## Facts

- Robert Turner and Guinn Kelly, St. Louis police officers working off-duty security, were assigned to Cochran Gardens, a public-housing project funded through the U.S. Department of Housing and Urban Development (HUD).
- Turner, Kelly, and a third officer, Kenneth Givens, allegedly submitted false time cards reflecting more hours than they actually worked.
- A superseding indictment (S1) charged multiple counts tied to particular dates/pay periods, including theft of federal funds (18 U.S.C. § 641), making materially false statements to a federal agency (18 U.S.C. § 1001(a)), and conspiracy (18 U.S.C. § 371).
- During the fourth day of the initial joint trial, the district court declared a mistrial.
- Turner and Kelly moved to dismiss, arguing the mistrial was improper. On interlocutory appeal, the Eighth Circuit held there was no “manifest necessity” for a mistrial as to Turner and Kelly because severance from Givens was an available alternative, so retrial on the S1 offenses was barred.
- After remand, the government returned another superseding indictment (S4) naming only Turner and Kelly.
- S4 relied on the same overall time-card scheme as S1 but rearranged the charging: some pay periods were added or dropped, some charges were shifted among statutes, conspiracy was not included, and aiding-and-abetting liability (18 U.S.C. § 2) was added.
- Turner and Kelly moved to dismiss S4 on double jeopardy and res judicata/law-of-the-case (mandate) grounds. The district court denied the motions, and Turner and Kelly appealed.

## Issues

1. Whether the Double Jeopardy Clause bars prosecution under S4 for counts tied to pay periods/dates not charged in S1, even though the alleged conduct arises from the same time-card scheme.
2. Whether any S4 count is the same offense as a count in S1 for which jeopardy attached and was improperly terminated by a mistrial, requiring dismissal.
3. Whether res judicata, including law-of-the-case and the appellate mandate from the prior mistrial appeal, bars S4 in whole or in part.

## Decision

- The Eighth Circuit affirmed the denial of dismissal as to the S4 counts that involved different pay periods/dates than those charged in S1, holding that separate pay periods constitute separate offenses for double-jeopardy purposes even if the acts are similar and part of one scheme.
- The court reversed in part and ordered dismissal of one count: count 5 of S4 against Kelly, because it was identical to count 18 of S1 and thus barred by the Double Jeopardy Clause.
- The court rejected Turner and Kelly’s broader res judicata/law-of-the-case arguments, concluding the earlier mandate barred retrial of the same offenses tried under S1, but did not forbid prosecution of distinct offenses not previously placed in jeopardy.
- The case was remanded for further proceedings consistent with the ruling, with the barred count dismissed.

## Legal Principles

- When a jury has been sworn, jeopardy attaches; if the court ends the trial without the defendant’s consent and without manifest necessity, the Double Jeopardy Clause bars a new trial for the same offense.
- Double-jeopardy analysis is offense-specific: a later indictment is barred only to the extent it reprosecutes the same offense previously placed in jeopardy, assessed count by count.
- Distinct criminal acts occurring on different dates or pay periods may be separately prosecuted, even if they follow the same method and relate to the same overall course of conduct.
- Adding an aiding-and-abetting theory (18 U.S.C. § 2) does not, by itself, convert a charge into the same offense; the focus remains on whether the later count matches a prior count’s offense and factual episode.
- Law-of-the-case and mandate rules bind lower courts on matters actually decided in the earlier appeal, but they do not bar prosecution of separate offenses that were not resolved by the prior decision; in this setting, res judicata is generally coextensive with double-jeopardy limits.

## Conclusion

The Eighth Circuit held that, despite an earlier mistrial found unjustified as to Turner and Kelly, the government could proceed under a new superseding indictment charging different pay-period offenses arising from the same time-card scheme, but it could not reprosecute Kelly on a count that duplicated an S1 count for which jeopardy had attached and retrial was barred.


United States v. Turner & Kelly, 130 F.3d 815 (1997)