In Currier v. Virginia, Justice Gorsuch, writing for a 5-4 majority, held that where a criminal defendant elects to sever charges into multiple trials, he cannot, after acquittal at the first trial, argue that the Double Jeopardy clause precludes the second trial from occurring. In Currier, the government charged the defendant with burglary, grand larceny, and felon in possession of a firearm. All three charges arose from an alleged home invasion, in which the government argued the defendant participated. Consistent with a Virginia state rule, the defendant and government jointly moved to sever the felon in possession charge from the other counts to avoid undue prejudice to the defendant. Despite acquittal on the burglary and grand larceny charges, the government opted to follow-through with a second trial on the felon in possession count, even though to convict, the second jury would have to conclude that the defendant participated in conduct for which the first jury acquitted him. While emphasizing that the Double Jeopardy Clause protects re-litigation of offenses (as opposed to issues), the Court concluded that the defendant's consent to severance ended the analysis. Justice Kennedy, who provided the decisive vote, wrote a concurring opinion saying further analysis was unwarranted in this case. Justice Gorsuch, joined by Chief Justice Roberts and Justices Alito and Thomas, went further, however, in a part of the opinion which Justice Kennedy did not join, addressing the dissent's opinion (written by Justice Ginsburg) head on and laying out the dangers of importing civil issue preclusion principles into criminal law through the Double Jeopardy Clause. According to the dissent, these arguments sought to upend clearly established Supreme Court case law to the contrary. The stage appears to be set, therefore, depending on the views of Justice Kennedy's replacement, for the Court to revisit past precedents that arguably incorporate principles of civil issue preclusion into criminal law, as the conservative bloc on the Court seeks to return the Double Jeopardy clause to its original focus on offenses, not issues.
John Hill, Deputy Chief, Felony Major Crimes Section, United States Attorney's Office for the District of Columbia.
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Friday, July 6, 2018, during a live teleforum conference call held exclusively for Federalist Society members.
Micah Wallen: Welcome to The Federalist Society's teleforum conference call. This afternoon, we will discuss the recent Supreme Court decision in Currier v. Virginia. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.
Today, we are happy to have with us John Hill, who is the Deputy Chief of the Felony Major Crimes Section at the United States Attorney's Office for the District of Columbia. After hearing from our speaker, we will go to audience Q&A.
Thank you for speaking with us, John. The floor is yours.
John Hill: Thanks, Micah. And let me just begin by thanking everyone for joining and also making a couple of disclaimers. First, any views expressed today are my own and are not the views of the Department of Justice, and secondly, I had no involvement in the case that we are going to be discussing today.
And it's a case that is an interesting decision, one that the Court really wrestled on, as reflected by their 5-4 decision, and one that kind of indicates that the Court might be willing to revisit some past case law in which civil issue preclusion doctrines were incorporated into criminal law. In this case, the Supreme Court held that where a defendant agrees to have charges that could be brought in one trial severed and brought in multiple trials, he cannot later complain that those subsequent trials violated his Double Jeopardy rights.
And the facts, in brief, are these: back in 2012, a break in occurred in a family's home in Virginia. During that break in, a safe was stolen which contained about $70,000 in cash and about 20 guns. The safe was later located in another county, and when police recovered it, it had been opened up, and while the cash was gone, the firearms were still there. The police investigation led to the victim's nephew as a suspect, and the nephew, in turn, implicated the petitioner in this case as his accomplice. Additionally, police had a witness who thought that she saw the petitioner involved, and they recovered a cigarette butt that later showed the petitioners DNA.
The State of Virginia charged the petitioner with three charges. First, breaking and entering into the home; second, larceny for stealing the safe with the goods inside; and thirdly, possessing a firearm, having previously been convicted of a felony. And the firearm charge was based on the theory that the petitioner had handled the guns when the safe had been opened. Now, in Virginia, there is a state rule which is different from how things are handled in federal courts, but each state can do this differently, an in Virginia, there's a rule that, generally, evidence that a defendant has committed a crime other than the offense for which he is charged, is highly prejudicial and should not be admitted. And so unless both the government and the defendant agree to have a felon in possession charge tried together with other substantive charges, a trial court is required to sever the felon in possession charge into a separate trial. And that's what happened here. Both the government and the defense agreed to the default position in Virginia and had the severance.
