Opinion analysis: Court holds agreement to statutory severance of overlapping counts waives issue-preclusion claim after acquittal at first trial
on Jun 22, 2018 at 4:30 pm
In a 5-4 decision authored by Justice Neil Gorsuch, the Supreme Court upheld the Virginia state courts’ conclusion that a defendant’s agreement to statutory severance of a felon-in-possession count from substantive burglary counts waived his right to invoke the issue-preclusion protection of the double jeopardy clause after he was acquitted of the substantive offenses. In a separate concurrence, Justice Anthony Kennedy refused to join the portion of the opinion that attempted to place the final nail in the coffin of Ashe v. Swenson’s constitutional issue-preclusion protection for acquittals. Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented.
Briefly, Michael Currier was charged with three crimes growing out of a residential break-in during which a safe containing firearms was taken: breaking and entering, larceny and possession of a firearm following a felony conviction. The felon-in-possession charge was based on the allegation that Currier had possessed the guns in the safe during the break-in. A Virginia court rule permits a felon-in-possession charge to be severed unless either party objects, and both sides agreed to the severance. Currier was tried first on the substantive charges and was acquitted. He then argued that the jury’s acquittal resolved the question of whether he had participated in the burglary and theft, so that the state was barred from introducing any evidence of his alleged involvement in those crimes. Because the possession-of-the-weapon charge required proof of that participation, he contended, issue preclusion precluded the second trial. Virginia argued that Currier’s consent to the severance waived his issue-preclusion claim. The court agreed, Currier was tried and convicted, and the conviction was upheld on appeal. The Virginia Supreme Court affirmed.
The Supreme Court agreed with the lower courts that the claim had been waived. It held that a defendant who consents to multiple trials waives not only the protection against multiple trials but also the protection against relitigation of an issue following an acquittal. In doing so, the court assumed without deciding that Ashe would bar the second trial in this case. The court’s precedent shows that this is correct. In Ashe, the court recognized a separate collateral estoppel, or issue preclusion, protection in the double jeopardy clause. The defendant was charged with robbing six victims in a poker game. At his first trial, he was acquitted of robbing one of them; in light of the record, the acquittal necessarily rested on a jury finding that he was not one of the robbers. When the prosecution attempted to try him again for robbery of the second victim, the court held the relitigation of the issue of the defendant’s identity as a robber violated the double jeopardy clause.
But the court held that Currier’s issue-preclusion claim had been waived. It did so by relying on three precedents: Jeffers v. United States, United States v. Dinitz and United States v. Scott. In Jeffers, the defendant had requested separate trials and, after being convicted on a lesser count, moved to bar a second trial on a greater count. In Dinitz, the defendant’s motion for a mistrial was found to be a waiver of a claim that a second trial was barred. In Scott, a defendant’s motion was held to waive a claim that a second trial was barred by double jeopardy. According to the court, these cases demonstrate that a defendant’s consent to a second proceeding waives all double jeopardy objections to that proceeding because the consent shows that the second trial was not the result of government overreaching, but, rather, a result of the defendant’s choice.
To this extent, Kennedy joined the opinion of the court.
But a four-justice plurality went further.
The plurality rejected on what it called “a narrower ground” Currier’s argument that his agreement to separate trials did not waive his claim that under straight Ashe analysis, the state was barred from producing evidence of his involvement in the crime for which he had been acquitted, even if it were allowed a second trial. Questioning whether issue preclusion following an acquittal is even protected by the double jeopardy clause, the court noted that last term in Bravo-Fernandez v. United States, it had warned that issue preclusion should have “guarded application … in criminal cases.” Relying on the clause’s “same offence” text, history and precedent, Gorsuch explained that civil collateral estoppel cannot be imported into the double jeopardy protection and, in addition, that the protection against issue preclusion in cases involving different offenses recognized in Ashe is inconsistent with the text and purpose of the double jeopardy clause. It’s difficult to describe this analysis as “narrow.”
In addition to the plurality’s unnecessary attempt to put the last nail in the coffin of Ashe, what is striking is the lack of any real discussion in the majority opinion of the protection afforded the finality of an acquittal. This is a core double jeopardy protection that exists independent of the protection against multiple trials and that is central to the issue-preclusion doctrine.
Ginsburg’s dissent recognizes these constitutional principles. She begins by identifying as separate the protection against multiple attempts by the government to convict (multiple trials) and the protection for the finality of acquittals. Because these are separate rights, the majority’s reliance on Jeffers, Dinitz and Scott is misplaced: None of those cases involved the finality of an acquittal. Moreover, Ginsburg points out, the majority’s reliance on Dowling v. United States as limiting the applicability of issue preclusion in criminal cases is inappropriate, because there the court simply refused to extend the issue-preclusion doctrine to preclude not proof of guilt but simply proof of other crimes under Federal Rule of Evidence 404(b).
Moreover, because the right against multiple trials and the right to the finality of an acquittal are separate rights, and because an issue-preclusion claim does not necessarily bar a second proceeding, a defendant’s agreement to separate trials does not waive an issue-preclusion claim. As Ginsburg explained, Currier took no action inconsistent with assertion of an issue-preclusion plea. Relying on well-established Supreme Court waiver analysis, under which the court “indulge[s] every reasonable presumption against waiver of fundamental constitutional rights,” she stated that waiver of Currier’s issue-preclusion claim cannot be implied from his agreement to separate trials; it is not even inconsistent with an agreement to separate trials.
Finally, even assuming that the majority is correct that, given the defendant’s agreement, this case does not involve the kind of government overreaching that the double jeopardy clause is designed to prevent, the dissent, relying on precedent, concluded that issue preclusion does not require a showing of government overreaching. The protection against overreaching is protected by the right against multiple trials. But, importantly, Ginsburg pointed out that today the prosecution has an unprecedented array of charges that can be brought based on a single criminal incident. For that reason, issue preclusion remains an important double jeopardy protection.
The outcome of the case was not particularly surprising. But double jeopardy has always confused the court, resulting in reversals of recently announced principles and arguably inconsistent results. Unfortunately, the court continues to demonstrate its longstanding confusion about the various protections contained in the double-jeopardy protection, conflating “same offense,” “successive proceedings” and “finality of acquittal” purposes, protections and precedents. This confusion is manifest in the 5-4 split. Although the plurality’s attempt to further limit Ashe is a bit surprising, it is not unexpected. Courts have attempted to limit Ashe to its unique facts. But the extent to which the opinion seeks essentially to eviscerate the issue-preclusion protection from criminal cases is something new. For now, that assault remains a plurality effort.