In this DC Circuit decision, which is one of the most convoluted double jeopardy matters imaginable, the facts are as follows: Kramon & Graham’s John Bourgeois, along with others, tried a criminal case for 6 weeks to a jury in March-April 2009. The jury acquitted Mr. Bourgeois’s client on 3 of 5 mail fraud counts, and hung on 2 more mail fraud counts: a false statement count and a theft count. Shortly before retrial on remaining 4 counts in June 2009, Mr. Bourgeois moved to dismiss based on double jeopardy/collateral estoppel. The district court denied and trial started.
A week or two into the retrial, as many of our faithful readers may recall, the Supreme Court decided Yeager v. US, which changed DC Circuit law. Mr. Bourgeois renewed his motion to dismiss based on Yeager. The District court denied the motion. Mr. Bourgeois took an interlocutory appeal and asked the trial judge to suspend the trial. He refused. Mr. Bourgeois then asked the DC Circuit to suspend the trial. It agreed. The jury was sent home last July (with instructions to return as ordered, not to speculate, not to research, etc.). Today, the DC Circuit ordered the dismissal of the two remaining mail fraud counts on double jeopardy grounds and will permit the two lesser charges to go forward (whether before same jury or in another retrial is, we suppose, for the parties and the district court to decide).