United States v. Robert Turner

CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 5, 1997
Docket97-1882
StatusPublished

This text of United States v. Robert Turner (United States v. Robert Turner) 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. Robert Turner, (8th Cir. 1997).

Opinion

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 97-1882 ___________

United States of America, * * Appellee, * * v. * Appeals from the United States * District Court for the Eastern Robert Turner, * District of Missouri. * Appellant. *

___________

No. 97-1888 ___________

United States of America, * * Appellee, * * v. * * Guinn Kelly, * * Appellant. * ___________

Submitted: September 11, 1997

Filed: December 5, 1997 ___________ Before BOWMAN, Circuit Judge, HENLEY,1 Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge. ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

In January, 1995, Robert Turner and Guinn Kelly were indicted on various charges related to allegations that they submitted false time cards that showed more hours than they actually worked at a federal public housing project. Each count against Mr. Turner and Mr. Kelly specified a different pay period; each of the charges against them was brought under 18 U.S.C. § 641 (stealing money from a federal agency), 18 U.S.C. § 1001(a) (making a materially false statement to a federal agency), or 18 U.S.C. § 371 (conspiring with another person to do either or both of the above). A third defendant, Kenneth Givens, was also charged in the indictment.

By the time of trial, a superseding indictment against the three defendants (returned in February, 1995, and designated S1 by the parties) was in effect. On the fourth day of trial, when it appeared that the lawyer for Mr. Givens might have to testify on behalf of all three defendants to impeach a government witness, the trial court declared a mistrial with respect to all three defendants, over the objections of Mr. Turner and Mr. Kelly. The trial court, however, subsequently denied motions by Mr. Turner and Mr. Kelly to dismiss the indictment.

Mr. Turner and Mr. Kelly appealed the trial court's denial of their motions to dismiss. In United States v. Givens, 88 F.3d 608, 612 (8th Cir. 1996), a panel of this court held that no "manifest necessity" existed for declaring a mistrial with respect to Mr. Turner and Mr. Kelly, since their cases could have been severed from that of

1 Judge Henley died on October 18, 1997. This opinion is consistent with his vote at the panel's conference following oral argument of the case on September 11, 1997.

-2- Mr. Givens (and thus could have proceeded to verdict) without undue prejudice to the government, id. at 613, and without "offending the interests of justice," id. at 614. The panel therefore remanded the cases of Mr. Turner and Mr. Kelly "for further proceedings consistent with [its] opinion." Id.

Approximately four months later, the government returned another superseding indictment (designated S4 by the parties), this one against only Mr. Turner and Mr. Kelly (in the interim, Mr. Givens had pleaded guilty to one count of receiving money with the intent to defraud the federal Department of Housing and Urban Development, see 18 U.S.C. § 1012). Although the factual basis for the charges in S4 (submitting false time cards for pay periods from April, 1993, through March, 1994) is the same as the factual basis for the charges in S1 against Mr. Turner and Mr. Kelly, the individual allegations are different. In S4, some pay periods are added to or dropped from those in S1. With respect to the other pay periods, the charge against a particular defendant shifts from a violation of 18 U.S.C. § 641 (stealing money from a federal agency) in S1 to a violation of 18 U.S.C. § 1001(a) (making a materially false statement to a federal agency) in S4, or vice versa. Finally, in contrast to S1, no conspiracy charges are included in S4; charges of aiding and abetting, see 18 U.S.C. § 2(a), however, which do not appear anywhere in S1, are included in S4.

Mr. Turner and Mr. Kelly moved to dismiss S4 on the grounds of double jeopardy and res judicata. A magistrate judge recommended that the motions be denied. The trial court adopted the recommendations of the magistrate judge and denied the motions to dismiss. Mr. Turner and Mr. Kelly appeal the denial of their motions. With the exception of one count of S4 against Mr. Kelly, we affirm the ruling of the trial court.

-3- I. The Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life of limb." See U.S. Const. amend. V. Jeopardy under the Constitution is "the risk that is traditionally associated with criminal prosecution." Breed v. Jones, 421 U.S. 519, 528 (1975). Because of the potentially serious consequences of criminal prosecution, such proceedings impose "heavy pressures and burdens -- psychological, physical, and financial -- on a person charged." Id. at 529-30. The purpose of the constitutional guarantee against double jeopardy, then, is to ensure that a person "be subject to the experience only once" for a particular crime. Id. at 530.

Since the indictment in effect at the time of trial was S1, the charges in it are the ones to which jeopardy attached for Mr. Turner and Mr. Kelly. They now argue that because the factual basis for the charges in S4 (submitting false time cards for pay periods from April, 1993, through March, 1994) is the same as the factual basis for the charges in S1, the constitutional guarantee against double jeopardy bars the government from bringing them to trial on the allegations in S4. Except for one count of S4 against Mr. Kelly, we disagree.

II. We turn first to the counts in S4 related to pay periods that are not included in S1. The courts have regularly held that when a statute targets individual acts rather than a course of conduct as a whole, offenses charged with respect to separate dates, even though "of the same nature," United States v. Banks, 10 F.3d 1044, 1050 (4th Cir. 1993), cert. denied, 511 U.S. 1090, 512 U.S. 1208 (1994), are not the "same" offense for double jeopardy purposes. See, e.g., United States v. Gardner, 65 F.3d 82, 85-86 (8th Cir. 1995), cert. denied, 116 S. Ct. 748, 1044 (1996) (mail fraud), and United States v. Lanier, 604 F.2d 1157, 1159 (8th Cir. 1979) (per curiam) (false statements on bank deposit forms), dealing specifically with 18 U.S.C. § 1001(a); see also United States v. Banks, 10 F.3d at 1050 (drug charges), and United States v. Solomon, 726 F.2d 677, 678-79 (11th Cir. 1984) (false statements on firearms sale forms). We hold,

-4- therefore, that the double jeopardy clause does not bar the government from prosecuting Mr. Turner on count 12 and Mr. Kelly on count 9, count 23, and count 25 of S4.

III. There are 14 counts in S4 in which the charge against a particular defendant relative to a designated pay period shifts from a violation of 18 U.S.C.

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