                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        June 11, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                        Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                            No. 06-6187
 v.                                                         (W.D. Okla.)
                                                     (D.Ct. No. 06-CR-096-HE)
 ALEXANDER CHRISTIAN MILES,

          Defendant - Appellant.
                         ____________________________

                              ORDER AND JUDGMENT *


Before O’BRIEN, HOLLOWAY, and McCONNELL, Circuit Judges.



      In a one-count indictment, Alexander Christian Miles, age 44, was charged

with violating the Mann Act, 18 U.S.C. § 2423(a), by transporting a

fifteen-year-old girl into Oklahoma for sexual activity in violation of Oklahoma

law. (Case No. 05-CR-213). The indictment did not specify the Oklahoma law(s)

Miles allegedly violated.

      After the jury was sworn but before any evidence was presented or

arguments made, Miles moved to dismiss the indictment for lack of specificity.

      *
         This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation
—(unpublished). 10th Cir. R. 32.1(A).
The district court granted the motion. Almost immediately Miles was re-indicted

under the Mann Act in this case (Case No. 06-CR-96) for the same interstate

transportation, but the new indictment contained a citation to the Oklahoma

statutes Miles allegedly violated. Miles again moved to dismiss, this time on

double jeopardy grounds. The district court denied his motion.

      The Fifth Amendment of the United States Constitution guarantees that no

person shall “be subject for the same offence to be twice put in jeopardy of life or

limb.” U.S. Const. amend. V. It prevents a person from being prosecuted for a

crime of which he has once been acquitted.

      The rationale for barring a retrial after an acquittal has been
      explained as follows: “the State with all its resources and power
      should not be allowed to make repeated attempts to convict an
      individual for an alleged offense, thereby subjecting him to
      embarrassment, expense and ordeal and compelling him to live in a
      continuing state of anxiety, and insecurity, as well as enhancing the
      possibility that even though innocent he may be found guilty.”

United States v. Wood, 958 F.2d 963, 971 (10th Cir. 1992) (quoting Green v.

United States, 355 U.S. 184, 187-88 (1957)). See also Burks v. United States, 437

U.S. 1, 11 (1978) (“The Double Jeopardy Clause forbids a second trial for the

purpose of affording the prosecution another opportunity to supply evidence

which it failed to muster in the first proceeding.”).

      On the other hand:

      The double-jeopardy provision of the Fifth Amendment . . . does not
      mean that every time a defendant is put to trial before a competent
      tribunal he is entitled to go free if the trial fails to end in a final

                                          -2-
      judgment. Such a rule would create an insuperable obstacle to the
      administration of justice in many cases in which there is no
      semblance of the type of oppressive practices at which the double-
      jeopardy prohibition is aimed.

Wade v. Hunter, 336 U.S. 684, 688-89 (1949). In other words, the government is

entitled to one fair opportunity to present its evidence and make its case for

conviction. See Burks, 437 U.S. at 16-17.

      The jury had no opportunity to decide anything in this case—it heard

neither evidence nor argument. Nevertheless, if there was an event equivalent to

an acquittal, which terminated jeopardy in the original proceeding, a second trial

is barred. The dismissal of the first indictment for failure to state an offense was

not such an event. Because the government has yet to have its one opportunity to

obtain a conviction, the district court properly denied Miles’ motion to dismiss. 1

                                 I. BACKGROUND

      In 2001, Miles, an anesthesiology resident in New York, traveled to

Cambodia, where he met a fourteen-year-old girl, S.K., to whom he proposed

marriage. The girl’s family agreed to the proposal and the two were married in a

traditional Cambodian wedding ceremony. Two months later, after Miles

obtained a passport for S.K., allegedly based on a misrepresentation of her age,

Miles and S.K. traveled together to New York. The two were married in a

      1
         Our jurisdiction arises from the collateral order exception to the bar against
interlocutory appeals in criminal cases. See Abney v. United States, 431 U.S. 651, 659
(1977) (denial of defendant’s pretrial motion to dismiss an indictment on double jeopardy
grounds is appealable as a collateral order under 28 U.S.C. § 1291).

                                           -3-
ceremony there, again allegedly based on a misrepresentation of S.K.’s age. In

June 2002, Miles accepted employment as an anesthesiologist at the Jackson

County Memorial Hospital in Altus, Oklahoma. Miles and S.K. traveled to

Oklahoma together where they lived as husband and wife.

       In an indictment filed on November 16, 2005, Miles was charged with one

count of violating the Mann Act, which prohibits the knowing transportation of a

minor in interstate commerce “with intent that the individual engage in . . . any

sexual activity for which any person can be charged with a criminal offense under

the laws of [any state] . . . .” 18 U.S.C. § 2423(a). The indictment charged:

       In or about July of 2002, in the Western District of Oklahoma and
       elsewhere, ALEXANDER CHRISTIAN MILES, knowingly
       transported a girl who had not attained the age of 18 years in
       interstate commerce with the intent that the girl engage in sexual
       activity for which the defendant could be charged with a criminal
       offense, in that, the defendant transported a 15-year old Cambodian
       girl from New York City to Altus, Oklahoma, with the intent to
       engage in sexual intercourse with the girl for which acts the
       defendant could be charged with a criminal offense under the laws of
       the State of Oklahoma.

(Appellant’s App. at 8.) Despite its lack of specificity as to the assimilated

Oklahoma statute(s) Miles neither moved to dismiss the indictment nor requested

a bill of particulars during the four months the indictment was pending. 2

       2
        An indictment must contain “a plain, concise, and definite written statement of
the essential facts constituting the offense charged . . . .” Fed. R. Crim. P. 7(c)(1). As the
Supreme Court has explained, an indictment must “first, contain[ ] the elements of the
offense charged and fairly inform[ ] a defendant of the charge against which he must
defend, and, second, enable[ ] him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974).

