Tenth Circuit Summarizes Double Jeopardy in Rejecting the Argument (1/16/10)

In United States v. Farr, 591 F.3d 1322 (10th Cir. 2010), decided 1/11/10), the Tenth Circuit rejected a double jeopardy argument under the following facts:

Skoshi Thedford Farr was convicted by a jury of evading taxes in violation of 26 U.S.C. § 7201. We reversed her conviction on appeal because the proof presented at trial and the district court's jury instructions constructively amended the indictment. She was subsequently indicted for violating the same statute based on the same conduct. The district court denied her motion to dismiss on double jeopardy grounds. For the reasons that follow, we AFFIRM the district court's decision.

The Court's discussion of double jeopardy is short and sweet (p. 1325, case citations and quotation marks omitted for readability):

The [double jeopardy] clause only creates an impediment to subsequent prosecution when there was previously a judgment of acquittal on the charge.

The successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, poses no bar to further prosecution on the same charge, but a judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict does bar future prosecution on the same charge. Whether a judgment or reversal constitutes an acquittal is not controlled by the form of the court's decision. Instead, `we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.

Neither the district court nor this court made factual findings tantamount to a judgment of acquittal.