DC Circuit: USA v. Nizar Trabelsi

 Pretrial orders denying a double jeopardy claim arising from the circumstances of extradition are sufficiently final for the purposes of appeal.

By the terms of the treaty and the act of state doctrine, the courts should primarily defer to the actions of the foreign executive rather than the actions of the foreign judiciary.

Foreign court's determination of the limits of the foreign executive's power under the order did not interpret the executive's decision or say that he was compelled to follow the instructions of the order.

Foreign executive's transmission of letter outlining terms of the extradition was not an act of state where the transmission of the letter was mandated by the foreign judiciary, and the letter notes that it is not necessarily the position of the foreign state.

CONCURRENCE:

A private right arising from a treaty can be forfeited when not timely raised.

CONCURRENCE:

Although the plain text of the treaty imposes no double jeopardy obligations on the extraditing state, an earlier holding in the case established that it imposed reciprocal obligations as to its principles; making this determination should have been the first consideration, as it implicates US separation of powers, with the courts constrained from reading general principles of international law into the terms of a treaty.

USA v. Nizar Trabelsi

Fifth Circuit: USA v. Brune

 

Jeopardy does not always attach at acceptance of a guilty plea; the relevant criteria for determining the point at which jeopardy attaches are the deft's finality interests and the risk of prosecutorial overreach.  Circuit split flagged on both the proposition and the criteria.

Finality interests look to preserving jury verdicts, the chance for the state to marshal its evidence, and the forseeability of the the second charge.  The relevant factors for overreach are whether the second charge was pending, and whether the government had a full and fair opportunity to convict.

As deft pleaded to conspiracy involving the statutory offense with a minimum quantity, but the plea, the magistrate's report and the acceptance of plea reflected  the statutory offense with no minimum quantity, jeopardy did not attach at the acceptance of the plea, and the court could amend the order to reflect the second statute.

Foreign name of cartel with which the deft had entirely domestic contacts suffices for the sentencing increase for foreign importation.

USA v. Brune

Seventh Circuit: Tyrus Coleman v. Ron Neal

 

As acquittals are to be read for the least that they establish, not the most, the retrial on an attempted murder charge after an acquittal from a murder charge as to the second victim does not offend Double Jeopardy; logically there might have been reasons for the jury's decision other than the theory offered by the defendant.

In considering an Ineffective Assistance claim, it is the full course of representation that matters; the lack of impeachment on a specific point in the second trial was insufficient to, on its own, justify reversal.

Tyrus Coleman v. Ron Neal

Fourth Circuit: US v. Daryl Bank

Explicit waiver of Double Jeopardy rights in agency civil proceeding does not bar current challenge, since agreement did not reference future or criminal proceedings, and agency's equitable remedy was not yet considered a criminal punishment.

Although disgorgement is meant as a punitive measure for behaviour that violates the public law, the determination that the criminal statutes of limitations apply is an insufficiently clear rule to establish that the penalty is sufficiently criminal in nature to justify a double jeopardy claim, in that the legislature clearly intended a civil equitable remedy when it empowered the agency to seek it.

US v. Daryl Bank

Second Circuit: USA v. Hernandez

Recklessly or negligently placing oneself in a situation where duress is probable negatives the defense.

Absent a request for special verdict, acquittal for conduct later found by a preponderance and used in sentencing does not imply a theory of the crime that amounts to a vindication of the conduct.

http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/doc/16-2765_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/hilite/

Eighth Circuit: US v. Kevin Morrisey

Plain error not to instruct jury that Possession, as a lesser included offense of Receipt, could not be proved with respect to the same items.

Improper venue claim waived by counsel at trial.

Shift in the theory of the offense that would have encompassed crimes outside of the court's jurisdiction did not constitute a constructive amendment of the indictment, as venue is not an essential element of the offense. 

Plain error to admit spreadsheet with list of images with outside expert hearsay commmentary, but no prejudice.

No prejudice from statement in closing that implied that files could be received by when internally transferred.

http://media.ca8.uscourts.gov/opndir/18/06/172157P.pdf

First Circuit: Caraballo-Caraballo v. Administracion de Correccion

When a superseding indictment adds charges arising out the same act, transaction or common scheme, the Sixth Amendment speedy trial clock for the added charges still runs from the initial indictment.

The protections of the Sixth Amendment are generically distinct from Due Process and double jeopardy, and differ from the statutory protections offered under the Speedy Trial Act; the protection therefore arises directly from the Sixth Amendment.

http://media.ca1.uscourts.gov/pdf.opinions/17-1961P-01A.pdf

First Circuit: US v. Gall

Double Jeopardy, FRCrimP


Acceptance of guilty plea to a lesser-included offense which is later withdrawn in favor of a supervening offense does not constitute Double Jeopardy, as the deft is not placed in meaningful jeopardy by the initial charge.

No clear error to vacating of initial plea after PSR had issued.

Ineffective Assistance claim to be resolved in collateral proceeding.  Plea deal's terms that the maximum prison term would be that of the first (lesser-included) offense are insufficient to establish that it was actually for that offense -- extrinsic evidence would have to be considered.

Prosecutor's indication that a PSR that went beyond the terms of the deal was correct was not plain error.

Sentence substantively reasonable, release condition excessive -- remand to revise/explain.


US v. Gall

Eighth Circuit: United States v. Donald Harvey

F.R.Crim.P, Double Jeopardy, Sentencing


No abuse of discretion in denial of permission to withdraw nolo contendre plea where deft subsequently professes innocence, claims to have been unaware of the subpoena power, and claims that evidence was manufactured.

Simultaneously charging receipt and possession under separate statutes was still Double Jeopardy.

Concurrence: No resentencing necessary where the sentences were set to run concurrently.



United States  v.  Donald Harvey

Second Circuit: United States v. Garavito-Garcia

International Law, Crim, Conspiracy, Double Jeopardy

Treaty language requiring release within thirty days if not extradited did not create a private right for the deft - the right belongs to the state party.  Comity requires that US courts recognize the decision by the state party declining to uphold the claim.

Sufficient evidence, given taped conversations.

Court's supplemental "mere presence" instruction was a correct statement of the law of conspiracy.

Indictment not duplicitous, as one count requires providing assistance to a group that commits a terrorist act, and another requires providing assistance to a group listed as a terrorist organization.


United States v. Garavito-Garcia

Second Circuit: Smith v. Wenderlich

Double Jeopardy, Sentencing, Habeas

Where a prison term is increased due to offenses committed in prison, the completion of the portion attributable to the initial sentence does not finalize the sentence for purposes of double jeopardy, and a subsequent resentencing to incorporate supervised release is therefore neither contrary to nor an unreasonable application of federal constitutional law.

Smith v. Wenderlich

Fifth Circuit: Sealed Appellee v. Sealed Appellant

Statutory Construction, Double Jeopardy

Where the statute proscribes transportation of somebody in order to do something, it suffices that the intent be an efficient and compelling reason for the transportation, not necessarily the exclusive intent.

Where the statute proscribes crossing a state line, international travel suffices, as there is a state boundary interposed.

Where one statute proscribes crossing a state line in order to do something, and another proscribes transporting someone internationally or across a state line in order to do the same thing, no double jeopardy.

Where PSR uncontrovertedly describes conduct without providing specifics, it is a fair basis for a sentencing enhancement.


Sealed Appellee v. Sealed Appellant