                                             -4-
       On April 3, 2006, one week prior to jury selection, the government filed

proposed jury instructions which identified the specific Oklahoma statutes Miles

allegedly violated—the statutory rape statute, Okla Stat. tit. 21, §1111(A)(1)

(defining statutory rape as “an act of sexual intercourse . . . accomplished with a

male or female who is not the spouse of the perpetrator . . . [w]here the victim is

under sixteen (16) years of age . . .”), and the lewd acts statute, Okla. Stat. tit. 21,

§1123(A)(2) (making it a crime to “knowingly and intentionally . . . [l]ook upon,

touch, maul, or feel the body or private parts of any child under sixteen (16) years

of age in any lewd or lascivious manner . . .”). 3

       One week later, on April 10, a jury was “empaneled and admonished” and

sent home with instructions to return a week later to begin the trial. No argument

or evidence was presented. Before the jury returned to hear the case, Miles

moved to dismiss the indictment for failure to state an offense, arguing the

government could not prove he committed statutory rape or lewd molestation

under Oklahoma law because marriage is a defense to both crimes. 4 In response


Miles could have moved to dismiss the indictment pursuant to Rule 12(b)(3)(B) for
failure to contain the required elements or could have requested a bill of particulars
pursuant to Rule 7(f). He did neither.
       3
        Under Oklahoma law, lewd molestation is a lesser included offense of statutory
rape. See Dill v. Okla., 122 P.3d 866, 869 (Okla. Crim. App. 2005).
       4
        To obtain a conviction for statutory rape or lewd molestation, the government
would have to prove Miles and S.K. were not legally married. That would be the case
whether marital status is considered an element of the offense or an affirmative defense.
See United States v. Scott, 901 F.2d 871, 873 (10th Cir. 1990) (once raised by a

                                             -5-
the government argued the marriages were a sham and their validity was an issue

for the jury. In the alternative, the government argued the indictment did not

mention the violation of any specific Oklahoma statute and, based on recently

discovered evidence, it could prove Miles forcibly raped his putative wife (an

offense for which marriage is no defense) in violation of Okla. Stat. tit. 21,

§ 1111(B) (defining rape as “an act of sexual intercourse accomplished with a

male or female who is the spouse of the perpetrator if force or violence is used or

threatened . . .”) (emphasis added).

      The government submitted new jury instructions based on its forcible rape

theory, even though the indictment did not mention the use of force. Miles was

unaware of the government’s forcible rape theory and its evidence supporting that

theory. Understandably, he complained. 5 He filed a written response to the

government’s newly proposed jury instructions. It began: “The Indictment is void

on its face for failure to state a charge. By failing to specify which provision of

Oklahoma law Dr. Miles allegedly violated, the grand jury failed to charge an

offense as required by Rule 7, Fed. R. Crim. P., and the due process clause. The

United States has demonstrated the flaw in the charging process by changing


defendant, the government must disprove an affirmative defense beyond a reasonable
doubt).
      5
         Miles does not claim discovery abuse by the government. Miles and his wife
were separated and in the process of obtaining a divorce during the first criminal
proceeding. We presume the government was also surprised by the wife’s new
allegations.

                                          -6-
its theory of the case, from statutory rape to rape by force.” (W.D. Okla.

Doc. No. 47 at 1 - Am. Resp. to Government’s Supp. Br. Regarding Jury

Instructions) (emphasis in original). 6 Miles argued the indictment was deficient

because it failed to give fair notice of forcible rape and its lack of specificity

would not enable him to assert acquittal or conviction as a double jeopardy bar to

another prosecution, citing United States v. Poole, 929 F.2d 1476, 1479 (10th Cir.

1991). Miles complained: “If convicted of whatever charges the Government

ultimately settles on, Dr. Miles is facing a long period of incarceration . . . . The

United States cannot levy such grave accusations against a defendant in terms so

vague and indistinct. This error cannot be cured through a bill of particulars

since a bill of particular cannot save an invalid indictment. Russell [v. United

States, 369 U.S. 749, 769-70 (1962)].” (Id. at 3.) Miles requested a judgment of

acquittal.

      The trial judge expressed general concern about the sufficiency of the

indictment because it failed to identify the Oklahoma statute(s) allegedly violated.

But he specifically decided the government could not proceed on the forcible rape

theory identified in its alternative proposed jury instructions because the

indictment contained no allegation of forcible sexual intercourse. Miles was thus




      6
       “We may take judicial notice of these documents from the public record.” State
Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223, 1226 n.7 (10th Cir. 2008).

                                          -7-
deprived of proper notice of the alleged crime. 7 The judge explained: “The

government’s shifting theories for avoiding the impact of the marriage alleged in

this case either fall short as a matter of law [the marriages were at most voidable,

not void] or involve attempts to establish liability based on matters not alleged in

the indictment, contrary to the Fifth and Sixth Amendments.” (Appellant’s App.

at 15.) Accordingly he dismissed the indictment, concluding it “d[id] not state an

offense and [wa]s therefore fatally defective.” (Id.)

