United States v. Sarabia, Jr., No. 10-40125 (5th Cir. 2011)
Annotate this CaseAfter defendant was acquitted by a jury of one count of conspiracy to possess with the intent to distribute marijuana, the Government sought to retry him on an additional possession count on which the jury could not reach a verdict. Defendant argued that the jury's decision to acquit him on the conspiracy charge necessarily meant that the jury decided that he was not the person driving a recreational vehicle (RV) containing over 1,000 pounds of marijuana, and thus that he was not in possession of the marijuana. Defendant claimed that double jeopardy barred his retrial on the possession charge under principles of issue preclusion because the Government would need to prove that he drove the RV in order to convict him of the possession charge. Alternatively, defendant argued that retrial on the possession charge was barred by double jeopardy because possession was a lesser-included offense of conspiracy to possess. The court held that defendant's issue-preclusion argument, while colorable, failed to establish that the issue he sought to foreclose was necessarily decided in his prior trial. Therefore, it did not amount to double jeopardy to retry him for possession of marijuana. Accordingly, the district court's denial of defendant's motion to dismiss the indictment was affirmed.
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