And so at the first trial, the petitioner was actually acquitted for breaking into the house and for stealing the safe which contained the guns. At the second trial, he was convicted on the felon in possession, even though the theory was the same, that he had broken in and participated in the theft, the very thing for which he had been acquitted. Now the evidence was a little bit different. The eye-witness testimony was stronger in the second trial, and the DNA evidence, which had been excluded from the first trial on timeliness grounds, was admitted in the second trial. And so petitioner argued that he should not have been subject to the second trial because is violated his Double Jeopardy rights.
The Virginia courts disagreed. They said basically that the Double Jeopardy clause is there to protect against government overreaching. And far from overreaching in this case, the government had actually consented to a process designed to protect the defendant from undue prejudice, namely having his prior crimes admitted into evidence during the first trial. The Supreme Court agreed with the lower courts in a 5-4 decision, and basically, they did it on a waiver theory that you can't choose to have separate trials and then later complain that those separate trials violated your Double Jeopardy rights.
Here, the Court said that constitutionally, there was no barrier in trying the felon in possession charge together with the burglary and larceny charges. Because the defendant wanted to have them separately tried, he made a knowing and voluntary decision, and he has to accept the consequences of that decision. And based on prior cases, they concluded that that means that he can be subject to a second trial, even though some of the same facts will be relitigated.
The dissent said, "No, we disagree. Even assuming that the defendant consented to separate trials, he did not consent to having the same issues litigated for which he'd been acquitted." And as the dissent put it, the primary issue in the first trial was whether the defendant participated in the burglary and theft. And so because the jury acquitted, the prosecution could not proceed on that same theory in the second trial. They could perhaps show that the defendant showed up out of nowhere down at the river and helped open up the safe if they had evidence of that, but they couldn't put on the testimony that a witness had seen him breaking into the house, or leaving the house, or any of that because that would go back to the issue that had already been litigated.
And so what really kind of turns on here is what does the Double Jeopardy Clause protect? Does it protect a defendant simply from being tried for the same offense, or does it protect him from having the same ultimate fact for which he's once been acquitted be tired again? And here is where I think there is a distinction between the conservative block, led in this case by Justice Gorsuch, and the rest of the Justices, led by Justice Ginsburg. And what they are wrestling with is how to make sense of a 1970 decision and its progeny called Ashe v. Swenson. And in Ashe, the Court, for the first time, recognized that issue preclusion, which is a principle derived from civil litigation, is a constitutional part of the Double Jeopardy Clause.
In Ashe, the prosecution was dealing with a robbery where six individuals were robbed all at the same time. For whatever reason, the prosecution indicted that as six different cases. And in the first trial of victim one, the defendant was acquitted. And the only issue that was really in dispute there was the identity of the robbers. There was no dispute that a robbery had occurred. Well, the prosecution tried the defendant again, this time for robbing victim number two, and got a conviction. The Supreme Court said, "You can't do that because the issue of identity has already been decided, and the jury has already concluded that the defendant was not one of the robbers." And so the second trial was impermissible, even though it was a separate offense because it involved a different victim, the same ultimate issue of identity was in dispute, and the prosecution doesn't get a second bite at the apple.
And so the dissent here in this case would have said, "Applying that principle, we don't believe the prosecution should have been able to retry the defendant on the theory that he participated in the burglary and theft and thus came into possession of the firearm." Now, Justice Gorsuch does something interesting here. There's three parts to the opinion. There's parts one and two, in which he commands a five Justice majority. It's Gorsuch, the Chief Justice, Justice Thomas, Justice Alito, and Justice Kennedy, the swing vote here. In part three of the opinion, in which Justice Gorsuch examines more of the history of the Double Jeopardy Clause and really pushes back on Ashe and the notion that issue preclusion from civil cases should be brought into criminal cases, Justice Kennedy doesn't join. And the reason he doesn't join is that he says it's unnecessary to the holding, that the waiver holding is sufficient to resolve this case. And in Justice Kennedy's mind, there's no reason to go back and review Ashe at this juncture and whether or not issue preclusion from civil cases should be incorporated into criminal cases.
