ELR Citation: ELR 20017
No(s). 93-30327 (9th Cir. Sep 6, 1994)

The court reverses and remands an individual's misdemeanor conviction under 18 U.S.C. §1864(a)(2) for spiking trees in the Clearwater National Forest, holding that the district court's reinstatement of two counts of misdemeanor tree spiking one day after it granted his motion for acquittal on the felony tree-spiking counts with which he was charged violated the Double Jeopardy Clause of the U.S. Constitution. The court holds that the defendant was subject to a second trial when the district court reinstated the §1864 counts as misdemeanors, even though the district court presented the charges to his original jury in an ongoing proceeding. The court holds that the district court's ruling in favor of defendant's motion for acquittal was clearly a determinative ruling on the government's failure to establish the threshold amounts of monetary damages for felony convictions. Further, the government declined the opportunity to modify its charges. The court held that when the district court granted the defendant's motion for acquittal on the §1864 counts and informed the jury of its decision, preserving no element of these charges for submission to the jury, its ruling of acquittal ended the defendant's jeopardy on the charged felony counts and any lesser included offenses. The court next holds that when the district court reopened and resubmitted the dismissed charges to the jury, the district court effectively submitted the defendant to a second prosecution in violation of the Double Jeopardy Clause. Although he did not have to face a new jury, the district court required him to present any evidence and defenses he had to the charge, and the §1864 charge was put to the jury rather than the judge who granted the acquittal. Finally, the court also notes that considerations of fundamental fairness apply, because to allow reinstatement of counts in such cases would treat defendants under multiple-count indictments differently than defendants faced with a single charge, simply because the trial for the additional counts remains to be completed.

Counsel for Plaintiff
George W. Breitsameter, Ass't U.S. Attorney
U.S. Attorney's Office
328 U.S. CtHse.
550 W. Fort St., P.O. Box 037, Boise ID 83724
(208) 334-1211

Counsel for Defendant
Gerald R. Smith
Federal Defenders of Eastern Washington
10 N. Post St., Ste. 700, Spokane WA 99201
(509) 624-7606

Before Schroeder, Boochever, and Brunetti, JJ.