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224. Plea of Former Jeopardy

The third element of the test of sufficiency -- whether the record shows with accuracy to what extent the defendant may plead a former acquittal or conviction -- is, as a practical matter, satisfied by compliance with the essential elements and specificity tests. Moreover, the record of the entire case, not just the indictment, is available when the defense of double jeopardy is raised. See Bartell v. United States, 227 U.S. 427 (1913). As the court pointed out in United States v. Covington, 411 F.2d 1087, 1089 (4th Cir. 1969):

The transcript . . . is available and, should it ever be necessary to do so, it may readily be determined from the transcript whether a newly charged offense was one which would have supported a conviction under the earlier indictment.

See also United States v. Mobile Materials, Inc., 871 F.2d 902, 906-07 (10th Cir.), modified, 881 F.2d 866 (1989), cert. denied, 493 U.S. 1043 (1990)(indictment for conspiracy that detailed time, place, manner, means, and effect of Sherman Act violation valid, even though it did not list specific transactions or name all coconspirators, since it adequately informed defendant of charges and provided basis for future double jeopardy defense).

Updated January 22, 2020