Submitted May 17, 2019
from the Superior Court of the District of Columbia
(CMD-709-15) (Hon. Robert E. Morin, Trial Judge).
M. Earnest was on the brief for appellant.
K. Liu, United States Attorney, and Elizabeth Trosman, John
P. Mannarino, Caroline Burrell, Eric Nguyen, and Patricia A.
Heffernan, Assistant United States Attorneys, were on the
brief for appellee.
Glickman, Easterly, and McLeese, Associate Judges.
Glickman, Associate Judge.
this court vacated appellant Antoine Andre's misdemeanor
assault convictions and remanded for further proceedings, the
United States proposed to retry him on the same charges. Mr.
Andre now appeals the trial court's denial of his motion
to dismiss the reinstated charges on double jeopardy
grounds. He argues that the Double Jeopardy Clause
of the Fifth Amendment bars his retrial because he has
completely served the sentence previously imposed on him and
- as the government does not dispute - his reconviction on
the charges would expose him to no additional punishment and
also would have no collateral legal consequences. We reject
this argument, hold that the Double Jeopardy Clause does not
bar Mr. Andre's retrial even assuming the absence of
further penal or collateral consequences of a conviction, and
affirm the denial of his motion.
bench trial in 2015, Mr. Andre was convicted of two counts of
simple assault in violation of D.C. Code § 22-404(a)(1)
(2013Supp.). The court sentenced him to consecutive 180-day
terms of imprisonment, suspended the execution of that
sentence as to all but seven days on each count, and placed
him on probation for concurrent terms of one year on each
count. He finished serving this sentence in 2016, while his
appeal was still pending.
following year, this court issued an unpublished opinion
holding that the government had presented sufficient evidence
at trial to support Mr. Andre's simple assault
convictions and that his other claims of error also did not
entitle him to relief. But in a petition for rehearing, Mr.
Andre asserted the new claim that he had been deprived of his
Sixth Amendment right to conflict-free representation at
trial. Perceiving potential merit in this new
claim, we granted the petition and issued a revised decision
"vacat[ing] the trial court's judgment and
remand[ing] to allow the trial court to hold a hearing
regarding counsel's conflict and its impact upon
counsel's representation of Mr.
remand, the government elected not to contest Mr. Andre's
Sixth Amendment claim and instead to proceed directly to
retry the charges against him. The court accepted the
government's concession, which obviated the need for a
hearing and ruling on trial counsel's conflict of
interest, and ruled that Mr. Andre therefore was entitled to
a new trial without having to prove his Sixth Amendment
claim. Mr. Andre opposed retrial and moved to dismiss the
information on double jeopardy (and other) grounds. The court
denied that motion and Mr. Andre took this appeal.
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." Appellant's claim that the Double
Jeopardy Clause forbids his retrial presents a question of
law that we review de novo.
speaking, the Fifth Amendment guarantee against double
jeopardy "consist[s] of 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." But as the Supreme Court has explained,
"to require a criminal defendant to stand trial again
after he has successfully invoked a statutory right of appeal
to upset his first conviction is not an act of governmental
oppression of the sort against which the Double Jeopardy
Clause was intended to protect." Thus, one of the
"venerable principles of double jeopardy
jurisprudence" is that "[t]he successful appeal of
a judgment of conviction, on any ground other than the
insufficiency of the evidence to support the verdict, poses
no bar to further prosecution on the same
charge;" "no limitations
whatever," as the Court emphatically put it ...