double jeopardy clause in District of Columbia

2016The double jeopardy bar would preclude retrial of MSA of a child if the conviction were reversed for insufficiency of the evidence, see Burks v. United States, 437 U.S. 1, 18 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), but the concept of "continuing jeopardy” would permit retrial if the reversal were for some other reason, see, Evans v. United States, 987 A.2d 1138, 1141 (D.C.2010) (quoting Price v. Georgia, 398 U.S, 323, 326-27, 90 S.Ct. 1757 , 26 L.Ed.2d 300 (-1970)).

2016The double jeopardy bar would preclude retrial of MSA of a child if the conviction were reversed for insufficiency of the evidence, see Burks v. United States, 437 U.S. 1, 18 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), but the concept of "continuing jeopardy” would permit retrial if the reversal were for some other reason, see, Evans v. United States, 987 A.2d 1138, 1141 (D.C.2010) (quoting Price v. Georgia, 398 U.S, 323, 326-27, 90 S.Ct. 1757 , 26 L.Ed.2d 300 (-1970)).

2020See, e.g., Davis v. Moore, 772 A.2d 204 , 219- 21 (D.C. 2001) (en banc) (affirming loss of good time credit, and therefore increase in sentence, in face of ex post facto and due process challenges); Gray v. United States, 585 A.2d 164, 166 (D.C. 1991) (affirming trial court’s increase to sentence 10 because originally-imposed sentence “was obviously illegal”); Lindsay v. United States, 520 A.2d 1059, 1063 (D.C. 1987) (affirming increase in sentence, concluding that an illegal sentence “created no vested rights protected by the double jeopardy clause”); Christopher v. United States, 415 A.2d 80

2020Similarly, appellant urges us to adopt the holding of the Supreme Judicial Court of Massachusetts in Commonwealth v. Selavka, 14 N.E.3d 933, 943 (Mass. 2014) (concluding that a “substantial delay [in a sentence correction] may render even an illegal sentence final for the purposes of double jeopardy analysis”), but we hesitate to do so because that court has “never indicated . . . that an illegal sentence may never become final for the purposes of double jeopardy,” id. at 944 , and our court has said that an illegal sentence “create[s] no vested rights protected by the double jeopardy clause.”

2000Agreeing with his objection to retrial on double jeopardy grounds, this court held that principles of collateral estoppel implicit in the double jeopardy clause, see Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970), barred retrial on second degree murder because the jury’s previous acquittal on the charge had resolved in Turner’s favor the “issuefsj of ultimate fact,” i.e., whether he “caused the death of the victim and ... acted with malice and not in the heat of passion.” Turner, 459 A.2d at 1057 .

1987Nevertheless, being aware of the “strong presumption ... against waiver of a constitutional right,” Turner v. United States, 459 A.2d 1054, 1056 (D.C.1983), aff'd on rehearing, 474 A.2d 1293 (D.C.1984), we rested our rejection of the double jeopardy defense on other grounds.

2006See [] Felder, [supra,] 548 A.2d [at] 65[].

1995See Turner v. United States, 459 A.2d 1054 (D.C.1983) (reversing on double-jeopardy grounds on appeal before retrial trial court’s failure to dismiss a second-degree murder charge as a lesser-included offense of first-degree, premeditated murder, where the defendant had already obtained an acquittal of an identical second-degree murder charge as a lesser-included offense of felony murder), additional opinion on reh’g, 474 A.2d 1293 (D.C.1984); cf. United States v. Felder, 548 A.2d 57, 65-69 (D.C.1988) (affirming trial court’s dismissal of an indictment where prior jeopardy-attaching proceeding

1977In any event, as we discuss infra, the touchstone of the double jeopardy area is not simply whether there has been an “acquittal.” It is interesting to note that the federal counterpart of § 23-104(c), 18 U.S.C. § 3731 , was amended in 1971 to bar appeals by the government “where the double jeopardy clause of the United States Constitution prohibits further prosecution.” In discussing this amendment, the Supreme Court, in United States v. Wilson, 420 U.S. 332, 337 , 95 S.Ct. 1013, 1019 , 43 L.Ed.2d 232 (1975), said: While the language of the new Act is not dispositive, the legislative history

