United States v. Larry Lee Phillips, United States of America v. Columbus Lee Phillips

Appellants Larry and Columbus Phillips were each convicted of one count of theft from an interstate shipment in violation of 18 U.S.C. § 659 . Columbus Phillips was convicted of a second count for concealment of stolen chattels under the same statute.

On appeal to this court, appellants contended that a mistrial should have been granted since they were prejudiced by the prosecution’s failure promptly to inform the trial court and defense counsel that it would seek to reopen its case because a Government witness, who had lied on the witness stand, was prepared to recant his testimony. Although not finding that the Government had engaged in misconduct, we held that appellants had been unduly prejudiced by the Government’s acts; we therefore reversed. 575 F.2d 1265 (9th Cir. 1978) (Phillips I).

Upon remand, appellants filed a motion to dismiss the indictment on the ground that a retrial would violate their constitutional protection against double jeopardy. The district court issued an order stating that it found no prosecutorial misconduct and denied appellants’ motion. This appeal followed. We affirm.

Appellants argue that the double jeopardy clause bars a retrial after a…