United States v. Kurt Harrington ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-3638
___________________________
United States of America
Plaintiff - Appellee
v.
Kurt Harrington, also known as Chi, also known as Jamaica
Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Davenport
____________
Submitted: January 14, 2021
Filed: May 18, 2021
____________
Before GRUENDER, BENTON, and STRAS, Circuit Judges.
____________
GRUENDER, Circuit Judge.
After Kurt Harrington obtained habeas relief from two life sentences he was
serving, the district court 1 permitted the Government to retry him on the elements
triggering those life sentences that were part of two of the counts on which he was
1
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
previously convicted. Harrington moved to dismiss, arguing that a retrial would
violate his rights under the Double Jeopardy Clause. The district court denied this
motion. Harrington appeals, and we affirm.
I.
On October 5, 2008, Joseph Van Hoe was found dead inside his residence in
Iowa City, Iowa. His autopsy determined that he died of heroin and alcohol
intoxication. Law enforcement later learned that Harrington had distributed heroin
to an intermediary who in turn had distributed it to Van Hoe the day of his death. In
2009, Harrington was charged in a second superseding indictment with seven counts,
including one count of conspiracy to distribute heroin resulting in death (“Count
One”), see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), 846 (2009), and one
count of distribution of heroin resulting in death (“Count Seven”), see 18 U.S.C. § 2
(2009); 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) (2009).
Harrington pleaded guilty to two of the other counts against him, but he chose
to go to trial on the remaining five counts, including Counts One and Seven. His
codefendant, James Faulkner, also went to trial on Count One, among other counts.
Under our precedent at the time, to prove the resulting-in-death elements of Counts
One and Seven, the Government had to establish that the heroin distributed by
Harrington was a “contributing cause” of Van Hoe’s death. See, e.g., United States
v. Monnier, 412 F.3d 859, 862 (8th Cir. 2005), abrogated in relevant part by Burrage
v. United States, 571 U.S. 204, 208, 217-19 (2014). So instructed, the jury returned
a special verdict finding Faulkner and Harrington guilty of the respective counts
against them, specifically and separately finding them guilty of the resulting-in-
death elements of Count One (in both defendants’ cases) and Count Seven (in
Harrington’s case).
The district court then sentenced Harrington to mandatory life imprisonment
on each of Counts One and Seven and to 360 months’ imprisonment on each of the
other five counts against him, with each sentence to run concurrently. Harrington’s
-2-
mandatory life-imprisonment terms on Counts One and Seven were triggered in part
by the special guilty verdict on the resulting-in-death elements of those counts. See
United States v. Harrington, 617 F.3d 1063, 1064 (8th Cir. 2010) (per curiam). On
direct appeal, we affirmed Harrington’s sentence. See id. at 1064-65.
In 2014, the Supreme Court held that the resulting-in-death element found in
Harrington’s statutes of conviction for Counts One and Seven required “but-for
causality,” rejecting the “‘contributing cause’ test” we had previously employed.
See Burrage, 571 U.S. at 210-12, 217-19. In 2017, Harrington filed a habeas petition
under 28 U.S.C § 2241 in the Eastern District of Kentucky (the district where he was
imprisoned), challenging as illegal under Burrage his life sentences on Counts One
and Seven. See Harrington v. Ormond, 900 F.3d 246, 248 (6th Cir. 2018). In
response, the Government acknowledged that, in a separate habeas case brought by
Faulkner in the Southern District of Indiana in which Faulkner invoked Burrage to
challenge the life sentence he received on Count One, the government attorneys
there had stipulated that the evidence presented at trial was insufficient under
Burrage to prove the resulting-in-death element of that count. The Government then
stated that, although it believed the stipulation in Faulkner’s habeas case was
mistaken, it would “abide by the stipulation” in Harrington’s habeas case.
Accordingly, the Government “agree[d] that Harrington’s life sentence under Counts
1 and 7 should be vacated” and requested that the case be returned to the district
court for resentencing. The Government and Harrington then jointly submitted an
“Agreed Order and Judgment,” which the Kentucky district court entered. The
Agreed Order and Judgment stated that Harrington’s “convictions and sentences of
life imprisonment on Count[s] 1 and 7 . . . are hereby vacated.”
Harrington’s case was then reopened in the district court. Harrington and the
Government disagreed about the effect of the Agreed Order and Judgment. The
district court resolved this dispute by concluding that, although the Agreed Order
and Judgment stated that Harrington’s “convictions” as well as sentences on Counts
One and Seven were vacated, this was a “mistake,” and only the sentences on those
-3-
counts were vacated. The district court then stated that the Government could retry
Harrington on the resulting-in-death elements of those counts under Burrage.
Harrington opposed retrial and moved to dismiss on the basis that retrial
would violate the Double Jeopardy Clause. The district court denied this motion,
rejecting Harrington’s double-jeopardy argument. Harrington appeals this denial.
II.
