FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 04-10202
Plaintiff-Appellee, D.C. Nos.
v. CR-98-00393-1-HG
BRYSON JOSE; ROBERTO A. MIGUEL, CR-98-00393-3-HG
Defendants-Appellants.
OPINION
Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, District Judge, Presiding
Argued and Submitted
May 11, 2005—Honolulu, Hawaii
Filed October 19, 2005
Before: Dorothy W. Nelson, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge D.W. Nelson
14343
14346 UNITED STATES v. JOSE
COUNSEL
Peter C. Wolff, Jr. (argued), Assistant Federal Public
Defender, Honolulu, Hawaii, for defendant-appellant Roberto
A. Miguel, and Barry D. Edwards (on the briefs), Honolulu,
Hawaii, for defendant-appellant Bryson Jose.
Edward H. Kubo, Jr., United States Attorney, and Ronald G.
Johnson (argued), Assistant United States Attorney, Hono-
lulu, Hawaii, for the plaintiff-appellee.
OPINION
D.W. NELSON, Circuit Judge:
Appellants Bryson Jose and Roberto A. Miguel appeal the
district court’s denial of their joint motion to dismiss their
indictments on double jeopardy grounds. As is relevant here,
appellants were convicted of felony murder and three predi-
cate felonies. The counts were charged under one indictment
and prosecuted together in one trial. On direct appeal, this
court reversed appellants’ felony murder convictions,
reversed Miguel’s conviction for use of a firearm during a
crime of violence, affirmed all other convictions and
remanded to the district court for further proceedings. On
remand, Miguel moved for dismissal of the indictment on
double jeopardy grounds, claiming that his final convictions
on the lesser included predicate felonies barred retrial of the
greater felony murder charge. Jose joined in the motion. We
UNITED STATES v. JOSE 14347
affirm the district court’s denial of appellants’ motion to dis-
miss the indictments.
This case raises a purely legal question about the reach and
proper application of the Double Jeopardy Clause: Does the
reversal of a conviction on a greater offense, coupled with a
final conviction on a lesser included offense, preclude retrial
of the greater offense when the offenses were charged in the
same indictment and tried together in the same original trial?
We hold that it does not.
I. Factual and Procedural Background
For purposes of this interlocutory appeal, a detailed render-
ing of the facts of the case is neither necessary nor particu-
larly helpful. For a more in-depth description of the facts, we
refer the interested reader to this court’s previous opinion in
United States v. Miguel, 338 F.3d 995, 997-98 (9th Cir. 2003).
Jose and Miguel were part of a drunken group of teenage
revelers that ended its evening debauch by killing an army
officer in the course of an attempted robbery and burglary of
a cabin at the Waianae Army Recreation Center (“WARC”).
Miguel, 338 F.3d at 997. WARC is within the special mari-
time and territorial jurisdiction of the United States. As is rel-
evant here, appellants were convicted of felony murder, two
counts of attempted robbery, and one count of attempted bur-
glary, in violation of, inter alia, 18 U.S.C. §§ 13, 1111, 2111.
Miguel, 338 F.3d at 999-1000.
They successfully appealed their felony murder convictions
on the ground that the district court “committed structural
error when it precluded the defendants from arguing their the-
ory of the case and instructed the jury that no evidence sup-
ported the defendants’ theory.” Id. at 997. This court,
therefore, reversed appellants’ felony murder convictions,
vacated their sentences, and remanded for further proceed-
ings. Id. at 1007. Appellants did not appeal their predicate fel-
14348 UNITED STATES v. JOSE
ony convictions, which were nevertheless affirmed by this
court on direct appeal. See id. at 997 n.3.
On remand, Miguel moved to bar retrial of his felony mur-
der charge on double jeopardy grounds, and Jose joined in the
motion. The district court denied the motion and this interloc-
utory appeal timely followed. This court reviews the denial of
a motion to dismiss an indictment on double jeopardy grounds
de novo. See United States v. Lun, 944 F.2d 642, 644 (9th Cir.
1991).
