UNITED STATES of America, Appellee, v. Joshua Lee HOWE, also known as Josh Harris, Appellant.
No. 08-1021.
United States Court of Appeals, Eighth Circuit.
Submitted: April 17, 2008. Filed: Aug. 13, 2008.
538 F.3d 820
Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
BEAM, Circuit Judge.
Joshua Lee Howe brings this interlocutory appeal from the denial of his motion to dismiss two counts in his indictment, conspiracy to commit kidnapping and kidnapping, on double jeopardy and collateral estoppel grounds. The district court1 ruled that Howe would not be twice placed in jeopardy by, and that the government was not collaterally estopped from pursuing, either count. We affirm.
I. BACKGROUND
On October 5, 2005, Howe and his codefendant, Robert Phillips, were indicted in the Eastern District of Arkansas in United States v. Howe (Howe I), for their alleged involvement in the murder of Jeremy Deshon Gaither in December 2002. The Howe I indictment charged Howe and Phillips with conspiracy to commit a robbery and kidnapping resulting in felony murder, in violation of
At trial, the government sought to prove that Howe planned the kidnapping and robbery of Gaither, a rival crack dealer in DeWitt, Arkansas, and convinced Richard Smith, a drug customer of Howe‘s, and Phillips, one of Howe‘s associates, to carry out his plans. Gaither‘s lifeless body was found on the White River National Wildlife Refuge on December 9, 2002, and the medical evidence indicated that he had died from a gunshot wound.
Smith, who pled guilty to aiding and abetting in felony murder in connection with Gaither‘s death, was one of the government‘s key witnesses at trial. Smith testified that: (1) on the afternoon of December 6, 2002, he, acting according to a plan allegedly formulated by Howe, lured Gaither into a car under the guise of discussing a potential sale of the car to Gaither; (2) he then picked up Phillips and the two men drove Gaither onto the Refuge at gunpoint, using a gun Howe provided; (3) Phillips robbed Gaither and forced him out of the car; (4) a struggle ensued, and Phillips shot Gaither in the neck; and (5) Smith and Phillips then fled the scene.
An eyewitness testified that Gaither was last seen getting into a car driven by Smith on the afternoon of December 6, 2002, but Smith provided the only eyewitness testimony linking either Howe or Phillips to Gaither‘s death. Indeed, Howe built his defense around the theory that Smith really acted alone, and only concocted a story about Howe‘s and Phillips’ involvement in hopes of receiving a reduced sentence after Smith‘s girlfriend reported him to authorities.
On July 25, 2007, a jury acquitted Phillips on all counts. The same jury acquitted Howe of felony murder and of using or carrying a firearm during and in relation to a crime of violence, but convicted him of being a felon in possession of a firearm. The jury failed to reach a verdict with respect to Howe‘s guilt on the conspiracy
On September 5, 2007, the government returned a new indictment against Howe (Howe II). As relevant to this appeal, Howe was charged in the new indictment with conspiracy to commit kidnapping, in violation of
II. DISCUSSION
A. Jurisdiction and Standard of Review
This court has jurisdiction to review a pretrial order denying a motion to dismiss an indictment on double jeopardy and collateral estoppel grounds where, as here, the defendant has raised a colorable claim.2 United States v. Bearden, 265 F.3d 732, 734-35 (8th Cir.2001). We review the district court‘s denial of a motion to dismiss an indictment on double jeopardy and collateral estoppel grounds de novo. Id. at 735.
B. Double Jeopardy
Howe first contends that the offending counts in the new indictment are barred by the Fifth Amendment because they are merely lesser included offenses of the charges brought against him at the first trial and therefore, a new trial on either count would amount to a successive prosecution for the same offense. Before addressing his arguments, we pause to review a few basic principles of double jeopardy jurisprudence.
