United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 2007 Decided January 4, 2008
No. 06-3162
UNITED STATES OF AMERICA,
APPELLEE
v.
SEAN GINYARD,
APPELLANT
Consolidated with
06-3163
Appeals from the United States District Court
for the District of Columbia
(No. 03cr00473-01)
(No. 03cr00473-02)
James W. Beane, Jr., appointed by the court, argued the
cause and filed the briefs for appellant Sean Ginyard.
Yolanda T. Hibbler argued the cause for appellant Kevin
Jefferson. With her on the briefs was Peter M. Brody.
Mary C. Dobbie, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Jeffrey A. Taylor, U.S.
Attorney, and Roy W. McLeese, III, Assistant U.S. Attorney.
2
Before: GINSBURG, Chief Judge, and GARLAND, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: An eleven-member jury
convicted Sean Ginyard and Kevin L. Jefferson on a two-count
indictment that charged the defendants with distributing and
with possessing with intent to distribute cocaine base. On
appeal, a previous panel of this court vacated the convictions
and remanded the case for a new trial because the district court
had erred in dismissing the twelfth juror. See United States v.
Ginyard, 444 F.3d 648 (D.C. Cir. 2006). The defendants then
filed pretrial motions to dismiss all or part of one count of the
indictment. The district court granted the motions in part and
denied them in part, and the defendants have appealed.
Defendant Jefferson contends that the district court’s refusal
to dismiss the count in its entirety violates the Double Jeopardy
Clause of the Fifth Amendment. Although we have jurisdiction
over Jefferson’s interlocutory appeal, we conclude that he may
be retried on lesser-included charges of that count without
transgressing the bar against double jeopardy. Defendant
Ginyard, by contrast, does not contend that the Double Jeopardy
Clause requires dismissal of the count in its entirety, but only
that it bars the government from proceeding against him under
an aiding and abetting theory. Because we do not have
jurisdiction over that kind of interlocutory challenge, we dismiss
Ginyard’s appeal without reaching its merits.
I
On August 17, 2004, a grand jury returned a two-count
indictment against Ginyard and Jefferson. Count One charged
each defendant with distributing cocaine base (in the form of
3
crack), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and
with aiding and abetting such distribution, in violation of 18
U.S.C. § 2. Count Two charged each defendant with possessing
with intent to distribute 50 grams or more of cocaine base (in the
form of crack), in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii), and with aiding and abetting that crime, in
violation of 18 U.S.C. § 2.
At trial, the government introduced evidence concerning
three quantities of cocaine base that the police discovered at the
time of the defendants’ arrest on October 2, 2003. The
government’s witnesses testified that, on that day, an undercover
police officer approached Ginyard to purchase drugs. Ginyard
directed the officer to Jefferson, who was standing in a nearby
walkway. Jefferson then lifted up a hubcap that was lying on
the ground, withdrew .7 grams of cocaine base from underneath
the hubcap, and sold it to the officer. When the police later
searched under the hubcap, they found an additional 21.1 grams
of the drug. A short time after the .7-gram sale, undercover
officers watched as another man drove into the area, stopped his
car, and handed Ginyard money. Ginyard then walked to a
parked Cadillac and opened it with a keyless remote control. A
subsequent police search of the Cadillac revealed 134.5 grams
of cocaine base in a nylon bag in the trunk.
The government also introduced other evidence concerning
the defendants’ connection to narcotics. This included
testimony about several prior undercover drug purchases from
the defendants in July and August 2003, and about the discovery
of crack cocaine in a search of Ginyard’s mother’s residence
where both defendants had been seen. But the three quantities
of cocaine base discussed above -- the .7 grams sold to the
undercover officer, the 21.1 grams found under the hubcap, and
the 134.5 grams found in the Cadillac -- are the only facts
relevant to this appeal.
4
Jury deliberations began on September 10, 2004. On
September 16, the court dismissed one of the jurors. The juror
had sent the court a note stating that he would not be able to
continue serving on the jury because he needed to pursue a job
opportunity. Other notes from the jury made clear that this juror
was a holdout against the verdict agreed to by the others.
When the jury reconvened, the remaining eleven members
found Ginyard and Jefferson guilty on both counts of the
indictment. With respect to Count One, which pertained to the
sale of the .7 grams to the undercover officer, the jury found the
defendants guilty. That count is not at issue on this appeal.