II. Discussion
A. The Ball Rule
[1] The Fifth Amendment provides that no person shall “be
subject for the same offence to be twice put in jeopardy of life
or limb.” U.S. Const. amend. V. Jeopardy is said to “attach”
when a defendant is “put to trial.” Serfass v. United States,
420 U.S. 377, 388 (1975) (observing that the concept of “at-
tachment of jeopardy” defines a point in criminal proceedings
at which the purposes and policies of the Double Jeopardy
Clause are implicated and designating this point as when the
defendant is “put to trial”) (internal quotation marks and cita-
tions omitted). “In the case of a jury trial, jeopardy attaches
when a jury is empaneled and sworn. In a nonjury trial, jeop-
ardy attaches when the court begins to hear evidence.” Id.
(internal citations omitted). The clause’s protections, then,
“kick in . . . only after the defendant has been placed in jeop-
ardy — [i.e.] when jeopardy has attached.” United States v.
Patterson, 406 F.3d 1095, 1096 (9th Cir. 2005) (Kozinski, J.,
dissenting from denial of reh’g en banc).
[2] However, “the conclusion that jeopardy has attached
begins, rather than ends, the inquiry . . . .” Illinois v. Somer-
ville, 410 U.S. 458, 467 (1973). The attachment of jeopardy
is a necessary, though not sufficient, condition for applying
the protections of the Double Jeopardy Clause. There must
UNITED STATES v. JOSE 14349
also be a jeopardy terminating event, most commonly an
acquittal or a final judgment of conviction. See Sattazahn v.
Pennsylvania, 537 U.S. 101, 106 (2003) (“Under this Clause,
once a defendant is placed in jeopardy for an offense [i.e.,
jeopardy “attaches”], and jeopardy terminates with respect to
that offense, the defendant may neither be tried nor punished
a second time for the same offense.”) (citing North Carolina
v. Pearce, 395 U.S. 711, 717 (1969)); see also United States
v. Byrne, 203 F.3d 671, 673 (9th Cir. 2000) (“Jeopardy termi-
nates when the jury reaches a verdict, or when the trial judge
enters a final judgment of acquittal.”) (citing Fong Foo v.
United States, 369 U.S. 141, 143 (1962)).
[3] Even though jeopardy has attached to, and seemingly
terminated on, an offense for which a defendant has been tried
and convicted, the defendant may still be retried for the same
offense, consistently with the Double Jeopardy Clause, when
retrial is pursuant to a reversal on appeal. Ball v. United
States, 163 U.S. 662, 671-72 (1896) (articulating what has
come to be known as the “Ball rule”). In such a case, jeopardy
is said to “continue” on the offense upon retrial. See Justices
of Boston Mun. Court v. Lydon, 466 U.S. 294, 308 (1984)
(recognizing the concept of “continuing jeopardy” implicit in
the Ball rule).1
Pursuant to the Ball rule, had appellants been charged
solely with the greater offense of felony murder and had that
conviction been reversed and remanded for retrial, jeopardy
would have clearly “continued” on the greater offense, mak-
ing a second trial on the same charge constitutionally permis-
sible. See Ball, 163 U.S. 662. The appellants ask this court to
suspend the Ball rule where, as here, the defendant has also
1
Jeopardy also continues upon retrial where the retrial is pursuant to a
mistrial for “manifest necessity.” United States v. Bates, 917 F.2d 388,
392-93 (9th Cir. 1990) (stating that a retrial pursuant to a mistrial justified
by manifest necessity, e.g., a hung jury, does not constitute double jeop-
ardy) (citing United States v. Perez, 22 U.S. (Wheat. 9) 579, 580 (1824)).
14350 UNITED STATES v. JOSE
been charged and convicted of lesser included offenses at the
original trial. We decline to do so.
B. Appellants’ Reliance on Brown
[4] While the Double Jeopardy Clause does not bar retrial
after reversal of a conviction, it does bar a successive trial on
an offense not charged in the original indictment once jeop-
ardy has already terminated on, what is for double jeopardy
purposes, the “same offense.” Brown v. Ohio, 432 U.S. 161,
166 (1977). For purposes of double jeopardy, “the test to be
applied to determine whether there are two offenses or only
one is whether each [statutory] provision requires proof of an
additional fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304 (1932). Thus, a lesser
included offense, which by definition “requires no proof
beyond that which is required for conviction of the greater,”
is the “same” for purposes of double jeopardy as any greater
offense in which it inheres. Brown, 432 U.S. at 168.2
In Brown, the defendant was charged with, and convicted
of, “joyriding,” which, under Ohio law, consisted of “taking
or operating a vehicle without the owner’s consent.” Id. at
167. Joyriding was also a lesser included offense of auto theft,
which was defined as “joyriding with the intent permanently
to deprive the owner of possession.” Id. Upon his release from
jail, Brown was charged with auto theft involving the same
car for which he had been convicted of joyriding. Id. at 162-
63. The Court held that because the two charges were the
“same” for double jeopardy purposes — i.e., “[e]very element
of the crime of operating a motor vehicle without the consent
of the owner [was] also an element of the crime of auto theft”
— Brown could not be subject to successive prosecutions for
a greater and lesser included offense. Id. at 163, 168-69.
