U.S. v. Morgan

Defendant either forfeited or waived any Double Jeopardy issue regarding second trial on charge of possession of methamphetamine with intent to deliver, where jury at first trial had deadlocked on said charge and found defendant guilty on lesser offense of mere possession of methamphetamine, and where Dist. Ct. essentially declared mistrial on possession with intent to deliver charge and scheduled retrial on said charge. Although retrial following hung jury generally does not violate Double Jeopardy Clause, greater and lesser offenses are treated as same offense for Double Jeopardy purposes, so that Dist. Ct. should have either declared mistrial and allowed govt. to retry whole case or accept guilty verdict on mere possession charge and ended any further prosecution. However, defendant waived Double Jeopardy issue by failing to object to scheduling of retrial on possession with intent to deliver charge and by actually participating in said retrial. Defendant similarly waived Double Jeopardy issue associated with second trial on mere possession charge, where defendant agreed with Dist. Ct. that defendant would only be sentenced once on possession charge if jury found him guilty on said charge in second trial. Also, Dist. Ct. did not commit plain error in admitting evidence from three govt. witnesses regarding testimony about uncharged acts of using and receiving methamphetamine from defendant, since said testimony was relevant as to defendant’s intent regarding large quantity of methamphetamine found on his person at time of his arrest.