With respect to Count Two, which charged each defendant
with possession with intent to distribute 50 grams or more of
cocaine base, the court used a complicated verdict form. The
form was apparently constructed in response to the Supreme
Court’s opinions in Blakely v. Washington and Apprendi v. New
Jersey, which had held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.” Blakely, 542
U.S. 296, 301 (2004) (quoting Apprendi, 530 U.S. 466, 490
(2000)). As to each defendant, the form first asked whether he
was guilty of the charge. If the jury found the defendant guilty,
the form then asked the jury to indicate the amount of cocaine
base for which he was responsible and listed three progressively
decreasing amounts: at least 150 grams, at least 50 grams, and
at least 20 grams. The instructions indicated that the jury should
consider each progressively lower quantity if it was unable to
find unanimously that the defendant was responsible for the
greater quantity.1
1
After Jefferson went to trial, the Supreme Court handed down its
opinion in United States v. Booker, which rendered the U.S.
5
On Ginyard’s verdict form, the jury checked “guilty” on the
question of whether he had possessed with intent to distribute at
least 50 grams of cocaine base. It left blank the question of
whether the amount proven was at least 150 grams. But it
checked “proven” with respect to whether the amount was at
least 50 grams.
On Jefferson’s verdict form, the jury also checked the
“guilty” line for Count Two, but it crossed out “50 grams” and
wrote in “detectable amount.”2 The jury left blank the questions
of whether the amount proven was at least 150 grams or at least
50 grams. It did, however, check “proven” for the question of
whether the amount was at least 20 grams.
Sentencing Guidelines “effectively advisory.” 543 U.S. 220, 245
(2005); see Kimbrough v. United States, No. 06-6330, slip op. at 11-12
(U.S. Dec. 10, 2007). So modified, the Sixth Amendment’s bar
against judicial fact-finding does not apply to Guidelines sentencing.
Booker, 543 U.S. at 259; see United States v. Lawson, 494 F.3d 1046,
1055-56 (D.C. Cir. 2007); United States v. Bras, 483 F.3d 103, 108
(D.C. Cir. 2007). After Booker, only drug quantities that constitute
elements of statutory offenses must be submitted to the jury. See
Bras, 483 F.3d at 106-08. For possession with intent to distribute
cocaine base, those quantities are 5 grams and 50 grams. See 21
U.S.C. § 841(b)(1)(A)(iii), (b)(1)(B)(iii); United States v. Webb, 255
F.3d 890, 894-97 (D.C. Cir. 2001). The question of whether the
defendant possessed at least 20 or 150 grams is relevant only to
sentencing and may be determined by the district court under the (now
advisory) Sentencing Guidelines. See Lawson, 494 F.3d at 1055-56;
Bras, 483 F.3d at 106-08.
2
In response to a note that the jury sent the court during its
deliberations, the court instructed the jury that it should first determine
whether each defendant possessed with intent to distribute a detectable
amount of cocaine base. Although the jury then modified Jefferson’s
verdict form, it did not alter Ginyard’s.
6
Ginyard and Jefferson appealed their convictions. Holding
that the district court had erred in dismissing the twelfth juror
without conducting an adequate inquiry regarding his continuing
availability,3 this court vacated the convictions and remanded
the case for a new trial. See United States v. Ginyard, 444 F.3d
648 (D.C. Cir. 2006). The district court scheduled a new trial,
on both counts of the indictment, to commence on November 1,
2006.
In pretrial motions following the remand, Jefferson moved
to dismiss Count Two altogether, to bar the government from
presenting evidence suggesting that he was responsible for the
134.5 grams of cocaine base found in the Cadillac’s trunk, and
to prohibit the government from proceeding against him on an
aiding and abetting theory. The district court permitted Ginyard
to join Jefferson’s motion. See Status Conf. Tr. 5-6 (Oct. 31,
2006).
In a memorandum order issued on October 31, 2006, the
district court held that “the Government may not relitigate the
question of whether, in Count Two, the amount of crack cocaine
which Defendant Jefferson unlawfully possessed with the intent
to distribute was either at least 50 grams or at least 150 grams.”
United States v. Jefferson, No. 03-473, Mem. Order at 3-4
(D.D.C. Oct. 31, 2006). But the court denied the motion to
dismiss all of Count Two. Id. At a status conference that same
day, the court explained that “[t]here wasn’t a clear decision by
the jury as to the aiding and abetting question,” and it therefore
declined to “strik[e] the aiding and abetting alternative” from the
indictment. Status Conf. Tr. 34-35 (Oct. 31, 2006).