1977In any event, as we discuss infra, the touchstone of the double jeopardy area is not simply whether there has been an “acquittal.” It is interesting to note that the federal counterpart of § 23-104(c), 18 U.S.C. § 3731 , was amended in 1971 to bar appeals by the government “where the double jeopardy clause of the United States Constitution prohibits further prosecution.” In discussing this amendment, the Supreme Court, in United States v. Wilson, 420 U.S. 332, 337 , 95 S.Ct. 1013, 1019 , 43 L.Ed.2d 232 (1975), said: While the language of the new Act is not dispositive, the legislative history

2004If the proceedings below had involved the denial of a pre-trial motion to dismiss based on traditional double jeopardy grounds, we would have jurisdiction to *211 evaluate appellant’s claim by considering that denial as a “collateral order.” 8 See Abney v. United States, 431 U.S. 651, 659 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977) (holding that an order denying a motion to dismiss on double jeopardy grounds falls under the collateral order exception to the final judgment rule and is therefore immediately appealable); Green v. United States, 584 A.2d 599, 601 (D.C.1991) (“[t]he denial of a motion

2004If the proceedings below had involved the denial of a pre-trial motion to dismiss based on traditional double jeopardy grounds, we would have jurisdiction to *211 evaluate appellant’s claim by considering that denial as a “collateral order.” 8 See Abney v. United States, 431 U.S. 651, 659 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977) (holding that an order denying a motion to dismiss on double jeopardy grounds falls under the collateral order exception to the final judgment rule and is therefore immediately appealable); Green v. United States, 584 A.2d 599, 601 (D.C.1991) (“[t]he denial of a motion

1992Without addressing the standard set down in Kennedy , defendant relies on reasoning from United States v. Dinitz, 424 U.S. 600, 606-07 , 96 S.Ct. 1075, 1078-80 , 47 L.Ed.2d 267 (1976) to support his Double Jeopardy claim.

1992Without addressing the standard set down in Kennedy , defendant relies on reasoning from United States v. Dinitz, 424 U.S. 600, 606-07 , 96 S.Ct. 1075, 1078-80 , 47 L.Ed.2d 267 (1976) to support his Double Jeopardy claim.

1990If the court had declared a mistrial sua sponte, the double jeopardy clause of the Fifth Amendment would have barred reprosecution in the absence of a showing, most improbable here, of “manifest necessity.” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 , 6 L.Ed. 165 (1824); see also Douglas v. United States, 488 A.2d 121, 126 (D.C.1985).

1985Given the purposes underlying the double jeopardy clause, see Douglas v. United States, 488 A.2d 121, 130-31 (D.C.1985), I have doubts that the state — in retrying a felony murder case after reversal and remand — can properly retry the accused for second degree murder as well when the jury has already acquitted on that charge at the earlier trial.

1995Although Dixon purported to narrow the protection previously thought to be afforded by the double jeopardy clause, the majority opinion in Dixon explicitly left intact the Supreme Court’s earlier decision in Ashe v. Swenson, which held that even where a conviction at trial would not bar a subsequent trial on a related offense under the double jeopardy clause, “an acquittal in the first prosecution might well bar litigation of certain facts essential to the second one.” Dixon, supra, 509 U.S. at - n. 15, 113 S.Ct. at 2863 n. 15 (emphasis added); id. at -, 113 S.Ct. at 2877 (White, J., concurrin

1995Although Dixon purported to narrow the protection previously thought to be afforded by the double jeopardy clause, the majority opinion in Dixon explicitly left intact the Supreme Court’s earlier decision in Ashe v. Swenson, which held that even where a conviction at trial would not bar a subsequent trial on a related offense under the double jeopardy clause, “an acquittal in the first prosecution might well bar litigation of certain facts essential to the second one.” Dixon, supra, 509 U.S. at - n. 15, 113 S.Ct. at 2863 n. 15 (emphasis added); id. at -, 113 S.Ct. at 2877 (White, J., concurrin

1987Nevertheless, being aware of the "strong presumption . . . against waiver of a constitutional right," Turner v. United States, 459 A.2d 1054, 1056 (D.C.1983), aff'd on rehearing, 474 A.2d 1293 (D.C.1984), we rested our rejection of the double jeopardy defense on other grounds.

1987Nevertheless, being aware of the “strong presumption ... against waiver of a constitutional right,” Turner v. United States, 459 A.2d 1054, 1056 (D.C.1983), aff'd on rehearing, 474 A.2d 1293 (D.C.1984), we rested our rejection of the double jeopardy defense on other grounds.

