Eleventh Circuit Court of Appeals - Published Opinions

Friday, August 28, 2009

McIntosh: Second Indictment must be dismissed after guilty plea to first indictment

In U.S. v. McIntosh, No. 08-15549 (Aug. 27, 2009), the Court held that Double Jeopardy barred the government from indicting a defendant for a second time, after the defendant pled guilty to a first indictment charging the same offenses, but on different (erroneous) dates.
A first indictment charged drug and firearm offenses occurring in February 2007. The defendant pled guilty. However, prior to sentencing, the government informed the court that the date of the indictment was wrong: the offenses occurred in November 2005. The government obtained a second indictment, and moved to dismiss the first one.
The Court noted that, for Double Jeopardy purposes, jeopardy attaches when a court accepts a guilty plea. It is a conviction. Thus, here, jeopardy attached. The Court rejected the argument that the case was "exceptional," pointing out that one purpose of Double Jeopardy is to protect against "prosecutorial negligence." The Court disagreed with the district court that the dismissal of the first indictment, without prejudice, "effectively withdrew" the plea. The dismissal did not vacate the plea, or the conviction. Moreover, the defect in the indictment was not "fatal" and therefore did not justify a second indictment.
The Court also rejected the government’s argument that McIntosh had implicitly consented to the second indictment, pointing out that defense counsel had stated that he was not acquiescing in a second indictment.
The Court remanded the case with instructions to vacate the second indictment.