indictment without discussing double jeopardy).
When the defendant's plea to lesser charges is taken after trial begins, however, as a matter of course jeopardy attaches to the entire indictment. Fransaw, 810 F.2d at 525. Nevertheless, acknowledging that jeopardy has attached only begins this court's inquiry into whether the defendant has been placed in double jeopardy. Id. (quoting Illinois v. Somerville, 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066 (1973)).
Several courts faced with this situation have ruled that the fact that trial had commenced on the indictment does not bar retrial. Id. at 528; United States v. Baggett, 901 F.2d 1546, 1549-50 (11th Cir.), cert. denied, 498 U.S. 862, 112 L. Ed. 2d 133, 111 S. Ct. 168 (1990); Taylor v. Kincheloe, 920 F.2d 599, 605 (9th Cir. 1990). These courts have noted that double jeopardy does not bar retrial on the same count to which a defendant pleaded guilty, nor does it bar retrial upon mistrial or reversal on appeal. The justification the courts offer is simple: "When a defendant successfully seeks a reversal of his conviction, society's interest in punishing him, if guilty, outweighs the fact that he will be put in jeopardy again on retrial." Farnsaw, 810 F.2d at 528. Jeopardy attaches when the jury is empaneled "because of the 'need to protect the interest of the accused in retaining a chosen jury,'" but that interest is vitiated when the defendant voluntarily enters an agreement "to insulate him from what he feared would be their unfavorable reaction to his case." Id. (quoting Crist v. Bretz, 437 U.S. 28, 57 L. Ed. 2d 24, 98 S. Ct. 2156 (1978)); Baggett, 901 F.2d at 1550.
Reguer attempts to distinguish these cases, arguing that his situation is wholly different. Reguer's plea was vacated because the Supreme Court established an element of the crime that Reguer clearly does not admit. Had the Court and the parties been aware of the element, Reguer's plea would never have been accepted by either. The cases cited above arose in different factual contexts. In Fransaw, the defendant was permitted to withdraw his plea upon receiving a sentence ten years in excess of what he believed the Court had promised when the plea was taken. In Baggett, the plea was withdrawn when the judge, after a hearing, rejected the sentencing agreement reached between the defense and the prosecution. In Taylor, the plea was vacated upon the defendant's argument that he had not understood its consequences.
Reguer's distinction is not persuasive. It would be a mistake to apply the rule of double jeopardy without looking at its underlying principles, Baggett, 901 F.2d at 1550, and those principles apply equally to Reguer as they have to the defendants discussed above.
The constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.