1994See, e.g., Green v. United States, 355 U.S. 184, 187 , 78 S.Ct. 221, 223 , 2 L.Ed.2d 199 (1957) (“underlying *688 idea” of double jeopardy protection is that the State “should not be allowed to make repeated attempts to convict an individual for an alleged offense”) (emphasis added); Jones v. United States, 463 U.S. 354, 369 , 103 S.Ct. 3043, 3052 , 77 L.Ed.2d 694 (1983) (as civil committee “was not convicted, he may not be punished”) (emphasis added).

1994See, e.g., Green v. United States, 355 U.S. 184, 187 , 78 S.Ct. 221, 223 , 2 L.Ed.2d 199 (1957) (“underlying *688 idea” of double jeopardy protection is that the State “should not be allowed to make repeated attempts to convict an individual for an alleged offense”) (emphasis added); Jones v. United States, 463 U.S. 354, 369 , 103 S.Ct. 3043, 3052 , 77 L.Ed.2d 694 (1983) (as civil committee “was not convicted, he may not be punished”) (emphasis added).

2026Generally, if each offense “requires proof of a fact which the 1 The government’s law of the case argument, which it raises only in a footnote, fails for the same reason. 9 other does not,” the offenses are not the same and there is no double jeopardy bar on multiple punishments, Whalen, 445 U.S. at 692 (quoting Blockburger, 284 U.S. at 304 ), but if each offense requires proof of the same elements—or one requires proof of a subset of the same elements as the other—then the double jeopardy bar applies, id. at 693-94 (concluding that a defendant could not receive consecutive sentences for first

2022“Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent.” Ohio v. Johnson, 467 U.S. 493, 499 (1984) (citations omitted); see also Byrd v. United States, 598 A.2d 386, 388-89 (D.C.1991) (en banc) (“The role of the constitutional guarantee against double jeopardy is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for 3 Grogan raised his Double Jeopardy challe

2026Fourth and finally, in allowing trial courts to divide a greater first-degree (felony) murder conviction into lesser second-degree murder and underlying felony convictions, we appeared to disregard “Congress’ intent that a mandatory minimum sentence be imposed for first-degree murder convictions,” Garris II, 491 A.2d at 514 ; see also Ohio v. Johnson, 467 U.S. 493, 499 (1984) (acknowledging that “the substantive power to prescribe crimes and determine punishments is vested with the legislature”); Grogan, 271 A.3d at 206 n.8 (recognizing that an “animating purpose of the Double Jeopardy inquiry

2026Fourth and finally, in allowing trial courts to divide a greater first-degree (felony) murder conviction into lesser second-degree murder and underlying felony convictions, we appeared to disregard “Congress’ intent that a mandatory minimum sentence be imposed for first-degree murder convictions,” Garris II, 491 A.2d at 514 ; see also Ohio v. Johnson, 467 U.S. 493, 499 (1984) (acknowledging that “the substantive power to prescribe crimes and determine punishments is vested with the legislature”); Grogan, 271 A.3d at 206 n.8 (recognizing that an “animating purpose of the Double Jeopardy inquiry

2022See Parker v. United States, 692 A.2d 913, 916 (D.C. 1997) (“Blockburger’s presumptive rule that offenses do not merge if they require proof of different facts, can be overcome by a clear indication of contrary legislative intent.”) (cleaned up).

2007See Parker v. United States, 692 A.2d 913 , 918 n. 9 (D.C.1997). 16 But where the illegality of multiple punishments results from convictions of a greater and a lesser-included offense, the double jeopardy bar is fully addressed, and the illegal sentence corrected, by merging the lesser into the greater offense so that only the latter remains, unless — and this is an important caveat — there is clear legislative intent that punishment should be imposed for both.

1994Abney v. United States, 431 U.S. 651, 662 , 97 S.Ct. 2034, 2041 , 52 L.Ed.2d 651 (1977); Green v. United States, 584 A.2d 599, 601 (D.C.1991); see Lyons, supra, 606 A.2d at 1361 n. 16 (“[w]e are obliged to address [appellant’s] sufficiency argument because, if the evidence were insufficient, the Double Jeopardy Clause would bar her retrial”) (citing Richardson v. United States, 468 U.S. 317, 325 , 104 S.Ct. 3081, 3086 , 82 L.Ed.2d 242 (1984), and Burks, supra, 437 U.S. at 18 , 98 S.Ct. at 2150 ).

