United States v. Leonard Gooday

Gooday appeals a pretrial order denying his motion to dismiss, on double jeopardy grounds, the indictment pending against him. Appellate jurisdiction exists under Abney v. United States, 431 U.S. 651, 662 , 97 S.Ct. 2034, 2041 , 52 L.Ed.2d 651 (1977).

Gooday was tried under a one-count indictment for first-degree murder. At Goo-day’s request, the jury was instructed on the lesser included offenses of second-degree murder, voluntary manslaughter, and involuntary manslaughter. The jury acquitted him of the first-degree murder charge, but was unable to reach a verdict on the three lesser included offenses. The court consequently ordered a mistrial and, under the same indictment, set the case for retrial on the lesser included offenses. Goo-day thereafter filed his motion to have the indictment dismissed on double jeopardy grounds, the denial of which he now appeals.

Gooday argues (1) that he cannot be retried for the lesser offenses because he was acquitted on the sole count specified in the indictment, and (2) that even if he can be retried for the lesser offenses, prosecutorial abuses that occurred in the course of the trial bar retrial under the double jeopardy clause. We…