United States v. Harold Hall, Jr. ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4259
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAROLD HALL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:14-cr-00629-JFA-1)
Submitted: November 20, 2018 Decided: December 3, 2018
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William N. Epps, III, EPPS, EPPS & PERKINS, Anderson, South Carolina, for
Appellant. Sherri A. Lydon, United States Attorney, Benjamin Neale Garner, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Harold Hall, Jr. of possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1) (2012); possession with intent to distribute marijuana,
in violation of 21 U.S.C. § 841(a) (2012); and possession of a firearm in furtherance of a
drug trafficking offense, in violation of 18 U.S.C. § 924(c) (2012). The district court
sentenced Hall to 360 months of imprisonment and he timely appealed. On appeal, Hall
challenged the district court’s admission of his prior convictions for possession of
marijuana and possession with intent to distribute marijuana and raised several
sentencing issues. We determined that the district court had erroneously admitted
evidence of Hall’s prior convictions under Fed. R. Crim. P. 404(b) and that the error was
not harmless, and therefore declined to reach Hall’s remaining claims. United States v.
Hall, 858 F.3d 254 (4th Cir. 2017). We thus reversed the district court’s decision to
admit the prior convictions, vacated Hall’s convictions, and remanded to the district court
for proceedings consistent with the opinion. Id. at 288.
On remand, the Government obtained superseding indictments charging Hall with
conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846(2012), and again charging Hall with the original three counts. Hall moved to dismiss the
latter three counts, asserting that the Double Jeopardy Clause barred his retrial on those
counts because this court had determined that there was insufficient evidence to support
those convictions. The district court disagreed and denied Hall’s motion. The court later
determined that it had the authority to review the sufficiency of the evidence, discounting
the improperly-admitted convictions, and concluded that there was sufficient evidence of
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Hall’s guilt of the offenses to preclude entering a judgment of acquittal for Hall. The
court thus ordered that a retrial be scheduled. Hall appealed, challenging the court’s
denial of his motion on double jeopardy grounds and the court’s interpretation of this
court’s mandate.
On appeal, Hall first argues that this court determined in the prior opinion that
there was insufficient evidence to demonstrate his possession of the marijuana and the
firearms and, therefore, he may not be retried on those charges. “We review de novo
whether a defendant will be subject to double jeopardy by retrial on a criminal charge.”
United States v. Ford, 703 F.3d 708, 710 (4th Cir. 2013). “The Double Jeopardy Clause
forbids a second trial for the purpose of affording the prosecution another opportunity to
supply evidence which it failed to muster in the first proceeding.” Burks v. United States,
437 U.S. 1, 11 (1978). Therefore, when a defendant’s conviction has been reversed on
appeal “solely for lack of sufficient evidence to sustain the jury’s verdict,” the Double
Jeopardy Clause prohibits retrial. Ford, 703 F.3d at 710 (internal quotation marks
omitted). This is so because “[a] reversal based on the legal insufficiency of evidence is,
in effect, a determination that the government’s case was so lacking that the trial court
should have entered a judgment of acquittal rather than submitting the case to the jury.”
United States v. Akpi, 26 F.3d 24, 25 (4th Cir. 1994).
However, “the Double Jeopardy Clause allows retrial when a reviewing court
determines that a defendant’s conviction must be reversed because evidence was
erroneously admitted against him, and also concludes that without the inadmissible
evidence there was insufficient evidence to support a conviction.” Lockhart v. Nelson,
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488 U.S. 33, 38, 40 (1988). Double jeopardy concerns do not apply to the retrial of a
defendant whose conviction was overturned on appeal but where all the evidence,
including that erroneously admitted, would have been sufficient to sustain the guilty
verdict because, had the erroneously-admitted evidence been properly excluded, the
government would have had the opportunity to offer evidence sufficient to satisfy its
burden. Id. at 34, 42; see also United States v. Ellyson, 326 F.3d 522, 534 (4th Cir. 2003)
(if evidence properly excluded at trial, government could have presented other evidence
to meet burden of proof). Therefore, in determining whether there was sufficient
evidence to support a conviction, a reviewing court must consider all the evidence at the
trial, including the erroneously-admitted evidence. Lockhart, 488 U.S. at 40-42.
Here, we did not previously determine that there was insufficient evidence to
support the convictions. Initially, Hall did not raise that issue in his prior appeal. While
Hall’s failure to raise the issue would not foreclose our consideration thereof, our prior
ruling was confined to the Rule 404(b) issue. Our observations regarding the quantum of
evidence offered by the Government on the possession element were made in the context
of analyzing whether the admission of Hall’s prior convictions was improper and whether
any such error was harmless. We did not undertake a separate, sua sponte analysis of the
sufficiency of the evidence. Cf. United States v. Simpson, 910 F.2d 154, 156-59 (4th Cir.
1990) (finding trial court abused its discretion in admitting evidence and error was not
harmless, but rejecting defendant’s claim that evidence was insufficient to support the
convictions). In addition, our prior opinion merely vacated the convictions and remanded
to the district court for further proceedings; it did not direct a judgment of acquittal for
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Hall based on insufficiency of the evidence. See Burks, 437 U.S. at 17-18 (where
appellate court finds “evidence legally insufficient, the only ‘just’ remedy available for
that court is the direction of a judgment of acquittal”). The district court did not err,
therefore, in concluding that retrial of Hall on the vacated convictions would not violate
the prohibition against double jeopardy.
Hall next argues that the district court contravened this court’s mandate in
considering whether there was sufficient evidence without the evidence of his prior
convictions and determining that there was. “We review de novo the district court’s
interpretation of the mandate.” United States v. Susi, 674 F.3d 278, 283 (4th Cir. 2012).
“The mandate rule governs what issues the lower court is permitted to consider on
remand—it is bound to carry out the mandate of the higher court, but may not reconsider
issues the mandate laid to rest.” Id. Therefore, the mandate rule forecloses relitigation of
issues expressly or impliedly decided by the appellate court. Id.Hall’s assertion that the district court misconstrued this court’s mandate is based
upon his assertion that we held in the prior opinion that there was insufficient evidence to
support the convictions. As we did not so hold in the prior opinion, the district court did
not incorrectly interpret the mandate.
Accordingly, we affirm the district court’s orders. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid in the decisional process.
AFFIRMED
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