*1 1234. There was Id. at likewise no need impound inventory here.
I am also unable to that willful
introduction of inadmissible evidence over
specific court instruction is harmless. indulge the
While we often tenuous notion instruction in
that curative fact removes suggest
taint pros- and often after the get
ecutor has battled tooth-and-nail to in- jury
admissible evidence before the that it verdict,
didn’t influence the I don’t think really saying. we are what Basical- just
ly acknowledging I believe we are by
some mistakes have to be borne
dants. In this case I believe we should not principle puts
extend that the burden
of risk on the defendant where that risk willfully created. While there is sub- guilt, prosecutor
stantial evidence of very
knew that and still strongly felt important inadmissible evidence was
persuading jury. The court found that prosecutor’s conduct was willful. The
court, by cautionary its instruction to the
jury, puts the any suggestion lie to that it
admitted proper. this evidence as I simply say
am unable that something so impor- prosecutor
tant to the that she three times
brought jury, it before the risking twice
contempt, beyond is harmless a reasonable just say
doubt. I cannot jury that a would
not be influenced this evidence in what appears
otherwise a strong case.
I grant a new trial. Samuel Alba and Wing, Robert G. America,
UNITED STATES of Prince, Geldzahler, Yeates & Salt Lake Plaintiff-Appellee, Utah, City, defendant-appellant. Skrivseth, Karen Dept, Justice, Brent Stephen KOONCE, G. Ward, D. Atty., U.S. Wayne Dance, T. Defendant-Appellant. Asst. Atty., for plaintiff-appellee. No. 89-4013. United States Appeals, Court of McKAY, TACHA, EBEL, Before Tenth Circuit. Judges. Circuit
Sept.
EBEL, Judge.
This
raises the issue of whether
government,
consistent with the Double
*2
(18
App.)
U.S.C.A.
sentencing
federal
and the
Jeopardy Clause
alleged
mis-
criminal
some of the
for a because
a defendant
can
guidelines,
underlying
the Utah
conduct
concerning de-
though evidence
even
crime
used to enhance
already
already has been
that crime
of
commission
fendant’s
in
prior
the
conviction
for
sentence
sen- dant’s
enhance defendant’s
used to
has been
Dakota.
that South
hold
offense. We
an earlier
for
tence
can do so.1
government
the
argues that
government
response,
In
the
on multi-
Jeopardy Clause’s ban
challenges
the Double
Koonce
Stephen G.
Defendant
offense is
ple prosecutions
for the same
motion
denial of his
court’s
the district
Utah and
implicated here because the
him in
against
not
indictment
a federal
dismiss
differ-
plainly
are
Dakota offenses
from South
stems
indictment
The Utah
Utah.
contends
government
further
ent. The
of 963
alleged possession
defendant’s
language of the
“[n]othing
the
in
various
methamphetamine
[sen-
and
grams of
commentary pre-
tencing] guidelines or the
in
agents found
firearms,
federal
which
con-
prosecution for
subsequent
cludes a
conducting a
home while
Utah
the base
determining
in
considered
Defendant
duct
a warrant.
pursuant to
search
a different offense.
level” of
offense
in the United
convicted
was
previously
17.)
Jeopar-
(U.S.Br.
As for the Double
of
at
District
for the
District Court
States
ban on
grams
dy
of
Clause’s
distributing 443
Dakota
South
guidelines’
and the
the same offense
mailing
package
for
methamphetamine
certain offenses
pro-
requirement
to a
methamphetamine
containing the
purposes,
together
sentencing
for
During
grouped
Dakota.
in
buyer
South
spective
case is
contends that
government
this
Dako-
the
hearing
sentencing
for
the
government ar-
The
ripe for review.
presented evi- not
offense,
government
the
ta
yet
not
been sen-
has
that defendant
gues
offense and
alleged Utah
dence about the
tried)
(or
for the Utah
even
allegedly had tenced
defendant
crimes that
other
knowing whether
way
no
there is
upon the
and
Relying
elsewhere.
perpetrated
additional, cumula-
will receive
offenses, the South defendant
other
of the
evidence
for the Utah offense.2
punishment
tive
court sentenced
Dakota district
Dakota
for the South
years
prison
in
to 20
government that de
the
agree with
We
statutory maxi-
the
which
offense
for the Utah
fendant’s
mum.