      On April 18, 2006, while Miles was in the process of being released from

jail, he was arrested under a new indictment (this case). The second indictment

was the same as the first but for two changes. First, it contained an additional


      7
          The judge said:

      In its most recent submissions to the court, the government asserts that it
      can prove that the defendant coerced or threatened the alleged victim in this
      case to engage in sexual intercourse and that this conduct constitutes a
      crime under Oklahoma law notwithstanding the marriage relationship.
      However, while such facts may be sufficient to establish a violation of
      Okla. Stat. tit. 21, § 1111(B), there is not the slightest hint of any such
      conduct alleged in the indictment. As a result, the indictment does not put
      the defendant on fair notice that he would have to defend against a charge
      of intending the forcible rape of his spouse. See supra n.2, citing [United
      States v. Hathaway, 318 F.3d 1001, 1009-10 (10th Cir. 2003)]. See also
      United States v. Hied Van Tieu, 279 F.3d 917, 921 (10th Cir. 2002)
      (constructive amendments to an indictment, prohibited by the Fifth and
      Sixth Amendments, occur “when the Government, through evidence
      presented at trial, or the district court, through instructions to the jury,
      broadens the basis for a defendant’s conviction beyond acts charged in the
      indictment”).

(Appellant’s App. at 14 (footnote omitted) (emphasis added)).

                                           -8-
paragraph in the “INTRODUCTION”: “In New York and elsewhere, the

defendant engaged in acts of sexual intercourse with the girl through use of force

and threatened use of force.” 8 (Id. at 17.) Second, it specifically referenced two

particular statutes alleged to have been violated—Okla. Stat. tit. 21, §§1111(B)

and 1114. 9 Marriage is not a defense to those crimes.

      8
          The original indictment’s “INTRODUCTION” provided:

              1.    In 2001, the defendant ALEXANDER CHRISTIAN
                    MILES, M.D. was a resident in anesthesiology in a
                    hospital in New York City, New York. That year he
                    traveled to Cambodia where he met a 14-year old girl
                    and her family.
              2.    The defendant proposed marriage to the girl=s family
                    and sent money to the girl=s family. In or about
                    October of 2001, the defendant married the 14-year old
                    Cambodian girl in a Cambodian wedding ceremony.
                    The defendant was 43-years old at that time.
              3.    The defendant caused documents to be altered
                    indicating the girl was 18-years old and obtained a
                    Cambodian passport and visa for the girl to come to the
                    United States.
              4.    In or about December of 2001, the defendant
                    transported the 14-year old girl from Cambodia to New
                    York City where, with false documents indicating her
                    age as 18-years old, he married her in a ceremony in
                    New York.
              5.    In or about June of 2002, the defendant accepted
                    employment at the Jackson County Memorial Hospital
                    in Altus, Oklahoma.

(Appellant’s App. at 7-8.)
      9
        Section 1111(B) defines rape as “an act of sexual intercourse accomplished with
a male or female who is the spouse of the perpetrator if force or violence is used or
threatened . . . .” Section 1114(A)(3) defines rape in the first degree to include “rape
accomplished with any person by means of force, violence, or threats of force or violence

                                           -9-
      Miles moved to dismiss the second indictment and acquit “due to want of

jurisdiction and double jeopardy.” (Id. at 23.) The court denied his motion,

concluding the dismissal of the first indictment was not “tantamount to an

acquittal,” and instead “amounted to a bare dismissal of the charge based on the

inadequacy of the indictment.” (Id. at 45-46.) Miles contends this was error.

                                  II. DISCUSSION

      “We review de novo the district court’s denial of a motion to dismiss an

indictment on double jeopardy grounds.” United States v. McAleer, 138 F.3d 852,

855 (10th Cir. 1998). The defendant has the burden of establishing double

jeopardy. United States v. Jones, 816 F.2d 1483, 1486 (10th Cir. 1987).

      The first question in a double jeopardy analysis is whether jeopardy has

attached. The government concedes jeopardy attached, as the jury was empaneled

and sworn before the first indictment was dismissed. See United States v. Bizzell,

921 F.2d 263, 266 (10th Cir. 1990).

      The next, and critical, question is whether jeopardy terminated in a way

that prevents re-indictment and re-prosecution. See Illinois v. Somerville, 410

U.S. 458, 467 (1973) (“[T]he conclusion that jeopardy has attached begins, rather

than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.”). 10


accompanied by apparent power of execution regardless of the age of the person
committing the crime . . . .”
      10
        In Sanabria v. United States, the Supreme Court summarized the “limited
circumstances [when] a second trial on the same offense is constitutionally permissible”

                                           -10-
“[T]he protection of the Double Jeopardy Clause by its terms applies only if there

has been some event, such as an acquittal, which terminates the original

jeopardy.” Richardson v. United States, 468 U.S. 317, 325 (1984). This rule has

been extended to apply to the functional equivalents of acquittals. See Smalis v.

Pennsylvania, 476 U.S. 140, 143 (1986) (concluding “a demurrer is not the

functional equivalent of an acquittal” and therefore double jeopardy is no bar to

an appeal); Burks, 437 U.S. at 16 (holding retrial barred where conviction

following jury trial reversed for insufficient evidence because that is the

functional equivalent of an acquittal); United States v. Marchese, 46 F.3d 1020,

1023 (10th Cir. 1995) (holding retrial not barred on double jeopardy grounds

because the court’s dismissal of the indictment “did not act as the functional

equivalent of an acquittal”). Since Miles was not acquitted this case turns on


saying:
       A new trial is permitted, e.g., where the defendant successfully appeals his
       conviction, United States v. Ball, 163 U.S. 662, 672, 16 S. Ct. 1192, 41 L.
       Ed. 300 (1896); where a mistrial is declared for a “manifest necessity,”
       Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L. Ed. 974 (1949); where
       the defendant requests a mistrial in the absence of prosecutorial or judicial
       overreaching, United States v. Dinitz, 424 U.S. 600, 96 S. Ct. 1075, 47 L.
       Ed.2d 267 (1976); or where an indictment is dismissed at the defendant’s
       request in circumstances functionally equivalent to a mistrial, Lee v. United
       States, 432 U.S. 23, 29-30, 97 S. Ct. 2141, 53 L. Ed. 2d 80 (1977). See also
       Jeffers v. United States, 432 U.S. 137, 97 S. Ct. 2207, 53 L.Ed.2d 168
       (1977).

