U.S. v. Ginyard

• Decision Date: 04 January 2008
• Docket Number: No. 06-3162.,No. 06-3163.,06-3162.,06-3163.
• Citation: 511 F.3d 203
• Parties: UNITED STATES of America, Appellee v. Sean GINYARD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

511 F.3d 203

UNITED STATES of America, Appellee v. Sean GINYARD, Appellant.

No. 06-3162.

No. 06-3163.

United States Court of Appeals, District of Columbia Circuit.

Argued September 24, 2007.

Decided January 4, 2008.

Appeals from the United States District Court for the District of Columbia (Nos.03cr00473-01, 03cr00473-02).

James W. Beane, Jr., appointed by the court, argued the cause and filed the briefs for appellant Sean Ginyard.

Yolanda T. Hibbler argued the cause for appellant Kevin Jefferson. With her on the briefs was Peter M. Brody.

Mary C. Dobbie, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III, Assistant U.S. Attorney.

Before: GINSBURG, Chief Judge, and GARLAND, Circuit Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

An eleven-member jury convicted Sean Ginyard and Kevin L. Jefferson on a two-count indictment that charged the defendants with distributing and with possessing with intent to distribute cocaine base. On appeal, a previous panel of this court vacated the convictions and remanded the case for a new trial because the district court had erred in dismissing the twelfth juror. See United States v. Ginyard, 444 F.3d 648 (D.C.Cir.2006). The defendants then filed pretrial motions to dismiss all or part of one count of the indictment. The district court granted the motions in part and denied them in part, and the defendants have appealed.

Defendant Jefferson contends that the district court's refusal to dismiss the count in its entirety violates the Double Jeopardy Clause of the Fifth Amendment. Although we have jurisdiction over Jefferson's interlocutory appeal, we conclude that he may be retried on lesser-included charges of that count without transgressing the bar against double jeopardy. Defendant Ginyard, by contrast, does not contend that the Double Jeopardy Clause requires dismissal of the count in its entirety, but only that it bars the government from proceeding against him under an aiding and abetting theory. Because we do not have jurisdiction over that kind of interlocutory challenge, we dismiss Ginyard's appeal without reaching its merits.

I

On August 17, 2004, a grand jury returned a two-count indictment against Ginyard and Jefferson. Count One charged each defendant with distributing cocaine base (in the form of crack), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and with aiding and abetting such distribution, in violation of 18 U.S.C. § 2. Count Two charged each defendant with possessing with intent to distribute 50 grams or more of cocaine base (in the form of crack), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and with aiding and abetting that crime, in violation of 18 U.S.C. § 2.

At trial, the government introduced evidence concerning three quantities of cocaine base that the police discovered at the time of the defendants' arrest on October 2, 2003. The government's witnesses testified that, on that day, an undercover police officer approached Ginyard to purchase drugs. Ginyard directed the officer to Jefferson, who was standing in a nearby walkway. Jefferson then lifted up a hubcap that was lying on the ground, withdrew .7 grams of cocaine base from underneath the hubcap, and sold it to the officer. When the police later searched under the hubcap, they found an additional 21.1 grams of the drug. A short time after the .7-gram sale, undercover officers watched as another man drove into the area, stopped his car, and handed Ginyard money. Ginyard then walked to a parked Cadillac and opened it with a keyless remote control. A subsequent police search of the Cadillac revealed 134.5 grams of cocaine base in a nylon bag in the trunk.

The government also introduced other evidence concerning the defendants' connection to narcotics. This included testimony about several prior undercover drug purchases from the defendants in July and August 2003, and about the discovery of crack cocaine in a search of Ginyard's mother's residence where both defendants had been seen. But the three quantities of cocaine base discussed above—the .7 grams sold to the undercover officer, the 21.1 grams found under the hubcap, and the 134.5 grams found in the Cadillac—are the only facts relevant to this appeal.

