Appeal from the United States District Court for the Western District of Wisconsin.
No. 94-C-663-S--John C. Shabaz, Judge.
Before H. WOOD, ROVNER, and EVANS, Circuit Judges.
ARGUED SEPTEMBER 27, 1995
A gruesome tragedy was discovered in the early morning hours of July 5, 1987, in the town of Bern in rural Marathon County, Wisconsin. Sheriff's deputies, responding to a report of an "accident with injuries," arrived at the Kunz family residence and discovered the bodies of Randy, Marie, Irene, and Clarence Kunz. All had been shot to death. The deputies were told that the only other relative who lived in the house, Helen Kunz, was missing. The remains of what turned out to be the body of Helen Kunz were discovered nine months later in Taylor County, approximately 18 miles from the Kunz residence.
Even before the discovery of Helen Kunz's body, police attention focused on Chris Jacobs III as the perpetrator, or one of the perpetrators, of the crimes. Six months after the discovery of the four bodies at the home, and three months before Helen's remains were uncovered, Jacobs was arrested and detained over the weekend in connection with the homicides. He was released uncharged.
Eventually, based on tire track marks, shell casings, and other physical evidence, police arrested Jacobs again in August of 1988, and charged him with five counts of first degree murder--party to the crime. He was tried before a jury in October of 1989 and acquitted on all five counts.
Almost four years after the trial, armed with additional evidence, the State charged Jacobs again, this time with the kidnapping and false imprisonment of Helen Kunz. Jacobs moved to dismiss the charges, claiming that the Fifth Amendment's prohibition against double jeopardy barred the State from charging him with the abduction that ultimately led to the death of Helen Kunz. The motion to dismiss was denied by the Marathon County Circuit Court, and that decision was upheld by the Wisconsin Court of Appeals. The Wisconsin Supreme Court declined to review the case, and Jacobs then moved to the federal court by filing a petition for a writ of habeas corpus in the United States District Court for the Western District of Wisconsin. The district court denied the petition and Jacobs appeals. We affirm.
The Double Jeopardy Clause of the Fifth Amendment provides that no one will "be subject for the same offence to be twice put in jeopardy of life or limb . . . ." The clause affords protection against three classes of abuse. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Schiro v. Farley, 114 S. Ct. 783, 789 (1994) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Mr. Jacobs' habeas petition invokes the first of these protections.
To better understand how the issue in this case is to be resolved, we turn first to the 1989 trial that ended in Jacobs' acquittal. In that case the jury had two options; to find Jacobs either guilty or not guilty of murder in the first degree as to each victim. The trial judge instructed the jury on the law as follows:
Before the defendant may be found guilty of murder in the first degree, the State must prove by evidence which satisfies you beyond a reasonable doubt that there were present the following two elements of this offense.
First, that the defendant or another that he aided and abetted intended to kill Randy, Irene, Marie, Clarence and/or Helen Kunz. Second, that the defendant or another that he aided and abetted caused the ...