3
On appeal, the government conceded that the district court had
abused its discretion in dismissing the deliberating juror. See United
States v. Ginyard, 444 F.3d 648, 651 (D.C. Cir. 2006).
7
Both Jefferson and Ginyard now appeal, each presenting a
different challenge to the district court’s rulings.
II
The Double Jeopardy Clause of 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.
As is relevant here, the Clause “protects against a second
prosecution for the same offense after acquittal[, and] protects
against a second prosecution for the same offense after
conviction.” Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting
North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). The
Clause also embodies principles of collateral estoppel: “[e]ven
if two offenses are sufficiently different to permit the imposition
of consecutive sentences,” the collateral estoppel component of
double jeopardy bars “successive prosecutions . . . where the
second prosecution requires the relitigation of factual issues
already resolved by the first.” Id. at 166 n.6 (citing Ashe v.
Swenson, 397 U.S. 436 (1970)). “It has long been settled,
however, that the Double Jeopardy Clause’s general prohibition
against successive prosecutions does not prevent the government
from retrying a defendant who succeeds in getting his first
conviction set aside . . . because of some error in the
proceedings leading to conviction.” Lockhart v. Nelson, 488
U.S. 33, 38 (1988).
In the district court, Jefferson contended that the jury in his
first trial implicitly acquitted him of the charge of possessing
with intent to distribute 50 grams or more of cocaine base. He
drew that conclusion from the fact that the jury crossed out “50
grams” on the verdict form and wrote in “detectable amount,”
that it did not respond to the questions of whether the amount for
which Jefferson was responsible was at least 150 grams or at
least 50 grams, and that it checked “proven” for the question of
8
whether the amount was at least 20 grams. Agreeing with
Jefferson’s contention, the district court held that he could not
be retried on the charge of possessing with intent to distribute 50
grams or more of cocaine base. Mem. Order at 3-4. The
government does not dispute that holding, Gov’t Br. 14 n.5, and
we therefore have no occasion to evaluate it.4
On appeal, Jefferson contends that, in light of this acquittal,
the district court erred in refusing to dismiss Count Two in its
entirety. That count charges him with possessing with intent to
distribute 50 grams or more of cocaine base. Jefferson argues
that the 50-gram quantity is an essential element of the charge
and that, because the government may not relitigate whether he
possessed that amount, the count must be dismissed. We first
address our jurisdiction to consider this contention and then turn
to its merits.
A
Although the government does not challenge this court’s
jurisdiction to decide Jefferson’s appeal, we have an
independent obligation to consider the issue. See Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). The
question of our jurisdiction arises because there has not yet been
a final judgment in the district court. Indeed, Jefferson’s retrial
has not yet begun. In the absence of a final judgment, this court
generally lacks jurisdiction to hear a challenge to a decision of
a district court. See 28 U.S.C. § 1291 (providing appellate
jurisdiction over “appeals from all final decisions of the district
4
Supreme Court opinions discussing the concept of implied
acquittal include Schiro v. Farley, 510 U.S. 222, 236 (1994); Price v.
Georgia, 398 U.S. 323, 329 (1970); and Green v. United States, 355
U.S. 184, 190-91 (1957).
9
courts of the United States”); Abney v. United States, 431 U.S.
651, 657 (1977) (citing § 1291).
In Abney, the Supreme Court held that an appeal from the
denial of a pretrial motion to dismiss an indictment on double
jeopardy grounds is an exception to this general rule. 431 U.S.
at 659. The Court concluded that such a claim falls within the
collateral-order exception to the final-judgment rule because,
inter alia, the protection against double jeopardy “would be
significantly undermined if appellate review . . . were postponed
until after conviction and sentence.” Id. at 660. The right that
the Double Jeopardy Clause protects is the right not to be “twice
put to trial for the same offense,” and the Supreme Court
explained that the protections of the Clause
would be lost if the accused were forced to “run the
gauntlet” a second time before an appeal could be
taken; even if the accused is acquitted, or, if convicted,
has his conviction ultimately reversed on double
jeopardy grounds, he has still been forced to endure a
trial that the Double Jeopardy Clause was designed to
prohibit.
Id. at 661-62.