1994Abney v. United States, 431 U.S. 651, 662 , 97 S.Ct. 2034, 2041 , 52 L.Ed.2d 651 (1977); Green v. United States, 584 A.2d 599, 601 (D.C.1991); see Lyons, supra, 606 A.2d at 1361 n. 16 (“[w]e are obliged to address [appellant’s] sufficiency argument because, if the evidence were insufficient, the Double Jeopardy Clause would bar her retrial”) (citing Richardson v. United States, 468 U.S. 317, 325 , 104 S.Ct. 3081, 3086 , 82 L.Ed.2d 242 (1984), and Burks, supra, 437 U.S. at 18 , 98 S.Ct. at 2150 ).

2022Mr. Coley frames it, however, as a separate challenge and contends that the government’s conduct forced him to forgo his “valued right to have his trial completed by a particular tribunal.” Arizona v. Washington, 434 U.S. 497, 503 (1978) (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)).

1993In making the determination, the trial court engages in a two-step inquiry: first, whether a development at trial has given rise to a “ ‘high degree’ of necessity” to terminate the trial, Braxton v. United States, 395 A.2d 759, 769 (D.C.1978) (citing Arizona v. Washington, 434 U.S. 497, 506 , 98 S.Ct. 824, 831 , 54 L.Ed.2d 717 (1978)), and second, whether an alternative measure can alleviate the problem.

1989Appellant relies on the double jeopardy clause, which prohibits “multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656 (1969).

1989Appellant relies on the double jeopardy clause, which prohibits “multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656 (1969).

1977Consequently the double jeopardy clause is no bar to this appeal, [at 804.] In my view, however, the majority’s explanation why the government’s appeal is not barred by the Double Jeopardy Clause is wholly at odds with the rationale of that Clause which the Supreme Court recently restated in United States v. Martin Linen Supply Co., 430 U.S. 564 , 97 S.Ct. 1349, 1353 , 51 L.Ed.2d 642 (1977): “The development of the Double Jeopardy Clause from its common-law origins . suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals wo

1977Consequently the double jeopardy clause is no bar to this appeal, [at 804.] In my view, however, the majority’s explanation why the government’s appeal is not barred by the Double Jeopardy Clause is wholly at odds with the rationale of that Clause which the Supreme Court recently restated in United States v. Martin Linen Supply Co., 430 U.S. 564 , 97 S.Ct. 1349, 1353 , 51 L.Ed.2d 642 (1977): “The development of the Double Jeopardy Clause from its common-law origins . suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals wo

2009Cf. Serfass v. United States, 420 U.S. 377 , 95 S.Ct. 1055 , 43 L.Ed.2d 265 (1975) (discussing existence of appellate jurisdiction under 18 U.S.C. § 3731 , which provides that in criminal cases, "an appeal by the United States shall lie to a court of appeals ... except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution” (emphasis added)); Wilentz v. Sovereign Camp, W.O.W., 306 U.S. 573, 582 , 59 S.Ct. 709 , 83 L.Ed. 994 (1939) ("As the case was not one for which a court of three judges is prescribed by [statute], no appeal

2009Cf. Serfass v. United States, 420 U.S. 377 , 95 S.Ct. 1055 , 43 L.Ed.2d 265 (1975) (discussing existence of appellate jurisdiction under 18 U.S.C. § 3731 , which provides that in criminal cases, "an appeal by the United States shall lie to a court of appeals ... except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution” (emphasis added)); Wilentz v. Sovereign Camp, W.O.W., 306 U.S. 573, 582 , 59 S.Ct. 709 , 83 L.Ed. 994 (1939) ("As the case was not one for which a court of three judges is prescribed by [statute], no appeal

1982Accordingly, after a mistrial was declared over appellant’s objection, the double jeopardy clause would bar any further prosecution for the same offense unless “there was a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated.” United States v. Jorn, 400 U.S. 470, 482 , 91 S.Ct. 547, 555 , 27 L.Ed.2d 543 (1971), quoting United States v. Perez, 22 U.S. (9 Wheat.) 579 , 6 L.Ed. 165 (1924).

1982Accordingly, after a mistrial was declared over appellant’s objection, the double jeopardy clause would bar any further prosecution for the same offense unless “there was a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated.” United States v. Jorn, 400 U.S. 470, 482 , 91 S.Ct. 547, 555 , 27 L.Ed.2d 543 (1971), quoting United States v. Perez, 22 U.S. (9 Wheat.) 579 , 6 L.Ed. 165 (1924).

