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United States v. McIntosh

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[PUBLISH]

Before CARNES and PRYOR, Circuit Judges, and DOWD,*fn1 District Judge.

This appeal presents the question whether a defendant whose conviction has not been vacated may be indicted again for the same offenses without violating the Double Jeopardy Clause because the government obtained a dismissal of the original indictment after the defendant pleaded guilty to it. James LeRay McIntosh pleaded guilty to an indictment that alleged drug and firearm charges, and the district court unconditionally accepted his plea. Before sentencing, the government discovered that the indictment alleged the wrong date of the offenses, obtained from another grand jury a second indictment with the correct date of the offenses, and filed a motion to dismiss the first indictment, which the district court granted. McIntosh then moved to dismiss the second indictment as barred by the Double Jeopardy Clause, but the district court denied the motion. McIntosh then conditionally pleaded guilty. We conclude that, when McIntosh pleaded guilty to the first indictment, jeopardy attached, and the later indictment of McIntosh for the same offenses violated the Double Jeopardy Clause. The district court erred when it denied McIntosh’s motion to dismiss the second indictment. We vacate McIntosh’s judgment of conviction and remand with instructions to dismiss the second indictment.

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