Jury deliberations began on September 10, 2004. On September 16, the court dismissed one of the jurors. The juror had sent the court a note stating that he would not be able to continue serving on the jury because he needed to pursue a job opportunity. Other notes from the jury made clear that this juror was a holdout against the verdict agreed to by the others.

When the jury reconvened, the remaining eleven members found Ginyard and Jefferson guilty on both counts of the indictment. With respect to Count One, which pertained to the sale of the .7 grams to the undercover officer, the jury found the defendants guilty. That count is not at issue on this appeal.

With respect to Count Two, which charged each defendant with possession with intent to distribute 50 grams or more of cocaine base, the court used a complicated verdict form. The form was apparently constructed in response to the Supreme Court's opinions in Blakely v. Washington and Apprendi v. New Jersey, which had held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (quoting Apprendi, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). As to each defendant, the form first asked whether he was guilty of the charge. If the jury found the defendant guilty, the form then asked the jury to indicate the amount of cocaine base for which he was responsible and listed three progressively decreasing amounts: at least 150 grams, at least 50 grams, and at least 20 grams. The instructions indicated that the jury should consider each progressively lower quantity if it was unable to find unanimously that the defendant was responsible for the greater quantity.¹

On Ginyard's verdict form, the jury checked "guilty" on the question of whether he had possessed with intent to distribute at least 50 grams of cocaine base. It left blank the question of whether the amount proven was at least 150 grams. But it checked "proven" with respect to whether the amount was at least 50 grams.

On Jefferson's verdict form, the jury also checked the "guilty" line for Count Two, but it crossed out "50 grams" and wrote in "detectable amount."² The jury left blank the questions of whether the amount proven was at least 150 grams or at least 50 grams. It did, however, check "proven" for the question of whether the amount was at least 20 grams.

Ginyard and Jefferson appealed their convictions. Holding that the district court had erred in dismissing the twelfth juror without conducting an adequate inquiry regarding his continuing availability,³ this court vacated the convictions and remanded the case for a new trial. See United States v. Ginyard, 444 F.3d 648 (D.C.Cir.2006). The district court scheduled a new trial, on both counts of the indictment, to commence on November 1, 2006.

In pretrial motions following the remand, Jefferson moved to dismiss Count Two altogether, to bar the government from presenting evidence suggesting that he was responsible for the 134.5 grams of cocaine base found in the Cadillac's trunk, and to prohibit the government from proceeding against him on an aiding and abetting theory. The district court permitted Ginyard to join Jefferson's motion. See Status Conf. Tr. 5-6 (Oct. 31, 2006).

In a memorandum order issued on October 31, 2006, the district court held that "the Government may not relitigate the question of whether, in Count Two, the amount of crack cocaine which Defendant Jefferson unlawfully possessed with the intent to distribute was either at least 50 grams or at least 150 grams." United States v. Jefferson, No. 03-473, Mem. Order at 3-4 (D.D.C. Oct. 31, 2006). But the court denied the motion to dismiss all of Count Two. Id. At a status conference that same day, the court explained that "[t]here wasn't a clear decision by the jury as to the aiding and abetting question," and it therefore declined to "strik[e] the aiding and abetting alternative" from the indictment. Status Conf. Tr. 34-35 (Oct. 31, 2006).

Both Jefferson and Ginyard now appeal, each presenting a different challenge to the district court's rulings.

II

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." U.S CONST. amend. V. As is relevant here, the Clause "protects against a second prosecution for the same offense after acquittal[, and] protects against a second prosecution for the same offense after conviction." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). The Clause also embodies principles of collateral estoppel: "[e]ven if two offenses are sufficiently different to permit the imposition of consecutive sentences," the collateral estoppel component of double jeopardy bars "successive prosecutions . . . where the second prosecution requires the relitigation of factual issues already resolved by the first." Id. at 166 n. 6, 97 S.Ct. 2221 (citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)). "It has long been settled, however, that the Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside ... because of some error in the proceedings leading to conviction." Lockhart...