Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CR-93-126-JLQ. Justin L. Quackenbush, District Judge, Presiding.
Before: Mary M. Schroeder, Robert Boochever, and Melvin Brunetti, Circuit Judges. Opinion by Judge Boochever.
BOOCHEVER, Circuit Judge:
John Blount was convicted of offenses related to his spiking of trees in the Clearwater National Forest. He now appeals his conviction under 18 U.S.C. § 1864(a)(2) (1988), arguing that the reinstatement of two counts of tree spiking as misdemeanors one day after the trial court had granted his motion for acquittal on felony tree spiking counts violated his right not to be subject to double jeopardy. We agree, and accordingly, we reverse his misdemeanor conviction for tree spiking.
In April 1989, after an area in the Clearwater National Forest was designated by the United States Forest Service for selective harvesting of old growth trees, the Clearwater National Forest headquarters was notified that trees in the designated area had been spiked with 500 pounds of 8 to 10 inch metal nails. Investigation by Forest Service workers revealed that 284 trees had been spiked with 384 nails. Most nails were marked with paint.
John Blount was identified by an informant as a member of the group responsible for the spiking, along with several others. Blount was eventually tried on two felony counts of tree spiking in violation of 18 U.S.C. § 1864 (Counts One and Three), and two counts of willfully injuring or committing depredation against property of the United States in violation of 18 U.S.C. § 1361 (Counts Two and Four), pursuant to the government's theory that the trees were spiked during two distinct spiking trips. Counts One and Two were in connection with the alleged first trip and Counts Three and Four in connection with the second. Blount was also charged with one count of conspiracy in violation of 18 U.S.C. §§ 371 and 1361 (Count Six).*fn1
Blount was tried by jury in June 1993. He was represented by counsel. At trial, after the government's case-in-chief was complete, Blount moved, pro se, for a judgment of acquittal on Counts One and Three on the ground that the government had failed to establish damage to the property of an individual in excess of $10,000, as required for a felony conviction under 18 U.S.C. § 1864(b)(4).*fn2 The district court offered the government the opportunity to modify its charge and to proceed with a lesser-included misdemeanor charge under § 1864, before deciding the motion for judgment of acquittal on the felony § 1864 counts. The misdemeanor charge did not require a showing of damage to the property of an individual. When the government elected an "all-or-nothing" approach to the charge, the court granted Blount's motion, acquitting him on those counts. The district court announced to the jury that Counts One and Three were "no longer in this case."
Blount and a codefendant then presented their defenses on the remaining counts. The court adjourned for the day after the second defendant rested. The next morning, the district court reinstated Counts One and Three as lesser-included misdemeanors of the felony counts, over Blount's objection. The court stated that it had reconsidered its earlier ruling and that it believed the acquittal on the felony charges did not preclude reinitiation of the lesser-included offense. The court stated: "If the . . . dismissal of the felony 1864 without reserving the misdemeanor 1864 . . . precludes a reopening and a resubmittal, we [will] hear that post-trial."
Blount was convicted on the Count One § 1864 misdemeanor, but not the Count Three charge. The district court denied Blount's subsequent pro se motion for acquittal based on double jeopardy.
Blount's sentencing hearing was held on August 13, 1993. His conviction on the § 1864 count was grouped with his convictions on two other counts related to his tree spiking activities.
Blount argues that the trial court subjected him to double jeopardy when it reinstated the § 1864 counts as misdemeanor charges. We review questions concerning double jeopardy de novo. United States v. Horodner, 993 F.2d 191, 193 (9th Cir. 1993).
The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal . . . ." United States v. Wilson, 420 U.S. 332, 343, 43 L. Ed. 2d 232, 95 S. Ct. 1013 (1975) (quotations omitted). "The phrase 'the same offense' encompasses both the offense charged and any lesser offense necessarily included therein. Thus an acquittal of a greater offense precludes a subsequent prosecution for a lesser-included offense." United States v. LoRusso, 695 F.2d 45, 53 (2d Cir. 1982), cert. denied, 460 U.S. 1070 (1983) (citing United States v. Ball, 163 U.S. 662, 670, 41 L. Ed. 300, 16 S. Ct. 1192 (1896)). "A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to ...