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Name: Custer v. Hill
Case #: 02-36038
Court: US Court of Appeals
District 9 Cir
Opinion Date: 08/06/2004

Where a defendant was tried twice for similar charges that were not part of the same criminal episode, double jeopardy did not bar the second prosecution. The defendant here was charged in 1987 with one count of sodomy, based on events that occurred on June 20, 1987. The charges were dismissed for insufficient evidence. In 1990, he was again charged with sodomy against the same victim, this time based on events alleged to have occurred between November 1, 1986, and June 19, 1987. He was convicted and sentenced to twenty years in prison. He sought habeas relief in federal court on the ground that the second trial court failed to dismiss the charges against him on the grounds that he had been placed twice in jeopardy in violation of the Fifth Amendment. The Ninth Circuit denied habeas relief and distinguished the holding in Ashe v. Swenson (1970) 397 U.S. 436, in which the Supreme Court held that double jeopardy prohibitions barred the government from trying a defendant twice for one robbery committed against six different people. In this case, by contrast, the defendant was charged with two separate counts of sodomy, committed on separate occasions.