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
Greater and lesser offenses do constitute the “same” offense for double jeopardy purposes. Brown v. Ohio, 432 U.S. 161, 168 (1977). Generally, two offenses are not the “same,” and prosecution for one after acquittal or conviction on the other does not offend the Fifth Amendment, if ““each requires proof of a fact which the other does not.“” Id. at 166 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). Obviously, however, a greater offense and any lesser offenses included therein cannot pass this test—by
Notwithstanding these basic principles, a defendant may generally be retried on charges that resulted in a hung jury at his first trial. Richardson v. United States, 468 U.S. 317, 324 (1984). In a jury trial, jeopardy attaches when the jury is empaneled and sworn, but some event—usually a final verdict of acquittal or conviction—must terminate the original jeopardy before the protection against a new prosecution for the same offense embodied in the Fifth Amendment comes into play. Peoples, 360 F.3d at 894. And a mistrial granted for manifest necessity because the jury is unable to reach a verdict is not a jeopardy-terminating event. Richardson, 468 U.S. at 326. Accordingly, a defendant remains in continuing jeopardy after prosecution for an offense that results in a hung jury, and he can usually be retried for the “same” offense without offending the Fifth Amendment. Id. at 324, 326.
With these guidelines in mind, we turn to Howe‘s double jeopardy arguments. Howe first contends that a new trial for kidnapping is barred by the Fifth Amendment because kidnapping in violation of
To be sure, we do not quarrel with the notion that felony murder under
But even if kidnapping is a lesser included offense of the felony mur-
We realize, of course, that the government is now proceeding under a new indictment. As discussed above, after Howe‘s first trial, the government moved to dismiss the Howe I indictment without prejudice, the motion was granted over Howe‘s objection, and the government subsequently returned the Howe II indictment, which is the subject of this appeal. But that procedural wrinkle does not affect the outcome of this case because the government did not seek dismissal of the original indictment so it could separately indict Howe for the lesser included offense of kidnapping after he was acquitted of felony murder. Rather, Howe was originally indicted in Howe I for both felony murder and kidnapping and the two charges were encompassed within a single prosecution. In such circumstances, the jury‘s acquittal of Howe on the greater offense of felony murder did not prevent continuing jeopardy from attaching to the lesser offense of kidnapping. And we do not believe that the dismissal of Howe I without prejudice after the mistrial and the subsequent return of Howe II, which essentially restated the hung counts and added counts of witness tampering and pretrial escape, terminated that continuing jeopardy. See, e.g., United States v. Holland, 956 F.2d 990, 993 (10th Cir.1992) (noting that because mistrial does not terminate jeopardy, “government [can] properly reindict and retry defendants on the same charges without offending principles of double jeopardy,” and retrial pursuant to reindictment is equivalent to retrial under original indictment). Accordingly, we conclude that Howe remains in continuing jeopardy for the offense of kidnapping and the government may retry him for that offense unless the doctrine of collateral estoppel—which we address below—dictates a different result.
Howe also contends that conspiracy to commit a kidnapping in violation of
We have considered Howe‘s other double jeopardy arguments and find them to be without merit.
C. Collateral Estoppel
Howe also contends that because the acquittals at the first trial necessarily de-
The Supreme Court has incorporated the doctrine of issue preclusion, or collateral estoppel, into the Fifth Amendment‘s guarantee against double jeopardy. United States v. Mitchell, 476 F.3d 539, 544 (8th Cir.2007) (citing Ashe v. Swenson, 397 U.S. 436, 442-43 (1970)). Unlike traditional double jeopardy principles, which only bar successive prosecutions for the same offense, collateral estoppel can bar a later trial for a different offense, “if one of the facts necessarily determined in the former trial is an essential element of the subsequent prosecution.” United States v. Yeager, 521 F.3d 367, 371 (5th Cir.2008) (emphasis in original) (quotation omitted), petition for cert. filed, 77 U.S.L.W. 3052 (U.S. July 8, 2008) (No. 08-40). This is because the doctrine of collateral estoppel dictates that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443. But a fact previously determined in a criminal case is only an ultimate fact if “it was necessarily determined by the jury against the government and, in the second prosecution, that same fact is required to be proved beyond a reasonable doubt in order to convict.” Prince v. Lockhart, 971 F.2d 118, 123 (8th Cir.1992). And, the burden is on the defendant to establish that the first jury necessarily decided the issue he seeks to foreclose from consideration at a second trial. Bearden, 265 F.3d at 735. Accordingly, to determine whether collateral estoppel bars the government‘s intended retrial of Howe, we must “examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than [those] which [Howe] seeks to foreclose from consideration.” Ashe, 397 U.S. at 444 (quotation omitted).
