1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 08-1021

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* United States of America, *

* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Joshua Lee Howe, also known as * Josh Harris, *

* Appellant. * *

___________ Submitted: April 17, 2008 Filed: August 13, 2008

___________ Before WOLLMAN, BEAM, and RILEY, Circuit Judges.

___________ BEAM, Circuit Judge.

Joshua Lee Howe brings this interlocut ory appeal from the denial of his motion to dismiss two counts in his indictment, conspiracy to commit kidnapping and kidnapping, on double jeopardy and collateral estoppel grounds. The district court 1 ruled that Howe would not be twice placedin jeopardy by, a nd that the government was not collaterally estopped from pursu ing, either count. We affirm.-2- I. BACKGROUND

On October 5, 2005, Howe and his co-def endant, Robert Phillips, were indicted in the Eastern District of Arkansas in United States v. Howe(Howe I ), for their alleged involvement in the murder of Je remy Deshon Gaither in December 2002. The
Howe I indictment charged Howe and Phillips with conspiracy to commit a robbery and kidnapping resulting in felony murder, in violation of 18 U.S.C. § 371; felony murder, in violation of 18 U.S.C. §§ 1111(a) & 2; kidnapping, in violation of 18 U.S.C. §§ 1201(a) & 2; being felons in possession of firearms, in violation of 18 U.S.C. § 922(g)(1); and using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and (j)(1).

At trial, the government sought to prove that Howe planned the kidnapping and robbery of Gaither, a rival cr ack dealer in DeWitt, Arkansas, and convinced Richard Smith, a drug customer of Howe's, and Phillips, one of Howe's associates, to carry out his plans. Gaither's lifeless body was found on the White River National Wildlife Refuge on December 9, 2002, and the medical evidence indicated that he had died from a gunshot wound.

Smith, who pled guilty to aiding and abetting in felony murder in connection with Gaither's death, was one of the gove rnment's key witnesses at trial. Smith testified that: (1) on the afternoon of Decem ber 6, 2002, he, acting according to a plan allegedly formulated by Howe, lured Gaither into a car under the guise of discussing a potential sale of the car to Gaither; (2) he then picked up Phillips and the two men drove Gaither onto the Refuge at gunpoint, using a gun Howe provided; (3) Phillips robbed Gaither and forced him out of the car; (4) a struggle ensued, and Phillips shot Gaither in the neck; and (5) Smith and Phillips then fled the scene.-3- An eyewitness testified that Gaither was last seen getting into a car driven by Smith on the afternoon of December 6, 2002, but Smith provided the only eyewitness testimony linking either Howe or Phillips to Gaither's death. I ndeed, Howe built his defense around the theory that Smith really acted alone, and only concocted a story about Howe's and Phillips' involvement in hopes of receiving a reduced sentence after Smith's girlfriend reported him to authorities.

On July 25, 2007, a jury acquitted Ph illips on all counts. The same jury acquitted Howe of felony murder and of using or carrying a firearm during and in relation to a crime of violence, but convict ed him of being a felon in possession of a firearm. The jury failed to reach a ve rdict with respect to Howe's guilt on the conspiracy and kidnapping counts. Accordingl y, the district court declared a mistrial as to those counts on July 27, 2007, and set a date for Howe 's retrial. On August 13, 2007, the government moved to dismiss the Howe I indictment without prejudice and, over Howe's objection, the district court granted the motion.

On September 5, 2007, the government returned a new indictment against Howe (Howe II ). As relevant to this appeal, Howe was charged in the new indictment with conspiracy to commit kidnapping, in violation of 18 U.S.C. § 1201(c), and kidnapping, in violation of 18 U.S.C. §§ 1201( a)(2) & 2. Before trial, Howe moved to dismiss the conspiracy and kidnappi ng counts on double jeopardy and collateral estoppel grounds. The district court denied the motion and Howe now brings this interlocutory appeal.2 Although the district court found Howe's motion to be frivolous and refused to certify a colorable claim, we believe th at he has stated a colorable claim and accordingly, we will address the me rits. United States v. Brown , 926 F.2d 779, 781 (8th Cir. 1991) (per curiam).