437 U.S. 54, 63 & 63 n.15 (1978). See also Gori v. United States, 367 U.S. 364, 369
(1961) (concluding defendant’s conviction in second trial did not violate the prohibition
against double jeopardy where first trial was terminated after judge sua sponte declared
mistrial with the interest of the defendant in mind).

                                           -11-
whether the dismissal of the first indictment was the functional equivalent of an

acquittal.

       On April 11, 2006, after the jury was sworn and sent home, Miles made an

oral motion to dismiss the indictment but in subsequent written materials

requested a judgment of acquittal. 11 Significantly, a judgment of acquittal was

not forthcoming. 12 Instead, being sensitive to Miles expressed Constitutional

arguments about fair notice, the judge dismissed the indictment for failure to state

an offense. He later characterized the dismissal order as not “tantamount to an

acquittal,” but rather, “a bare dismissal of the charge.” (Appellant’s App. at 46.)

       “[W]hat constitutes an ‘acquittal’ is not to be controlled by the form of the

judge’s action.” United States v. Martin Linen Supply Co., 430 U.S. 564, 571

(1977). “Rather, [the reviewing court] must determine whether the ruling of the

judge, whatever its label, actually represents a resolution, correct or not, of some

or all of the factual elements of the offense charged.” Id.; see, e.g., United States

v. Appawoo, 553 F.2d 1242, 1246 (10th Cir. 1988) (concluding a “judgment of


       11
          W.D. Okla. Doc. No. 41 (Resp. to Government’s 2nd Supp. Br. Regarding Jury
Instructions; Doc. No. 45 (Defendant’s 2nd Resp. to Government’s 2nd Supp. Br.
Regarding Jury Instructions; and Doc. No. 47 (Amended Response to Government’s
Supplemental Brief Regarding Jury Instructions).
       12
          A motion for judgment of acquittal prior to the introduction of any evidence is
premature. Such a motion can only be made “[a]fter the government closes its evidence
or after the close of all the evidence.” Fed. R. Crim. P. 29(a). The sufficiency of the
government’s evidence is not subject to judicial scrutiny until the government has been
afforded its one full opportunity to make its case for conviction.

                                           -12-
acquittal” was in fact a dismissal because it was based on legal issues raised

before trial, not on facts developed at trial). While the form of the judge’s ruling

is not controlling, it does inform the debate. See Sanabria, 437 U.S. at 66

(“While form is not to be exalted over substance in determining the double

jeopardy consequences of a ruling terminating a prosecution, neither is it

appropriate entirely to ignore the form of order entered by the trial court.”)

(citations omitted). In Sanabria the trial court’s denomination of its decision as a

“judgment of acquittal” was significant. See id. at 66-69. Likewise here, the

form of the dismissal order (“a bare dismissal of the charge” not “tantamount to

an acquittal”) as well as the judge’s expressed rationale for doing so (the

indictment failed to give fair warning of forcible rape) are significant. The

judge’s ruling was consistent with the long-standing rule that the dismissal of a

defective indictment corrects a trial error and does not bar retrial.

      In Ball v. United States, two of three co-defendants were convicted by a

jury but their convictions were reversed on a motion by the defendants due to a

fatal defect in the indictment. 163 U.S. 662, 664-65 (1896). The Supreme Court

held the reversal was no bar to retrial because “it is quite clear that a defendant

who procures a judgment against him upon an indictment to be set aside may be

tried anew upon the same indictment, or upon another indictment, for the same

offense of which he had been convicted.” Id. at 671. In Burks, the Supreme

Court explained “[t]he reversal in Ball was . . . based not on insufficiency of

                                         -13-
evidence but rather on trial error, i.e., failure to dismiss a faulty indictment.” 437

U.S. at 14. The Burks Court clarified that a reversal due to insufficient evidence

bars retrial but a reversal due to trial error does not. See id. at 15-16.

       The circumstances here are admittedly different—Ball and his co-defendant

were convicted, Miles was not even tried. Nevertheless, the Burks Court was

clear in characterizing the dismissal of a faulty indictment as a trial error which

presents no bar to a subsequent prosecution. Id. at 15; accord Somerville, 410

U.S. at 459.

       But Miles has a different twist. He argues the dismissal of the first

indictment is the functional equivalent of an acquittal because the court made a

“factual resolution that the government could not prove a necessary element that

an unlawful sexual act under Oklahoma law had occurred.” (Appellant’s Br. at

17.)

       The details of Miles’ argument are intricate. He first claims, because of its

introductory language, the first indictment can only be read to charge rape in the

second degree, which exempts a spouse from its reach. But the introductory

language makes no difference. We recently explained: “An indictment need not

contain introductory or prefatory matter at all . . . so if it does such matter is

perforce superfluous unless expressly incorporated into one of the counts.”

