Double Jeopardy and Dismissal of Charges

          The Double Jeopardy Clause, which is contained in the Fifth Amendment to the United States Constitution, states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."


          The Double Jeopardy Clause is designed to protect individuals accused of committing crimes against the following three things:

  1. It protects against a second prosecution for the same crime after acquittal;
  2. It protects against a second prosecution for the same offense after conviction; and
  3. It protects against multiple punishments for the same crime.


          Whether or not the Double Jeopardy Clause was violated was the issue decided just last month by the United States Court of Appeals for the Eleventh Circuit in the case of United States v. McIntosh.  In that particular case, Mr. McIntosh was indicted for the crimes of possession with intent to distribute five kilograms of crack cocaine and carrying a firearm during and in relation to a drug trafficking offense.  Two months later, he pled guilty to both crimes.


          The following month, the Assistant United States Attorney handling the case advised the judge and McIntosh's lawyer that the date contained in the indictment pertaining to when the two crimes occurred was incorrect.  A month after that, McIntosh was indicted again for the exact same crimes, but the new indictment contained the correct date regarding when the offenses happened.


          In response, McIntosh's attorney filed a motion to dismiss the second indictment in which he argued that the Double Jeopardy Clause prohibited McIntosh from being prosecuted for the exact same charges a second time.  The U.S. District Judge deciding the motion ruled against McIntosh in part because of his belief that jeopardy did not attach when McIntosh pled guilty since the first indictment was defective.


          Fortunately for Mr. McIntosh, the appellate court that heard his appeal disagreed with the lower-court judge and ruled that the motion to dismiss should have been granted.  In doing so, the Eleventh Circuit Court of Appeals reasoned that the Double Jeopardy Clause "plainly protects against a second prosecution for the same offense after conviction.  The acceptance of McIntosh's unconditional plea of guilt to the first indictment constituted convictions for the drug and firearm offenses:  The acceptance of an unconditional plea is itself a conviction.  Like a verdict of a jury it is conclusive.  More is not required; the court has nothing to do but give judgment and sentence.  A second conviction for the same offense violates the Double Jeopardy Clause."

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