58 F.3d 370 (8th Cir. 1995), 94-4091, United States v. Kress

Docket Nº:94-4091.
Citation:58 F.3d 370
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lamont D. KRESS, Defendant-Appellant.
Case Date:June 26, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 370

58 F.3d 370 (8th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,


Lamont D. KRESS, Defendant-Appellant.

No. 94-4091.

United States Court of Appeals, Eighth Circuit

June 26, 1995

Submitted May 16, 1995.

Page 371

Alan P. Caplan, San Francisco, CA, argued, for appellant.

Michael G. Heavican, Omaha, NE, argued (Thomas J. Monaghan, on the brief) for appellee.

Before WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE, [*] Senior District Judge.

BOGUE, Senior District Judge.

Lamont Kress appeals from the district court's 1 interlocutory order denying his motion to dismiss one count of a multi-count indictment. For reversal, Kress argues his double jeopardy rights would be violated if he is tried on this count in that he was previously acquitted of the same. Because we believe the issue has been waived, we affirm.

Page 372


Appellant, along with a number of co-defendants, was charged by superseding indictment with 33 counts involving conspiracy to distribute and possession with intent to distribute methamphetamine, as well as various substantive crimes committed in furtherance of the conspiracy. Appellant was tried with four other individuals and verdicts were returned on May 14, 1992. Appellant was found guilty of twenty-six counts and not guilty on five counts, including count 29, a charge alleging possession with intent to distribute methamphetamine on a specific date. When the jury was polled, each juror stated that this was his or her true verdict. The jury was then discharged by the court. The court thereafter accepted the verdicts and ordered they be filed by the clerk.

Upon leaving the courtroom, several jurors approached a courtroom deputy and indicated that the verdict with regard to the appellant was in error. On May 19, 1992 the United States filed a "Motion to Correct Verdict," alleging clerical errors in the verdict form as it related to the appellant. Over the appellant's written objections, the jury and counsel were reassembled on May 27, 1992, by order of the district court. When the jury was repolled, three of the jurors, one of which was the jury foreperson, indicated that the verdict previously reported was not their true verdict. These three jurors indicated that a mistake had been made on count 29. The district court then vacated and set aside the prior acceptance of the appellant's verdict as to count 29.

The jury was then ordered to return to the jury room, accompanied by a complete set of trial instructions and exhibits, to deliberate with respect to count 29. Approximately twenty minutes later the jury returned with a guilty verdict as to the crime charged in count 29. The appellant objected to the district court's procedure throughout the hearing, both prior to the jury's deliberation and upon their return. The district court accepted the verdict of guilty and again ordered that it be filed by the clerk. As part of its findings, the district court specifically found that "[this] is not a new verdict rendered by this jury, but is a corrected verdict ..." and that the not guilty verdict on the original form "was an error in...

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