Jeopardy
the Double
not offend either
does
sentencing guidelines.
the
or
prose-
that the Utah
Clause
contends
Defendant
multiple
Clause’s ban on
Jeopardy Clause
violates the
cution
is not
the same offense
for
5)
prosecutions
Const.,
the federal
(U.S.
amend.
again being
upon
con-
sentence
appellate
ifies a heavier
examining
briefs
the
After
1.
unanimously
record,
...
panel has determined
victed.
materially
jeop
passed
assist
double
have
that oral
"Recidivist statutes
appeal.
Fed.R.
See
they
of this
on the theo
scrutiny
determination
work
ardy
the
App.P.
because
Therefore,
34(a);
the
Cir. R. 34.1.9.
punishment
10th
does not
ry that ‘the increased
argu
oral
without
crimes,
submitted
cause is ordered
punishment for the earlier
represent
ment.
aggra
earlier
crimes
rather the
but
fact
crime war
of the latest
vates the commission
government’s
on
brief
longer sentence.’
ranting imposition of the
addressing
merits of
generally avoids
[1160,
Bowdach,
F.2d
561
v.]
States
[United
issue,
government does
multiple-punishment
Cir.1977)
(5th
].
1176
holding
sen-
analogize
about enhanced
to our
crime,
greater
underlying
becomes
Vigil,
738
818 F.2d
in United States
tences
a recidi
greater punishment,
worthy
when
Cir.1987).
(10th
Vigil,
held that recidivist
In
commits
vist
it.”
statutes,
on
impose
sentences
enhanced
States v.
(quoting United
Vigil,
742
818 F.2d at
offenders,
the Double
not violate
repeat
do
Cir.),
657,
(11th
cert.
Pleasant,
662
730 F.2d
Jeopardy Clause:
216,
869,
L.Ed.2d
denied,
83
105 S.Ct.
469
time
punished a second
The defendant
below, we
(1984)).
reasons stated
For
offense; rather,
repetition of
the same
issue.
multiple-punishment
just-
not reach the
guilt
do
aggravates
his
criminal conduct
here because defendant is
implicated
not Double
Clause
sentencing
and the
guidelines,
facing
a trial
Utah for the same
with the
now
that the issue is not
previously
he
has been
review. De-
offense for which
fendant has not
been convicted of the
Dakota. The Utah of
convicted
South
may
Utah offense and
never be. Unless
South Dakota offense are
fense and the
and until defendant
punish-
receives some
Blockburger v.
different. See
United
ment from the district court
argu-
States,
299, 304,
180,
284 U.S.
52 S.Ct.
*3
ably multiple,
the issue is not
for re-
(1932) (“[T]he
ap
tencing hearing constituted a ance of evidence that the defendant com- for the Utah offense. mitted this that was a trial of the inquired Dakota district court into the Utah merits of whether he committed the of- during sentencing hearing though fense. Even proof burdens of it, findings concerning made at no time was sentencing purposes different, were jeopardy defendant in for the Utah offense. proposed what is now is a second trial for Rather, defendant only jeopardy” “in precisely the same offense. receiving a harsher sentence for the South Dakota offense than he otherwise
would have received. Put another way, the prohibits
Fifth Amendment person from
being put in jeopardy “twice of life or offence,”
limb” for the “same and defen-
dant “put never was in jeopardy” for the during
Utah offense the South Dakota sen-
tencing hearing. regard to argument
With subject
that he is
for the same offense in violation of the 3. The contends that defendant does ceives a sentence for the Utah offense that runs not even have an concurrently that he has received to his South Dakota sentence multiple punishments for the equal length, Utah offense un- is less than or to it in then defen- given less he is a Utah sentence possibly that runs con- any multiple dant cannot have suffered secutively punishment. to the South Dakota sentence or else Because defendant has not longer is govern- than it. any received sentence for the Utah ultimately ment asserts if re- need not reach that issue.