United States v. Redcorn, 528 F.3d 727, 735 (10th Cir. 2008). Next he claims

that in acknowledging the marriage defense the court made a factual finding—

                                          -14-
Miles and the alleged victim were married. According to Miles, the fact of his

marriage, regardless of how it came to be known by the court, is a “finding”

triggering the double jeopardy bar. Specifically he argues,

      [I]n United States v. Martin Linen, 430 U.S. 564, 97 S.Ct. 1349, 51
      L.Ed. 2d 642 (1977), the test is put that a defendant is acquitted
      when the ruling of the judge, whatever its label, actually represents a
      resolution [in the defendant’s favor], correct or not, of some or all of
      the factual elements of the offense charged . . . . Thus, applying
      substance over form to a district judge’s judgement of acquittal,
      appeal is barred if the court evaluated the Government’s evidence
      and determined that it was legally insufficient to sustain a
      conviction.

(Appellant’s Br. at 10) (emphasis omitted). We are not persuaded.

      In responding to Miles’ motion to dismiss the first indictment because of

the marriage defense the government presented two arguments: (1) the marriages

were a sham and the validity of the New York marriage was a factual issue the

jury should decide; (2) the forcible rape theory rendered the marriage issue

irrelevant.

       The judge rejected the government’s first argument, concluding the New

York marriage was voidable, not void. The fact of the marriage was never at

issue—its legal significance was the tipping point. Thus, he did not consider the

validity of the marriage to be a fact the jury should decide. The judge took no

evidence and refused to make, or even consider making, a factual determination

on the issue. But the marriage is beside the point with respect to the

government’s second argument.

                                        -15-
      The government argued the first indictment was worded broadly enough to

encompass forcible rape and it could prove forcible rape if permitted to proceed

to trial. The trial judge rejected that argument, but not because the forcible rape

theory was untenable or unprovable. Instead, he agreed with Miles that the first

indictment failed to state an offense, requiring Miles to go to trial on the forcible

rape theory would violate his Constitutional rights, and the deficiencies in the

first indictment could not be remedied by a bill of particulars. 13 See supra at 7.

      Contrary to Miles’ argument, which the dissent adopts as its central thesis,

the first indictment was not dismissed based on the “fact” (stipulated or

otherwise) of marriage. It was based on the failure of the indictment to provide

fair warning to Miles that he must defend against forcible rape allegations. There

was no adjudication of any fact going to the merits of the charge against Miles,

which is an essential ingredient of a claim of double jeopardy. See Martin Linen,

430 U.S. at 571.

      The lynchpin of Miles’ argument is that the first indictment charged a

violation of the Mann Act premised on, and only on, a violation of Oklahoma’s

statutory rape law. He had good reason to assume that was the case because of

the government’s posture, but that is not what the indictment charged. It did not


      13
        Implicit in this conclusion is the conclusion that the indictment could not be
amended to permit the case to go to the jury on the forcible rape charge because doing so
would amount to the forbidden practice of allowing “an additional or different offense” to
be charged by amendment (rather than indictment). Fed. R. Crim. P. 7(e).

                                           -16-
specify any particular Oklahoma statute. Miles could have timely forced the

government to be more precise, but he did not. Nevertheless, he was justifiably

distressed with the government’s eleventh hour change in tactics. And he was

entitled to appropriate relief. Such relief might have included a postponement of

the trial to give him an opportunity to meet the unanticipated theory and evidence.

But that is not the relief he requested. The trial judge was sympathetic to his

situation and, in accord with his arguments, imposed a stiff (and appropriate)

sanction against the government—dismissal of the indictment. Appropriate relief

did not, and does not, include immunity from trial.

      This case is much like Lee v. United States, where the Supreme Court held

a second prosecution was not barred if the first proceeding was terminated at the

defendant’s request after jeopardy had attached. 432 U.S. 23 (1977).

Immediately prior to the attachment of jeopardy, Lee’s counsel moved to dismiss

the information for failure to charge knowledge or intent. Id. at 25. The court

tentatively denied the motion due to its late timing and proceeded with a bench

trial. Id. at 26. At the conclusion of the trial, the court had no question about the

defendant’s guilt, but nonetheless dismissed the information for failure to charge

knowledge or intent. Id. In deciding whether double jeopardy barred a second

prosecution, the Supreme Court explained “[t]he critical question is whether the

order contemplates an end to all prosecution of the defendant for the offense

charged.” Id. at 30. The Court answered that question in the negative:

                                         -17-
      The dismissal clearly was not predicated on any judgment that Lee
      could never be prosecuted for or convicted of the [crime charged].
      To the contrary, the District Court stressed that the only obstacle to a
      conviction was the fact that the information had been drawn
      improperly. The error, like any prosecutorial or judicial error that
      necessitates a mistrial, was one that could be avoided–absent any
      double jeopardy bar–by beginning anew the prosecution of the
      defendant. And there can be little doubt that the court granted the
      motion to dismiss in this case in contemplation of just such a second
      prosecution.

Id. at 30-31.

      Like in Lee, the district court here did not intend for its dismissal of the

first indictment to bar re-indictment and re-prosecution of Miles. The court stated

in its order of dismissal that it took “no pleasure in this disposition.”

(Appellant’s App. at 15.) Miles “plainly deserves substantial exposure to the

criminal justice system.” (Id.) The error in the indictment—whether described as

failure to state an offense or insufficient specificity—was one that could have

been avoided and thus, a second prosecution is not barred. See United States v.

Bowline, 593 F.2d 944, 949 (10th Cir. 1979) (re-indictment not barred where

indictment is dismissed based on validity of charge, not merits of the case,

because such dismissal “is not distinguishable from a motion for a mistrial made

by the defendant”).