Although no appellate court appears to have ruled directly
on the question of whether Abney extends to an appeal from the
denial of a motion to dismiss a single count of a multi-count
indictment, the Second Circuit has noted that, “[w]here a
defendant challenges an entire count on grounds of former
jeopardy, lack of an interlocutory appeal would prevent all
opportunity to vindicate the asserted right to avoid trial on that
count.” United States v. Tom, 787 F.2d 65, 68 (2d Cir. 1986);
see also United States v. Head, 697 F.2d 1200, 1206 n.9 (4th
Cir. 1982). We agree. Because the Double Jeopardy Clause
10
guarantees the right not to be twice put to trial “for the same
offense,” Abney, 431 U.S. at 661, a defendant may no more be
forced to “run the gauntlet” a second time on a single count --
which charges a single offense -- than he may be required to do
so on an entire indictment. Accordingly, we have jurisdiction
over Jefferson’s interlocutory appeal of the denial of his motion
to dismiss Count Two, and we proceed to the merits of the issue.
B
Jefferson contends that we must dismiss Count Two
because it charges him with possessing with intent to distribute
50 grams or more of cocaine base -- the same offense for which
the Double Jeopardy Clause bars retrial. But there is no danger
that Jefferson will be retried on the 50-gram charge. The district
court ruled that the government may not relitigate whether
Jefferson possessed with intent to distribute at least 50 (or at
least 150) grams of cocaine base. Mem. Order at 3-4. And the
government agrees that it may not retry him on that charge. See
Gov’t Br. 14 & n.5; Oral Arg. Recording at 24:09.
What the government does intend is to seek Jefferson’s
conviction on either of two lesser charges: possession with
intent to distribute at least 5 grams of cocaine base, or
possession with intent to distribute a detectable amount of
cocaine base. See Gov’t Br. 15-16; Oral Arg. Recording at
24:18. A trial on those charges would not violate the Double
Jeopardy Clause. As noted above, Jefferson’s first jury found
him guilty, under Count Two, of possessing a detectable amount
or more of cocaine base. Verdict Form at 4 (J.A. 33). And it
indicated that the amount that the government had proven was
“[a]t least 20 grams” of the drug. Id. at 5 (J.A. 34). Although
Jefferson’s conviction on Count Two was vacated on appeal, the
Double Jeopardy Clause does not bar retrial after a conviction
11
has been overturned because of an error in the trial court
proceedings. See Lockhart, 488 U.S. at 38.
Jefferson nonetheless insists that possession of 50 grams or
more is an essential element of Count Two and that, because the
government may not relitigate this quantity, the entire count
must be dismissed. This argument is unavailing, as it is clear
that a “defendant may be found guilty of . . . an offense
necessarily included in the offense charged.” FED. R. CRIM. P.
31(c)(1); see Schmuck v. United States, 489 U.S. 705, 715-21
(1989). In this case, possession with intent to distribute 5 grams
or more and possession with intent to distribute a detectable
amount are both lesser-included offenses of the greater charge
of possession with intent to distribute 50 grams or more of
cocaine base. See United States v. Webb, 255 F.3d 890, 896-97
(D.C. Cir. 2001) (concluding that 21 U.S.C. § 841 is a tripartite
statute that establishes three crimes with three different statutory
sentence maxima depending on the drug quantity categories of
§ 841(b)); see also United States v. Lafayette, 337 F.3d 1043,
1048 (D.C. Cir. 2003). See generally Schmuck, 489 U.S. at 716
(holding that one offense is “necessarily included” in another if
“the elements of the lesser offense are a subset of the elements
of the charged offense”). Thus, without reindicting Jefferson on
a lesser charge, see Schmuck, 489 U.S. at 718, the government
may retry him for the two lesser-included offenses.
Finally, citing a New York Court of Appeals case, People
v. Mayo, Jefferson argues that, because the government has not
obtained a new indictment limited to the lesser-included
offenses, his retrial will be conducted “under the shadow” of the
50-gram charge -- and that he will therefore suffer a harm that
the Double Jeopardy Clause forbids. Appellant Jefferson’s
Reply Br. 7 (citing Mayo, 397 N.E.2d 1166 (N.Y. 1979)). The
defendant in Mayo was retried on a first-degree robbery charge
after having been acquitted of that offense in a previous trial.