2004If the proceedings below had involved the denial of a pre-trial motion to dismiss based on traditional double jeopardy grounds, we would have jurisdiction to *211 evaluate appellant’s claim by considering that denial as a “collateral order.” 8 See Abney v. United States, 431 U.S. 651, 659 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977) (holding that an order denying a motion to dismiss on double jeopardy grounds falls under the collateral order exception to the final judgment rule and is therefore immediately appealable); Green v. United States, 584 A.2d 599, 601 (D.C.1991) (“[t]he denial of a motion

2000Agreeing with his objection to retrial on double jeopardy grounds, this court held that principles of collateral estoppel implicit in the double jeopardy clause, see Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970), barred retrial on second degree murder because the jury’s previous acquittal on the charge had resolved in Turner’s favor the “issuefsj of ultimate fact,” i.e., whether he “caused the death of the victim and ... acted with malice and not in the heat of passion.” Turner, 459 A.2d at 1057 .

2026Fourth and finally, in allowing trial courts to divide a greater first-degree (felony) murder conviction into lesser second-degree murder and underlying felony convictions, we appeared to disregard “Congress’ intent that a mandatory minimum sentence be imposed for first-degree murder convictions,” Garris II, 491 A.2d at 514 ; see also Ohio v. Johnson, 467 U.S. 493, 499 (1984) (acknowledging that “the substantive power to prescribe crimes and determine punishments is vested with the legislature”); Grogan, 271 A.3d at 206 n.8 (recognizing that an “animating purpose of the Double Jeopardy inquiry

2026Fourth and finally, in allowing trial courts to divide a greater first-degree (felony) murder conviction into lesser second-degree murder and underlying felony convictions, we appeared to disregard “Congress’ intent that a mandatory minimum sentence be imposed for first-degree murder convictions,” Garris II, 491 A.2d at 514 ; see also Ohio v. Johnson, 467 U.S. 493, 499 (1984) (acknowledging that “the substantive power to prescribe crimes and determine punishments is vested with the legislature”); Grogan, 271 A.3d at 206 n.8 (recognizing that an “animating purpose of the Double Jeopardy inquiry

2026This court’s practice of merging the underlying felony as the lesser offense into the greater offense of first-degree (felony) murder was challenged in Mooney, a case in which a defendant’s right to be present at his resentencing turned on whether the trial court, in order to honor the double jeopardy bar on cumulative punishment, had discretion to vacate either his first-degree (felony) murder conviction or the 11 predicate felony conviction of armed robbery. 938 A.2d at 712 .

2026We explained that in this scenario “the double jeopardy bar is fully addressed and the illegal sentence corrected, by merging the lesser into the greater offense so that only the latter remains, unless—and this is an important caveat—there is clear legislative intent that punishment should be imposed for both.” Id. (emphasis in original).

2025Unlike in criminal cases where we must always assess the sufficiency of the evidence first to ensure that the double jeopardy clause is not violated in the event of a reversal and a remand for a new trial, see Smith v. United States, 175 A.3d 623 , 627 (D.C. 2017), we often defer assessments of the sufficiency of the evidence in civil cases.

2024See Smith v. United States, 175 A.3d 623 , 627 (D.C. 2017) (explaining that when reversal is based on the sufficiency of the evidence, retrial is barred on Double Jeopardy grounds).

2016The double jeopardy bar would preclude retrial of MSA of a child if the conviction were reversed for insufficiency of the evidence, see Burks v. United States, 437 U.S. 1, 18 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), but the concept of "continuing jeopardy” would permit retrial if the reversal were for some other reason, see, Evans v. United States, 987 A.2d 1138, 1141 (D.C.2010) (quoting Price v. Georgia, 398 U.S, 323, 326-27, 90 S.Ct. 1757 , 26 L.Ed.2d 300 (-1970)).

2016The double jeopardy bar would preclude retrial of MSA of a child if the conviction were reversed for insufficiency of the evidence, see Burks v. United States, 437 U.S. 1, 18 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), but the concept of "continuing jeopardy” would permit retrial if the reversal were for some other reason, see, Evans v. United States, 987 A.2d 1138, 1141 (D.C.2010) (quoting Price v. Georgia, 398 U.S, 323, 326-27, 90 S.Ct. 1757 , 26 L.Ed.2d 300 (-1970)).