So as to the part in which there is a majority, the holding is just that whenever you agree to have separate trials, you can't raise a Double Jeopardy Clause. And the Court relies upon past precedents which essentially, in one way or another, rely upon a similar type doctrine. And the Court distinguishes Ashe in this case because there, the Court -- it kind of characterizes Ashe as not being about issue preclusion, but really being about something more closely aligned to offense preclusion. And that's what the Court does in part three of its opinion, which is sort of innovative, and it's really a clever way to frame the issue. What Justice Gorsuch says is that Ashe's notion of issue preclusion, again, a civil concept, is a significant innovation, he says, to the Court's jurisprudence, even says that it sits uneasily with this Court's Double Jeopardy precedent in the Constitution's original meaning.
And it's noteworthy that that picks up on something that Justice Thomas had noted just two years before in a recent Double Jeopardy case where he actually says that the Court, in the appropriate instance, ought to review Ashe and whether or not this issue preclusion idea is even a sound basis, and whether it ever should have been decided the way that it was. So Gorsuch seems sympathetic to that. And what he does in part three of the opinion, which is just a plurality because Justice Kennedy doesn't join, is he says that, really, the notion that issue preclusion principles in civil cases is incorporated in the Double Jeopardy Clause is a novel issue, and the defendant is asking the Court to do that for the first time.
And if you read some of the past decisions, you might say, "Well, how does that comport? Because it seems like the Court for the last 50 years, whether the Justices agreed or disagreed, have sort of acknowledged that the Court has, in limited instances, allowed civil issue preclusion principles to affect its Double Jeopardy Clause analysis. But Gorsuch says that, really, what those decisions are is saying that the issue is so aligned with the offense as to be tantamount to, really, offense preclusion, which is what the Double Jeopardy Clause, by its own terms, permits. And so Ashe is sort of the outer orbit of that doctrine, but really, there's no reason to extend it any further, and perhaps we should actually reconsider whether even that outer orbit is entirely consistent.
And he gets to that point by a number of ways. He looks at the actual text of the Double Jeopardy Clause, which says that "no person shall be subject for the same offense to be twice put in jeopardy of life or limb." And he says offense, as used in the Double Jeopardy Clause, means just that. It doesn't mean an ultimate fact. It doesn't mean an issue, as those things are understood in the civil context. It means an offense, an actual charge.
And the Supreme Court, way back in the 1930s in the Blockburger case, set out the test for determining whether two offenses are the same or different for Double Jeopardy purposes. And what that test says is that even though the charges may be arising out of the same event, if each charge requires proof of a fact the other does not, they're not the same offense. And a good example would be, imagine, for example, you had someone who was charged with carrying a pistol without a license and felon in possession of a firearm, both for the same weapon. Now, it's the same facts which underly both charges, but they are separate offenses because one requires proof that the person didn't have a license for the gun. The other requires proof that the person had previously been convicted of a crime punishable by more than one year. So same facts, two separate charges. Under Blockburger, those would be two separate offenses, and under the offense test of the Double Jeopardy, you could charge them, actually, in theory, in two separate trials, even though they arise from the same offense. And he looks to the Fifth Amendment as a basis in support of that.
And by contrast, Justice Gorsuch looks at the Seventh Amendment, which doesn't use the offense language, but says something else. It says, "No fact tried by a jury shall be otherwise reexamined in any court of the United States." And so he says it makes sense that in the civil context that what we're concerned about is ultimate facts or issues, but that's because the Constitution actually singles that out in the Seventh Amendment; in the Fifth Amendment, it's something else.