-4- II. DISCUSSION

A. Jurisdiction and Standard of Review

This court has jurisdiction to review a pretrial order denying a motion to dismiss an indictment on double jeopardy and collateral estoppel grounds where, as here, the defendant has raised a colorable claim. 2United States v. Bearden , 265 F.3d 732, 734-35 (8th Cir. 2001). We review the district court's denial of a motion to dismiss an indictment on double jeopardy and collateral estoppel grounds de novo. Id. at 735.

B. Double Jeopardy

Howe first contends that the offending counts in the new indictment are barred by the Fifth Amendment because they are merely lesser included offenses of the charges brought against him at the first tria l and therefore, a new trial on either count would amount to a successive prosecution for the same offense. Before addressing his arguments, we pause to review a few basic principles of double jeopardy jurisprudence.

The Double Jeopardy Clause of the Fi fth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Because criminal pr osecutions "impose heavy pressures and burdens–psychological, physical, and fi nancial–on a person charged," this constitutional guarantee ensures that a person is not subjected to the experience more than once for any particular crime. United States v. Turner , 130 F.3d 815, 817 (8th-5- Cir. 1997) (internal quotation omitted). Acco rdingly, once jeopardy has attached and terminated as to a particular offense, the government may not bring a new prosecution or punish the defendant again for the sa me offense. United States v. Peoples , 360 F.3d 892, 894 (8th Cir. 2004).

Greater and lesser offenses do constitute the "same" offense for double jeopardy purposes. Brown v. Ohio , 432 U.S. 161, 168 (1977). Gene rally, two offenses are not the "same," and prosecution for one after acquittal or conviction on the other does not offend the Fifth Amendmen t, if "'each . . . requires proof of a fact which the other does not.'" Id. at 166 (quoting Blockburger v. United States , 284 U.S. 299, 304 (1932)). Obviously, however, a greater offense and any lesser offenses included therein cannot pass this test–by their very definition, the lesser included offenses "require[] no proof beyond that which is required for conviction of the greater." Id. at 168. Therefore, once a defendant has been placed in jeopardy for, and jeopardy has terminated as to, a greater offense, the Fifth Amendment forbids successiveprosecutions for any lesser included offenses, and vice versa. Id. at 168-69.

Notwithstanding these basic principles, a defendant may generally be retried on charges that resulted in a hung jury at his first trial. Richardson v. United States , 468 U.S. 317, 324 (1984). In a jury trial, jeopardy attaches when the jury is empaneled and sworn, but some event–usually a fina l verdict of acquittal or conviction–must terminate the original jeopardy before the protection against a new prosecution for the same offense embodied in the Fifth Amendment comes into play. Peoples , 360 F.3d at 894. And a mistrial granted for manife st necessity because the jury is unable to reach a verdict is not a jeopardy-terminating event. Richardson , 468 U.S. at 326. Accordingly, a defendant remains in c ontinuing jeopardy after prosecution for an offense that results in a hung jury, and he can usually be retried for the "same" offense without offending the Fifth Amendment. Id. at 324, 326.3 The indictment actually alleges that the felony murder occurred during the perpetration of a kidnapping and robbery, but the district court properly instructed the jury that it could convict on this count if it found that Gaither died as a consequence of a kidnapping and/or robbery. See, e.g. , United States v. Brown , 330 F.3d 1073, 1078 (8th Cir. 2003) (noting that although indictment should be phrased in conjunctive, jury instructions may be phrasedin disjunctive). For the sake of clarity, we also use the "and/or" language when referring to this count.

-6- With these guidelines in mind, we tu rn to Howe's double jeopardy arguments. Howe first contends that a new trial fo r kidnapping is barred by the Fifth Amendment because kidnapping in violation of 18 U.S.C . § 1201(a) is a lesser included offense of felony murder predicated on kidnapping and/or robbery in violation of 18 U.S.C. § 1111(a). 3 As the first jury returned a verdic t of acquittal on the felony murder count, Howe contends that a new trial for kidnapping would amount to a successive prosecution for the same offense after acquittal. We disagree.