2
We note that, by contrast, the Double Jeopardy Clause “does not pro-
hibit the State from prosecuting [a defendant] for [greater and lesser
included] multiple offenses in a single prosecution.” Ohio v. Johnson, 467
U.S. 493, 500 (1984).
UNITED STATES v. JOSE 14351
Notably, Brown emphasizes that the Court was “not con-
cerned . . . with the double jeopardy questions that may arise
when a defendant is retried on the same charge after . . . a
conviction is reversed on appeal.” Id. at 165 n.5. The appel-
lants nonetheless seek to harness Brown in the service of carv-
ing out an exception to the “continuing jeopardy” rule of Ball.
That is, the appellants argue that Brown — as well as other
double jeopardy cases barring subsequent prosecution on sep-
arately indicted lesser or greater offenses — creates a bar to
retrial after a successful appeal of a greater offense, when
conviction on a lesser offense under the same indictment has
become final. Specifically, appellants cite to, Illinois v. Vitale,
447 U.S. 410 (1980) (holding that appellant, who had been
convicted for failing to reduce speed to avoid an accident,
could not be subsequently indicted and tried for involuntary
vehicular manslaughter if the later charge subsumed all of the
elements of the first conviction); Harris v. Oklahoma, 433
U.S. 682 (1977) (holding that appellant, who had been tried
and convicted of felony murder, could not be subsequently
tried under a separate indictment for the predicate felony);
and Ex parte Nielsen, 131 U.S. 176 (1889) (holding that
appellant, who had been convicted of cohabiting with more
than one woman, could not be subsequently tried under a sep-
arate indictment for the included offense of adultery).
Importantly, none of the cases appellants cite in support of
this contention involves a situation such as the one here, in
which the lesser and greater offenses were charged in one
indictment and tried in one case. Vitale, Harris, and Nielsen
all involved successive prosecutions in which jeopardy had
terminated after a final judgment on a separately indicted
lesser or greater offense. They do not speak to the “hybrid”
situation in which jeopardy terminated on the lesser included
offense but continued on the greater offense by virtue of the
defendant’s successful appeal and reversal of that conviction.
Appellants insist that the fact “that there is only one indict-
ment makes no difference.” It makes all the difference.
14352 UNITED STATES v. JOSE
Suppose appellants had been charged solely with felony
murder and jeopardy terminated on that charge by virtue of an
acquittal or final conviction. If the government subsequently
sought to try appellants for the lesser included predicate felo-
nies, it would be constitutionally barred from doing so under
Nielsen and its progeny. See, e.g., Nielsen, 131 U.S. at 187-
88; Brown, 432 U.S. at 169. Appellants insist that this princi-
ple extends to the retrial of a greater offense where the con-
victions on its lesser included offenses have become final,
notwithstanding that both the greater and lesser offenses were
initially tried together. Appellants would have us overlook the
fact that “there is a difference between separate, successive
trials of greater and lesser offenses, and the different situation
in which both are tried together . . . .” United States v. DeVin-
cent, 632 F.2d 155, 158 (1st Cir. 1980).
[5] The Double Jeopardy Clause embodies two concepts,
whose aims serve as its twin rationale — “principles of final-
ity and prosecutorial overreaching.” Ohio v. Johnson, 467
U.S. 493, 501-02 (1984). Neither of these principles was vio-
lated in this case. The prosecution did not overreach when it
charged and tried the defendants on both felony murder and
its lesser included predicates in the same trial. Johnson, 467
U.S. at 500. Similarly, the defendants had no legitimate
expectation of finality in a judgment that they placed in issue
by appealing. United States v. Ruiz-Alvarez, 211 F.3d 1181,
1185 (9th Cir. 2000); United States v. Shue, 825 F.2d 1111,
1115 (7th Cir. 1987) (“Where the defendant challenges one of
several interdependent sentences (or underlying convictions)
he has, in effect, challenged the entire sentencing plan . . .
