United States v. Norvell Moore , 617 F. App'x 562 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2015*
Decided June 15, 2015
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 15-1272
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 CR 896
NORVELL MOORE,
Defendant-Appellant. Charles P. Kocoras, Judge.
ORDER
In 2012, a jury convicted defendant-appellant Norvell Moore of using or carrying
a firearm during and in relation to a crime of violence, see 18 U.S.C. § 924(c)(1)(A), and
of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). Because the jury was
*
Pursuant to Seventh Circuit Internal Operating Procedure 6(b), this appeal has
been submitted to the same panel of judges that decided Moore’s prior appeal. See
United States v. Moore, 763 F.3d 900 (7th Cir. 2014) (Appeal No. 13-2905). After
examining the briefs and the record, we have unanimously concluded that oral
argument is unnecessary to the resolution of the instant appeal. The appeal is therefore
submitted on the briefs and the record. See FED. R. APP. P. 34(a)(2)(C).
2 No. 15-1272
unable to reach a verdict on whether Moore had taken a motor vehicle by force or
intimidation with the intent to cause death or serious bodily harm (carjacking), see
18 U.S.C. § 2119, the district court declared a mistrial on that count, R. 106, and, at the
government’s request, the court dismissed that charge without prejudice, R. 111; R. 207
at 4, Moore was sentenced to consecutive prison terms of 120 months on each of the two
charges on which he was convicted.
Moore appealed, and although we affirmed his conviction on the felon-in-
possession charge (Count Three of the indictment), we vacated his conviction on the
section 924(c)(1)(A) use-or-carrying charge (Count Two) and remanded for a new trial
on that count. United States v. Moore, 763 F.3d 900 (7th Cir. 2014). We shall assume the
reader’s familiarity with that decision and confine ourselves to a brief recapitulation. In
the midst of jury deliberations, and before the jury had given any signal that it was
irreconcilably divided as to any of the charges, the district court had solicited a partial
verdict from the jury, which produced the guilty verdicts on Counts Two and Three.
The jury had thereafter continued its deliberations as to Count One, but was ultimately
unable to reach a verdict, resulting in the declaration of a mistrial as to that count.
Because Moore’s commission of the carjacking charged in Count One (a crime of
violence) was a predicate to his conviction of the Count Two charge that he used or
carried a firearm during and in relation to a violent crime, we were concerned that the
court’s solicitation of a partial verdict may have prematurely locked the jurors into a
finding of guilt on Count Two without them realizing that their ongoing division as to
Count One called into question their unanimity as to Count Two as well. See 763 F.3d at
912-13. It was for that reason we concluded that Moore was entitled to a new trial on
Count Two and that the district court had abused its discretion in concluding otherwise.
Id. at 913-14.
When the case returned to the district court, a grand jury returned a superseding
indictment against Moore which revived the Count One carjacking charge that had been
dismissed without prejudice following the mistrial and which made a minor, non-
substantive revision to the Count Two use-or-carrying charge. Moore moved to dismiss
both counts of the superseding indictment and to bar his re-trial on double jeopardy
grounds. See U.S. CONST. AMEND. V, CL. 2. As to Count One, he contended that the
declaration of a mistrial on this count was not occasioned by manifest necessity. See
Arizona v. Washington, 434 U.S. 497, 505, 98 S. Ct. 824, 830 (1978) (given importance of
defendant’s right not to be twice placed in jeopardy for the same offense, prosecution
must show that manifest necessity warranted declaration of mistrial over defendant’s
No. 15-1272 3
objection); see also Sattazahn v. Pennsylvania, 537 U.S. 101, 121, 123 S. Ct. 732, 744 (2003);
Williams v. Bartow, 481 F.3d 492, 499-500 (7th Cir. 2007). Rather, in Moore’s view, the
government had engaged in “strategic gamesmanship” by securing the mistrial and
dismissal of this charge without prejudice only after the jury had already returned
guilty verdicts on Counts Two and Three and the government was satisfied that those
convictions would support a lengthy sentence. R. 198 at 8. As to Count Two, Moore
argued that because he had already been convicted once on this charge, prosecuting
him a second time was inconsistent with the Double Jeopardy Clause (see, e.g., Dye v.
