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United States v. Turner & Kelly

    Brief Fact Summary.

    Defendants appeal the trial court’s ruling, denying their motions to dismiss superseding indictments on charges of stealing money from a federal agency and making materially false statements to a federal agency.

    Synopsis of Rule of Law.

    Double Jeopardy does not bar prosecution of offenses committed on separate dates even though the acts committed are of the same nature as those charged in a subsequent indictment.

    Facts.

    While working for a federal public housing project, Robert Turner, Guinn Kelly, and Kenneth Givens (Defendants) submitted false time cards that showed they worked more hours than they truly did. Defendants were indicted on various charges stemming from specific dates and time, including stealing money from a federal agency in violation of 18 U.S.C. § 641, making a materially false statement to a federal agency in violation of 18 U.S.C. § 1001(a), and conspiring with another person to do either of the above in violation of 18 U.S.C. § 371. By the time of trial, a superseding indictment (S1) was returned against Defendants. On the fourth day of their initial trial, the district court declared a mistrial. Thereafter, the district court denied motions by Turner and Kelly to dismiss the indictment and they appealed. The U.S. Court of Appeals for the Eighth Circuit reversed and held that no “manifest necessity” existed for declaring a mistrial. The matter was remanded back to the district court. Four months later, the Government returned another superseding indictment (S4) against Turner and Kelly only. The factual basis for the charges in S4 was the same as the basis for the charges contained in S1. However, in S4 some pay periods were added to, or dropped from, those in S1 and some of the charges had been shifted around. A charge of aiding and abetting was included in the S4 indictment but not in S1. Turner and Kelly moved to dismiss S4 on the grounds of double jeopardy and res judicata. The district court denied the motions and Turner and Kelly appealed.

    Issue.

    Whether Double Jeopardy bars prosecution of offenses committed on separate dates even though the acts committed are of the same nature as those charged in a subsequent indictment.

    Held.

    No. The trial court’s ruling is affirmed except as to count 5 of S4 against Kelly which is identical to count 18 in S1 and is thus barred by the Double Jeopardy Clause. Double Jeopardy does not bar prosecution of offenses committed on separate dates even though the acts committed are of the same nature as those charged in a subsequent indictment.

    Discussion.

    The Double Jeopardy Clause protects accused individuals because of the potentially serious consequences of criminal prosecution that impose “heavy pressures and burdens—psychological, physical, and financial—on a person charged.” Breed v. Jones, 421 U.S. 519, 529-30 (1975). Turner and Kelly argue that because the factual basis for the charges in S4 are the same as in S1, double jeopardy precludes the government from bringing them to trial on S4. Courts have consistently held that when a statute targets individual acts rather than a course of conduct as a whole, offenses committed on separate dates even though of the same nature, are not the “same” for double jeopardy purposes. Thus, the clause does not bar the government from prosecuting Turner on count 12 and Kelly on count 9, 23, and 25 of S4. Additionally, Turner and Kelly claim that some counts charging them with a violation of § 641 were shifted to a violation of § 1001(a) in S4, and vice versa. They argue that making a materially false statement to a federal agency, § 1001(a), is a lesser-included offense of stealing money from a federal agency in violation of § 641 and therefore the Double Jeopardy clause bars their prosecution for those charges in S4. One offense is a lesser-included offense of another only if “the elements of the lesser offense are a subset of the elements of the other offense.” Schmuck v. United States, 489 U.S. 705, 716 (1989). Here, § 1001(a) includes elements that are not necessary for proof of § 641. Thus, § 1001(a) is not a lesser-included offense of § 641. Nevertheless, Turner and Kelly argue that because the government alleges that the stealing under § 641 and the giving materially false statements under § 1001(a) were done by submitting false time cards, the offenses charged are the “same” for double jeopardy purposes. In United States v. Dixon, 509 U.S. 688 (1993), the Court held that the only test for double jeopardy purposes when the offenses are alleged to be the “same” and no lesser-included offense is involved is the “same-elements” test which inquires whether each offense contains an element not contained in the other. Here, the elements required for proof under § 1001(a) are not mandated for proof under § 641, and vice versa. Turner and Kelly further claim that the aiding and abetting charges contained in S4 are lesser-included offenses of crimes alleged in S1 and are thus barred. In S4 however, for each pay period, the charges are that Turner and Kelly aided and abetted in the submission of false time cards by a third person and that the third person made materially false statements to a federal agency. It is the third person’s time cards that are the basis for the aiding and abetting charges in S4, not Turner’s and Kelly’s time cards. Finally, Turner and Kelly argue that res judicata bars further prosecution of them. Res judicata provides that matters in issue are concluded by a verdict. However, here there was no “verdict,” only a mistrial. Thus res judicata is not applicable. Moreover, the doctrine of collateral estoppel does not apply.


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