929 F.3d 411
7th Cir.2019Background
- Kent Morgan was arrested at Peoria airport after tossing a glove containing ~86.5 g of methamphetamine; indicted for possession with intent to distribute (21 U.S.C. § 841).
- At the first trial Morgan conceded possession (testified) but denied intent to distribute; jury deadlocked on intent but convicted on the lesser included offense of simple possession.
- The district court dismissed that jury, set sentencing on the possession verdict, and the government sought (and later obtained) retrial on the intent-to-distribute count; defense counsel did not object to retrial or related timing.
- At the second trial the government introduced three Rule 404(b) prior-act witnesses (cell‑phone‑linked contacts) who testified they used and sometimes received methamphetamine from Morgan; the jury was given limiting instructions the court and parties agreed upon.
- Morgan was convicted at the second trial of possession with intent to distribute and sentenced to 240 months; on appeal he challenged (1) double jeopardy, (2) admission of 404(b) propensity evidence/Rule 403 balancing, and (3) ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy from retrial after jury deadlocked on charged count but convicted on lesser possession | Retrial on intent charge violated Double Jeopardy because jury had resolved related matters by convicting for possession | No double jeopardy: hung jury on intent permits retrial; moreover defense (through counsel) consented/waived any DJ claim | Waiver/forfeiture: counsel did not object and consented to retrial and lesser‑offense instruction; retrial permissible; DJ claim rejected |
| Admission of 404(b) prior‑acts witnesses | Testimony impermissibly used as propensity evidence to show Morgan was a drug dealer (unfairly prejudicial) | Evidence was admissible to prove intent (non‑propensity purpose); intent was the central disputed issue | Admission proper: defendant conceded possession but disputed intent, so 404(b) evidence was highly probative of intent and admissible |
| Rule 403 balancing and limiting instruction adequacy | Even if relevant, probative value was substantially outweighed by unfair prejudice; limiting instruction failed to explain forbidden propensity inferences | Probative value of intent evidence outweighed prejudice; court gave limiting instructions before each witness and at charge | No reversible error: though the court’s limiting instruction omitted some explanatory language, defendant twice waived objections to the instruction; plain‑error review not available due to waiver |
| Ineffective assistance of counsel (IAC) | Trial counsel ineffective for failing to object to retrial and admission/instruction issues | Record is insufficient for IAC on direct appeal; issues better raised in §2255 collateral proceedings | Court declines to adjudicate IAC on direct appeal and preserves claims for collateral review due to underdeveloped record |
Key Cases Cited
- Richardson v. United States, 468 U.S. 317 (hung jury does not terminate jeopardy; retrial permissible)
- Green v. United States, 355 U.S. 184 (conviction of lesser included and silence on greater construed as acquittal; bars retrial)
- Price v. Georgia, 398 U.S. 323 (same principle as Green regarding implied acquittal by lesser conviction)
- Brown v. Ohio, 432 U.S. 161 (double jeopardy bars successive prosecutions/punishments for same offense/lesser included)
- Currier v. Virginia, 138 S. Ct. 2144 (consent to retrial—explicit or implicit—forecloses DJ objection)
- Dinitz v. United States, 424 U.S. 600 (waiver of certain trial rights may be effected by counsel; DJ waiver need not be knowing/explicit)
- Gomez v. United States, 763 F.3d 845 (Seventh Circuit guidance: analyze 404(b) relevance non‑propensity route and balance under Rule 403)