Second conviction upheld despite Simmons

US v. Ford:   Here, the Fourth Circuit considers the second conviction of Harold Ford for being a felon in possession of a firearm.  Originally convicted for this offense in 2009, Ford’s conviction was reversed and remanded following his trial, due to a change in the law arising from United State v. Simmons from 2011.  Upon remand, the district court convicted Ford a second time, and he appealed on double jeopardy grounds, but the Fourth Circuit found no error in his second conviction. 

In his first conviction for this offense, the government introduced evidence of Ford’s earlier state conviction for felony PWID marijuana, for which Ford received an 8-10 month prison sentence.  With his prior criminal record, Ford could not have been sentenced to more than 12 months for the marijuana offense, even though someone with a more serious criminal history could have been sentenced for the same offense to up to 15 months (under North Carolina’s structured sentencing laws then in effect).    Ford appealed, and the Fourth Circuit held his appeal in abeyance pending Simmons.  Following Simmons, the Fourth Circuit reversed Ford’s conviction and remanded the case; however, in Ford’s second trial, the government introduced additional previous convictions of Ford’s, each of which was for a crime “indisputably” punishable by more than one year in prison (aggravated assault and assault with a deadly weapon inflicting serious injury from 1973, and selling controlled substances and possession with intent to sell and deliver a controlled substance from 1983). 

The Fourth Circuit has held that 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,” but, the Double Jeopardy Clause “does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside…because of some error in the proceedings leading to conviction.”  Moreover, it has held that when a conviction is reversed because of a post-trial changed in the law, a second trial is permitted.