United States v. Kurt Harrington, 997 F.3d 812

Oct. 5, 2008: Joseph Van Hoe died of heroin and alcohol intoxication; investigators traced the heroin to Harrington via an intermediary.
Harrington was indicted on multiple counts, including Count One (conspiracy to distribute heroin resulting in death) and Count Seven (distribution resulting in death).
At trial the jury was instructed under the then-controlling “contributing cause” standard and returned special verdicts finding Harrington guilty of the resulting-in-death elements; he received mandatory life terms on Counts One and Seven.
The Supreme Court’s decision in Burrage changed the law to a but-for causation standard; Harrington obtained habeas relief after the Government stipulated that the trial evidence was insufficient under Burrage and the district court entered an agreed order vacating his life sentences.
The original trial court later concluded the agreed order vacated only the sentences (not the convictions) and permitted the Government to retry the resulting-in-death elements; Harrington moved to dismiss on double-jeopardy grounds and the district court denied the motion.
Harrington appealed interlocutorily; the Eighth Circuit held his double-jeopardy claim was colorable and affirmed that retrial does not violate the Double Jeopardy Clause.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Eighth Circuit has jurisdiction to hear interlocutory appeal of denial of double-jeopardy dismissal	Harrington: claim is colorable because jeopardy attached at trial and vacatur of death-elements equates to acquittal	Government: district court properly denied but interlocutory review allowed only if claim is colorable	Court: claim is colorable (jeopardy attached and claim non-frivolous); jurisdiction exists
Whether retrial on resulting-in-death elements is barred by the Double Jeopardy Clause	Harrington: Government’s habeas stipulation and unchanged facts mean the vacatur is equivalent to an acquittal under Burks, so retrial is barred	Government: vacatur resulted from post-conviction change in law (Burrage) and is akin to a trial-error reversal, so retrial is permitted	Court: affirmed—retrial does not violate Double Jeopardy because vacatur flowed from a change in law, not government failure to prove its case

Burrage v. United States, 571 U.S. 204 (2014) (adopted but-for causation for drug-distribution resulting-in-death element)
Burks v. United States, 437 U.S. 1 (1978) (setting-aside for insufficiency can be equivalent to acquittal; narrow exception to retrial rule)
United States v. Davies, 942 F.3d 871 (8th Cir. 2019) (post-conviction change in law vacatur treated like trial-error; retrial permitted)
United States v. Weems, 49 F.3d 528 (9th Cir. 1995) (vacatur due to post-conviction law change is a trial-error reversal, not acquittal)
United States v. Ellyson, 326 F.3d 522 (4th Cir. 2003) (same: jury instructed under incorrect law; vacatur akin to trial error)
United States v. Monnier, 412 F.3d 859 (8th Cir. 2005) (applied contributing-cause standard pre-Burrage)
United States v. Harrington, 617 F.3d 1063 (8th Cir. 2010) (Harrington’s direct-appeal decision affirming convictions/sentences)