UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) No. 2:16CR109-PPS

)

MILTON LEROY HARVEY, JR., )

)

Defendant. )

OPINION AND ORDER

More than five years ago, on August 17, 2016, a federal grand jury charged

Milton Leroy Harvey, Jr. with the offense of unlawful possession of a firearm as a felon,

in violation of 18 U.S.C. §922(g)(1). [DE 1.] The proceedings have been protracted for a

number of reasons. It took a year to arrest Mr. Harvey [DE 7]; two motions to suppress

and a motion to dismiss had to be litigated [DE 30, 39 and 70]; Harvey pleaded guilty

and then withdrew his plea because the Supreme Court decision in Rehaif v. United

States, 139 S.Ct. 2191 (2019); COVID-19 led to several delays; and finally two trials —

one in August 2021 and another in October 2021 — resulted in mistrials because the jury

in each case was unable to arrive at a verdict. [DE 134, 163.] Harvey is released on bond

pending trial. [DE 10.] The matter is set for a third trial to begin on May 16, 2022. [DE

175.] 

Harvey again seeks dismissal of the indictment, this time on the grounds that

subjecting him to a third trial is fundamentally unfair. He argues that I should exercise

my “inherent authority” to dismiss the case in order to safeguard fundamental fairness

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in the criminal process. [DE 176.] Harvey acknowledges that “[i]t is well established

that the double jeopardy clause of the United States Constitution does not prohibit the

retrial of [a] defendant when a prior prosecution for the same offense has ended with a

mistrial due to the inability of the jury to agree on the verdict,” citing United States v.

Perez, 22 U.S. 579, 580 (1824). [DE 177 at 4.] See also United States v. Warren, 593 F.3d 540,

544-545 (7th Cir. 2010). Indeed, the principle is reflected in Rule 31(b)(3) of the Federal

Rules of Criminal Procedure: “If the jury cannot agree on a verdict on one or more

counts, the court may declare a mistrial on those counts. The government may retry

any defendant on any count on which the jury could not agree.” 

But Harvey nevertheless argues that fundamental fairness warrants the court

using its inherent authority to dismiss the indictment against him and preclude a third

trial. He quotes principles that underlie the doctrine of double jeopardy: 

the State with all it resources and power should not be allowed to make

repeated attempts to convict an individual for an alleged offense, thereby

subjecting him to embarrassment, expense and ordeal and compelling him

to live in a continuing state of anxiety and insecurity, as well as enhancing

the possibility even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88 (1957). [DE 177 at 4.] But as Green notes, the

doctrine of double jeopardy supported by these principles provides that an “acquittal is

final, ending a defendant’s jeopardy” and “is a bar to subsequent prosecution for the

same offense.” Id. at 188 (emphasis added). Although I am not unsympathetic to the

toll the lengthy proceedings has likely taken on Harvey, and particularly the stress

associated with each of the prior trials, I am not persuaded that it would be appropriate

for me to dismiss the indictment on the strength of principles that generally are not

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applied to bar a retrial after a hung jury. “Unlike the situation in which the trial has

ended in an acquittal or conviction, retrial is not automatically barred when a criminal

proceeding is terminated without finally resolving the merits of the charges against the

accused.” Arizona v. Washington, 434 U.S. 497, 505 (1978). 

 In support of his motion, Harvey cites decisions of federal district courts and of

state courts approving a trial court’s dismissal of an indictment after repeated trials

ending in mistrials due to the jury’s inability to reach a verdict. [DE 177 at 6-7.] But as

the government points out in opposition, no federal appeals court has approved such

an exercise by a district court, and two have held to the contrary. In United States v.

Miller, 4 F.3d 792, 795 (9th Cir. 1993), the Ninth Circuit held that “dismissal based on the

unfairness of retrying counts on which the government did not get a majority or more

votes is an improper exercise of the court’s supervisory power.” More recently, the

Third Circuit in United States v. Wright, 913 F.3d 364 (3rd Cir. 2019), observed that

nothing in Rule 31(b)(3) or its commentary “provides or even suggests a limit on the

number of retrials [the Government] may conduct.” Id. at 371. 

The Ninth Circuit rejected the district court’s invocation of its inherent authority

to dismiss an indictment based on “its own notions about the unfairness of requiring a

defendant to face a retrial” after a jury was unable to reach a verdict. Id. at 372. 

Instead, the court held that “[u]nless there is some constitutional basis, such as a due

process violation, it makes sense to limit a court’s authority to bar retrial to instances of

prosecutorial misconduct and prejudice.” Id. The Ninth Circuit also noted that “there

is no prejudice to a defendant simply because he faces the anxiety and the normal stress

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of undergoing a trial.” Id. Harvey “concedes that the government committed no acts

that would be considered inappropriate or constitute misconduct during the course of

the two trials” he has had. [DE 181 at 1.] 

Harvey contends instead that he suffers prejudice from repeated trials because

“the government now has total knowledge of defendant’s defense strategy and is able

to modify its case to overcome the original weaknesses.” [DE 181 at 1-2.] But the

opposite is equally true – the defense is now familiar with the government’s

presentation of its case during two previous trials. And both parties are free to modify

their approach during a subsequent trial in an effort to more effectively present their

positions or counter the opposition’s. If Harvey’s concern about the government’s

opportunity to bolster its case was a sufficient objection to another trial, it would

overcome the policy expressed in Rule 31(b)(3). The argument is unpersuasive. 

An additional consideration is respect for the separation of powers on which our

system of government is framed. The Supreme Court has observed that the Executive

Branch has “broad discretion as to whom to prosecute,” and that discretion “is

particularly ill-suited to judicial review.” Wayte v. United States, 470 U.S. 598, 607-08

(1985). We hope that the U.S. Attorney exercises that discretion wisely. But it’s not for

me to second-guess his decision to retry a case following a mistrial, unless, of course,

the constitution has been violated. Wright, 913 F.3d at 374, citing Unites States v. HSBC

Bank USA, N.A., 863 F.3d 125, 129, 137-38 (2nd

 Cir. 2017). 

Because Milton Leroy Harvey fails to demonstrate any constitutional basis for

dismissal of the indictment, or that prosecutorial misconduct and resulting prejudice

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warrant such a dismissal, I decline to exercise any inherent authority to bar a retrial of

the charge against Harvey. The motion to dismiss the superseding indictment will be

denied.

ACCORDINGLY:

Defendant Harvey’s Motion to Dismiss Superseding Indictment [DE 176] is

DENIED.

SO ORDERED.

ENTERED: April 25, 2022.

 /s/ Philip P. Simon 

UNITED STATES DISTRICT JUDGE

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