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Defendent sentenced even after indictment was withdrawn

First, you need the background facts of McIntosh’s first trip to the 11th Circuit. In U.S. v. McIntosh, the defendant was indicted in federal court for distributing crack cocaine and for a firearm related offense. The charges arose from a November 2005 traffic stop when an officer found the drugs and a firearm in the car, but the indictment mistakenly alleged McIntosh committed the offenses in February 2007. The government discovered the mistake after McIntosh pleaded guilty to the charged offense but before his sentencing. To correct this mistake (which the 11th Circuit called a technical error regarding the date of the offense) the government obtained a second indictment alleging the correct date and filed a motion to dismiss the original indictment, which the district court granted. McIntosh entered a conditional plea to the new indictment and reserved his right to appeal the conviction on double jeopardy grounds, and he appealed that sentence. In that appeal (McIntosh I) the 11th Circuit agreed that the second indictment violated the Double Jeopardy Clause of the Constitution because jeopardy attached when the district court accepted the plea on the first indictment and accepting the plea was a conviction. In McIntosh I, the 11th Circuit held the dismissal of the original indictment did not vacate the conviction, so the Double Jeopardy Clause prohibits a second prosecution for the same offense and remanded with instructions to dismiss the second indictment.

After the district court dismissed the indictment the government moved to set McIntosh’s sentencing based on his plea to the original indictment. McIntosh objected on Double Jeopardy grounds and argued the court lacked jurisdiction. He also moved to withdraw his plea. These motions were denied and he was sentenced to 120 months.

In this appeal, which is Mcintosh’s second time on appeal, the 11th Circuit rejected his Double Jeopardy challenge. It found that the dismissal of the original indictment did not terminate his case because the original prosecution did not end. The sentencing that proceeded after his guilty plea could not be characterized as a second prosecution nor was it a second punishment for the same offense.

McIntosh argued that without a valid indictment, district court has no jurisdiction. The 11th Circuit held that a defective indictment did not deprive the district court of jurisdiction as long as the indictment properly alleged an offense against the United States. The district court only lacks jurisdiction if the indictment failed to charge a federal offense. McIntosh was charged and pleaded guilty to a valid indictment that alleged an offense against the United States, thereby invoking the district court’s jurisdiction. “The indictment’s relationship to jurisdiction is thus based on whether it alleges conduct constituting a federal offense, not on some intrinsic value of an indictment as such.”

McIntosh also argued that the district court’s sentencing order violated the Fifth Amendment Grand Jury Clause because the order held him “to answer” for an felony without an outstanding indictment. The 11th Circuit rejected this argument holding that the term “held to answer” in the Grand Jury Clause did not include the sentencing phase of a criminal case and only applied to the pre conviction phase.

Other arguments the 11th Circuit rejected:

  • There was no violation of rule 7(a) which requires that felony offenses be prosecuted by indictment for the same reasons that there is no violation of the Grand Jury Clause.
  • The Court also held there was no grounds for a Rule 12(b)(3)(B) motion (which permit a challenge to a defect in the indictment) because the original indictment was valid.
  • McIntosh also advanced the argument that by proceeding against him in the absence of an indictment, the district court was in violation of the separation of powers because the district court usurped the executive branch’s power to abandon prosecution. The 11th Circuit rejected this argument because it did not find the government intended to abandon prosecution.
  • The district court had the power to sentence McIntosh because he was convicted based on a valid indictment, even though the indictment was not pending at the time of sentencing.

    In case you missed it, kindly read my previous post:
    By pleading guilty to the indictment charging a prior aggravated felony, the defendant waived any appeal to his objection to the charge, January 6, 2013