In addition to sort of an original intent statutory interpretation argument, he also looks at some of the practical justifications for why criminal law should not be adopting issue preclusion as it's in civil law. And he notices that one reason is that issue preclusion is generally inapplicable, even in civil cases, where the party against whom it is sought is not allowed to appeal the decision. The reason for that is issue preclusion is base on the notion that we've thoroughly vetted the conclusion, it's had a chance to be looked at by multiple layers of the judicial system, and we can trust with confidence that that conclusion is sound. But in a criminal acquittal, the government has no ability to appeal the decision. And so a jury may, for unfounded reasons, acquit someone, maybe in defiance of the law or instructions, acquit someone. And so it shouldn't be given that same recognition of finality that in a civil case you have where a plaintiff or defendant have the right to appeal and have whatever factual findings are issued below be reviewed.
Another reason why Justice Gorsuch says we should not be incorporating civil issue preclusion principles into criminal law is that, unlike in the civil context, the government is not allowed to apply issue preclusion offensively. So in a civil case, both the plaintiff and the defendant have the ability to say this issue has previously been decided between the parties, therefore it cannot be relitigated again. And it can be used offensively by the plaintiff or defensively to by the defendant.
But in the criminal context, it would only be a one-sided scenario. Only the defendant can assert it because the government would not be able to. If the government could, then in this case, for example, if there had been convictions on the burglary and theft charges, then in a subsequent trial for the felon in possession, the government would be able to say, "Hey, the defendant can't relitigate whether or not he possessed these weapons because by finding that he had stolen them in the first case, he by definition had possessed them, and therefore the only issue in dispute in the second case is whether he had a prior felony. He can't relitigate the issue." And obviously, that's not something that most defendants would want to have used against them.
And I guess the final practical reason for Justice Gorsuch is that if issue preclusion is incorporated into criminal law, it will make judges more hesitant and make prosecutors more unwilling to concede or grant severances because of the possible unintended consequences on what that severance could mean for the ability for the prosecutors to ultimately see all the charges that they have against the defendant brought to trial and to verdict. And so for those reasons, Justice Gorsuch indicates that, really, it's not a great idea to be messing around with civil law principles in the concept of a criminal law case. Now, the defense looks at this and says, "We disagree," and says that the plurality would take us back to the days before the court recognized issue preclusion as a constitutionally grounded component of the Double Jeopardy Clause.
So in essence, where are we left here? Well, we've got a string of case law dating back to the Ashe case in 1970 where the Court has wrestled with the appropriateness of incorporating civil issue preclusion law into the criminal context. At various times, they have done that, starting with Ashe and some of the cases that followed it. They've also pushed back on it, finding that where a defendant requests a mistrial, for example, you can't later claim that, if that mistrial is granted, that he can't be retried because he actively sought, in essence, the second trial.
It also has created some interesting nuances where you have mixed verdicts. The Court has said that where you have a case in which, for example, there are four charges, all arising out of the same incident, and a jury convicts on two and acquits on two, even though that's an inconsistent verdict, issue preclusion doesn't apply because, you know what, we're just going to allow them to kind of split the baby, if that's what they want to do, even if that's nonsensical. But, by contrast, and the Court dealt with this back in the Yeager case in 2009, if you've got those same four charges and the jury acquits on two and hangs on two, and you want to retry the defendant on the two counts for which the jury hung, well, issue preclusion would apply then because the court doesn't recognize the validity of the hung counts. They're a non-event for purposes of the analysis, and if the ultimate fact in the two counts of acquittal would preclude the government from proceeding on the hung counts, then Double Jeopardy applies.
So it creates some somewhat anomalous results here, and the question is going forward, what's the Court going to do? And the answer is it's unclear. You clearly have, I think, in this instance, Justice Gorsuch speaking for four justices who are willing to say, "You know, we think this experiment with issue preclusion has gone too far, and either we're not willing to expand it any further, or perhaps we're actually willing to go back and say we made a mistake in 1970 with Ashe, and the cases that rely upon it really ought to be overturned."
