Saturday, September 29, 2007

Double Trouble, But Not Double Jeopardy

United States v. Dionisio, Docket No. 06-0908-cr (2d Cir. September 17, 2007) (Calabresi, Wesley, CJJ, Oberdorfer, DJ)

This case presented a question open that the Circuit has never addressed: does jeopardy attach to counts that were dismissed with prejudice by the government pursuant to a plea agreement? Reviewing the framework set by a line of Supreme Court cases, the Circuit concluded that the answer to this question is “possibly, but not here.”

Dioniso pled guilty in 2001 under plea agreement in which the government agreed to dismiss certain racketeering charges with prejudice, and ultimately did so. In 2004, despite its promise, the government indicted him on suspiciously similar charges, and he moved to dismiss the new indictment as a violation of the Double Jeopardy Clause. The district court held that, per se, jeopardy never attaches to a pretrial dismissal.

The Circuit disagreed with this ruling, although not the ultimate outcome, taking a much more nuanced approach. To resolve this complex question the court “look[ed] beyond formalistic labels” and “scrutinize[d] the substantive resolution underlying that disposition.” Neither an actual acquittal nor conviction is a necessary to trigger double jeopardy; the crucial question is “whether the defendant faced the risk of a determination of guilt” and thus whether the disposition of the indictment “entailed findings of facts on the merits such that the defendant was placed in genuine jeopardy by the making of such findings.” Thus, there must be an adjudication of “some facts that go to the merits” of the charge before it can be said that the defendant was placed in “actual jeopardy.” (emphasis in original).

Here, it was easy for the court to conclude that no jeopardy had attached to the dismissed charges, since the dismissal arose exclusively from an agreement between the parties, and there was no record evidence that the dismissal entailed a resolution of any factual elements that went to the merits, nor of a process that put the defendant at risk of conviction.

The door is not completely shut for Dionisio. He would seem to have a strong claim that the government breached its plea agreement by reviving, in barely disguised form, counts that it had promised to dismiss. But that will have to wait. Double jeopardy claims can be heard in an interlocutory appeal, which this was. A claim that the government breached a plea agreement cannot.

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