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Andre v. United States

Court of Appeals of The District of Columbia

August 15, 2019

Antoine ANDRE, Appellant,
v.
UNITED STATES, Appellee.

         Submitted May 17, 2019

Page 1287

          Appeal from the Superior Court of the District of Columbia (CMD-709-15), (Hon. Robert E. Morin, Trial Judge)

          Robin M. Earnest was on the brief for appellant.

         Jessie 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.

         Before Glickman, Easterly, and McLeese, Associate Judges.

         OPINION

         Glickman, Associate Judge

Page 1288

          After 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.[1] 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.

          I.

         After a 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.

         The following year, this court issued an unpublished opinion holding that the government had presented sufficient evidence at trial to support Mr.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.[2] 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. Andre."[3]

          On 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 ...


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