To be sure, we do not quarrel with the notion that felony murder under Section 1111(a) and kidnapping in vi olation of Section 1201(a) may constitute greater and lesser included offens es under Blockburger . Although a conviction for felony murder under Section 1111(a) does not always require proof of a kidnapping, it does require proof of the commission of one of the fe lonies listed in the statute. See 18 U.S.C. § 1111(a). Accordingly, where felony murder is premised on kidnapping, all the facts required to prove kidnapping ar e also required to prove felony murder. In such circumstances, kidnapping would constitutea lesser included offense of felony murder. See, e.g. , United States v. Chalan , 812 F.2d 1302, 1316-17 (10th Cir. 1987) (concluding that, because all the facts neededto establish robbery in violation of 18 U.S.C. § 2111 are also needed to prove felony murder predicated on robbery in violation of 18 U.S.C. § 1111(a), the two o ffenses are the "same" for double jeopardy purposes).4 The government does not concede that kidnapping is a lesser included offense of the felony murder count in Howe I , pointing out that the judge instructed the jury that it could convict Howe of felony murder if it found Gaither died during, and as a consequence of, a kidnapping and/or robbery. Relying on the "and/or" language, the district court found that the government could have succeeded on the felony murder count solely by proving a robbery. And b ecause the government could have proved felony murder without also proving kidnappi ng, the district court found, and the government argues on appeal, that a new pr osecution for kidnapping after an acquittal on the felony murder count would not c onstitute a new prosecution for the "same" offense after acquittal. Becausewe conclude that, in any event, a second trial for the lesser included felony under the circumstances of this case would not amount to a successive prosecution within the meaning of the Double Jeopardy Clause, we need not decide that threshold issue.

5 Of course, the felony murder portion of this prosecution is already complete, by virtue of the jury's final verdict of acquittal on that count.

-7- But even if kidnapping is a lesser included offense of the felony murder count in Howe I
, 4this case does not involve successive prosecutions for felony murder and the lesser included felony. Rather, the govern ment is attempting to complete a single prosecution for both felony murder and one of the lesser included felonies. 5 As relevant to this appeal, what the Double Jeopardy Clause prohibits is "a successive trial on an offense not charged in the original indictment once jeopardy has already terminated on, what is for double jeopardy purposes, the same offense." United States
v. Jose , 425 F.3d 1237, 1241 (9th Cir. 2005) (emphasis added) (internal quotation omitted). Thus, for example, in Ex Parte Nielsen , the Supreme Court held that a defendant previously indicted for, and c onvicted of, cohabiting with a woman could not be subsequently tried for the separately indicted included offense of adultery. 131 U.S. 176, 187 (1889). Similarl y, in Harris v. Oklahoma , the Court held that a defendant previously indicted for, and convicted of felony murder, could not be subsequently tried for the separately indicted underlying felony of armed robbery. 433 U.S. 682, 682 (1977) (per curiam). But here, both the greater and lesser offenses6 A single prosecution for both felony murder and the underlying felony does not run afoul of the Fifth Amendment. See, e.g. , Jose , 425 F.3d at 1243. Rather, in the context of a single prosecution, the Double Jeopardy Clause forbids multiple punishments for the same offense, absent a clear intention on the part of Congress to authorize such punishment. Id. at 1247. Thus, Howe coul d be tried for both felony murder and the underlying felony in a si ngle prosecution, but he could not be convicted of, or receive cumulative punishme nts for, both the felony murder and the predicate felony on which the felony murd er conviction was based, unless such congressional intent was clearly shown. Id. at 1247-48. Obviously, however, the issue of multiple punishments for the same offense poses no concern in this case, because Howe cannot be punished for th e acquitted offense of felony murder.

7 We acknowledge Howe's contention th at the kidnapping count in Howe I actually charged a kidnapping resulting in death. But, we also note that Count III of Howe I clearly alleges a simple kidnapping in violation of 18 U.S.C. § 1201(a), without any allegation that th e kidnapping resulted in Gaither's death. And, the jury was not instructed that it had to find that Gaither's death resulted in order to convict Howe on the kidnapping count. Accord ingly, even assuming the Howe Iindictment also alleged a kidnapping resulting in death, it did allege th e lesser offense of kidnapping and it was that kidnapping offens e on which the jury was unable to reach a verdict.

