U.S. v. Howe

• Decision Date: 13 August 2008
• Docket Number: No. 08-1021.,08-1021.
• Citation: 538 F.3d 820
• Parties: UNITED STATES of America, Appellee, v. Joshua Lee HOWE, also known as Josh Harris, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

538 F.3d 820

UNITED STATES of America, Appellee, v. Joshua Lee HOWE, also known as Josh Harris, Appellant.

No. 08-1021.

United States Court of Appeals, Eighth Circuit.

Submitted: April 17, 2008.

Filed: August 13, 2008.

Erin Cassinelli Couch, argued, Jack T. Lassiter, on the brief, Little Rock, AR, for appellant.

Edward O. Walker, AUSA, argued, Laura G. Hoey, AUSA, on the brief, Little Rock, AR, for appellee.

Before WOLLMAN, BEAM, and RILEY, Circuit Judges.

BEAM, Circuit Judge.

Joshua Lee Howe brings this interlocutory appeal from the denial of his motion to dismiss two counts in his indictment, conspiracy to commit kidnapping and kidnapping, on double jeopardy and collateral estoppel grounds. The district court¹ ruled that Howe would not be twice placed in jeopardy by, and that the government was not collaterally estopped from pursuing, either count. We affirm.

I. BACKGROUND

On October 5, 2005, Howe and his co-defendant, Robert Phillips, were indicted in the Eastern District of Arkansas in United States v. Howe (Howe I), for their alleged involvement in the murder of Jeremy Deshon Gaither in December 2002. The Howe I indictment charged Howe and Phillips with conspiracy to commit a robbery and kidnapping resulting in felony murder, in violation of 18 U.S.C. § 371; felony murder, in violation of 18 U.S.C. §§ 1111(a) & 2; kidnapping, in violation of 18 U.S.C. §§ 1201(a) & 2; being felons in possession of firearms, in violation of 18 U.S.C. § 922(g)(1); and using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and (j)(1).

At trial, the government sought to prove that Howe planned the kidnapping and robbery of Gaither, a rival crack dealer in DeWitt, Arkansas, and convinced Richard Smith, a drug customer of Howe's, and Phillips, one of Howe's associates, to carry out his plans. Gaither's lifeless body was found on the White River National Wildlife Refuge on December 9, 2002, and the medical evidence indicated that he had died from a gunshot wound.

Smith, who pled guilty to aiding and abetting in felony murder in connection with Gaither's death, was one of the government's key witnesses at trial. Smith testified that: (1) on the afternoon of December 6, 2002, he, acting according to a plan allegedly formulated by Howe, lured Gaither into a car under the guise of discussing a potential sale of the car to Gaither; (2) he then picked up Phillips and the two men drove Gaither onto the Refuge at gunpoint, using a gun Howe provided; (3) Phillips robbed Gaither and forced him out of the car; (4) a struggle ensued, and Phillips shot Gaither in the neck; and (5) Smith and Phillips then fled the scene.

An eyewitness testified that Gaither was last seen getting into a car driven by Smith on the afternoon of December 6, 2002, but Smith provided the only eyewitness testimony linking either Howe or Phillips to Gaither's death. Indeed, Howe built his defense around the theory that Smith really acted alone, and only concocted a story about Howe's and Phillips' involvement in hopes of receiving a reduced sentence after Smith's girlfriend reported him to authorities.

On July 25, 2007, a jury acquitted Phillips on all counts. The same jury acquitted Howe of felony murder and of using or carrying a firearm during and in relation to a crime of violence, but convicted him of being a felon in possession of a firearm. The jury failed to reach a verdict with respect to Howe's guilt on the conspiracy and kidnapping counts. Accordingly, the district court declared a mistrial as to those counts on July 27, 2007, and set a date for Howe's retrial. On August 13, 2007, the government moved to dismiss the Howe I indictment without prejudice and, over Howe's objection, the district court granted the motion.

On September 5, 2007, the government returned a new indictment against Howe (Howe II). As relevant to this appeal, Howe was charged in the new indictment with conspiracy to commit kidnapping, in violation of 18 U.S.C. § 1201(c), and kidnapping, in violation of 18 U.S.C. §§ 1201(a)(2) & 2. Before trial, Howe moved to dismiss the conspiracy and kidnapping counts on double jeopardy and collateral estoppel grounds. The district court denied the motion and Howe now brings this interlocutory appeal.

