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Criminal Practice – Reprosecution of vacated charges doesn’t trigger double jeopardy

By: S.C. Lawyers Weekly staff//October 4, 2021

Criminal Practice – Reprosecution of vacated charges doesn’t trigger double jeopardy

By: S.C. Lawyers Weekly staff//October 4, 2021

Although the defendant’s prior convictions were vacated by the court, because the vacatur was based on a change in the law and not factual innocence, Double Jeopardy didn’t prevent reprosecution.


Cordarrell A. Johnson pleaded guilty to the charged § 924(c) offenses in January 2010, but those convictions were vacated in September 2019 with the court’s award of 28 U.S.C. § 2255 relief. The district court has since decided that the government may reprosecute Johnson on the § 924(c) charges, along with other charges that had previously been dismissed pursuant to Johnson’s plea agreement. Johnson challenges the district court’s denial of his claim that his reprosecution on two charges of 18 U.S.C. § 924(c) firearm offenses would contravene the Double Jeopardy Clause of the Fifth Amendment.


Johnson premises his double jeopardy claim on the proposition that — in vacating his convictions of the 18 U.S.C. § 924(c) firearm offenses charged in Counts Seven and Nine of the indictment — the § 2255 order constituted an acquittal. Although precedent of this court compels the conclusion that the vacatur of Johnson’s § 924(c) convictions was instead a mere procedural dismissal, Johnson insists that this court’s precedent has been abrogated by the Supreme Court’s decision in Evans v. Michigan, 568 U.S. 313 (2013). Johnson contends that Evans treats as equal rulings based on factual innocence and those premised on legal innocence; because both types of rulings go to the defendant’s culpability, they both qualify as acquittals.

Johnson’s reading of Evans, however, is incompatible with the Evans court’s recognition that acquittals relate to “factual guilt or innocence” and procedural dismissals do not. As such, Evans does not abrogate this court’s relevant precedent, which includes United States v. Green, 139 F.3d 1002 (4th Cir. 1998), and United States v. Ford, 703 F.3d 708 (4th Cir. 2013).

Here, the district court the district court relied on Green in denying Johnson’s double jeopardy claim. There, Green had pleaded guilty to a § 924(c) firearm offense, but that plea was subsequently vacated because of a post-plea change in law rendered by the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137 (1995). The government reindicted Green on an identical § 924(c) charge, and Green unsuccessfully moved in the district court to dismiss the indictment under the Double Jeopardy Clause.

On appeal, this court found no merit to Green’s double jeopardy claim for reasons including that he had not been acquitted of the original § 924(c) charge, as his challenge to “the sufficiency of his plea was not based on his innocence but on error pertaining to the elements of his offense.” This court explained that vacatur of Green’s plea “based on Bailey is akin to a reversal for trial error” and thus “his retrial does not reflect the evils at which the Double Jeopardy Clause is aimed.” Similarly, in Ford, this court affirmed the denial of the double jeopardy claim on the ground that the reversal of his prior conviction “because of a post-trial change in law” “was analogous to one for procedural error and therefore did not bar retrial.”

Pursuant to this court’s precedent, it is constrained to conclude that the vacatur of Johnson’s § 924(c) convictions constituted a procedural dismissal, and not an acquittal. That is because the vacatur was unrelated to Johnson’s factual innocence. Rather, the vacatur was premised on the change of law wrought by United States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc), and United States v. Davis, 139 S. Ct. 2319 (2019). Accordingly, Johnson can be reprosecuted on the Count Seven and Count Nine § 924(c) charges without violating the Double Jeopardy Clause.


United States v. Johnson (Lawyers Weekly No. 001-175-21, 16 pp.) (Robert Bruce King, J.) Case No. 19-7771. Sept. 8, 2021. From E.D. Va. (Henry E. Hudson, S.J.) Geremy C. Kamens for Appellant. Richard Daniel Cooke for Appellee.

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