-8- were properly included in the original indictment and tried together in a single trial. 6 And, although the jury acquitted Howe on th e greater offense of felony murder, it hung on the lesser included offense of kidnapping. 7 In such circumstances, the courts have uniformly concluded that jeopardy continues as to the lesser offense, notwithstanding the defendant's acquittal on the greater offense. See, e.g., Forsberg v. United States, 351 F.2d 242, 248 (9th Cir. 1965) ; United States v. Scott , 464 F.2d 832, 834 (D.C. Cir. 1972); United States v. Larkin , 605 F.2d 1360, 1368-69 (5th Cir. 1979), modified on other grounds , 611 F.2d 585 (5th Cir. 1980); see also United States v. Chestaro , 197 F.3d 600, 608-09 (2d Cir. 1999); Jose , 425 F.3d at 1243-45.

We realize, of course, that the government is now proceeding under a new indictment. As discussed above, after Ho we's first trial, th e government moved to-9- dismiss the Howe I indictment without prejudice, the motion was granted over Howe's objection, and the government subs equently returned the Howe II indictment, which is the subject of this appeal. But that procedural wrinkle does not affect the outcome of this case because the government did not seek dismissal of the original indictment so it couldseparately indict Howe for the lesser include d offense of kidnapping after he was acquitted of felony mu rder. Rather, Howe was originallyindicted in Howe I for both felony murder and kidnapping and the two charge s were encompassed within a single prosecution. In such circumstances, the jury's acquittal of Howe on the greater offense of felony murder did not prevent continuing jeopardy from attaching to the lesser offense of kidnapping. And we do not believe that the dismissal of Howe
I without prejudice after the mistrial and the subsequent return of Howe II , which essentially restated the hung counts and added counts of witness tampering and pretrial escape, terminated that continuing jeopardy. See, e.g. , United States v. Holland , 956 F.2d 990, 993 (10th Cir. 1992) (noting that because mistrial does not terminate jeopardy, "government [can] prope rly reindict and re try defendants on the same charges without offending principles of double jeopardy," and retrial pursuant to reindictment is equivalent to retrial under original indictment). Accordingly, we conclude that Howe remains in continui ng jeopardy for the offense of kidnapping and the government may retry him for that o ffense unless the doctrine of collateral estoppel–which we address below –dictates a different result.

Howe also contends that conspiracy to commit a kidnapping in violation of 18 U.S.C. § 1201(c), as alleged in Howe II , is merely a lesser included offense of the conspiracy to commit a kidnapping or robbery resulting in felony murder in violation of 18 U.S.C. § 371, a lleged in Howe I . This argument requires much less discussion. Even if Howe is correct that the conspiracy count alleged in Howe IIis a lesser included offense of the conspir acy count alleged in Howe I , such a result poses no bar to a trial on the new conspiracy count. Th e jury in Howe's first trial was unable to reach a verdict on the conspir acy count alleged in Howe I . Therefore, jeopardy never terminated as to that offense. And as Howe remains in continuing jeopardy for the-10- only conspiracy count alleged in Howe I , he will not be twi ce placed in jeopardy by a second trial for the same–or a lesser included–offense. SeeJose , 425 F.3d at 1241 (noting that Double Jeopardy Clause only bars "successive trial on an offense not charged in the original indictment [if] jeopardy has already terminated on, what is for double jeopardy purposes, the same offense" ) (emphasis added) (internal quotation omitted).

We have considered Howe's other doubl e jeopardy arguments and find them to be without merit.

C. Collateral Estoppel

Howe also contends that because the acquittals at the first trial necessarily determined certain facts against the governme nt that it would be required to prove to convict him on the kidnapping and cons piracy counts alleged in Howe II , the government is collaterally estopped from pursuing either count.