II. DISCUSSION

A. Jurisdiction and Standard of Review

This court has jurisdiction to review a pretrial order denying a motion to dismiss an indictment on double jeopardy and collateral estoppel grounds where, as here, the defendant has raised a colorable claim.² United States v. Bearden, 265 F.3d 732, 734-35 (8th Cir.2001). We review the district court's denial of a motion to dismiss an indictment on double jeopardy and collateral estoppel grounds de novo. Id. at 735.

B. Double Jeopardy

Howe first contends that the offending counts in the new indictment are barred by the Fifth Amendment because they are merely lesser included offenses of the charges brought against him at the first trial and therefore, a new trial on either count would amount to a successive prosecution for the same offense. Before addressing his arguments, we pause to review a few basic principles of double jeopardy jurisprudence.

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. Because criminal prosecutions "impose heavy pressures and burdens—psychological, physical, and financial—on a person charged," this constitutional guarantee ensures that a person is not subjected to the experience more than once for any particular crime. United States v. Turner, 130 F.3d 815, 817 (8th Cir.1997) (internal quotation omitted). Accordingly, once jeopardy has attached and terminated as to a particular offense, the government may not bring a new prosecution or punish the defendant again for the same offense. United States v. Peoples, 360 F.3d 892, 894 (8th Cir.2004).

Greater and lesser offenses do constitute the "same" offense for double jeopardy purposes. Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Generally, two offenses are not the "same," and prosecution for one after acquittal or conviction on the other does not offend the Fifth Amendment, if "`each . . . requires proof of a fact which the other does not.'" Id. at 166, 97 S.Ct. 2221 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Obviously, however, a greater offense and any lesser offenses included therein cannot pass this test-by their very definition, the lesser included offenses "require[ ] no proof beyond that which is required for conviction of the greater." Id. at 168, 97 S.Ct. 2221. Therefore, once a defendant has been placed in jeopardy for, and jeopardy has terminated as to, a greater offense, the Fifth Amendment forbids successive prosecutions for any lesser included offenses, and vice versa. Id. at 168-69, 97 S.Ct. 2221.

Notwithstanding these basic principles, a defendant may generally be retried on charges that resulted in a hung jury at his first trial. Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). In a jury trial, jeopardy attaches when the jury is empaneled and sworn, but some event— usually a final verdict of acquittal or conviction—must terminate the original jeopardy before the protection against a new prosecution for the same offense embodied in the Fifth Amendment comes into play. Peoples, 360 F.3d at 894. And a mistrial granted for manifest necessity because the jury is unable to reach a verdict is not a jeopardy-terminating event. Richardson, 468 U.S. at 326, 104 S.Ct. 3081. Accordingly, a defendant remains in continuing jeopardy after prosecution for an offense that results in a hung jury, and he can usually be retried for the "same" offense without offending the Fifth Amendment. Id. at 324, 326, 104 S.Ct. 3081.

With these guidelines in mind, we turn to Howe's double jeopardy arguments. Howe first contends that a new trial for kidnapping is barred by the Fifth Amendment because kidnapping in violation of 18 U.S.C. § 1201(a) is a lesser included offense of felony murder predicated on kidnapping and/or robbery in violation of 18 U.S.C. § 1111(a).³ As the first jury returned a verdict of acquittal on the felony murder count, Howe contends that a new trial for kidnapping would amount to a successive prosecution for the same offense after acquittal. We disagree.

To be sure, we do not quarrel with the notion that felony murder under Section 1111(a) and kidnapping in violation of Section 1201(a) may constitute greater and lesser included offenses under Blockburger. Although a conviction for felony murder under Section 1111(a) does not always require proof of a kidnapping, it does require proof of the commission of one of the felonies listed in the statute. See 18 U.S.C. § 1111(a). Accordingly, where felony murder is premised on kidnapping, all the facts required to prove kidnapping are also required to prove felony murder. In such circumstances, kidnapping would constitute a lesser included offense of felony murder. See, e.g., United States v. Chalan, 812 F.2d 1302, 1316-17 (10th Cir.1987) (concluding that, because all the facts needed to establish robbery in violation of 18 U.S.C. § 2111 are also needed to prove felony murder predicated on robbery in violation of 18 U.S.C. § 1111(a), the two offenses are the "same" for double jeopardy purposes).

But even if kidnapping is a lesser included offense of the felony murder count in Howe I,⁴ this case does not involve successive prosecutions for felony murder and the lesser included felony. Rather, the government is attempting to complete a single prosecution for both felony murder and one of the lesser included felonies.⁵ As relevant to this appeal, what the Double Jeopardy Clause prohibits is "a successive trial on an offense not charged in the...