Double Jeopardy - Same Crime; Lesser Included Offenses

United States v. Dixon, 509 U.S. 688 (1993)

A prosecution for a criminal offense is barred by the double jeopardy clause if a prior contempt prosecution punished the same conduct, in the context of a violation of the condition of release. The criminal offense is, in effect, a lesser included offense of the contempt offense. In reaching this decision, a majority of the court voted to overrule Grady v. Corbin. Also, a prior civil contempt “prosecution” instituted against a husband for beating his wife barred a subsequent simple assault prosecution, though it did not bar a subsequent assault with intent to kill prosecution.

United States v. Felix, 503 U.S. 378 (1992)

Conspiracy and substantive offenses may be prosecuted separately. The double jeopardy clause does not bar the government from prosecuting the defendant for a conspiracy offense after having prosecuted him for substantive offenses which were listed as the overt acts in the conspiracy prosecution.

United States v. Ehle, 640 F.3d 689 (6th Cir. 2011)

Convictions for both possessing and receiving child pornography violated the double jeopardy clause. The convictions could not stand, even though the defendant entered a guilty plea.

United States v. Lynn, 636 F.3d 1127 (9th Cir. 2011)

It violates double jeopardy to convict a person of both receiving and possessing child pornography. Even if the offenses were alleged to have occurred on different dates, this does not necessarily alleviate the constitutional problem.

United States v. Rabhan, 628 F.3d 200 (5th Cir. 2010)

The defendant was convicted of conspiracy to commit bank fraud in Georgia in connection with obtaining a loan from one bank. At the same time that he was engaged in defrauding that bank, he also defrauded another bank in Mississippi for another business loan. The conspiracies involved the same time frame, the same personnel, the same substantive offense. The Fifth Circuit held that the double jeopardy clause barred the second prosecution in Mssissippi.

United States v. Wayerski, 624 F.3d 1342 (11th Cir. 2010)

A defendant may not be convicted of both being a member of a child exploitation enterprise (18 U.S.C. § 2252A(g)) and conspiring to participate in a child exploitation enterprise. Analogizing to CCE and conspiracy convictions, the Eleventh Circuit held that the “acting in concert” language of the substantive offense and the “agreement” language of the conspiracy offense, rendered separate punishments a violation of the Double Jeopardy Clause.

United States v. Robertson, 606 F.3d 943 (8th Cir. 2010)

Convictions for the offenses of attempted aggravated sexual abuse and attempted abusive sexual contact in Indian country amounted to double jeopardy in this case.

United States v. Basciano, 599 F.3d 184 (2d Cir. 2010)

The defendant was previously convicted of a RICO offense based on his participation in the activities of the Bonnano Crime Family. He was subsequently prosecuted for a substantive RICO offense in connection with this Crime Family activities. The Second Circuit concluded that the pattern of racketeering activity described the same “pattern” and was therefore subject to the Double Jeopardy Clause.

United States v. Peel, 595 F.3d 763 (7th Cir. 2010)

The defendant was convicted of bankruptcy fraud and obstruction of justice based on his conduct of blackmailing a creditor into dropping a bankruptcy claim. This violated Double Jeopardy, because the obstruction offense was a lesser included offense of the bankruptcy fraud.

United States v. Diaz, 592 F.3d 467 (3rd Cir. 2010)

There can only be one § 924(c) conviction for each count of conviction of a drug offense. Thus, if there is only one drug offense set forth in the indictment, there can only be one § 924(c) conviction, even if more than one gun is possessed, and even if a gun is possessed on more than one occasion during the course of a drug conspiracy.

United States v. Rigas, 605 F.3d 194 (3rd Cir. 2010)

A conviction under § 371’s conspiracy offense clause bars a subsequent prosecution under § 371’s defraud clause. The two offenses included in § 371 are two ways of committing the same offense. In this case, the prosecution of Rigas under the conspiracy to commit an offense clause was shown to be sufficiently close to the pending defraud clause prosecution that the burden was on the government to prove that the former did not bar, on double jeopardy grounds, a prosecution under the latter provision.

