Drug dealer almost gets off, thanks to a typo on the indictment

NOT THE SHARPEST KNIFE IN THE DRAWER: James LeRay McIntosh, who pleaded guilty to possession of crack cocaine and carrying a firearm to a drug-trafficking offense, was nearly let off the hook because of a typo in the indictment, The Wall Street Journal reports:

His charges stemmed from a November 2005 traffic stop in Jefferson County, Ala., but the indictment erroneously said the events took place in February 2007. By the time prosecutors realized their mistake, Mr. McIntosh had pleaded guilty to the charges. So they obtained a second indictment, with the correct date, and moved to dismiss the original. …

Mr. McIntosh and his lawyer turned the error into an advantage. They argued that pleading guilty to the corrected indictment would put him in double jeopardy – meaning prosecuted again on the same charges, which is prohibited.

The U.S. Court of Appeals for the Eleventh Circuit agreed that the second indictment had to be dismissed, meaning that McIntosh had pleaded guilty to a crime for which he had not been indicted – a violation of the Fifth Amendment, his attorney argued (“no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury”). So the Eleventh Circuit gave it another go:

The 11th Circuit held that he had received all the benefits of an indictment, including a probable-cause finding by a grand jury, and protection from double jeopardy, even if the indictment against him was no more.

“The indictment no longer has a specific role in a case’s postconviction phase,” wrote Judge Ronald Lee Gilman for the panel. “Interpreting the phrase ‘answer for’ to include the sentencing phase of a criminal case is incongruous with the purposes of an indictment because those purposes are necessarily fulfilled at the point of a valid conviction.” …

The 11th Circuit sent his case back to a federal trial judge for sentencing.

Luckily for McIntosh, while this saga was playing out the sentencing guidelines for possession of crack cocaine were revised and he no longer faced  a mandatory minimum 10-year prison term.


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