U.S. v. Peoples

• Decision Date: 16 March 2004
• Docket Number: No. 03-1207.,03-1207.
• Citation: 360 F.3d 892
• Parties: UNITED STATES of America, Appellee, v. Cornelius PEOPLES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

360 F.3d 892

UNITED STATES of America, Appellee, v. Cornelius PEOPLES, Appellant.

No. 03-1207.

United States Court of Appeals, Eighth Circuit.

Submitted: September 11, 2003.

Filed: March 16, 2004.

Order Denying Petition for Rehearing and for Rehearing En Banc May 18, 2004.

Motion to stay the mandate is granted pending the filing of a petition for writ of certiorari with the United States Supreme Court June 9, 2004.

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

Judge Bye would grant the petition for rehearing en banc.

Appellant's motion to stay the mandate of this court is granted pending the filing of a petition for writ of certiorari with the United States Supreme Court.

The issuance of the mandate in this case shall be stayed to and including September 7, 2004. If within that time there is filed with the Clerk of this court a certificate of notification by the Clerk of the Supreme Court that a petition for writ of certiorari has been filed, this stay shall continue until final disposition of the case by that court.

Jay D. DeHardt, argued, Kansas City, MO, for appellant.

K. Michael Warner, argued, Asst. U.S. Atty., Kansas City, MO, for appellee.

Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.

WOLLMAN, Circuit Judge.

Because we believe that the reasoning in Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), extends to the facts of this case, we affirm the district court's¹ denial of Cornelius Peoples's motion to strike the government's notice of intent to seek the death penalty on retrial.

I.

Peoples and his co-defendant, Xavier Lightfoot, were indicted and tried for the federal crimes of murder of a federal witness (first-degree murder) and conspiracy to rob a credit union. 18 U.S.C. §§ 2113(a), 1111, 1512(a)(1) and 1512(a)(2). The government filed a notice of intent to seek the death penalty. The jury convicted both defendants during the guilt phase of the trial. During the penalty phase, the government presented evidence of aggravating factors against both Peoples and Lightfoot. It then bifurcated the remainder of the penalty phase, presented further evidence, and submitted only Lightfoot's penalty to the jury for consideration. The jury hung on Lightfoot's sentence, and the district court entered the default sentence of life in prison.² At that point, because the government did not believe that the jury would impose the death penalty against Peoples, it withdrew its notice of intent to seek the death penalty against him. The district court released the jury and entered the default sentence of life in prison without parole for Peoples.

On appeal, we reversed the convictions and remanded for a new trial. United States v. Peoples, 250 F.3d 630 (8th Cir.2001). A second grand jury indicted Peoples and Lightfoot for the same crimes, adding an additional count of conspiracy to commit murder. The government again filed a notice of intent to seek the death penalty. Raising the claim of double jeopardy, Peoples and Lightfoot each filed a motion to strike the notice, which the district court denied. Peoples and Lightfoot both filed interlocutory appeals, but Lightfoot's appeal was later dismissed pursuant to his motion following the Supreme Court's decision in Sattazahn.

II.

The foundational principle in double jeopardy jurisprudence is that "no man can be twice lawfully punished for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (quoting Ex parte Lange, 85 U.S. 163, 18 Wall. 163, 168, 21 L.Ed. 872); U.S. Const. amend. V. Once jeopardy has attached and terminated as to a particular offense, the government may not retry or punish the defendant again for the same offense. Pearce, 395 U.S. at 718, 89 S.Ct. 2072. Jeopardy attaches in a jury trial when the jury is empaneled and sworn. United States v. Curry, 328 F.3d 970, 972 (8th Cir.2003). Some event must terminate the original jeopardy before the double jeopardy protection of the fifth amendment prevents reprosecution for the same offense. Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). Without a terminating event, jeopardy continues from one proceeding to the next. Jeopardy typically terminates if there is an acquittal or if the judge declares a mistrial when there is neither manifest necessity nor the defendant's consent. See, e.g., Arizona v. Rumsey, 467 U.S. 203, 210-11, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) (stating one may not face retrial after an acquittal); United States v. Dixon, 913 F.2d 1305, 1310 (8th Cir.1990) (stating that a mistrial will bar retrial unless it is required by manifest necessity or the defendant consents). The test for "manifest necessity" is not precise, but often comes down to a calculus of when the public interest establishes a "high degree" of need to allow a retrial. Arizona v. Washington, 434 U.S. 497, 505-06, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). We review de novo a district court's denial of double jeopardy protection. United States v. Beeks 266 F.3d 880, 882 (8th Cir.2001) (per curiam).