[and] can have no legitimate expectation of finality in any dis-
crete portion of the sentencing package after a partially suc-
cessful appeal.”) (internal citation omitted).
C. The Applicability of this Court’s Precedent in Forsberg
[6] Suitably generalized, Forsberg v. United States, 351
F.2d 242 (9th Cir. 1965), presents a situation in which the
UNITED STATES v. JOSE 14353
defendant was charged with related greater and lesser
included offenses, jeopardy terminated as to one of the
offenses upon final conviction or acquittal, and continued as
to the other offense upon retrial. Forsberg held that, in such
a situation, retrial of the defendant on the successfully
appealed offense does not violate the Double Jeopardy Clause
notwithstanding that jeopardy has terminated on, what is for
double jeopardy purposes, the “same” offense — its greater
or lesser included concomitant. Id. at 248. See also Boyd v.
Meachum, 77 F.3d 60, 63 (2d Cir. 1996) (rejecting appellant’s
claim that the trial court lacked personal jurisdiction with
respect to the original felony murder charge and holding that
jeopardy continued upon retrial of the greater offense even
though defendant was charged with, and convicted of, the
predicate felonies at the original trial). Because Forsberg,
when appropriately generalized, controls here, we affirm the
district court’s decision denying appellants’ motion to dismiss
on double jeopardy grounds.
The instant case presents the unique situation in which a
defendant is tried on greater and lesser included offenses
under the same indictment, jeopardy terminates as to the
lesser offenses by virtue of final convictions, and the govern-
ment seeks to retry the defendant on the greater offense after
reversal.3 Forsberg presents a similar scenario. In Forsberg,
3
The government refuses to concede that the convictions on the predi-
cate felonies have become final notwithstanding the district court’s entry
of final judgments of conviction on those offenses, albeit without sen-
tences attached. The government maintains this position in the first
instance because if those convictions did not become final, then jeopardy
would not have terminated on those offenses, eliminating the double jeop-
ardy bar that appellants urge on this court. That appellants did not contest
their convictions on the predicate offenses and that this court already
affirmed the convictions on direct appeal further suggests the finality of
those judgments. See Miguel, 338 F.3d at 997 n.3. In any event, we need
not reach the question of whether the predicate felony convictions were
final because, even assuming arguendo that they were, appellants’ double
jeopardy challenge fails. We therefore treat the convictions on the lesser
included predicate felonies as final for purposes of this opinion.
14354 UNITED STATES v. JOSE
the defendant was charged with related greater and lesser
included offenses, jeopardy terminated as to the greater
offense by acquittal, and continued as to the other offense
pursuant to a mistrial. In such a situation, the government is
not barred from retrying the defendant, notwithstanding that
jeopardy has terminated on the related offense. Forsberg, 351
F.2d at 248; accord United States v. Scott, 464 F.2d 832, 834
(D.C. Cir. 1972). And this is true even though the greater and
lesser offenses are the “same offense” for purposes of double
jeopardy. Forsberg, 351 F.2d at 245.
In Forsberg, the defendant was charged in a two count
indictment with (1) assault with intent to commit murder (the
greater offense), and (2) assault with a dangerous weapon
with intent to do bodily harm (the lesser included offense). Id.
at 244. The jury found him not guilty of the greater offense,
but could not agree on the lesser included offense. Id. The
judge declared a mistrial as to the second count and dis-
charged the jury. Id. Forsberg was then retried and convicted
on Count Two. Id. On appeal to this court, Forsberg con-
tended that the second trial on Count Two violated his consti-
tutional right against double jeopardy, “since he had already
been acquitted on Count One, which included the lesser
offense set forth in Count Two.” Id. This court, in similarly
distinguishing Nielsen, upon which the appellant in Forsberg
likewise heavily relied, noted that “Nielsen and the other
cases we have examined refer specifically to subsequent pros-
ecution under a new indictment for a lesser offense after pros-
ecution and acquittal of a greater offense. . . . Here, however,
the two counts were properly included in the original indict-
ment.” Id. at 248 (emphasis added). Forsberg thus held that
it was not a violation of double jeopardy to retry Forsberg on
the lesser included offense on which the jury deadlocked, not-
withstanding Forsberg’s acquittal on the greater charge. Id.
