Argued May 19, 2015
Appeal from the Superior Court of the District of Columbia. (CF1-7932-12). (Hon. Patricia A. Broderick, Trial Judge).
Rahkel Bouchet for appellant.
James A. Ewing, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman and Suzanne Grealy Curt, Assistant United States Attorneys, were on the brief, for appellee.
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and BELSON, Senior Judge.
Fisher, Associate Judge :
A Superior Court jury convicted appellant Stanley Moghalu of unlawful possession of a firearm (" UPF" ) and carrying a pistol without a license (" CPWL" ). These convictions followed two mistrials on the same charges. For the first time, appellant now contends that his third trial was barred by the Double Jeopardy Clause. Because appellant failed to assert a double jeopardy bar prior to the third trial, he waived that defense. We therefore affirm.
I. Factual and Procedural History
Appellant was originally tried on one count of UPF and one count of CPWL. Because the jury indicated that it could not " return a unanimous verdict that would be anything other than forced," the court declared a mistrial at the request of defense counsel. After the case was reindicted,
the government tried appellant for the UPF and CPWL counts, along with seven other conspiracy-related charges, in a multi-defendant prosecution. The jury in that second trial acquitted appellant of the seven additional charges but was unable to reach unanimous decisions on the UPF and CPWL charges. Over appellant's adamant objection, the trial court declined to give an anti-deadlock instruction and declared a mistrial on those two counts. After another retrial, a third jury convicted appellant of UPF and CPWL.
Appellant contends that Judge Henry Greene, who presided over the second trial, abused his discretion by declaring a mistrial when there was no manifest necessity to do so. He therefore asserts that a third trial was barred by the Double Jeopardy Clause. See generally Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (to avoid the constitutional prohibition of successive prosecutions, " [t]he prosecutor must demonstrate 'manifest necessity' for any mistrial declared over the objection of the defendant" ). Appellant concedes that he did not raise a double jeopardy defense prior to his third trial, over which Judge Broderick presided, but he ...