      The case of Illinois v. Somerville, 410 U.S. 458 (1973), is even more

telling. After the jury was sworn but before evidence was presented, the

prosecutor realized the indictment was fatally defective because it failed to allege


                                          -18-
intent. Id. at 459. The prosecutor moved for a mistrial, which was granted over

the defendant’s objection. The case was retried in spite of the defendant’s claim

of double jeopardy and the defendant was convicted. The case arrived at the

Supreme Court on federal habeas. The Court saw no double jeopardy bar to the

second trial: “[T]he trial judge terminated the proceeding because a defect was

found to exist in the indictment that was, as a matter of Illinois law, not curable

by amendment.” Id. at 468. Here the indictment was dismissed at Miles’ urging,

not over his objection.

      Miles argued before the trial court that the flaws in the first indictment

(failure to allege force and failure to specify the Oklahoma statute(s) allegedly

violated) were of constitutional dimension and could not be cured by amendment

or a bill of particulars. The dismissal of the indictment was thus akin to the

mistrial declared in Somerville. Because it was done upon Miles’ request, not

over his objection, the circumstances favoring retrial are even more compelling

here. The Somerville Court stated: “The interests of the public in seeing that a

criminal prosecution proceed to verdict, either of acquittal or conviction, need not

be forsaken by the formulation or application of rigid rules that necessarily

preclude the vindication of that interest.” Id. at 463. In reaching its decision the

Somerville Court acknowledged “the interest of the defendant in having his fate

determined by the jury first impaneled is itself a weighty one.” Id. at 471. Miles

expressed no interest in having his fate determined by the jury first impaneled.

                                         -19-
      In United States v. Kehoe, the Fifth Circuit considered “whether the double

jeopardy clause prohibits further prosecution of defendants who procure the mid-

trial dismissal of the indictment on the ground that it fails to state an offense.”

516 F.2d 78, 83 (5th Cir. 1975). The court held a second trial was not barred,

focusing in particular on the fact it was the defendants who challenged the

indictment, and they did so only after the jury was sworn. Id. at 86. Likewise

here, Miles moved for dismissal of the indictment after the jury was sworn,

despite the fact he had almost a week to review the government’s first proposed

jury instructions and make his motion before jeopardy attached. Had Miles

moved to dismiss the indictment before the jury was sworn there would be little

room for a double jeopardy argument. 14 And nothing changed in the intervening

period. Miles allowed himself to be placed in jeopardy by not moving to dismiss

the indictment prior to the attachment of jeopardy. It appears to have been a

calculated strategy.

      In Wilkett v. United States, we considered a double jeopardy question

similar to the one presented here. 655 F.2d 1007 (10th Cir. 1981). There, two of

      14
          If Miles was misled by the introductory materials in the first indictment or
unfairly surprised by the government’s new evidence and change of theory he could have
moved to dismiss on April 4, 5, 6, 7, 8 or 9, before the jury was chosen. He was well
aware that jury selection was scheduled for April 10 and, upon his request, rescheduled
for April 11. A defendant ought not be permitted to lie behind the log hoping to exploit a
problem capable of being resolved before trial. See United States v. Spero, 331 F.3d 57,
61-62 (2d Cir. 2003) (a motion raising a constitutional challenge to an indictment must be
made prior to trial to deter gamesmanship, avoid wasting jurors’ time, and avoid complex
double jeopardy problems).

                                           -20-
three defendants charged with conspiracy in the Western District of Oklahoma

moved to dismiss the indictment for lack of venue at the end of the government’s

case. Id. at 1009. The court granted their motion and the defendants were then

indicted in the Eastern District for substantially the same conduct. We held

jeopardy had not terminated in the first proceeding in such a way as to prevent re-

indictment and re-prosecution because “[t]he termination of the case was not a

resolution, correct or not, of some or all of the federal elements of the offense

charged.” Id. at 1011-12 (quotations omitted). We noted the defendants “were

responsible for the dismissal” and “the dismissal was not predicated upon the

merits of the case, that is, the insufficiency of the evidence to convict.” Id. at

1011. The dismissal was instead predicated on the government’s failure to

establish venue, which “is a question of procedure, more than anything else, and .

. . does not either prove or disprove the guilt of the accused.” Id. Like the

defendants in Wilkett, Miles himself brought about the termination of the first

proceeding on a basis other than adjudication of his guilt or innocence.

      Miles calls attention to two of our cases, claiming they support his position.

In both United States v. Hunt, 212 F.3d 539 (10th Cir. 2000), and United States v.

Fay, 553 F.2d 1247 (10th Cir. 1977), the district judge found the evidence

insufficient to sustain the charges and entered judgments of acquittal. In both

cases we concluded the acquittals were not merely a matter of form, but of

substance. We fail to see how either Hunt or Fay appreciably advance Miles’

                                          -21-
argument since the judge here correctly referred to his order as a “bare

dismissal,” not an acquittal.

      Miles also makes an “allowable unit of prosecution” argument citing

Sanabria, 437 U.S. 54, and an argument under Blockburger v. United States, 284

U.S. 299 (1932). In a single count indictment Sanabria was charged with illegal

gambling based upon allegations of numbers betting and horse race betting.

Sanabria, 437 U.S. at 57. After hearing evidence the trial judge dismissed the

numbers theory and later entered a judgment of acquittal as to horse betting. The

question before the Supreme Court was whether Sanabria could again be tried for

illegal gambling based upon his participation in numbers betting. In resolving the

issue the Court looked at the allowable unit of prosecution in deciding the second

trial was barred. Critical to the decision was the acquittal on the horse race

betting. Id. at 64-65. Until there has been an acquittal (or a conviction) the

allowable unit of prosecution question is not ripe. Since Miles was neither

convicted nor acquitted on the original indictment the allowable unit of

prosecution is not in play here. Miles is attempting to put the cart in front of the

horse. His Blockburger argument is of similar ilk.

