Carothers

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS THE INDICTMENT WITH PREJUDICE

The government charged Defendant John Wilhelm Carothers with possession of methamphetamine with the intent to distribute. At trial, the jury was unable to agree on Mr. Carothers’ guilt for that offense, but did agree on his guilt for the lesser-included offense of simple possession of methamphetamine. Mr. Carothers now claims that the government is precluded by Ninth Circuit law and the Double Jeopardy Clause of the United States Constitution from retrying him on the greater offense. The Court believes that Mr. Carothers is right. His motion to dismiss the indictment with prejudice is GRANTED.

I.

On November 4, 2008, Mr. Carothers was charged in an indictment with a single count of possession of 32.8 grams of methamphetamine with the intent to distribute in violation of 21 U.S.C. § 841 (a)(1) and (b)(l)(B)(viii). He pleaded not guilty, and jury trial began on January 19, 2010. During the trial, Mr. Carothers’ theory of the case was that although he had been in possession of some methamphetamine, he did not have the intent to distribute it.

Prior to trial, Mr. Carothers had requested an instruction for…