UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ TRAVIS SOTO, │ Petitioner-Appellant, │ > No. 21-4229 │ v. │ │ BRIAN SIEFKER, Putnam County Sheriff, │ Respondent-Appellee. │ ┘

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 3:21-cv-00167—Donald C. Nugent, District Judge.

Argued: June 15, 2023

Decided and Filed: August 21, 2023

Before: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges. _________________

COUNSEL ARGUED: Sean A. Mirski, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellant. Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Sean A. Mirski, R. Stanton Jones, Andrew T. Tutt, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., Richard Kerger, THE KERGER LAW FIRM, LLC, Toledo, Ohio, Randall L. Porter, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, for Appellant. Michael J. Hendershot, Benjamin M. Flowers, Jana M. Bosch, Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Gary L. Lammers, PUTNAM COUNTY PROSECUTOR’S OFFICE, Ottawa, Ohio, for Appellee. Derek C. Reinbold, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., Stephanie Franxman Kessler, PINALES, STACHLER, YOUNG & BURRELL CO., L.P.A., Cincinnati, Ohio, for Amicus Curiae.

KETHLEDGE, J., delivered the opinion of the court in which GRIFFIN and THAPAR, JJ., joined. GRIFFIN, J. (pg. 7), delivered a separate concurring opinion. No. 21-4229 Soto v. Siefker Page 2

_________________

OPINION _________________

KETHLEDGE, Circuit Judge. Jeopardy attaches to an “offence,” for purposes of the Double Jeopardy Clause, only when a court or jury has power to determine the defendant’s guilt or innocence as to that “offence.” Here, an Ohio trial court dismissed a manslaughter charge against Travis Soto, pursuant to his agreement to plead guilty to another charge. Ten years later, in connection with the same incident, the State charged Soto with murder. We agree with the Ohio Supreme Court and the district court that the Double Jeopardy Clause does not bar that prosecution. I.

In 2006, Travis Soto’s wife called the police to report the death of their two-year-old son. At the time, Soto admitted that the child’s death was his fault, but he described it as an accident: he said he had been driving an ATV around his property and had run over the toddler by mistake. The State of Ohio thereafter charged Soto with child endangerment and involuntary manslaughter.

Soto agreed to plead guilty to the child-endangerment charge in exchange for the State’s agreement to dismiss the manslaughter charge. The court accepted the plea and found Soto “guilty of a single count of child endangering.” The court dismissed the manslaughter charge and later sentenced Soto to five years’ imprisonment. He served that sentence and left prison in 2011.

In 2016, however, Soto went to the Putnam County Sheriff’s Office and confessed that he ha