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Archive | double jeopardy

Monday, March 3rd, 2025

Supreme Court takes Second Circuit case to decide if defendants can be constitutionally punished under both § 924(c) and § 924(j)

The Supreme Court has granted certiorari in Barrett v. United States, No. 24-5774, to decide if the Double Jeopardy Clause permits a court to impose separate sentences for an act that violates both 18 U.S.C. § 924(c) and § 924(j). The petition is available here.

Section 924(c)(1)(A) is violated if someone, “during and in relation to any crime of violence or drug trafficking crime . . . , uses or carries a firearm, or [], in furtherance of any such crime, possesses a firearm.” Section 924(j) is violated if someone, “in the course of a violation of subsection (c), causes the death of a person through the use of a firearm.”

Most circuits to address the issue have held that § 924(c) is a lesser included offense of § 924(j), meaning that, under the Double Jeopardy Clause, a defendant may not be constitutionally punished for both offenses. The …

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Categories: 924(c), 924(j), double jeopardy

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Monday, September 30th, 2024

After reversal by the Supreme Court, Circuit vacates fraud convictions based on invalid legal theories, but allows new trial of two defendants on traditional fraud theories

On May 11, 2023, the Supreme Court reversed the Second Circuit in Ciminelli v. United States, 598 U.S. 306 (2023), and Percoco v. United States, 598 U.S. 319 (2023) holding invalid both the Circuit’s “right to control” theory of fraud (Ciminelli) and its theory that a private citizen with a “special relationship” with the government, who “dominated and controlled” government business may be convicted of honest services fraud (Percoco). See Blog May 15, 2023. Given the Supreme Court’s holding, the Circuit had to vacate their convictions, which were based on the invalid theories.

The Circuit did vacate those convictions, just this week, in United States v. Aiello, No 18-2990 (2d Cir. September 23, 2024) (Chin, Raggi, Sullivan) but remanded for retrial of Ciminelli and Percoco on traditional fraud theories, even though traditional fraud theories were not pursued at the first trial. …

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Categories: double jeopardy, fraud, honest services fraud

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Friday, June 23rd, 2023

Supreme Court holds that a defendant tried in an improper venue may be retried if the conviction is overturned on that ground.

In Smith v. United States, decided June 15, 2023, the Supreme Court ruled that if a defendant is successful in showing that their trial was held in an improper venue, the government is nonetheless permitted to retry them in the proper venue.

The Court reasoned that nothing in the language or history of either the venue clause of Art. I, section 2, clause 3 or the vicinage clause of the Sixth Amendment bars a retrial.  The Court further ruled that double jeopardy is not implicated because reversal on venue grounds is unrelated to factual guilt or innocence and does not resolve the “bottom-line question of criminal culpability.”

The decision unanimously affirmed the Eleventh Circuit in an opinion by Justice Alito.…

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Categories: double jeopardy, Sixth Amendment, venue

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Tuesday, July 20th, 2021

Second Circuit rules no double jeopardy violation to admit the same evidence of a cocaine conspiracy that resulted in acquittal in the first trial to prove a RICO conspiracy in a second trial.

In United States v. Hicks, No. 19-590 (2d Cir. July 16, 2021), the defendant was tried for conspiracy to distribute marijuana, conspiracy to distribute cocaine and cocaine base, a 924(c) violation, and a RICO conspiracy. He was convicted of the marijuana conspiracy but acquitted of both the conspiracy to distribute cocaine and cocaine base and the 924(c) count. The jury hung on the RICO conspiracy count, which was retried. At the second trial, the government relied “on substantially the same evidence” as it presented in the first trial, including “the same evidence that it had used unsuccessfully in the first trial to convict Hicks of engaging in a cocaine conspiracy.” The defense objected to this on double jeopardy grounds, but the second jury was allowed to convict on this evidence.

The Second Circuit held there was no double jeopardy violation. First, it held that double jeopardy did not bar …

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Categories: conspiracy, double jeopardy, issue preclusion

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Tuesday, June 18th, 2019

Supreme Court declines to overturn the dual sovereignty doctrine

In Gamble v. United States, No. 17-646, decided on June 17, 2019, the Supreme Court declined to overturn its “dual-sovereignty” doctrine — in the face of a Double Jeopardy challenge — in a 7-2 decision written by Justice Alito. Gamble v. United States, No. 17-646, 2019 WL 2493923 (June 17, 2019).

Terance Gamble was convicted in Alabama under the state’s felon-in-possession-of-a-firearm statute, after local police found a gun in his car during a traffic stop. He was sentenced to 1 year in prison (10 years’ imprisonment with all but 1 year suspended). He then was subjected to a second prosecution for the same conduct “by the United States under its own felon-in-possession law. ” Op. at 1. After Gamble’s motion to dismiss on double jeopardy grounds was denied, he pleaded guilty to the federal offense and was sentenced to 4 years in federal prison. The Eleventh Circuit affirmed …

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Thursday, June 28th, 2018

Recap of Supreme Court Decisions in Carpenter and Currier

As we mourn Justice Kennedy’s retirement, Sentencing Resource Counsel Sissy Phleger has graciously allowed us to post her summaries of the Supreme Court’s recent decisions in Carpenter v. United States (opinion available here) and Currier v. Virginia (opinion available here):

First, in the eagerly-anticipated Carpenter v. United States, the Court held that the government’s acquisition of Mr. Carpenter’s cellphone location records was a Fourth Amendment search. Roberts wrote for the majority, joined by Kagan, Breyer, Sotomayor, and Ginsburg. All the dissenters filed separate opinions (and variously join in each other’s). While the majority opinion is at pains to confine its impact, this is a great win with potential implications far beyond its specific circumstances.