[7] There are a few notable differences between the proce-
dural posture of Forsberg and that of the case at hand. The
differences, however, do not limit the applicability of Fors-
UNITED STATES v. JOSE 14355
berg’s holding here. In Forsberg, the retrial was pursuant to
a hung jury, whereas in this case the defendants were retried
pursuant to a successful reversal of their convictions on
appeal. For purposes of the Ball rule, however, jeopardy con-
tinues on remand — and there is accordingly no double jeop-
ardy violation — whether the retrial is precipitated by a hung
jury or a defendant’s successful reversal of conviction. See
Oregon v. Kennedy, 456 U.S. 667, 671-72 (1982); Downum
v. United States, 372 U.S. 734, 736 (1963); Ball, 163 U.S. at
671-72. Forsberg emphasizes this point at length with its con-
sideration of the following hypothetical:
Let us assume that appellant had been found not
guilty on Count One and guilty on Count Two, and
that his conviction on Count Two had been reversed
with a remand for a new trial. We perceive no good
reason why he could not have been retried on Count
Two. Nor should the fact that there was a hung jury
instead of a verdict of conviction bar his retrial on
Count Two.
351 F.2d at 248.
The hypothetical also illustrates that even if there is a jeop-
ardy terminating event on the “same offense” (such as an
acquittal on the greater offense, as in the hypothetical, or a
conviction on the lesser offenses, as in this case), the Ball rule
applies. The reversed conviction may still be retried. See
United States v. Larkin, 605 F.2d 1360, 1368 (5th Cir. 1979)
(“a defendant may be retried on a lesser offense, of which he
was convicted at an initial trial, after that conviction was
reversed on appeal; and that . . . result obtains even though the
first trial also resulted in a verdict of acquittal on a greater
offense”).
The hypothetical highlights a further difference. The issue
in Forsberg arose because jeopardy on the greater charge ter-
minated with an acquittal. In the present case, jeopardy termi-
14356 UNITED STATES v. JOSE
nated with appellants’ final convictions on the lesser included
offenses. It does not matter for our purposes that Forsberg
was acquitted as opposed to convicted on the greater offense.4
What matters is that in both Forsberg and the instant case,
jeopardy continued on the remaining count. In this case, it
continued because of the successful appeal and reversal of
conviction on the felony murder charge; in Forsberg, it con-
tinued because of the hung jury on the lesser assault charge.
[8] The last difference between Forsberg and this case is
that jeopardy terminated in Forsberg on the greater offense
while jeopardy terminated in this case on the lesser offenses.
However, this makes no difference because the offenses are
equivalent for purposes of double jeopardy, and the effect of
the termination of jeopardy on one such offense is the same
whether the offense was the greater offense or any lesser
4
The district court in Forsberg was careful to instruct the jury in such
a way as to prevent it from rendering guilty verdicts on both the lesser and
greater included offenses. See Forsberg, 351 F.2d at 245-46. At oral argu-
ment, counsel for Miguel went so far as to say that, in doing so, Forsberg
prefigured the Supreme Court’s holding in Rutledge v. United States that
a defendant may not stand convicted on both greater and lesser included
offenses charged under the same indictment absent a clear indication by
Congress to the contrary. See 517 U.S. 292, 301-03 (1996). Unlike this
case, in Forsberg, a conviction on one count precluded a conviction on the
other count in the same trial. As in this case, however, a conviction on
either greater or lesser included count standing alone would have erected
“a bar to subsequent prosecution on the other count” under a different
indictment. Forsberg, 351 F.2d at 245 (emphasis added); see also id. at
248. Similarly, “[h]ad appellant been found guilty on both counts, [which
was preempted in Forsberg by the district court’s thoughtful jury instruc-
tions,] the imposition of more than one sentence would have been illegal.”
Id. at 245. However, as Rutledge later made clear, a conviction on the
greater offense would not have precluded this court from subsequently
directing entry of a judgment of conviction for the lesser included offense
if the greater offense conviction had been reversed on appeal — for rea-
sons that affect only the greater offense — and remanded for a new trial.
Rutledge, 517 U.S. at 305 (citing with approval United States v. Silvers,
888 F.Supp. 1289, 1306-09 (D.Md. 1995), aff’d in relevant part, 90 F.3d
95 (4th Cir. 1996), where the district court followed this practice).