Guided by these principles, we turn to Howe‘s contention that certain facts were “necessarily determined” in his first trial, and that those facts constitute ultimate issues with regard to the kidnapping and conspiracy counts alleged in Howe II. Howe first argues that a second trial for kidnapping is barred by his acquittal on the felony murder count at his first trial. Specifically, he contends that, in acquitting him of aiding and abetting in felony murder predicated on kidnapping and/or robbery, the first jury necessarily decided either that he did not participate in Gaither‘s kidnapping or that the government failed to establish one of the essential elements of kidnapping beyond a reasonable doubt. Accordingly, Howe argues that the government is estopped from pursuing the kidnapping count alleged in Howe II, because facts essential to his conviction on that count have already been litigated and decided against the government. We do not agree.
As Ashe instructs us to do, we have examined the pleadings, evidence, charge and other relevant matter in attempting to ascertain what facts, if any, were necessarily decided in Howe‘s favor. Id. Doing so reveals an inherent flaw in Howe‘s argument. If the first jury had acquitted Howe of felony murder predicated on kidnapping and/or robbery based partially on a finding that he did not participate in Gaither‘s kidnapping or that one of the elements of kidnapping was not proven beyond a reasonable doubt, it should have acquitted him of kidnapping as well. Since the jury
We can see at least one other possible explanation for the first jury‘s acquittal of Howe on the felony murder count that would not estop the government from proceeding with the kidnapping count alleged in Howe II and would not be logically inconsistent with the first jury‘s inability to reach a verdict on the kidnapping count. To convict Howe of felony murder predicated on kidnapping and/or robbery, the judge instructed the jury that it had to find the government had proven beyond a reasonable doubt that, among other things, Gaither‘s death occurred as a consequence of, and while, the defendants were knowingly and willfully engaged in kidnapping and/or robbing him. Accordingly, the jury could have acquitted Howe of felony murder predicated on kidnapping and/or robbery because the jury thought he did not participate in Gaither‘s robbery and the jury could not agree as to whether the government had established all the elements of kidnapping or that Howe participated in one. If the jury did not believe that Howe participated in Gaither‘s robbery, and could not agree on whether the government had met its burden as to kidnapping, it could not then convict Howe of felony murder predicated on either felony and would have been forced to acquit. See, e.g., Yeager, 521 F.3d at 376 (concluding that, where jury had to find defendant committed securities fraud, wire fraud or insider trading as prerequisite to convicting him on money laundering counts, and jury hung on securities fraud, wire fraud, and insider trading counts but acquitted on money laundering counts, acquittal did not represent necessary finding that defendant did not commit those underlying crimes, so as to bar retrial—rather, because jury could not determine whether defendant committed those underlying crimes, it had to acquit on money laundering counts).8
Ultimately, accepting Howe‘s argument would require us to assume the jury acted inconsistently, and reached opposite conclusions on the same issue in different counts, and “we are loath to impute such inconsistency to [a rational jury].” White, 936 F.2d at 1329. Mindful that the burden is on Howe to establish that the first jury necessarily decided in his favor the issue he seeks to foreclose from consideration, we conclude that collateral estoppel does not bar the government from proceeding with the kidnapping count alleged in Howe II.
Howe also avers that a fact essential to his conviction on the new con-
In sum, “[w]hile we take very seriously the prospect of an accused having to run the gauntlet of a criminal trial a second time,” United States v. Bordeaux, 121 F.3d 1187, 1192-93 (8th Cir.1997), we find no basis in the Double Jeopardy Clause, or in the equitable doctrine of collateral estoppel embodied therein, to bar Howe‘s retrial for kidnapping and conspiracy.
III. CONCLUSION
The decision of the district court is affirmed.