Jeopardy separately attaches to the penalty phase of a capital trial, and the guilt and penalty phases of the trial are treated as separate proceedings for purposes of double jeopardy analysis. See Bullington v. Missouri, 451 U.S. 430, 445-46, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). The penalty phase in a capital trial is more than mere sentencing. It is a separate proceeding in which the prosecution has to prove additional facts beyond a reasonable doubt before the jury can find death appropriate. Id. at 438, 101 S.Ct. 1852. Jeopardy attached for purposes of the penalty phase when the jury reconvened and the government began to present evidence on the aggravating factors for both Peoples and Lightfoot.

The Supreme Court has applied several double jeopardy principles in capital cases. The touchstone principle in capital sentencing proceedings is that jeopardy terminates and provides finality for the penalty phase if there is an acquittal of death. Sattazahn, 537 U.S. at 109, 123 S.Ct. 732. The mere imposition of a life sentence is not enough; there must be an affirmative choice by the jury not to impose a death sentence. Id. at 107, 123 S.Ct. 732. If the jury finds that the prosecutor failed to prove the aggravating circumstances and unanimously sentences the defendant to life in prison, it has acquitted him of death as a possible penalty. Rumsey, 467 U.S. at 210-11, 104 S.Ct. 2305. In contrast, if there has been no acquittal by judge or jury, the defendant may again be subjected to the penalty of death. Poland v. Arizona, 476 U.S. 147, 156-57, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). If the jury deliberates but fails to reach a conclusion, it has neither acquitted the defendant of death nor found that he is legally entitled to a life sentence. Sattazahn, 537 U.S. at 109-10, 123 S.Ct. 732. A non-capital case with a hung jury usually results in an automatic retrial based on "manifest necessity." Washington, 434 U.S. at 509-10, 98 S.Ct. 824. Jeopardy continues, establishing a "slate wiped clean" for the jury in the second trial. Pearce, 395 U.S. at 719-21, 89 S.Ct. 2072. A hung jury in the penalty phase of a capital trial results in a default sentence instead, but the principle is the same: if the conviction is reversed, the prosecution may again seek the death penalty, subject to no jeopardy limitations at either the guilt or penalty phases of the trial. Sattazahn, 537 U.S. at 114-15, 123 S.Ct. 732.

We conclude that the reasoning in Sattazahn extends to the situation in this case. Peoples was not acquitted of death by the jury or the court, so jeopardy continued and the second indictment began a new proceeding on a clean slate. The jury did not acquit Peoples, for it made no findings regarding the aggravating circumstances, and the district court entered the sentence required by law only because the penalty phase terminated without such a factual resolution. See Sattazahn, 537 U.S. at 109-10, 123 S.Ct. 732. The district court made no separate legal determination, but responded to the request, agreed upon by both parties, to terminate the case and enter a life sentence. Although Peoples asserts that his case is distinguishable from Sattazahn because his jury was not given an opportunity to consider his penalty, we do not find the distinction persuasive. As in Sattazahn, it is equally true in this case that no factfinder made "`findings sufficient to establish legal entitlement to the life sentence,'" id. at 109, 123 S.Ct. 732 (quoting Rumsey, 467 U.S. at 211, 104 S.Ct. 2305), and thus the factual question about the aggravating circumstances related to Peoples' conviction remained unresolved.

The Court in Sattazahn indicated that a legal entitlement not to receive a death sentence may generally arise only when there is an acquittal. It examined the possibility of a narrow exception based on legislative intent in enacting the default sentence but rejected that possibility, concluding that Pennsylvania's choice to establish a default sentence was based on an interest in closure and the preservation of resources, factors that become irrelevant if a case has to be tried again anyway. 537 U.S. at 110, 123 S.Ct. 732. Similarly, the government's intent in the context of Peoples's case does not establish an exception to the acquittal requirement. The government chose to end the penalty phase based on practical considerations; its choice to do so did not by itself create binding legal conclusions.

Although defendants in Peoples's situation will be faced with the choice between appealing and possibly facing the death penalty again, or accepting a sentence of life in prison, Sattazahn holds that such a choice is not determinative of double jeopardy. 537 U.S. at 114-15, 123 S.Ct. 732. The government did not know there would be a second trial when it chose to...