In U.S. v. Bobo, No. 04-15028 (Aug. 9, 2005), on a defendant’s interlocutory appeal, the Court held that Double Jeopardy did not bar a reprosecution of a defendant after his original case was dismissed because of the indictment was insufficient to charge the charged offenses.
After a first prosecution was dismissed on appeal on defective indictment grounds, the district court denied the defendant’s Double Jeopardy-based motion to dismiss a second prosecution for the same offenses. The defendant immediately appealed. The Court first noted that although it ordinarily lacked jurisdiction over defendants’ appeals of interlocutory orders in criminal cases, an exception exists for non-frivolous appeals of claims based on Double Jeopardy. Otherwise, if the defendant were denied an appeal and forced to go through a trial, an important part of the Double Jeopardy protection would be lost.
The defendant argued that a footnote in the Court’s original opinion effectively found that the evidence at the first trial was insufficient to sustain a conviction. The defendant argued that this finding barred a reprosecution. The Court rejected this argument because its footnote did not amount to a holding on the insufficiency of the evidence. The Court acknowledged that under its own prudential rules, it should have reached the sufficiency issue in its earlier opinion. But it held that having not done so, it would not attach Double Jeopardy consequences to its prior decision.