12
Not until the last moment, just before it sent the jurors to
deliberate, did the court withdraw the charge and instruct the
jury to consider only lesser-included offenses. The Court of
Appeals reversed Mayo’s subsequent conviction for second-
degree robbery, holding that, because the jury was advised at the
outset that the defendant was on trial for robbery in the first
degree, the judge’s last-minute instruction could not ensure that
the verdict was not influenced “by the looming presence of [the
prohibited] charge throughout the trial.” Mayo, 397 N.E.2d at
1170.
Mayo has no application here because the district court has
already ruled that Jefferson will not be retried on the greater (50-
gram) charge. As the District of Columbia Court of Appeals
held in rejecting -- under similar circumstances -- an argument
almost identical to Jefferson’s, the “judge at a new trial can
readily dispose of the problem presented by Mayo by avoiding
any reference to the original charge . . . and simply advising the
jury that the defendant is on trial for the [lesser-included]
offenses.” Coreas v. United States, 585 A.2d 1376, 1381-82
(D.C. 1991). If the district court decides to give the jury a copy
of the indictment, it can redact or revise the document
accordingly. See generally United States v. Roy, 473 F.3d 1232,
1238 n.2 (D.C. Cir. 2007). Indeed, at oral argument the
government stated that it intended either to submit an edited
indictment or to supersede. Oral Arg. Recording at 26:07.
In sum, because Jefferson may be retried on lesser-included
offenses of Count Two without transgressing the bar against
double jeopardy, we affirm the district court’s denial of his
motion to dismiss that count.
13
III
Defendant Ginyard contends that the district court erred in
denying his motion to prohibit the government from retrying
him on the theory that he aided and abetted Jefferson’s
possession with intent to distribute cocaine base. Because the
jury found Ginyard guilty of possessing with intent to distribute
at least 50 grams but did not mark “proven” (or “unproven”) as
to whether he possessed at least 150 grams, Ginyard argues that
it must have found him responsible only for the 134.5 grams in
the Cadillac. The jury could not also have found him
responsible for the 21.1 grams under the hubcap, he claims,
because adding that amount would have raised the total to more
than 150 grams. By the same token, because the jury found
Jefferson responsible for more than 20 grams but not more than
50 or 150 grams, Ginyard infers that the jury must have found
Jefferson responsible for the drugs under the hubcap but not for
those in the Cadillac.
From all of this, Ginyard concludes that, while the jury
found that each defendant possessed a specific stash of cocaine
base, it also found that neither defendant aided or abetted the
other’s possession. He therefore contends that the government
should be estopped from proceeding against him under Count
Two on an aiding and abetting theory. To retry him on that
theory, he insists, would violate the guarantee against double
jeopardy.
The government disputes Ginyard’s premise that the jury
necessarily found that Ginyard did not aid and abet Jefferson’s
possession with intent to distribute the 21.1 grams of cocaine
base found under the hubcap. All that the verdict form reveals,
the government argues, is “that the jury decided that the
government had ‘proven’ that appellant Ginyard possessed . . .
at least 50 grams” and that it “was ‘unable to unanimously’ find
14
him guilty of 150 grams.” Gov’t Br. 31 (quoting Verdict Form
at 2 (J.A. 31)). In any event, the government maintains that
Ginyard’s claim -- unlike Jefferson’s -- is not properly raised on
an interlocutory appeal.
We do not reach the merits of Ginyard’s claim because we
agree with the government that this court lacks jurisdiction.
Ginyard’s claim is different from Jefferson’s in an important
respect. While Jefferson challenges the government’s ability to
retry him on Count Two at all, Ginyard does not dispute that he
may be retried for the crime that is expressly charged in that
count: possession with intent to distribute 50 grams or more of
cocaine base. Oral Arg. Recording at 22:29. Indeed, while the
jury found that Jefferson possessed only 20 grams or more of
cocaine base, it found Ginyard guilty of possessing 50 grams or
more, see Verdict Form at 2 (J.A. 31), and Ginyard therefore
concedes that he may be retried on that charge. Ginyard’s only
contention is that the government may not retry him on a
particular theory of liability for that offense.
The Abney exception to the final-judgment rule does not
extend this far. That exception was designed to protect
defendants from a particular injury -- “being twice put to trial
for the same offense.” Abney, 431 U.S. at 661 (emphasis
omitted). But as the Supreme Court has noted, “exceptions to
the final judgment rule in criminal cases are rare.” Flanagan v.