UNITED STATES v. JOSE 14357
offense included in it. See Brown, 432 U.S. at 168-69. The
relevant aspects of the procedural posture in this case are thus
on all fours with Forsberg — the greater and lesser included
offenses were tried together under the same indictment, jeop-
ardy terminated as to one of the offenses, but did not end on
the charge sought to be retried. Guided by Forsberg, we
affirm the district court’s decision denying appellants’ motion
to dismiss on double jeopardy grounds.
D. Appellants’ Reliance on Green
Appellants also rely upon Green v. United States, 355 U.S.
184 (1957), to support their claim that the jeopardy terminat-
ing effect of a final adjudication on the lesser included
offenses bars retrial on the greater offense. This reliance is
misplaced. In Green, the Court held that a jury’s conviction
on the included offense of second degree murder constituted
an “implicit acquittal” on the charge of first degree felony
murder and thus that the defendant could not be retried on the
greater murder charge. 355 U.S. at 190 & n.10. In the context
of Green, appellants’ theory of double jeopardy would lead to
absurd results. Their theory would have made it impossible
for the district court to retry Green on the charge of second
degree murder even though this was the charge that formed
the basis of his reversed conviction.5
In Green, the defendant was charged with arson and felony
murder in the commission of an arson, which, under Wash-
ington, D.C. law, constituted murder in the first degree. Id. at
185. The judge instructed the jury that it could also find the
defendant guilty of second degree murder under the second
count of the indictment as “an offense included within the lan-
guage charging first degree murder . . . .” Id. at 185-86. The
jury found the defendant guilty of arson and second degree
murder, but remained silent as to the felony murder charge.
5
Counsel for Miguel agreed at oral argument that Green could have
been retried for second degree murder.
14358 UNITED STATES v. JOSE
Id. at 186. Green successfully appealed the second degree
murder conviction and on remand was retried for first degree
murder under the original indictment. Id. The jury this time
found Green guilty of first degree murder and he was sen-
tenced to death. Id.
Green appealed, claiming that his retrial for first degree
murder violated his constitutional protections against double
jeopardy. Id. The Court agreed, finding that “for purposes of
former jeopardy” the jury should be understood to have “re-
turned a verdict which expressly read: ‘We find the defendant
not guilty of murder in the first degree but guilty of murder
in the second degree.’ ” Id. at 191. Based in part on this find-
ing, the Court held that “this second trial for first degree mur-
der placed Green in jeopardy twice for the same offense in
violation of the Constitution.” Id. at 190. For Jose and Miguel,
Green’s second trial was doubly barred — both because
Green had been implicitly acquitted of first degree murder
and because, according to appellants, “once a conviction on
an included offense [in this case, arson] has become final,
[re]trial on the greater offense [in this case, first degree felony
murder] cannot thereafter be had.” This, however, runs
directly contrary to the Court’s own understanding of Green.
See United States v. Tateo, 377 U.S. 463, 465 n.1 (1964)
(“[Green] holds only that when one is convicted of a lesser
offense included in that charged in the original indictment, he
can be retried only for the offense of which he was convicted
rather than that with which he was originally charged.”)
(emphasis added); see also Forsberg, 351 F.2d at 247 (quot-
ing Tateo, 377 U.S. at 465 n.1).
In fact, under appellants’ logic, Green could not have been
retried for either first or second degree murder. Under Jose
and Miguel’s double jeopardy framework, a retrial for second
degree murder would also have been barred because jeopardy
had already terminated on the first degree murder charge (by
way of the implicit acquittal), and second degree murder was
a lesser included offense of first degree murder. See Green,
UNITED STATES v. JOSE 14359
355 U.S. at 194 n.14; see also Goodall v. United States, 180
F.2d 397, 400 (D.C. Cir. 1950). According to appellants, once
jeopardy has terminated on a greater offense, retrial on the
lesser offense cannot thereafter be had (even pursuant to a
reversed conviction) because “an included offense is the
‘same offense’ as its greater offense” for purposes of double
jeopardy. Thus, under the reading of Green compelled by
appellants’ double jeopardy theory, there was no way Green
could have been retried following his successful appeal of his
second degree murder conviction, even if his retrial had been
limited to the charge of second degree murder. For Jose and
Miguel’s reading of Green, then, it matters a lot that Wash-
ington, D.C. considered second degree murder to be a lesser
included offense of first degree felony murder, while for the
Green Court this issue was “immaterial.” Green, 355 U.S. at
194 n.14.
