first six counts and the jury hung on the remaining counts. In a superseding indictment the government moved to retry him on some of the insider trading counts. Yeager moved to dismiss the indictment on double jeopardy grounds. The trial court denied his motion and the question before the Supreme Court was whether double jeopardy could be found where the jury hung on the counts to be relitigated.

The traditional case of double jeopardy is where the government attempts to reprosecute an individual for the same crime that the person was found not guilty in a previous trial. But it has also been used where the appellate court finds that there was insufficient evidence to support a conviction. Another use of double jeopardy is what is called issue preclusion. Issue preclusion is where a necessary issue has been answered in favor of the defendant in a previous trial and now the government wants to retry the same issue. For example, Yeager claimed that in order to convict him on the insider trading charges a jury would have to reconsider at least one of the issues that the jury in the first trial must have found in his favor in order to acquit him on the first six counts.

What the Supreme Court ruled was that a jury in a new trial could not be required to go back and reconsider an issue that the previous jury necessarily found in his favor. But the Supreme Court permitted the Fifth Circuit Court of Appeals to reconsider the case and determine if a jury necessarily would have had to consider an issue which will have to be considered by a new jury considering the current indictment. Both Justice Kennedy in a concurring opinion and Justice Alito in a dissenting opinion strongly recommended that the Fifth Circuit carefully consider the issue. But Samuel Buffone, one of Yeager’s lawyers said, “We are confident we will prevail. We are down to a very narrow factual issue the court of appeals has already resolved once in our favor and has an opportunity to revisit if they like.” If the new jury will be forced to reconsider an issue necessarily considered by the previous jury the indictment must be dismissed to prevent Yeager from being placed in double jeopardy.

Obviously we are not through with Enron yet.