Frank, 355 F.3d 1102, 1103 (7th Cir. 2004) (noting that the clause protects a defendant
from, inter alia, a second prosecution for the same offense after conviction)),
notwithstanding the fact that we had vacated his conviction on Count Two in the prior
appeal.
Judge Kocoras, to whom the case was reassigned on remand, denied Moore’s
motion. He found that the declaration of a mistrial on Count One “was the product of
the judge’s decision,” rather than the encouragement or insistence of the government.
R. 204 at 5. The judge’s decision in turn was based on the fact that the jury was unable
to reach a verdict on Count One; consequently, the decision to declare a mistrial
amounted to a “declaration of manifest necessity.” R. 204 at 7. And there was no basis to
conclude that the government’s evidence was insufficient to support Moore’s conviction
on Count One, and that his re-trial should be barred on that basis. As to Count Two,
Moore’s conviction in the first trial did not preclude a second trial on the same charge,
in view of the fact that this court had vacated his conviction on that count based on
procedural error.
The new trial was originally scheduled to commence on May 11 of this year, but
after Moore appealed the court’s double jeopardy ruling, the court set aside that trial
date and it appears that the trial has been put off indefinitely pending the resolution of
this appeal.
On appeal, Moore has essentially reasserted, with some elaboration, the double
jeopardy arguments he made below. He contends that his re-trial on Count One is
barred because it was the product of a strategic choice by the government rather than
manifest necessity. Moore posits that once the jury rendered a partial verdict on Counts
Two and Three alone, the government realized that its case as to Count One was in
trouble; the government therefore pushed the court to cut off further deliberations,
accept the verdicts on Counts Two and Three, declare a mistrial on Count One, and then
4 No. 15-1272
dismiss that count without prejudice. That course of action locked in the guilty verdicts
on Counts Two and Three and supplied the foundation for a lengthy sentence, which
Moore identifies as the government’s preeminent goal. At the same time, this path
eliminated the prospect of the jury acquitting Moore on Count One and preserved the
opportunity to re-try Moore on that charge depending on the outcome of this appeal.
Moore also insists that his re-trial on Count Two is barred, notwithstanding our
decision to vacate his conviction on that count based on the procedural error committed
by the original judge when he invited the jury to return a partial verdict. Moore
suggests that the reason that the jury was unable to reach a verdict as to Count One at
the first trial was that the government had failed to present sufficient proof of his guilt
on that charge. And given that Moore’s guilt on the Count One carjacking charge was a
predicate to his guilt on the Count Two use-or-carrying charge, as this court recognized
in the previous appeal, 763 F.3d at 908-09, if the evidence was insufficient as to Count
One, as Moore suggests it was, it was insufficient as to Count Two as well. That
insufficiency, Moore argues, ought to preclude a second trial on Count Two.
There is no bar to Moore’s re-trial on the Count One carjacking charge. The
parties agree that a second trial on Count One is permissible under the Double Jeopardy
Clause so long as the district court declared a mistrial on that count at the first trial
based on manifest necessity, which a jury deadlock would exemplify. As the Supreme
Court has explained, re-trying a defendant after a first trial ends in a mistrial does not
place the defendant in jeopardy for a second time; rather, the second trial is properly
understood as the continuation of the original jeopardy arising from the first trial. See
Yeager v. United States, 557 U.S. 110, 118, 129 S. Ct. 2360, 2366 (2009); Richardson v. United
States, 468 U.S. 317, 325, 104 S. Ct. 3081, 3086 (1984). And “a jury’s inability to reach a
decision is the kind of ‘manifest necessity’ that permits the declaration of a mistrial and
the continuation of the initial jeopardy that commences when the jury was first
impaneled.” Yeager, 557 U.S. at 118, 129 S. Ct. at 2366.