United States v. McIntosh, 580 F.3d 1222 (11th Cir. 2009)

The defendant entered a guilty plea to certain charges and the court unconditionally accepted the plea. Prior to sentencing, the government moved to dismiss the indictment because of an error in a date and presented a second indictment which corrected the error. The defendant objected, claiming that jeopardy had attached. The defendant then conditionally entered a plea to the second indictment. The Eleventh Circuit held that jeopardy had attached and the defendant could not be prosecuted under the second indictment for the same offense.

United States v. James, 556 F.3d 1062 (9th Cir. 2009)

Convictions for robbery and felony murder violated the double jeopardy clause, because the robbery was the underlying felony. The court also concluded that a § 924(c) conviction that was linked to the robbery offense could not be sustained, because the robbery conviction was barred by the double jeopardy clause.

United States v. Hope, 545 F.3d 293 (5th Cir. 2008)

The defendant was arrested in possession of a firearm. It was determined that the same firearm had been used by the defendant the previous day to commit a robbery. There was no evidence that he ever relinquished control of the firearm. This evidence could not support two counts of possession of a firearm by a convicted felon.

United States v. Olmeida, 461 F.3d 271 (2d Cir. 2006)

The defendant was prosecuted in district court in North Carolina for unlawfully possessing ammunition in North Carolina “and elsewhere.” At the time the prosecution in North Carolina was brought, the government knew that the defendant also possessed ammunition in New York and had no reason to believe that the defendant possessed ammunition in any location other than North Carolina and New York. The defendant entered a guilty plea to the charge in North Carolina. The Double Jeopardy Clause barred a prosecution for possession of ammunition in New York.

Gonzalez v. Justices of Municipal Court, 382 F.3d 1 (1st Cir. 2004)

Though rejecting the claim on the merits, the First Circuit holds that a defendant facing a state criminal trial that he claims would violate his rights under the Double Jeopardy Clause may file a habeas in federal court (28 U.S.C. § 2241) to prevent the trial from going forward. See also Stow v. Murashige, 389 F.3d 880 (9th Cir. 2004). The Supreme Court granted cert on the merits of the double jeopardy claim and remanded for further consideration in light of Smith v. Massachusetts, 543 U.S. 462 (2005).

United States v. Maslin, 356 F.3d 191 (2d Cir. 2004)

The defendant was previously charged and convicted of a marijuana conspiracy which was described by the prosecutor, in his opening statement, as a “far-flung conspiracy.” The defendant was later charged with a marijuana and cocaine conspiracy in another case in the same district. There was an overlap of time, co-conspirators, and methods of operation. Double jeopardy barred the subsequent prosecution.

United States v. Lopez, 356 F.3d 463 (2d Cir. 2004)

The two conspiracies with which the defendant was charged were, in fact, different aspects of one conspiracy.

Wilson v. Czerniak, 355 F.3d 1151 (9th Cir. 2004)

Under Oregon law, the crime of intentional murder is a lesser included offense of aggravated felony murder, because intentional murder does not require proof of any element not contained within aggravated felony murder. In this case, the reprosecution for aggravated felony murder, following jury’s acquittal of the defendant for intentional murder, was barred by the double jeopardy clause.

United States v. Holloway, 309 F.3d 649 (9th Cir. 2002)

The defendant was prosecuted under the Federal Bank Robbery statute, 18 U.S.C. § 2113(a). Because the government failed to prove an essential element of the offense, the conviction was reversed. The government then sought to prosecute the defendant under the Hobbs Act, 18 U.S.C. § 1951. The Ninth Circuit held that the Double Jeopardy Clause barred this prosecution. It is impossible to violate the Federal Bank Robbery Act without also violating the Hobbs Act.

