U.S. v. Jose, 04-10202.

Citation425 F.3d 1237
Decision Date19 October 2005
Docket NumberNo. 04-10202.,04-10202.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Bryson JOSE; Roberto A. Miguel, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Peter C. Wolff, Jr. (argued), Assistant Federal Public Defender, Honolulu, HI, for defendant-appellant Roberto A. Miguel, and Barry D. Edwards (on the briefs), Honolulu, HI, for defendant-appellant Bryson Jose.

Edward H. Kubo, Jr., United States Attorney, and Ronald G. Johnson (argued), Assistant United States Attorney, Honolulu, HI, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii; Helen Gillmor, District Judge, Presiding. D.C. Nos. CR-98-00393-1-HG, CR-98-00393-3-HG.

Before D.W. NELSON, CALLAHAN, and BEA, Circuit Judges.

D.W. NELSON, Circuit Judge.

Appellants Bryson Jose and Roberto A. Miguel appeal the district court's denial of their joint motion to dismiss their indictments on double jeopardy grounds. As is relevant here, appellants were convicted of felony murder and three predicate felonies. The counts were charged under one indictment and prosecuted together in one trial. On direct appeal, this court reversed appellants' felony murder convictions, reversed Miguel's conviction for use of a firearm during a crime of violence, affirmed all other convictions and remanded to the district court for further proceedings. On remand, Miguel moved for dismissal of the indictment on double jeopardy grounds, claiming that his final convictions on the lesser included predicate felonies barred retrial of the greater felony murder charge. Jose joined in the motion. We affirm the district court's denial of appellants' motion to dismiss the indictments.

This case raises a purely legal question about the reach and proper application of the Double Jeopardy Clause: Does the reversal of a conviction on a greater offense, coupled with a final conviction on a lesser included offense, preclude retrial of the greater offense when the offenses were charged in the same indictment and tried together in the same original trial? We hold that it does not.

I. Factual and Procedural Background

For purposes of this interlocutory appeal, a detailed rendering of the facts of the case is neither necessary nor particularly helpful. For a more in-depth description of the facts, we refer the interested reader to this court's previous opinion in United States v. Miguel, 338 F.3d 995, 997-98 (9th Cir.2003).

Jose and Miguel were part of a drunken group of teenage revelers that ended its evening debauch by killing an army officer in the course of an attempted robbery and burglary of a cabin at the Waianae Army Recreation Center ("WARC"). Miguel, 338 F.3d at 997. WARC is within the special maritime and territorial jurisdiction of the United States. As is relevant here, appellants were convicted of felony murder, two counts of attempted robbery, and one count of attempted burglary, in violation of, inter alia, 18 U.S.C. §§ 13, 1111, 2111. Miguel, 338 F.3d at 999-1000.

They successfully appealed their felony murder convictions on the ground that the district court "committed structural error when it precluded the defendants from arguing their theory of the case and instructed the jury that no evidence supported the defendants' theory." Id. at 997. This court, therefore, reversed appellants' felony murder convictions, vacated their sentences, and remanded for further proceedings. Id. at 1007. Appellants did not appeal their predicate felony convictions, which were nevertheless affirmed by this court on direct appeal. See id. at 997 n. 3.

On remand, Miguel moved to bar retrial of his felony murder charge on double jeopardy grounds, and Jose joined in the motion. The district court denied the motion and this interlocutory appeal timely followed. This court reviews the denial of a motion to dismiss an indictment on double jeopardy grounds de novo. See United States v. Lun, 944 F.2d 642, 644(9th Cir.1991).

II. Discussion
A. The Ball Rule

The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Jeopardy is said to "attach" when a defendant is "put to trial." Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (observing that the concept of "attachment of jeopardy" defines a point in criminal proceedings at which the purposes and policies of the Double Jeopardy Clause are implicated and designating this point as when the defendant is "put to trial") (internal quotation marks and citations omitted). "In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. In a nonjury trial, jeopardy attaches when the court begins to hear evidence." Id. (internal citations omitted). The clause's protections, then, "kick in . . . only after the defendant has been placed in jeopardy — [i.e.] when jeopardy has attached." United States v. Patterson, 406 F.3d 1095, 1096 (9th Cir.2005) (Kozinski, J., dissenting from denial of reh'g en banc).

