Hearst

ORDER DENYING DEFENDANT’S MOTIONS TO DISMISS EITHER COUNT OF INDICTMENT, AND DENYING DEFENDANT’S AND PLAINTIFF’S CROSS-MOTIONS TO LIMIT OPENING STATEMENTS

At the request of counsel the above matters were heard before the Court outside the presence of the jury.

The defendant moved for a dismissal of one or the other count in the indictment against her, to wit: 18 U.S.C. § 2113 (a), (d), Armed Bank Robbery; and 18 U.S.C. § 924 (c), Use of Firearm to Commit a Felony. The ground alleged was that since the commission of each offense charged involved a single act by the defendant, a finding of guilty under both counts could result in double punishment, and therefore double jeopardy in violation of the Fifth Amendment. This reasoning is fallacious under the cases interpreting the double jeopardy clause. Under Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970), and the cases following it, an essential factor in a finding that the defendant has been twice placed in jeopardy for the same offense is a prior determination in favor of the defendant.

Not only has the defendant not previously been tried and acquitted of either offense here charged, but it is a settled…