The “Same Transaction” Problem.

The Supreme Court has also interpreted the Double Jeopardy Clause to incorporate the doctrine of “collateral estoppel” or “issue preclusion”167 –that is, the general legal principle that prohibits the relitigation of an issue of fact or law raised and necessarily resolved by a prior judgment.168 The Court first recognized the Double Jeopardy Clause’s issue-preclusion component in Ashe v. Swenson.169 Ashe involved a robbery of six poker players.170 The defendant in Ashe, after being acquitted of robbing one of the players because of insufficient evidence, was tried and convicted of robbing another player.171 The Court held that because the sole issue in dispute in the first trial was whether Ashe had been one of the robbers, “[o]nce a jury had determined . . . that there was at least a reasonable doubt” as to that issue, the Constitution protected a “man who has been acquitted from having to ‘run the gantlet’ a second time.”172 In so holding, Ashe explained that issue preclusion in criminal cases must be applied with “realism and rationality” with a close examination of the underlying record to determine what was “actually decided” by the prior jury’s verdict of acquittal.173 If a criminal judgment does not depend on a jury’s determination of a particular factual issue, relitigation of that issue can occur.174

Then in United States v. Powell, the Court rejected the argument that issue preclusion barred the acceptance of an “inconsistent” jury verdict that included an acquittal on a drug charge but guilty verdicts of using a telephone to “caus[e] and faciliat[e]” that same drug offense.175 Reaffirming a precedent from more than a half a century before,176 the Powell Court held that the “Government’s inability to invoke review, the general reluctance to inquire into the workings of the jury, and the possible exercise of lenity” by the jury cautioned against allowing defendants to challenge inconsistent verdicts on issue preclusion grounds.177

Several decades later, the Court extended the logic of Powell in Bravo-Fernandez v. United States.178 In that case, a jury had returned inconsistent verdicts of conviction and acquittal with respect to two criminal defendants, but their convictions were later vacated for legal errors unrelated to the inconsistency.179 The Court, recognizing Powell’s conclusion that inconsistent verdicts do not indicate whether the acquittal was the result of “mistake, compromise, or lenity,”180 held that re-prosecution on the counts on which a conviction was initially obtained could occur. According to the Court, because of the “irrationality” of the earlier inconsistent verdicts,181 the criminal defendants failed to demonstrate that the first jury had “actually decided” that they did not commit the crime underlying the second trial.182 As a result, while the government was prohibited from re-prosecuting the defendants in Bravo-Fernandez on the charges that had earlier resulted in an acquittal,183 issue preclusion could not be used to prevent a second trial on the charges that had previously resulted in guilty verdicts.

Footnotes

167
See Ashe v. Swenson, 397 U.S. 436, 445 (1970). Collateral estoppel and issue preclusion are synonymous terms. See BLACK’S LAW DICTIONARY 312 (10th ed. 2014) (defining “collateral estoppel”). back
168
See RESTATEMENT (SECOND) OF JUDGMENTS § 27 (Am. Law Inst. 1981). back
169
397 U.S. at 445. Previously, the Court in Hoag v. New Jersey, concluded that successive trials arising out of a tavern hold-up in which five customers were robbed did not violate the Due Process Clause of the Fourteenth Amendment. See 356 U.S. 464, 466 (1958). back
170
397 U.S. at 437. back
171
397 U.S. at 439–40. back
172
Id. at 446 (quoting Green v. United States, 355 U.S. 184, 190 (1957)). back
173
Id. at 444. back
174
See Bobby v. Bies, 556 U.S. 825, 834 (2009) (citing RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. h). back
175
See United States v. Powell, 469 U.S. 57, 68 (1984). back
176
See Dunn v. United States, 284 U.S. 390, 392 (1932). back
177
469 U.S. at 68–69. back
178
580 U.S. ___, No. 15–537, slip op. at 2 (2016) (“We therefore bracket this case with Powell. . .”). back
179
Id. at 9–10. Had the convictions been overturned because of lack of evidence, the government would have been prohibited from retrying the defendants, as a court’s evaluation of the evidence as insufficient to convict is the equivalent to an acquittal and, accordingly, bars reprosecution for that same offense. See Burks v. United States, 437 U.S. 1, 10–11 (1978). back
180
See Bravo-Fernandez, slip op. at 17. back
181
Id. at 18. back
182
Id. at 16. The Bravo-Fernandez Court distinguished the case from Yeager v. United States, 557 U.S. 110 (2009), where the Court held that Powell did not extend to the situation where a jury returned a verdict of acquittal on one count and hung on another count and prosecutors attempted to retry on the hung count. Id. at 124. Because the jury “speaks only though its verdict,” a hung count did not reveal anything about the jury’s reasoning and only the acquittal could factor into the issue preclusion analysis. Id. at 122. Unlike in Yeager, the acquittals in Bravo-Fernandez were accompanied with inconsistent guilty verdicts, leading the Court to conclude that the criminal defendants could not demonstrate that the jury had actually decided the underlying issue at the second trial. See Bravo-Fernandez, slip op. at 16–18. back
183
See Bravo-Fernandez, slip op. at 19 (noting that the earlier acquittals “remain inviolate”). back