United States v. Bordeaux, 121 F.3d 1187 (8th Cir. 1997)

The defendant was charged with attempted aggravated sexual abuse. The jury announced that it could not agree on a verdict on this charge, but found the defendant guilty of the lesser offense of abusive sexual contact by force. The conviction was set aside, because the trial court failed to properly instruct the jury on this lesser offense. Can the defendant be tried for the greater offense? Yes. Distinguishing Green v. United States, 355 U.S. 184 (1957) and Price v. Georgia, 398 U.S. 323 (1970), the court concluded that there was no "implicit acquittal" of the greater offense -- the jury explicitly explained that it failed to reach a verdict on the greater offense -- so the closer analogy was to Richardson v. United States, 468 U.S. 317 (1984), which held that a mistrial caused by a hung jury does not terminate the first jeopardy, and therefore there is no "double" jeopardy when trial commences anew.

Lucero v. Kerby, 133 F.3d 1299 (10th Cir. 1998)

Under the Blockburger test, the elements of second degree criminal sexual penetration include the offense of aggravated burglary, since the sexual offense (as alleged in this case) could only have been committed in the second degree if it was committed during the course of the aggravated burglary.

United States v. All Assets of G.P.S. Automotive Corp. (Schaffer), 66 F.3d 483 (2d Cir. 1995)

The state prosecuted the defendant for dealing in stolen car parts. The state prosecutor then referred the case to the U.S. Attorney’s office to proceed on a money laundering forfeiture action. The state prosecutor was deputized as a special assistant U.S. Attorney. The claimant argued that the proceeds from the forfeiture would be given to the state. This was sufficient to require a hearing on whether an exception to the dual sovereignty doctrine applied, as set out in Bartkus v. Illinois, 359 U.S. 121 (1959). This exception applies when one sovereign is acting “as a tool” for another. Before reaching the Bartkus issue, the Second Circuit conducts a lengthy analysis of the double jeopardy jurisprudence in the forfeiture context.

United States v. Forester, 836 F.2d 856 (5th Cir. 1988)

The defendant was prosecuted for possessing P2P and given a consecutive sentence for attempting to make methamphetamine. The Fifth Circuit reverses holding that these counts represent “successive steps in one criminal undertaking, the manufacture of methamphetamine.” Consequently, he can only receive one sentence.

Rashad v. Burt, 108 F.3d 677 (6th Cir. 1997)

The police executed a search warrant at the defendant’s house and found a substantial quantity of cocaine. The car in the driveway was impounded and several days later, it was found to contain another stash of cocaine. The defendant was tried twice, once for the quantity in the house and later for the quantity in the car. This violated the double jeopardy clause.

United States v. Hebeka, 89 F.3d 279 (6th Cir. 1996)

The government cannot prosecute a defendant for both food stamp fraud, 7 U.S.C. §2024(c), and submitting a false claim, 18 U.S.C. §287. The latter statute does not contain any element that is not also required by the former statute.

Costo v. United States, 904 F.2d 344 (6th Cir. 1990)

The defendant was prosecuted for distribution of cocaine and attempting to distribute cocaine. The defendant first distributed one kilogram of cocaine to purchasers and immediately attempted to induce them to purchase more when they approved the first kilo sample. This constitutes only one offense and the defendant could not be convicted of both distributing the first kilo and attempting to distribute the other three kilos.

United States v. Podell, 869 F.2d 328 (7th Cir. 1989)

The defendant removed and tampered an automobile’s VIN and then altered the VIN on the same car. The proper unit of prosecution under 18 U.S.C. §511(a) is an individual automobile. Thus only one prosecution can be instituted for the alteration or tampering of a single automobile VIN.

United States v. Dickerson, 857 F.2d 414 (7th Cir. 1988)

The defendant was sentenced to four years under 18 U.S.C. §922(g) and fifteen years on §924(e)(1) in violation of the double jeopardy clause. Because the §924 sentence represented a sentence enhancement and not a sentence on an additional offense, two sentences could not be imposed.

McIntyre v. Caspari, 35 F.3d 338 (8th Cir. 1994)

Under Missouri law, the crime of tampering with an automobile is a lesser included offense of auto theft. Therefore, having been convicted of tampering with an automobile, the defendant could not later be prosecuted for theft of the same automobile. (This case was decided twice previously, once under prevailing Grady v. Corbin law; once after the decision in Felix, see supra).

