United States v. Carothers
630 F.3d 959
9th Cir.2011Background
- Carothers was indicted in October 2008 for possession of methamphetamine with intent to distribute; he conceded possession but claimed no intent to distribute.
- The government introduced pay-owe sheets and prior drug arrests as evidence of intent to distribute.
- The court instructed on the lesser included offense of simple possession in addition to the charged offense, allowing conviction on simple possession if the greater offense was not proven beyond a reasonable doubt.
- The verdict form was inconsistent with the instruction, potentially permitting a lesser-included verdict only after acquittal of the greater offense.
- The jury deadlocked on the greater offense and unanimously convicted on simple possession, but the court declared a mistrial on both counts and later dismissed the indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether improper mistrial on the lesser offense forecloses retrial on the greater | Government argues retrial on greater offense allowed by Double Jeopardy. | Carothers argues mistrial on lesser precludes retrial on greater as a double jeopardy bar. | Double Jeopardy does not bar retrial on the greater offense. |
| Whether the mistrial on the lesser offense has issue-preclusion effect of an acquittal | Government contends mistrial creates no preclusion; retrial allowed. | Carothers contends mistrial akin to acquittal on lesser, blocking retrial on greater. | Improper mistrial on simple possession has no issue-preclusion effect. |
| Whether United States v. Jackson bars retrial after unanimity on a lesser included offense | Jackson instruction protective of defendant’s choice should not bar retrial on greater. | Carothers argues Jackson instruction would render retrial pointless. | Jackson does not prevent retrial on the greater offense. |
| Whether practical concerns justify barring retrial on the greater offense | Retrial could be complicated; waiver approach could manage double jeopardy concerns. | Carothers would face dilemma or unfair results if retried with possible lesser-included instruction. | Practical concerns do not justify barring retrial; district court may condition retrial on waiver if necessary. |
Key Cases Cited
- Ashe v. Swenson, 397 U.S. 436 (U.S. 1970) (issue preclusion limits retrial after acquittal in related respect)
- Beck v. Alabama, 447 U.S. 625 (U.S. 1980) (standard for determining lesser included offenses in capital cases)
- Washington v. Arizona, 434 U.S. 497 (U.S. 1978) (manifest necessity required for a mistrial)
- Richardson v. United States, 468 U.S. 317 (U.S. 1984) (double jeopardy and mistrial principles)
- United States v. Jackson, 726 F.2d 1466 (9th Cir. 1984) (instruction to consider lesser-included offenses after inability to reach verdict)
- Spaziano v. Florida, 468 U.S. 447 (U.S. 1984) (limits on imposing lesser included offenses and waivers on retrial)
- Hoefer v. Rivera-Alonzo, 584 F.3d 829 (9th Cir. 2009) (contextualization of lesser included offenses in noncapital cases)
- United States v. Jose, 425 F.3d 1237 (9th Cir. 2005) (final convictions on lesser offenses do not preclude retrial on greater offenses)
- United States v. Jefferson, 566 F.3d 928 (9th Cir. 2009) (deadlocked jury on greater but verdict on lesser may alter retrial considerations)