No Double Jeopardy Bar to Retrial After Reversal Due to Constructive Amendment of Indictment

US v. Farr, -- F.3d --, 2010 WL 60904 (10th Cir. 1/11/10) - retrial did not violate double jeopardy after initial conviction was reversed due to government's constructive amendment of the indictment. Reversal for constructive amendment does not engender double jeopardy concerns; factual findings had not been made that were tantamount to a judgment of acquittal and there had been no conclusion that the government had failed to prove an element of the offense.