Mr. Carpenter had challenged the use of warantlessly-obtained historical cell-site location records used to convict him of a string of armed robberies. He argued that the records constituted a search, and thus required …

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Categories: cell phone location information, double jeopardy, Fourth Amendment

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Monday, October 16th, 2017

Today’s Cert. Grants

Today the Supreme Court granted certiorari in two criminal cases:

Dahda v. United States, No. 17-43
Question Presented: Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

Cert. papers and opinion below available here:

Dahda v. United States

Currier v. Virginia, No. 16-1348
Question Presented: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the Double Jeopardy Clause to the issue preclusive effect of an acquittal.

Cert. papers and opinion below available here:

Currier v. Virginia

Based on the cert. petitions — but not verified by independent research — it appears that the Second Circuit has not weighed in on the question presented in either case.…

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Categories: double jeopardy, wiretaps

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Thursday, December 1st, 2016

Supreme Court Rejects Double Jeopardy Claim

On Tuesday, in Bravo-Fernandez v. United States, the Court decided that, when a jury has returned inconsistent verdicts in a multi-count criminal case—acquittals on some counts but a conviction on another—and the conviction is subsequently vacated on appeal because of erroneous jury instructions, the double jeopardy clause does not preclude the government from retrying the defendant on the count that produced the conviction. Because “inconsistent verdicts shroud in mystery what the jury necessarily decided,” the Court ruled, the issue preclusion doctrine of Ashe v. Swenson cannot be applied.

The defendants were indicted in separate counts for federal bribery, conspiracy to commit that bribery, and traveling in furtherance of the bribery. Because the defendants conceded that they had both agreed and travelled, “the only contested issue at trial” was whether the offense of bribery had in fact been committed. At trial, the jury acquitted on the conspiracy and travel counts …

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Sunday, November 20th, 2011

Making a Skilling in Albany

United States v. Bruno, No. 10-1887-cr (2d Cir. November 16, 2011) (Parker, Chin, CJJ, Korman, DJ)

The story of Joe Bruno, former New York State Senate Majority Leader, is fairly well known. Having seemingly turned his position into a veritable cesspool of self-interested profiteering, he was ultimately convicted of two counts “honest services” fraud – the jury hung on a third, and acquitted him of several others. Consistent with the law at the time, however, the fraud was charged only as a failure to disclose various conflicts of interest.

While Bruno’s appeal was pending, the Supreme Court decided United States v. Skilling, 130 S.Ct. 2896 (2010), which held that the honest services statute criminalizes only fraudulent schemes that are effectuated through bribery or kickbacks. In light of Skilling, was inevitable that Bruno’s convictions would have to be tossed. The only real suspense was whether the Circuit would acquit him or …

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Categories: double jeopardy, honest services fraud, Uncategorized

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Sunday, August 14th, 2011

Rowe, Rowe, Rowe, You’re Toast

United States v Jackson, No. 07-0263-cr (2d Cir. August 4, 2011)

Leval, Lynch, CJJ, Korman, DJ)

Appellant Derrick Rowe, charged with a drug-related murder, had three trials. At the first, he was convicted of only drug trafficking and possession of ammunition, but the jury hung on three other counts – murder, § 924(c) and § 924(j). The court sentenced him to 32 years. At the second, the jury hung on all of the remaining counts. At the third, Rowe was convicted of the three open counts and received a 45-year concurrent sentence.

On appeal, his primary claim was that, at the third trial, the district court erred in allowing the government to play portions of his some of his prison phone calls without allowing him to play other portions under the Fed. R. Evid. 106 “rule of completeness.” The circuit found no abuse of discretion. In he first conversation, Rowe …

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Saturday, March 27th, 2010

A Pattern Emerges

United States v. Basciano, NO. 09-0281-cr (2d Cir. March 23, 2010) (Walker, McLaughlin, Raggi, CJJ)

On this interlocutory appeal, the circuit found that an indictment charging Basciano, who had previously been convicted of racketeering in conducting the affairs of the Bonanno crime family, with a successive racketeering count violated the Double Jeopardy Clause, because both counts alleged the same pattern of racketeering.

Background

1. The 2003 Indictment

Basciano and several co-defendants were originally charged in a 2003 Indictment with racketeering conspiracy and several other counts. The jury convicted Basciano of the racketeering conspiracy, but was unable to reach a verdict on some of the other counts. In preparing to retry him on the 2003 Indictment, the government superseded and added a substantive racketeering count. That count alleged that, from January 1979 through November 2004, Basciano conducted and participated in the conduct of the affairs of the Family through a pattern …

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