It is not without some irony that appellants rely heavily on
Green, a case that manifestly undermines their argument. That
their theory of double jeopardy would compel results so obvi-
ously contrary to Green and its progeny serves as a reductio
ad absurdum of their position.
E. Practical Implications and Guidance for the Future
We pause to consider the practical implications of our deci-
sion and to provide the district courts with some guidance.
Prosecutors should not be discouraged from charging defen-
dants with greater and lesser included offenses in separate
counts under the same indictment. Indeed, if they fail to try
the lesser and greater included offenses together in one trial,
they may not, consistently with the protections of the Double
Jeopardy Clause, later try the defendant for the related offense
in a subsequent trial under a separate indictment. See, e.g.,
Brown, 432 U.S. at 166. Although “[a] jury is generally
instructed not to return a verdict on a lesser included offense
once it has found the defendant guilty of the greater offense,”
Rutledge, 517 U.S. at 306 n.16, it is entirely appropriate for
14360 UNITED STATES v. JOSE
a judge to instruct a jury to render a verdict on a greater
offense and its lesser included predicates. As the government
suggested at oral argument, this way of doing things presents
a “cleaner package” to the jury. In this case, the district court,
by instructing the jurors to render verdicts on each of the
predicate felonies — independently of their verdict on the fel-
ony murder charge — may have made it easier for the jurors
to understand that charge, the arcane nature of which may at
first appear rather inscrutable to a lay person.
[9] Should a jury find a defendant guilty of both the greater
and lesser included offenses within the same indictment, Rut-
ledge counsels that the district court not enter a final judgment
of conviction on both offenses, unless Congress clearly indi-
cates that it intended to allow multiple punishments. Id. at
301-03. Even if the district court does not impose sentence on
the lesser included offenses, as was the case here, the bare
existence of the other convictions may have potentially
adverse collateral consequences, such as delaying eligibility
for parole or enhancing a sentence for a future conviction
under a recidivist statute. See id. at 302 (citing Ball v. United
States, 470 U.S. 856, 864-65 (1985)). Thus, when a jury con-
victs on both the greater and lesser included offenses, absent
a clear indication by Congress that it intended to allow pun-
ishment for both offenses, the district court should enter a
final judgment of conviction on the greater offense and vacate
the conviction on the lesser offense. Rutledge, 517 U.S. at 306
(endorsing this practice). However, if the greater offense is
later reversed on appeal, the appellate court should reinstate
the previously vacated convictions on the lesser included
offenses. Id. (“[F]ederal appellate courts appear to have uni-
formly concluded that they may direct the entry of judgment
for a lesser included offense when a conviction for a greater
offense is reversed on grounds that affect only the greater
offense.”);6 see also United States v. Vasquez-Chan, 978 F.2d
6
In dicta, in United States v. Medina, we shied away from this approach.
940 F.2d 1247, 1253 (9th Cir. 1991). To the extent that Rutledge endorses
this practice, however, Medina has been overruled.
UNITED STATES v. JOSE 14361
546, 554 (9th Cir. 1992) (endorsing this practice in some
instances).
[10] Here, assuming without deciding that the district court
erred by entering final judgment on all convictions (even
though it refrained from sentencing on the predicate felony
convictions), this court previously corrected the error when it
affirmed the predicate felony convictions on appeal notwith-
standing that the defendants appealed only their convictions
on the felony murder counts. Miguel, 338 F.3d at 997 n.3. By
affirming the predicate felony convictions sua sponte, this
court effectively vacated the convictions on the lesser
included offenses and reinstated them in one fell swoop. If the
defendants are reconvicted on the felony murder charges,
absent a clear indication by Congress that it intended to allow
punishment for both felony murder and the predicate felonies,
the district court should vacate the (now effectively) rein-
stated convictions on the lesser included offenses per Rut-
ledge. 517 U.S. at 306.
III. Conclusion
Jeopardy continued on the felony murder charges upon
retrial for the reversed convictions. Because final convictions
on the underlying predicate felonies do not trigger double
jeopardy protections against retrial of the greater offense orig-
inally charged under the same indictment in the same trial, we
affirm the district court’s denial of appellants’ motion to dis-
miss.
AFFIRMED.