United States v. Joshua Howe

CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 28, 2009
Docket08-1021
StatusPublished

This text of United States v. Joshua Howe (United States v. Joshua Howe) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Joshua Howe, (8th Cir. 2009).

Opinion

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 08-1021 ___________

* United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Joshua Lee Howe, also known as * Josh Harris, * * Appellant. * * ___________

Submitted: September 16, 2009 Filed: December 28, 2009 ___________

Before WOLLMAN, BEAM, and RILEY, Circuit Judges. ___________

BEAM, Circuit Judge.

This case is before us upon remand from the United States Supreme Court for reconsideration in light of Yeager v. United States, 129 S. Ct. 2360 (2009). In our previous decision we affirmed the district court's1 order denying Joshua Lee Howe's motion to dismiss two counts in his indictment. United States v. Howe, 538 F.3d 820

1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas. (8th Cir. 2008), vacated, 129 S. Ct. 2861 (2009) (mem.). We now hold that while Yeager alters our analysis of Howe's appeal, it does not alter our initial holding. We therefore affirm.

I. BACKGROUND

A. The Howe I Indictment

On October 5, 2005, Howe and his co-defendant, Robert Phillips, were indicted in the Eastern District of Arkansas in United States v. Howe (Howe I) for their alleged involvement in the December 2002 murder of Jeremy Deshon Gaither. The Howe I indictment charged Howe and Phillips each with five counts: (1) conspiracy to commit a robbery and/or kidnapping resulting in felony murder, in violation of 18 U.S.C. § 371; (2) aiding and abetting felony murder predicated on the kidnapping and/or robbery of Gaither, in violation of 18 U.S.C. §§ 111(a) & 2; (3) kidnapping, in violation of 18 U.S.C. §§ 1201(a) & 2; (4) being felons in possession of firearms, in violation of 18 U.S.C. § 922(g)(1); and (5) using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and (j)(1).

At trial, the government sought to prove that Howe planned the kidnapping and robbery of Gaither and convinced Richard Smith and Phillips to carry out his plan. Gaither's lifeless body was found on the White River National Wildlife Refuge on December 9, 2002. Medical evidence indicated that he died from a gunshot wound.

Smith pled guilty to aiding and abetting in felony murder in connection with Gaither's death, and served as the government's key witness at trial. Smith testified that on December 6, 2002: (1) he, acting in accordance to Howe's plan, lured Gaither into a car under the guise of discussing a potential sale of the car to Gaither; (2) he then picked up Phillips and the two men drove Gaither onto the Refuge at gunpoint, using a gun Howe provided; (3) Phillips robbed Gaither and forced him out of the car;

-2- (4) a struggle ensued, and Phillips shot Gaither in the neck; and (5) Smith and Phillips then fled the scene.

An eyewitness testified that Gaither was last seen in a car driven by Smith on the afternoon of December 6, 2002, but Smith provided the only eyewitness testimony linking either Howe or Phillips to Gaither's death. In fact, Howe's primary defense was that Smith really acted alone, and only concocted a story about Howe's and Phillip's involvement in hopes of receiving a reduced sentence.

On July 25, 2007, the jury acquitted Phillips on all counts. The same jury returned a split verdict as to Howe: the jury acquitted Howe of felony murder and using or carrying a firearm during and in relation to a crime of violence, but convicted him of being a felon in possession of a firearm. The jury failed to reach a verdict with respect to Howe's guilt on the conspiracy and kidnapping counts. The district court accordingly declared a mistrial as to those counts and set a date for Howe's retrial. The government subsequently moved to dismiss the Howe I indictment without prejudice, and the district court granted the motion.

B. The Howe II Indictment

On September 5, 2007, the government returned a new indictment against Howe (Howe II). The new indictment charged Howe with several counts, two of which are relevant to this appeal: (1) conspiracy to commit kidnapping, in violation of 18 U.S.C. § 1201(c), and (2) kidnapping, in violation of 18 U.S.C. §§ 1201(a)(2) & 2. Howe moved to dismiss this indictment on double jeopardy and collateral estoppel grounds.

In support of his motion to dismiss, Howe made essentially two arguments. First, he maintained that the new conspiracy and kidnapping counts were barred by traditional principles of double jeopardy because they were merely lesser included offenses of the charges brought against him at the first trial. Second, he asserted that

-3- the doctrine of collateral estoppel barred the charges because the jury's acquittals on felony murder and the use and carry offenses indicated that the jury necessarily decided that Howe did not commit kidnapping or conspiracy to kidnap.

The district court denied Howe's motion, ruling that Howe would not be twice placed in jeopardy by, and that the government was not collaterally estopped from pursuing, either count. Howe appealed on both grounds. We initially affirmed. Howe, 538 F.3d at 830. The Supreme Court vacated and remanded for our consideration in light of Yeager. Howe, 129 S. Ct. at 2861. We again affirm.

II. DISCUSSION

A. Jurisdiction and Standard of Review

We have jurisdiction to review a pretrial order denying a defendant's motion to dismiss an indictment on double jeopardy and collateral estoppel grounds where the defendant has raised a colorable claim.2 United States v. Bearden, 265 F.3d 732, 734 (8th Cir. 2001). We review a district court's denial of a motion to dismiss an indictment on double jeopardy and collateral estoppel grounds de novo. Id. at 735.

2 The district court found Howe's motion to be frivolous and refused to certify a colorable claim. However, we believe Howe has raised a colorable claim and accordingly, we address the merits. See United States v. Brown, 926 F.2d 779, 781 (8th Cir. 1991) (per curiam).

-4- B. Traditional Principles of Double Jeopardy

The Double Jeopardy Clause3 of the Fifth Amendment "embodies two vitally important interests." Yeager, 129 S. Ct. at 2365.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ashe v. Swenson
397 U.S. 436 (Supreme Court, 1970)
Dowling v. United States
493 U.S. 342 (Supreme Court, 1990)
Yeager v. United States
557 U.S. 110 (Supreme Court, 2009)
United States v. Harold William Baugus
761 F.2d 506 (Eighth Circuit, 1985)
United States v. Lonnie James Brown
926 F.2d 779 (Eighth Circuit, 1991)
United States of America v. Michael R. Bearden
265 F.3d 732 (Eighth Circuit, 2001)
United States v. Daniel P. Mitchell
476 F.3d 539 (Eighth Circuit, 2007)
United States v. Sylvester Bordeaux
121 F.3d 1187 (Eighth Circuit, 1997)
United States v. Joshua Howe
538 F.3d 820 (Eighth Circuit, 2008)
Illig v. United States
129 S. Ct. 2860 (Supreme Court, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
United States v. Joshua Howe, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joshua-howe-ca8-2009.