Before addressing the merits, we must first “determine whether we have
jurisdiction over this interlocutory appeal.” See United States v. Ledon, 49 F.3d 457,
459 (8th Cir. 1995). “The denial of a motion to dismiss on double jeopardy grounds
may be raised in an interlocutory appeal.” United States v. Brown, 926 F.2d 779,
781 (8th Cir. 1991) (per curiam) (citing Abney v. United States, 431 U.S. 651, 662
(1977)). We have jurisdiction over such an appeal, however, only if “the defendant
has raised a colorable double jeopardy claim.” United States v. Bearden, 265 F.3d
732, 734 (8th Cir. 2001). Such a claim requires a colorable showing of the elements
of double jeopardy: previous jeopardy and the threat of repeated jeopardy. United
States v. Kress, 58 F.3d 370, 373 (8th Cir. 1995).
To aid our determination of whether a double-jeopardy claim is colorable, we
have asked the district courts, when denying a double-jeopardy-based motion to
dismiss, “to make written findings on the issue of whether the motion is frivolous or
non-frivolous.” United States v. Dixon, 913 F.2d 1305, 1309 (8th Cir. 1990) (citing
United States v. Grabinski, 674 F.2d 677, 679 (8th Cir. 1982) (en banc) (per
curiam)). In the absence of such findings, we will look to the record to ascertain
whether the claim is colorable. See, e.g., id. Here, the district court did not make a
written finding as to whether Harrington’s double-jeopardy claim is colorable, so we
look to the record to determine whether it is.
In doing so, we conclude that Harrington’s double-jeopardy claim is
colorable. First, Harrington previously was placed in jeopardy on the resulting-in-
-4-
death elements of Counts One and Seven because he was tried before a jury that had
been empaneled and sworn at the start of the trial on these counts. See id. (“[T]he
record clearly shows that jeopardy had attached in the first trial because the jury had
been empaneled and sworn.”). Second, though we conclude below that Harrington’s
double-jeopardy claim is “ultimately unsuccessful,” it is not frivolous. See Ledon,
49 F.3d at 460. Although Harrington’s claim fails under recent circuit precedent and
the persuasive authorities on which that precedent tacitly relied, Harrington makes a
nonfrivolous argument to distinguish those authorities. The nonfrivolous nature of
Harrington’s claim is borne out by the district court’s “thorough” analysis of it in its
seventeen-page opinion and order denying the motion to dismiss. See Kress, 58 F.3d
at 373 (finding a double-jeopardy claim colorable because the district court rejected
it only after considering a nineteen-page report and recommendation analyzing the
claim and issuing a five-page opinion and order adopting that report and
recommendation). Thus, we have jurisdiction over this appeal.
III.
Accordingly, we turn to the merits of the only issue before us now, which is
whether Harrington’s retrial on the resulting-in-death elements of Counts One and
Seven would violate the Double Jeopardy Clause. Reviewing this question de novo,
Bearden, 265 F.3d at 735, we conclude that retrial will not violate the Double
Jeopardy Clause.
“The Double Jeopardy Clause of the Fifth Amendment provides that no
person shall be ‘subject for the same offence to be twice put in jeopardy of life or
limb.’” Jones v. Thomas, 491 U.S. 376, 380 (1989) (quoting U.S. Const. amend. V).
The Double Jeopardy Clause prohibits “successive prosecutions for the same offense
following,” among other things, “a judgment of acquittal.” United States v. Rea,
300 F.3d 952, 957 (8th Cir. 2002). When a conviction is set aside on appellate or
habeas review, the Double Jeopardy Clause may bar successive prosecution
depending on the reason why the conviction was set aside. Lockhart v. Nelson, 488
U.S. 33, 38-40 (1988). When a defendant “succeeds in getting his first conviction
-5-
set aside because of trial error in the proceedings leading to conviction,” the Double
Jeopardy Clause does not prohibit successive prosecution because that is not
equivalent to a judgment of acquittal. See Rea, 300 F.3d at 956-57. By contrast, if
“a reviewing court determines that there is insufficient evidence to support a
conviction,” that can be “‘the equivalent of an acquittal,’” in which case the Double
Jeopardy Clause prohibits successive prosecution. See id. at 957 (quoting Satter v.
Leapley, 977 F.2d 1259, 1263 (8th Cir. 1992)).
But not every instance in which a conviction is set aside due to insufficient
evidence is the equivalent of an acquittal. The setting aside of a conviction on this
basis is the equivalent of an acquittal when the evidence is found insufficient because
“the government . . . failed to prove its case” under the law as it existed at the time
of trial. See Burks v. United States, 437 U.S. 1, 15 (1978); Linam v. Griffin, 685
F.2d 369, 373-74 (10th Cir. 1982) (explaining that Burks involved a situation where
the Government “negligently fail[ed] to muster its proof” under the law as it existed
at the time of trial). But when evidence offered at trial was sufficient to support the
conviction under the law at the time but later was rendered insufficient by a post-
conviction change in the law, the setting aside of a conviction on this basis is
equivalent to a trial-error reversal rather than to a judgment of acquittal. United
States v. Weems, 49 F.3d 528, 530-31 (9th Cir. 1995).