However, "the conclusion that jeopardy has attached begins, rather than ends, the inquiry. . . ." Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). The attachment of jeopardy is a necessary, though not sufficient, condition for applying the protections of the Double Jeopardy Clause. There must also be a jeopardy terminating event, most commonly an acquittal or a final judgment of conviction. See Sattazahn v. Pennsylvania, 537 U.S. 101, 106, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) ("Under this Clause, once a defendant is placed in jeopardy for an offense [i.e., jeopardy `attaches'], and jeopardy terminates with respect to that offense, the defendant may neither be tried nor punished a second time for the same offense.") (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)); see also United States v. Byrne, 203 F.3d 671, 673 (9th Cir.2000) ("Jeopardy terminates when the jury reaches a verdict, or when the trial judge enters a final judgment of acquittal.") (citing Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962)).

Even though jeopardy has attached to, and seemingly terminated on, an offense for which a defendant has been tried and convicted, the defendant may still be retried for the same offense, consistently with the Double Jeopardy Clause, when retrial is pursuant to a reversal on appeal. Ball v. United States, 163 U.S. 662, 671-72, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) (articulating what has come to be known as the "Ball rule"). In such a case, jeopardy is said to "continue" on the offense upon retrial. See Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984) (recognizing the concept of "continuing jeopardy" implicit in the Ball rule).1

Pursuant to the Ball rule, had appellants been charged solely with the greater offense of felony murder and had that conviction been reversed and remanded for retrial, jeopardy would have clearly "continued" on the greater offense, making a second trial on the same charge constitutionally permissible. See Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. The appellants ask this court to suspend the Ball rule where, as here, the defendant has also been charged and convicted of lesser included offenses at the original trial. We decline to do so.

B. Appellants' Reliance on Brown

While the Double Jeopardy Clause does not bar retrial after reversal of a conviction, it does bar a successive trial on an offense not charged in the original indictment once jeopardy has already terminated on, what is for double jeopardy purposes, the "same offense." Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). For purposes of double jeopardy, "the test to be applied to determine whether there are two offenses or only one is whether each [statutory] provision requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Thus, a lesser included offense, which by definition "requires no proof beyond that which is required for conviction of the greater," is the "same" for purposes of double jeopardy as any greater offense in which it inheres. Brown, 432 U.S. at 168, 97 S.Ct. 2221.2

In Brown, the defendant was charged with, and convicted of, "joyriding," which, under Ohio law, consisted of "taking or operating a vehicle without the owner's consent." Id. at 167, 97 S.Ct. 2221. Joyriding was also a lesser included offense of auto theft, which was defined as "joyriding with the intent permanently to deprive the owner of possession." Id. Upon his release from jail, Brown was charged with auto theft involving the same car for which he had been convicted of joyriding. Id. at 162-63, 97 S.Ct. 2221. The Court held that because the two charges were the "same" for double jeopardy purposes — i.e., "[e]very element of the crime of operating a motor vehicle without the consent of the owner [was] also an element of the crime of auto theft" — Brown could not be subject to successive prosecutions for a greater and lesser included offense. Id. at 163, 168-69, 97 S.Ct. 2221.

Notably, Brown emphasizes that the Court was "not concerned . . . with the double jeopardy questions that may arise when a defendant is retried on the same charge after. . . a conviction is reversed on appeal." Id. at 165 n. 5, 97 S.Ct. 2221. The appellants nonetheless seek to harness Brown in the service of carving out an exception to the "continuing jeopardy" rule of Ball. That is, the appellants argue that Brown — as well as other double jeopardy cases barring subsequent prosecution on separately indicted lesser or greater offenses — creates a bar to retrial after a successful appeal of a greater offense, when conviction on a lesser...

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