Tuesday, July 5, 2011

Maryland issues COA regarding new double jeopardy case

Yearwood v. United States, No. RDB-05-0105, 2011 WL 826297 (D. Md. Mar. 7, 2011):

Yearwood's trial involved an acquittal of the charge of distributing cocaine, but the jury deadlocked on a second charge of conspiracy to distribute and possess with intent to distribute cocaine base.  The Government retried Yearwood and, in a second trial, a jury found him guilty of conspiracy.

On appeal, Yearwood argued that the Double Jeopardy Clause of the Fifth Amendment barred the Government from retrying him for conspiracy because the retrial required relitigation of a fact the jury decided in his favor in the first trial when it acquitted him on the distribution charge.  Yearwood argued that when the jury acquitted him on the distribution charge, it necessarily decided that he was not involved in a drug transaction that was the crux of the Government's conspiracy charge.  The Fourth Circuit held that because distribution and conspiracy are distinct crimes with separate elements, Yearwood's retrial on the conspiracy charge did not require relitigation of facts the jury decided in his favor when it acquitted him of the distribution charge.

After the Supreme Court of the United States denied Yearwood's petition for a writ of certioari, the Supreme Court decided Yeager v. United States.  Yearwood now relies on Yeager in moving for 2255 relief.  His motion, however is untimely.

Yearwood argues that the limitations period should run from the date on which the Supreme Court decided Yeager, rather than the date on which the Supreme Court denied his petition for cert. 

In Yearwood's view, Yeager stands for the proposition that if a critical issue of ultimate fact involving retrial of the hung charge was decided in Yearwood's favor in connection with the charge upon which he was acquitted, double jeopardy would bar retrial of the hung charge.  Yeager, however, does not stand for this proposition.  Yeager only stands for the proposition that a court cannot determine the preclusive scope of an acquittal for double jeopardy purposes by identifying either logical inconsistencies or synergies between the acquittal and the hung count.  To identify what a jury necessarily determined at trial, courts should scrutinize a jury's decisions, not its failures to decide.

Although Maryland determined that Yeager doesn't apply, and certainly doesn't apply retroactively, the Court nevertheless granted a certificate of appealability because Yearwood's double jeopardy claim is debatable.  The Court seems to base this decision on the ground that the Fourth Circuit has yet to interpret Yeager

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