This is because, conceptually, the conviction is set aside as if it were due to a
trial error like erroneous jury instructions. See United States v. Ellyson, 326 F.3d
522, 532, 534 (4th Cir. 2003); Burks, 437 U.S. at 15. Instructed under the (incorrect)
law as it existed at the time of trial, the jury found the defendant guilty. The post-
conviction change in the law shows those instructions were erroneous. The
conviction is then set aside not because the government failed to prove its case but
because the incorrect instructions allowed the jury to convict under the wrong legal
standard. See Burks, 437 U.S. at 15. Because the setting aside of a conviction based
on a post-conviction change in the law is akin to this sort of trial-error reversal, the
Double Jeopardy Clause does not bar retrial in such cases. See United States v.
Davies, 942 F.3d 871, 872, 874 (8th Cir. 2019); United States v. Ford, 703 F.3d 708,
-6-
710-11 (4th Cir. 2013); Weems, 49 F.3d at 530-31; United States v. Wacker, 72 F.3d
1453, 1465 (10th Cir. 1995).
Here, Harrington sought habeas relief based on a post-conviction change in
the law as to what the Government had to establish to prove the resulting-in-death
elements of Counts One and Seven. At the time of trial, the Government had to
establish that Van Hoe’s ingestion of the heroin distributed by Harrington was a
“contributing cause” of Van Hoe’s death. See, e.g., Monnier, 412 F.3d at 862.
Harrington does not dispute that the Government produced sufficient evidence at
trial to establish this. However, several years later, the Burrage Court abrogated the
“contributing cause” standard and adopted a but-for standard. 571 U.S. at 210-12,
217-19. Harrington then received habeas relief because of Burrage and the
Government’s stipulation that his life sentences should be vacated due to insufficient
evidence at trial to meet the changed standard under Burrage. The “insufficiency in
proof” here “was caused by the subsequent change in the law under [Burrage], not
the [G]overnment’s failure to muster evidence” to satisfy the former standard. See
Ellyson, 326 F.3d at 533. Therefore, the Double Jeopardy Clause does not prohibit
Harrington’s retrial. See Davies, 942 F.3d at 874; Ford, 703 F.3d at 710.
Harrington argues that the “post-conviction change in law” rule we adopted
in Davies does not control this case for either of two reasons. First, he claims that
the Government’s stipulation acknowledging that its trial evidence was insufficient
under Burrage with respect to the resulting-in-death elements of Counts One and
Seven amounts to a binding concession that it will lack the proof needed to convict
him on retrial of the resulting-in-death elements under Burrage. Second, he claims
that, stipulation aside, the evidence on this issue is not going to change and is
insufficient under Burrage, so “the facts of the case, on their own,” mean that the
Government will be unable to prove on retrial the resulting-in-death elements under
Burrage. Harrington contends that, for either of these reasons, the setting aside of
his conviction on the resulting-in-death elements is equivalent to a judgment of
acquittal, preventing his retrial on these elements under the Double Jeopardy Clause.
See Burks, 437 U.S. at 10-11, 16-18.
-7-
Even assuming Harrington is correct that the Government would, for one
reason or another, be unable to prove on retrial the resulting-in-death elements under
Burrage, we reject his conclusion that this brings his case within Burks’s “equivalent
of an acquittal” principle. Burks “carved a narrow exception” to the general rule that
a defendant who gets his conviction set aside on appeal can be retried without
violating the Double Jeopardy Clause. Tibbs v. Florida, 457 U.S. 31, 40 (1982);
United States v. Curtis, 683 F.2d 769, 773 (3d Cir. 1982) (“This exception to the
general rule has been construed quite narrowly.”). As relevant here, Burks’s
exception applies when a reviewing court “has found that the prosecution produced
insufficient evidence at [the] first trial” to sustain the conviction under then-
applicable law. See Satter, 977 F.2d at 1263; Linam, 685 F.2d at 373-74. The
rationale underlying the Burks exception is that the Double Jeopardy Clause forbids
the government from getting “the proverbial ‘second bite at the apple.’” Burks, 437
U.S. at 17.
That rationale is not implicated here. Retrial does not give the Government
“a second opportunity to prove what it should have proved earlier.” See Weems, 49
F.3d at 531. Instead, the Government is being given a first opportunity to prove
what it did not need to prove before but needs to prove now. See id. at 530-31.
Whether or not the Government will be able to carry its burden of proof on retrial,
the fact remains that retrial is the Government’s first “bite at the apple” to prove its
case under the correct legal standard. “Permitting retrial in this instance is not the
sort of governmental oppression at which the Double Jeopardy Clause,” as
understood by Burks, “is aimed.” Lockhart, 488 U.S. at 42. Thus, Burks’s
“equivalent of an acquittal” exception is inapplicable here. See Curtis, 683 F.2d at
773 (noting that Tibbs “suggest[s] caution” in applying Burks outside its “narrow
confines”); cf. Parker v. Norris, 64 F.3d 1178, 1181 (8th Cir. 1995) (“[T]he Supreme
Court has repeatedly refused to extend Burks as far as logic might permit.”).
-8-
IV.
For the foregoing reasons, we affirm the district court’s denial of Harrington’s
motion to dismiss.
______________________________
-9-