The Court of Appeals in Andre v. U.S., decided on August 19, 2019, determined the scope and implications of the Double Jeopardy Clause.

At trial, Andre was convicted of two counts of simple assault and sentenced and served seven days on each count while his case was on appeal.  Due to conflict of interest of his trial counsel, his convictions were overturned on appeal and case was remanded at which time the government moved to prosecute him again on the same changes one more time.

Andre argued on appeal that the Double Jeopardy Clause of the Fifth Amendment barred his retrial as he had already served and completed his sentence previously imposed and his reconviction on the charges would expose him to no additional punishment and also would have no collateral legal consequences.

The Double Jeopardy Clause of the Fifth Amendment provides that:

  • No person “shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.

The Fifth Amendment guarantee against double jeopardy incorporates three separate constitutional protections:

  • It protects against a second prosecution for the same offense after acquittal.
  • It protects against a second prosecution for the same offense after conviction.
  • And it protects against multiple punishments for the same offense.

The Court of Appeals clarified that the invocation of appellate rights by itself does not attach jeopardy to the conviction.

In another word, to require a defendant to stand trial again after invocation of right of appeal to challenge his first conviction is not an act of governmental oppression of the sort against which triggers the Double Jeopardy Clause.

Specifically, successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, poses no barrier to further prosecution on the same charge and for a second time.

Moreover, the Double Jeopardy Clause leaves entirely the decision to recharge and retry a defendant who has obtained a reversal or vacatur of his conviction on appeal to the prosecutor’s sole discretion.

Furthermore, the Double Jeopardy Clause does not preclude his re-prosecution and re-sentencing upon conviction simply because he already has served the sentence imposed on him for his vacated convictions.  In such cases however, he must be credited for time served in the first conviction.

That is, punishment already exacted must be fully credited in imposing sentence upon a new conviction and for the same offense.

As long as initial sentence is credited, then the court can impose upon the defendant’s reconviction whatever sentence legally authorized, whether or not it is greater than the original sentence imposed.

Moreover, although the defendant persuasively argued that the government would not have any legal collateral benefits in his retrying as he had already served his sentence –- the Court held that the government still has significant governmental and societal interests in branding those guilty of criminal activity and having valid convictions entered against them.

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Categories: Criminal Defense.