United States, 465 U.S. 259, 270 (1984). “Adherence to this
rule of finality has been particularly stringent in criminal
prosecutions because ‘the delays and disruptions attendant upon
intermediate appeal’ . . . ‘are especially inimical to the effective
and fair administration of the criminal law.’” Abney, 431 U.S.
at 657 (quoting DiBella v. United States, 369 U.S. 121, 126
(1962)). Thus, “an interlocutory appeal has been denied when
a collateral estoppel claim would merely suppress evidence but
not preclude trial on the charge.” United States v. Brizendine,
15
659 F.2d 215, 224 n.16 (D.C. Cir. 1981) (citing United States v.
Mock, 604 F.2d 336, 337-41 (5th Cir. 1979)). Courts have
likewise refused to extend Abney to interlocutory appeals from
denials of motions to strike overt acts or objects from conspiracy
indictments, see Head, 697 F.2d at 1206; United States v.
Powell, 632 F.2d 754, 758 (9th Cir. 1980),5 or predicate acts
from Racketeer Influenced and Corrupt Organizations Act
(RICO) indictments, see Tom, 787 F.2d at 68; United States v.
Witten, 965 F.2d 774, 776 (9th Cir. 1992).
Because Ginyard’s appeal cannot protect him “against being
twice put to trial for the same offense,” Abney, 431 U.S. at 661
(emphasis omitted), it too fails to fall within the Abney
exception. Regardless of whether Ginyard may be retried for
aiding and abetting, he may be tried again for the offense
contained in Count Two. That offense is possession with intent
to distribute 50 grams of cocaine base. Aiding and abetting is
not a separate offense; it is only a theory of liability -- one
ground upon which the jury may find him liable for the charged
offense. See United States v. Garcia, 400 F.3d 816, 818-20 (9th
Cir. 2005); United States v. Smith, 198 F.3d 377, 383 (2d Cir.
1999).6 Hence, even a successful interlocutory appeal would not
5
After these cases were decided, the Supreme Court held that
“prosecution of a defendant for conspiracy, where certain of the overt
acts relied upon by the Government are based on substantive offenses
for which the defendant has been previously convicted, does not
violate the Double Jeopardy Clause.” United States v. Felix, 503 U.S.
378, 380-81 (1992).
6
The aiding and abetting provision of Title 18 states: “Whoever
commits an offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is punishable as a
principal.” 18 U.S.C. § 2(a). An “indictment need not specifically
include an aiding and abetting charge because, ‘whether specified or
not,’ the federal statute creating liability for aiding and abetting . . . ‘is
16
save Ginyard from having to endure a second trial on the offense
charged in Count Two. Nor is the prejudice associated with
having to defend oneself against a particular theory of liability
alone sufficient to justify an interlocutory appeal. As the
Second Circuit explained in Tom:
If a defendant has a valid double jeopardy claim, he is
entitled to present it on an interlocutory appeal to avoid
“the personal strain, public embarrassment, and
expense of a criminal trial” on the indictment or count
for which he has previously been in jeopardy . . . .
However, he is not entitled to an interlocutory appeal
to avoid whatever slight increment of strain,
embarrassment, or expense might arise from having to
defend against allegations made or evidence presented
in connection with a count on which trial will in any
event occur.
787 F.2d at 68 (quoting Abney, 431 U.S. at 661); cf. Witten, 965
F.2d at 776 (finding no appellate jurisdiction because “[t]he
appellants moved to dismiss an alleged predicate act [from a
RICO indictment], not an entire indictment, or even an entire
count,” and because “[e]ven if the . . . act were dismissed, the
appellants would still face trial for conspiracy to violate
RICO”); Powell, 632 F.2d at 758 (stating that a claim that
“would affect the course of the trial,” but would not “have
barred the ordeal of retrial,” is “not properly appealable before
trial”).
considered embodied in full in every federal indictment.’” United
States v. Lam Kwong-Wah, 924 F.2d 298, 302 (D.C. Cir. 1991)
(quoting United States v. Michaels, 796 F.2d 1112, 1118 (9th Cir.
1986)).
17
This court therefore lacks jurisdiction over Ginyard’s
interlocutory appeal. If the government tries and convicts
Ginyard on an aiding and abetting theory, he may of course
challenge that conviction in a post-judgment appeal.
IV
For the foregoing reasons, we dismiss Ginyard’s
interlocutory appeal for lack of jurisdiction. Although we have
jurisdiction over Jefferson’s interlocutory appeal, we affirm the
district court’s denial of his motion to dismiss Count Two in its
entirety.
So ordered.