      Under the Blockburger “same evidence” test, the double jeopardy bar

applies where a defendant is subjected to successive prosecutions for multiple

offenses “if the facts alleged in one would sustain a conviction if offered in

support of the other.” United States v. Mintz, 16 F.3d 1101, 1104 (10th Cir.

                                         -22-
1994) (quotations omitted). This problem only presents itself where jeopardy

terminated in the first prosecution in such a way as to prevent re-indictment and

re-prosecution. See Wood, 958 F.2d at 974 (“[T]he double jeopardy test for

subsequent prosecutions . . . is not applicable when the defendant has not been

convicted . . . . The Supreme Court has looked to whether the subsequent

prosecution was based on the same conduct of an earlier prosecution only when

the earlier prosecution resulted in a conviction or acquittal.”). Here, as

previously discussed, it did not.

      Miles cites United States v. Genser, 710 F.2d 1426 (10th Cir. 1983), in

support of his Blockburger argument, but that case is inapposite because the

charges in Genser were dismissed due to insufficiency of the evidence, the

equivalent of an acquittal. See Burks, 437 U.S. at 16. In Genser we said, “In the

case before us, the Government does not argue that the trial court’s dismissal of

the first action was on other than factual grounds.” 710 F.2d at 1428. “[T]he

government conceded . . . that although the case was ‘dismissed,’ it is clear from

the record that the decision was a factual one—a recognition that the government

was unable to prove that the defendant was a dispenser as defined by statute.” Id.

(quotations omitted). The only issue in Genser was whether “the offense charged

and tried in the first prosecution is identical in law to that charged in the second.”

Id. Genser does not inform this debate—whether the dismissal here was

equivalent to an acquittal.

                                         -23-
AFFIRMED.

            Entered by the Court:

            Terrence L. O’Brien
            United States Circuit Judge




             -24-
No. 06-6187, United States v. Miles
HOLLOWAY, Circuit Judge, dissenting:


                                          I

      I respectfully dissent. As the majority opinion states at p. 13, we “‘must

determine whether the ruling of the judge, whatever its label, actually represents a

resolution, correct or not, of some or all of the factual elements of the offense

charged.’” United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977).

Here clearly the reason that the district judge dismissed the first indictment was

the fact that the defendant and the alleged victim were married. This stipulated

fact, due to operation of Oklahoma law, meant there was not a violation, as

alleged, of the Mann Act. Thus a solid basis for a double jeopardy defense

against prosecution under the second indictment was clear. The denial of the

defendant’s timely and proper motion to dismiss, invoking his double jeopardy

defense, was error, and the ruling on the second indictment, with its new theory,

must be reversed in this Abney appeal.

      Here, the second indictment’s shift to adopt a new theory does not free the

Government from the restrictions of the Double Jeopardy Clause. The second

indictment added a new paragraph. It was, nevertheless, predicated, on the same

basic circumstances. The new Introduction alleged, inter alia, that “the defendant

engaged in acts of sexual intercourse with the girl through the use of force and

threatened use of force . . .” citing Oklahoma Stat. tit. 21, §§ 1111 (B) and 1114

(A) (3). Double jeopardy based on the resolution against the Government of some
or all of the factual elements of the offense as first charged bars any later

prosecution under the Mann Act for the same sexual conduct “even if based on a

different theory . . . .” United States v. Hunt, 212 F.3d 539, 547 (10th Cir 2000).

                                            II

      If the fact of the marriage of Miles and S. K. had been contested and the

Government had put on evidence that the couple were not married, then a

determination by the judge that the Government’s evidence was insufficient on

the issue would stand as a bar to further prosecution under the basic principle of

double jeopardy jurisprudence. I am satisfied that it makes no difference that the

insufficiency of the Government’s evidence is established by a stipulated fact. In

United States v. Ogles, 440 F.3d 1095 (9th Cir. 2006) (en banc), the court

specifically rejected the contention that a factual determination which amounts to

an acquittal must be of a contested fact:

        The government suggests that because Ogles did not contest his
      licensed status, the district court’s ruling did not meet the Supreme
      Court’s definition of acquittal – that “whatever its label, [it] actually
      represents a resolution, correct or not, of some or all of the factual
      elements of the offense charged.” [United States v. Martin Linen
      Supply Co., 430 U.S. at 571]. The Court’s double jeopardy decisions
      do not, however, condition an acquittal under Rule 29(a) on the
      district court’s examination of contested facts. Here, the district
      court determined that a factual element of the offense had not been
      proved by the government. What is this if not a “resolution”?

440 F.3d at 1104.

      The Government here contends that the trial court’s ruling was not on any


                                            -2-
matter of evidence but only on a legal issue. In Ogles the Government similarly

argued that the district court’s judgment of acquittal of a charge of selling

firearms without a license was based on a legal determination, specifically that

the term “licensed dealer” in the statute was not location specific. The defendant

was licensed in California but prosecuted for a sale he had made in Arizona.

Thus, in one sense, the district court’s judgment of acquittal was based on a legal

issue, the interpretation of the statute that a license to sell is not restricted to the

state of the licensee’s residence. But that legal ruling was simply preliminary, the

Ninth Circuit held, to the factual determination that the Government’s evidence

was insufficient for a conviction. 440 F.3d at 1103. So too, in this case, the

district court’s ruling dismissing the first indictment is best viewed, I conclude, as

a determination that the Government would be unable to prove an essential

element of the offense (that there was no marriage).