McIntyre v. Trickey, 975 F.2d 437 (8th Cir. 1991)

On remand from the United States Supreme Court, the Eighth Circuit reaffirms its decision granting the writ of habeas corpus. The defendant was initially prosecuted for unauthorized use of a vehicle and subsequently prosecuted for theft of the automobile. Even after Felix, this violated the double jeopardy clause.

United States v. Corona, 108 F.3d 565 (9th Cir. 1997)

Title 18, U.S.C. §844(i) sets forth the crime of arson. Title 18, U.S.C. §844(h)(i) outlaws the use of fire in committing a felony. Convictions under 18 U.S.C. §844(h)(i) and §844(i) violate the double jeopardy clause where the §844(i) offense involves the same fire that triggers the §844(h)(i) conviction, and the felony set forth in the §844(h)(i) count is arson.

United States v. Bernhardt, 831 F.2d 181 (9th Cir. 1987)

Successive state and federal prosecutions are generally permissible. However, here, the federal prosecution was paid for and organized by the state prosecutor. The state prosecutor also acted as the prosecutor in the federal forum. The case had earlier been dismissed in the state court because of the statute of limitations defense. The Ninth Circuit holds that the case would be remanded to the trial court to determine whether there was “sufficient federal involvement” in the case to save the prosecution from an otherwise valid double jeopardy claim.

Mansfield v. Champion, 992 F.2d 1098 (10th Cir. 1993)

The defendant robbed a liquor store, taking cash from the cash register, liquor from the shelf and money from the clerk. He was prosecuted for two counts of robbery, one count dealing with the clerk’s money and the other count relating to the store’s property. This violated the double jeopardy clause. The defendant was being punished twice for the same act of robbery.

United States v. Frazier, 89 F.3d 1501 (11th Cir. 1996)

A defendant may not be prosecuted both for 21 U.S.C. §841 and §860. That is, a prosecution for possessing with intent to distribute drugs is a lesser included offense of possession with intent to distribute drugs within 1,000 feet of a school.

United States v. Reed, 980 F.2d 1568 (11th Cir. 1993)

A defendant who has already been convicted of being a member of a conspiracy to import cocaine cannot later be prosecuted for a CCE violation where the conspiracy was part of the “series” element of the CCE. Though the Supreme Court held in Garrett v. United States, 471 U.S. 773 (1985) that a defendant could be prosecuted for CCE after a substantive drug conviction, that reasoning does not apply with regard to a prior conspiracy conviction.

Mars v. Mounts, 895 F.2d 1348 (11th Cir. 1990)

The defendant was charged with murder, and in a bill of particulars the State alleged that the crime occurred between 5:00 p.m. on January 29 and 12:59 a.m. on January 30. At trial, however, the evidence showed that the homicide occurred after 12:59 a.m. on January 30. The trial court instructed the jury that the State had to prove the facts specified in the bill of particulars. The jury indicated that it did not believe the crime occurred within that time period and acquitted the defendant. The State sought to retry the defendant alleging a different time. The Eleventh Circuit granted habeas relief. The second indictment charged the defendant with “the same offense” under the Blockburger test.

United States v. Fiallo-Jacome, 784 F.2d 1064 (11th Cir. 1986)

The defendant was convicted on two counts (among others) of possession of a controlled substance. Both counts involved cocaine and one count involved a lengthy period of time which contained the date alleged in the second count. This constitutes double punishment for the same offense since there was no evidence that there were separate possessions.

United States v. Rosenberg, 888 F.2d 1406 (D.C.Cir. 1989)

The defendant was convicted in New Jersey of conspiracy to possess unregistered firearms, explosives, and false identification documents. In D.C., he was prosecuted for the substantive offense of aiding and abetting in the bombing of several buildings. Though the defendants did not actually participate in the bombings, the government, proceeding on a Pinkerton theory, charged that they were responsible because of their membership in the conspiracy. The government conceded that the conspiracy to commit the bombings was the same conspiracy for which he had been convicted earlier. Thus, the defendant could not be prosecuted on a vicarious liability theory where he had previously been convicted of being a member of the conspiracy itself. In effect, the conspiracy was a lesser included offense of the substantive bombing offense.