Former Jeopardy

Former jeopardy is a defense available for a conspiracy offense.  Generally a conspiracy to commit a crime and commission of a crime are considered two separate offenses.  Prosecution for conspiracy and commission of a crime are treated as separate proceedings and they do not qualify under the double jeopardy prohibition[i].  Thus, a former conviction or acquittal for a crime will not bar a subsequent prosecution for conspiracy to commit that crime.  Similarly, a former conviction or acquittal for conspiracy to commit a crime does not bar a subsequent prosecution for that crime[ii].  The order of acquittal passed in prosecution proceedings of the crime and a subsequent order of conviction for the offense of conspiracy to commit the same crime will not be treated as inconsistent.  The conviction of a person for both the crime and conspiracy will not be treated as prosecuting a person twice for the same offense[iii].

The commission of an overt act which forms an element of a conspiracy can by itself constitute a crime.  In such cases, an acquittal for the crime on the ground that the overt act was not committed will operate as an acquittal for the offense of conspiracy of that crime.  In like circumstances, the defendant can take the plea of former jeopardy to defend against a conviction for conspiracy[iv].  However, if the acquittal was rooted on some other ground, that will result in a conviction for the offense of conspiracy[v].

In some circumstances a person may be accused for two separate crimes done in one action and for conspiracy to commit both crimes.  For example, person A committed murder and lurking house trespass under a conspiracy.  Here A is liable for the offense of murder and its conspiracy and for lurking house trespass along with its conspiracy.  Convicting such a person severally for two conspiracies would amount to convicting a person twice for the same crime[vi].  However, person A who is charged with the offense of murder in pursuance of a conspiracy cannot claim jeopardy on the basis of the prior conviction or acquittal for the offense of lurking house trespass that is committed under the same conspiracy.

However, a state court is not barred from convicting a person against an order of acquittal by the Federal court on identical facts involved in the case which came before the state court.  Similarly if any case comes before the Federal court with facts identical to the facts of a state case that granted a conviction, the Federal court can grant an acquittal in such a case without considering the state court’s decision for conviction[vii].

[i] United States v. Kalish, 734 F.2d 194 (5th Cir. Tex. 1984)

[ii] United States v. Eley, 968 F.2d 1143 (11th Cir. Ga. 1992)

[iii] United States v. Jones, 334 F.2d 809 (7th Cir. Ill. 1964)

[iv] United States v. Williams, 385 F. Supp. 897 (N.D. Ind. 1974)

[v] United States v. Finazzo, 520 F. Supp. 1085 ( E.D. Mich. 1981)

[vi] United States v. Palermo, 410 F.2d 468 (7th Cir. Ill. 1969)

[vii] Mason v. Rothwax, 152 A.D.2d 272 (N.Y. App. Div. 1st Dep’t 1989)


Inside Former Jeopardy