United States v. John U. Foumai

John U. Foumai appeals the district court’s withdrawal of its order reversing one of two misdemeanor convictions. Fou-mai argues that the withdrawal order placed him in double jeopardy.

FACTS

Foumai was convicted by a United States Magistrate on charges of driving without insurance and driving with a suspended license. Both are violations of Hawaii statutes that are incorporated into federal law pursuant to the Assimilative Crimes Act. 18 U.S.C. § 13 . He was sentenced to pay fines totaling $445.00. Foumai appealed to the district court pursuant to 18 U.S.C. § 3402 .

On January 17, 1989, the district court affirmed the driving without insurance conviction but reversed the suspended license conviction. The court found that the prosecutor failed to present evidence that the defendant had been notified that his license was suspended. The order was immediately entered on the docket sheet and neither party appealed. On March 6,1989, 48 days after the reversal order was filed, the district court sua sponte withdrew its order and directed the parties to provide additional briefing as to whether notice of suspension was a required element of the offense. Foumai filed a timely appeal…