       In my view, the dismissal of the first indictment was based on a finding of

fact: the undisputed fact that the Defendant was married to the alleged victim.

This case is unusual, in that it is true the fact-based decision of the marriage was

made before any evidence had been taken. But no evidence was required to

establish that critical fact: it was stipulated. The legal consequences thus are the

same as if the government’s evidence had been heard. The district judge’s

decision was a determination that the Government’s evidence was insufficient to

prove the charged offense. If this be so, as I am convinced is the case, then the

                                            -3-
ruling was the equivalent of an acquittal, and the constitutional protection against

double jeopardy unquestionably bars the Government’s second attempt to

prosecute the Defendant. 1 The Government had one full opportunity to prosecute

the defendant, 2 and the Double Jeopardy Clause protected him against such

further prosecution.

                                              III


       1
         In my view, the two indictments charge a single violation of the Mann Act, even
though the kind of violation of state law, i.e., the specific type of rape alleged, differed.
See Sanabria v. United States, 437 U.S. 54, 73 (1978) (prosecution had “charged only a
single gambling business” that was illegal under state law, although the state law could
have been violated by either a “numbers” game or by gambling on horse racing); United
States v. Hunt, 212 F.3d 539 (10th Cir. 2000) (acquittal of charge of theft from the mail
would prohibit second prosecution for same theft on different theory).
        The government here does not argue that the second indictment stated a different
offense, so that prosecution under that indictment could proceed even if the dismissal of
the first indictment were determined to be an acquittal, as I would hold it was. Instead,
the Government argues, wrongly, that the dismissal of the first indictment was not an
acquittal. (Brief of Plaintiff-Appellee at 29-34.)
       2
         The majority invokes Fed. R. Crim. P. 29(a), which provides that a motion for
judgment of acquittal may be made either after the prosecution has rested or at the close
of all evidence, to assert that the sufficiency of the government’s evidence is “not subject
to judicial scrutiny” at any earlier stage. I do not, of course, contend otherwise as a
matter of proper procedure. But this point provides no support whatsoever for the
majority’s holding because defendant’s double jeopardy rights are in no way dependent
upon the correctness of the district court’s judgment, nor on the correctness of any rulings
underlying that judgment. Instead, “[w]here a midtrial dismissal is granted on the ground,
correct or not, that the defendant simply cannot be convicted of the offense charged,
[United States v.] Jenkins[,420 U.S. 358 (1975)] establishes that further prosecution is
barred by the Double Jeopardy Clause.” Lee v. United States, 432 U.S. 23, 30 (1977). If
the trial court’s decision is in effect an acquittal, it would violate the Double Jeopardy
clause to bring the defendant to trial again even if the acquittal had been “‘based upon an
egregiously erroneous foundation.’” Sanabria v. United States, 437 U.S. 54, 64 (1978)
(quoting Fong Foo v. United States, 369 U.S. 141, 143 (1962)).

                                              -4-
      In the second indictment, the Government shifted gears. It had lost on its

first attempt to convict the defendant due to the determination that marriage

barred conviction under the Oklahoma statutory rape statute, 21 Okla. Stat.§ 1111

(A) (1), and under Oklahoma’s lewd acts statute, 21 Okla. Stat. §1123. The

Government cannot rely on “shift[ing] theories for avoiding the impact of the

marriage”, App. at 13-14, Br. of the United States 16, ¶2, as the district judge

stated. I am convinced that the perception of the district judge points to the

proper analysis under the Double Jeopardy Clause.

      The shift to the new theory of forcible rape is barred by the analysis in

United States v. Hunt, 212 F.3d 539 (10th Cir. 2000). There prosecution for theft

from the mail was sought under 18 U.S.C. § 1708. During a bench trial the court

entered judgment which stated: “I find and conclude that the defendants are not

guilty under the indictment as charged.” The judge concluded that the indictment

alleged a theft from CTC distributor’s facility. It was further concluded that CTC

was not part of the mail as required for the charged offense, and the indictment

failed to allege any other theft from the mail, as suggested by the Government.

The defendants asserted that the Double Jeopardy Clause barred the appeal, and

this court agreed.

      In doing so we relied on Sanabria v. United States, 437 U.S. 54 (1978).

There the Government charged the defendant with conducting an illegal gambling

business in violation of 18 U.S. C. § 1955. The indictment had alleged two types

                                         -5-
of illegal gambling activities: horse betting and numbers betting in violation of

Massachusetts law. After trial began, the defendant moved for acquittal, arguing

that there was no evidence of horse betting, a proper basis for the illegal gambling

charge, it having been determined that numbers betting was not prohibited by the

Massachusetts code. The Government conceded there could be no review of the

district court ruling that there was insufficient evidence of the defendant’s

involvement with horse betting. The Government argued it was entitled to a new

trial on the numbers betting charge. The Supreme Court disagreed. A judgment

of acquittal which had been entered barred further prosecution on any aspect of

the count and hence barred appellate review of any trial court error.

         Although the Supreme Court held that the Government “could prove the

offense in more than one way (by demonstrating numbers betting, horse betting or

other betting), an acquittal of the offense of participation in illegal betting barred

prosecution for participation in illegal gambling even if based on a different

theory.” 437 U.S. at 69. Thus, Hunt correctly followed the holding of Sanabria.

         From precedent of the Supreme Court and our court it is clear that the shift

to a new theory is impermissible as a basis for avoiding the protection of the

Double Jeopardy Clause for the defendant Miles, as for the defendants in other

cases.

         Accordingly, I must respectfully dissent.




                                           -6-
