Move to dismiss if you think your claim is jeopardy-barred

Stanley Moghalu v. United States (decided August 6, 2015).

Players:  Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Belson.  Opinion by Judge Fisher.  Rahkel Bouchet for Mr. Moghalu.  Trial judge: Patricia A. Broderick. 

Facts:  Mr. Moghalu was tried three times for unlawful possession of a firearm and carrying a pistol without a license.  The first two trials ended in mistrials.  At the second trial, over which Judge Henry Greene presided, “[o]ver appellant’s adamant objection, the trial court declined to given an anti-deadlock instruction and declared a mistrial.”  Mr. Moghalu was convicted at the third trial, Judge Broderick presiding. 

Issue:  Appellant argued that Judge Greene abused his discretion by declaring a mistrial when there was no manifest necessity to do so and asserted that his third trial was barred by the Double Jeopardy Clause.

Held:  The Court holds that the double jeopardy claim was waived because appellant had not raised the “double jeopardy defense” prior to the third trial, before Judge Broderick.  It bases its ruling on cases that establish that double jeopardy claims can be waived if not raised at trial, and notes that this waiver need not be a Johnson v. Zerbst, “knowing, voluntary and intelligent” waiver.  The Court also states that it “need not decide” whether appellant may obtain relief under the plain error doctrine, because even if there were a colorable claim of double jeopardy (something the Court finds “highly doubtful”), it would not have been “clear or obvious” to Judge Broderick. 

Of Note:

• The upshot here is that you must file a motion to dismiss on double jeopardy grounds if you have a claim that a mistrial was granted over objection when there was no manifest necessity for doing so at a prior trial.  (Note that a denial of such a motion is appealable pre-trial, if you are so inclined.)

• The analysis in the opinion is questionable, because an objection to a mistrial on the ground that there was no manifest necessity is precisely the same claim as an objection to a retrial on double jeopardy grounds because a mistrial was granted when there was no manifest necessity.  And some of the Court’s opinion seems to turn on the fact that the judge at the third trial was different than the judge at the second -- suggesting that a lawyer needs to give the new judge a chance to pass on the question.  It would seem that the “trial court” is all one, however, and that the question whether there was manifest necessity justifying a mistrial was litigated and resolved at the second trial; indeed, the law of the case doctrine might even have militated against a new judge revisiting the same claim prior to the third trial.  In any event, the law is now the law:  file a motion to dismiss on double jeopardy grounds if this happens to you and you want the issue to be preserved for appeal.  JF

Read full opinion here.