The Supreme Court has incorporated the doctrine of issue preclusion, or collateral estoppel, into the Fifth Am endment's guarantee against double jeopardy. United States v. Mitchell , 476 F.3d 539, 544 (8th Cir. 2007) (citing Ashe v. Swenson
, 397 U.S. 436, 442-43 (1970)). Unlike traditional double jeopardy principles, which only bar successive prosecutions for the sameoffense, collateral estoppel can bar a later trial for a different offense, "if one of the facts necessarily determined in the former trial is an essential element of th e subsequent prosecution." United States v. Yeager , 521 F.3d 367, 371 (5th Cir. 2008) (empha sis in original) (quotation omitted), petition for cert. filed , 77 U.S.L.W. 3052 (U.S. July 8, 2008) (No. 08-40). This is because the doctrine of collateral estoppel dict ates that "when an issue of ultimate fact has once been determined by a valid and fi nal judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe , 397 U.S. at 443. But a fact previously determined in a criminal case is only an ultimate fact if "it was-11- necessarily determined by the jury agai nst the government and, in the second prosecution, that same fact is require d to be proved beyond a reasonable doubt in order to convict." Prince v. Lockhart , 971 F.2d 118, 123 (8th Cir. 1992). And, the burden is on the defendant to es tablish that the first jury necessarily decided the issue he seeks to foreclose from consider ation at a second trial. Bearden , 265 F.3d at 735. Accordingly, to determine whether collate ral estoppel bars the government's intended retrial of Howe, we must "examine the r ecord of [the] prior proceeding, taking into account the pleadings, evidence, charge, a nd other relevant matter, and conclude whether a rational jury could have grounde d its verdict upon an issue other than [those] which [Howe] seeks to foreclose from consideration." Ashe , 397 U.S. at 444 (quotation omitted).

Guided by these principles, we turn to Howe's conten tion that certain facts were "necessarily determined" in his first trial, and that those facts constitute ultimate issues with regard to the kidnapping and c onspiracy counts alleged in Howe II . Howe first argues that a second trial for kidnapping is barred by his acquittal on the felony murder count at his first trial. Specifi cally, he contends that, in acquitting him of aiding and abetting in felony murder pred icated on kidnapping and/or robbery, the first jury necessarily decided either that he did not participate in Gaither's kidnapping or that the government failed to establish one of the essential elements of kidnapping beyond a reasonable doubt. Accordingly, Howe argues that the government is estopped from pursuing the kidnappi ng count alleged in Howe II , because facts essential to his conviction on that count have already been litigated and decided against the government. We do not agree.

As Asheinstructs us to do, we have examined the pleadings, evidence, charge and other relevant matte r in attempting to ascertain what facts, if any, were necessarily decided in Howe's favor. Id. Doing so reveals an inhere nt flaw in Howe's argument. If the first jury had acquitted Howe of fe lony murder predicated on kidnapping and/or robbery based partially on a finding that he did not participate in Gaither's kidnapping-12- or that one of the elements of kidnapping was not proven beyond a reasonable doubt, it should have acquitted him of kidnapping as well. Since the jury instead reached no verdict on the kidnapping count, its acquittal on the felony murder count must have rested on some finding other thanthe one urged by Howe. See United States v. Aguilar-Aranceta , 957 F.2d 18, 23-25 (1st Cir. 1992) (noting that if first jury had really acquitted defendant of knowingly importing cocainebased on finding that she did not know the boxes she received containe d cocaine, it logically would also have acquitted her on charge of knowingly posse ssing that same cocaine and concluding that, as jury instead failed to reach a verdict on possession count, its acquittal on importation count must have restedon some other basis); see also United States v. White , 936 F.2d 1326, 1329 (D.C. Cir. 1991).