A deadlocked jury is precisely the reason why the district court in this case
declared a mistrial on Count One, as Judge Kocoras recognized. There is absolutely no
evidence to support Moore’s theory that the government urged the court to accept the
partial verdict on Counts Two and Three and forestall a potential acquittal on Count
One by terminating the jury’s ongoing deliberations on that count, declaring a mistrial,
and leaving the door open to a re-trial on that count in case the verdicts on Counts Two
and Three did not survive Moore’s appeal. In fact, the government was the first to
object to the court’s plan to solicit a partial verdict from the jury, R. 167 at 57, 61; and
No. 15-1272 5
when the partial verdict was returned, and the inconsistency between the conviction on
Count Two and the lack of a verdict on the predicate in Count One was noted, it was
the government that urged the court to return Counts Two and Three to the jury for
further deliberation along with Count One, R. 168 at 5-6. The district court flatly rejected
the government’s proposal, R. 168 at 6, but it did have deliberations on Count One
continue until such time as the jury professed that it was irreconcilably divided and
unable to render a verdict on that count. See R. 108; R. 168 at 21, 22-23. Only at that
point did the court declare a mistrial. The court not only did so on its own motion, but
without objection by the defendant. See R. 168 at 22, 23, 25, 28; see also R. 106. That
decision was one assigned to the trial court’s broad discretion, Renico v. Lett, 559 U.S.
766, 774, 130 S. Ct. 1855, 1863 (2010), and we have no reason to second-guess it: a
deadlocked jury is the “classic” example of manifest necessity for a mistrial. Ibid;
Sattazahn v. Pennsylvania, supra, 537 U.S. at 121, 123 S. Ct. at 744-45; Oregon v. Kennedy,
456 U.S. 667, 672, 102 S. Ct. 2083, 2087 (1982); Arizona v. Washington, supra, 434 U.S. at
509 & n.26, 98 S. Ct. at 832 & n. 26 (citing Downum v. United States, 372 U.S. 734, 735-36,
83 S. Ct. 1033, 1034 (1963)).1 Finally, there was no impropriety in the court’s subsequent
decision to dismiss Count One without prejudice on the government’s motion; we have
previously endorsed such a dismissal as a means of facilitating the appeal of the charges
on which a defendant has been convicted. See United States v. Kaufmann, 985 F.2d 884,
890-91 (7th Cir. 1993).
Nor is a re-trial of Moore on Count Two barred. Our decision to vacate Moore’s
conviction on that count was based wholly on the district court’s procedural mistake in
intruding upon jury deliberations and soliciting a partial verdict before the jury itself
gave any indication that it was deadlocked. 763 F.3d at 913-14. Vacating a conviction
based on trial error typically leaves the door open to re-trial. See Burks v. United States,
437 U.S. 1, 15, 98 S. Ct. 2141, 2149 (1978) (distinguishing reversals for trial errors from
reversals for evidentiary insufficiency: “When [procedural trial error] occurs, the
accused has a strong interest in obtaining a fair readjudication of his guilt free from
error; just as society maintains a valid concern for insuring that the guilty are
punished.”); see also United States v. DiFrancesco, 449 U.S. 117, 131, 101 S. Ct. 426, 434
1
The fact that the court did not use the words “manifest necessity” when
declaring a mistrial is immaterial, as the record reveals no doubt that the jury’s
deadlock was the reason for the court’s decision. See Washington, 434 U.S. at 516-17,
98 S. Ct. at 836; see also United States v. Warren, 593 F.3d 540, 545 (7th Cir. 2010).
6 No. 15-1272
(1980); United States v. Loniello, 610 F.3d 488, 494 (7th Cir. 2010); United States v. Doyle,
121 F.3d 1078, 1083 (7th Cir. 1997). Moore himself had sought a new trial on Count Two
(as well as Count One) in the district court, and it was our conclusion, in light of the
court’s procedural error, that his motion was well-taken. It is true that the
interrelationship between Counts One and Two played a significant role in our rationale
in vacating Moore’s conviction on Count Two. See 763 F.3d at 908-09, 910, 912, 913. But
at no time did we suggest that the evidence underlying either count was insufficient,
and our decision to vacate the conviction on Count Two was not based on any doubt
about the sufficiency of the evidence on that count.
The district court thus correctly denied Moore’s motion to dismiss the
superseding indictment and to bar re-trial. The Double Jeopardy Clause poses no
obstacle to Moore’s re-trial on Counts One and Two of the superseding indictment.
AFFIRMED