We can see at least one other possible e xplanation for the first jury's acquittal of Howe on the felony murder count that would not estop the government from proceeding with the kidnapping count alleged in Howe IIand would not be logically inconsistent with the first jury's inability to reach a verdict on the kidnapping count. To convict Howe of felony murder pred icated on kidnapping and/or robbery, the judge instructed the jury that it had to find the government had proven beyond a reasonable doubt that, among other things, Ga ither's death occurred as a consequence of, and while, the defendants were knowi ngly and willfully e ngaged in kidnapping and/or robbing him. Accordingly, the ju ry could have acqui tted Howe of felony murder predicated on kidnapping and/or r obbery because the jury thought he did not participate in Gaither's robberyand the jury could not agree as to whether the government had established all the elements of kidnapping or that Howe participated in one. If the jury did not believe that Ho we participated in Gaither's robbery, and could not agree on whether the government had met its burden as to kidnapping, it could not then convict Howe of felony murd er predicated on either felony and would have been forced to acquit. See, e.g. , Yeager , 521 F.3d at 376 (concluding that, where jury had to find defendant committed securities fraud, wire fraud or insider trading as prerequisite to convicting him on mo ney laundering counts, and jury hung on8 The jury could have acquitted Howe of the use or carry offense under a similar rationale. To convict Howe of using or carrying a firearm during and in relation to a crime of violence, the judge instructed the jury that it had to find, beyond a reasonable doubt, that, among other things, the defendants committed the crimes of robbery, kidnapping and/or murder. But if the jury did not believe that Howe participated in Gaither's robbery, and could not agree on whether the government had met its burden as to kidnapping, it could not find felony murd er and, accordingly, also could not find the prerequisite crime of violen ce for the use or carry offense.

-13- securities fraud, wire fraud, and insi der trading counts but acquitted on money laundering counts, acquittal di d not represent necessary finding that defendant did not commit those underlying crimes, so as to bar retrial–rather, because jury could not determine whether defendant committed those underlying crimes, it had to acquit on money laundering counts). 8

Ultimately, accepting Howe's argument w ould require us to assume the jury acted inconsistently, and reached opposite c onclusions on the same issue in different counts, and "we are loath to impute such in consistency to [a rational jury]." White
, 936 F.2d at 1329. Mindful that the burden is on Howe to establish that the first jury necessarily decided in his favor the issue he seeks to foreclose from consideration, we conclude that collateral estoppel does not bar the government from proceeding with the kidnapping count alleged in Howe II

.

Howe also avers that a fact essentia l to his conviction on the new conspiracy count has already been decided against th e government by virtue of the acquittals at his first trial. Howe argues that the governme nt's entire theory of the case at his first trial was that he entered into an agr eement with Smith and Phillips to commit the alleged crimes. As such, he contends thatthe first jury, in acquitting him of felony murder, must have determined that he neve r agreed with anyone to commit the alleged underlying crimes. As the government will be required to prove that Howe did knowingly enter into an agreement with another to kidnap Gaither to succeed on the new conspiracy count, e.g. , 18 U.S.C. § 1201(c), Howe argues that it too is barred by9 Howe also contends that Phillips' acqu ittal on all charges at the first trial necessarily determined facts against the gove rnment essential to its success on the new conspiracy count. He contends that the first jury, in acquitting Phillips on all counts, necessarily determined that Phillips was not involved in any way in the alleged crimes. Accordingly, he argues that the government should not be allowed to allege that those same acts were committed by an unindicted co-conspirator in furtherance of the conspiracy alleged in Howe II . We note, however, that several of the overt acts alleged in support of the new conspiracy count only reference Howe and Smith and make no mention of the unindicted co-cons pirator. As the government could succeed on the new conspiracy count simply by proving any one of those acts, 18 U.S.C. § 1201(c), the jury's acquittal of Phillips on all charges clearly does not estop the government from proceeding with the new conspiracy count.

-14- collateral estoppel. To the contrary, as explained above, the first jury could have acquitted Howe of felony murder for reas ons that have little or nothing to do with whether the jury believed that Howe entered into an agreement with another to kidnap Gaither. We therefore reject Howe's argument that the first jury's acquittals necessarily encompassed a finding that he never agreed with anyone to kidnap Gaither, and we hold that the cons piracy count alle ged in Howe II is not barred by collateral estoppel. SeeUnited States v. Baugus , 761 F.2d 506, 509 (8th Cir. 1985). 9

In sum, "[w]hile we take very seriously the prospect of an accused having to run the gauntlet of a criminal trial a s econd time," United States v. Bordeaux , 121 F.3d 1187, 1192-93 (8th Cir. 1997), we find no basis in the Doubl e Jeopardy Clause, or in the equitable doctrine of collateral estoppel embodied therein, to bar Howe's retrial for kidnapping and conspiracy.

III. CONCLUSION

The decision of the district court is affirmed.

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