Justice Kennedy is not willing to go there, but now the question is Justice Kennedy won't be here for the next time this issue comes up. Can that four justice plurality in this decision find a fifth justice who will agree with them and, in their view, restore the Double Jeopardy Clause to its original intent? Or in the view of the dissent, can they find a fifth justice who will agree to continue the doctrine of Ashe and recognize that, while it's not a perfect fit, issue preclusion does have its place in our criminal jurisprudence, especially because that jurisprudence has developed since the time of the Constitution. And in the dissent's views, there are reasons now why we would want that in the criminal law whereas we may not have needed it back in the time of the Constitution's founding.
So that's where we are after this decision. It's not necessarily a ground-breaking decision, but it certainly, I think, the way that Justice Gorsuch has framed the issue, it does set the stage for potential further development, depending on who the fifth justice will be in the future.
Micah Wallen: Thank you, John. Let's go to audience Q&A. In a moment, you'll hear a prompt indicating that the floor mode has been turned on. After that, to request the floor, enter the star and then the pound key on your telephone keypad. When we get to your request, you will hear a prompt, and then you may ask your question. We will answer questions in the order in which they are received. Again, to ask a question, please enter the star and then the pound key on your telephone keypad.
John, while we're waiting to see if any questions roll in, could you tell us a little bit about whether this result being 5-4 and a bit of a narrower decision with Kennedy not joining the full majority opinion, was that result surprising for some people or was this what was expected going in?
John Hill: Yeah, I think it was somewhat surprising, and it wasn't clear from the oral argument really how this was going turn out. A lot of justices were asking questions at the oral argument, and they were really grappling with whether this case fits more in the Ashe line of cases or more in the waiver line of cases. And you saw justices like Justice Breyer struggling to figure out a practical way to address it, and Justice Kagan, too. I mean, they all kind of recognized that there was a bit of waiver in here, but it was also the same issue being relitigated, and they just couldn't figure out how the right way to deal with that would be.
That being said, it wasn't clear from the oral argument which way Justice Gorsuch was going to go, one, and secondly, it certainly wasn't clear that he was going to come out so in favor of a robust defense of the original purpose behind the Double Jeopardy Clause. And so the decision, you know, it could have been -- he could have stopped this decision, I think, with what was necessary to secure the support of Justice Kennedy and not gone into part three where there is that whole analysis of the history and text and purpose behind the Double Jeopardy Clause where he directs a lot of his firepower at how Ashe seems to deviate from that, again, sort of setting up the potential for, I think, Ashe being revisited down the road. So I think it's surprising in that way because that wasn't evident really from the briefs, and it wasn't evident from the oral argument that he would have a 5-4 decision in this fashion. In fact, if anything, I thought he might have been able to cobble together more than 5 on some narrow basis, just based on the waiver doctrine.
Micah Wallen: And how do you think this case sort of fits with long-term what the Court's going to do with how the, I guess in a sense, how the evolution of the Double Jeopardy rule and the fact that we have much more criminal laws now than we did when it was first instigated? How do you think the Court is going to deal with that moving forward, and what in this opinion gives us an indication towards the direction moving forward?
John Hill: Yeah, it's a good question because it's something that both the majority and the dissent touch upon, the dissent more heavily. And dissent acknowledges—I think both sides actually acknowledge—that the original intent of the Double Jeopardy Clause was focused just on preventing the same offense from being tried multiple times. The majority actually talks about in the common law, if a person was involved in stealing both a horse and a saddle at the same time, they could be tried in one trial for stealing the horse and be acquitted, and they could be tried in the second trial for stealing the saddle and be convicted, and that was okay, because it was truly offense based, it wasn't fact based.
I think everyone acknowledged that was the history, but as the dissent put it, at the time of the Constitution in general, there was just a lot fewer criminal charges. And typically, one criminal event or episode would result in one criminal charge. And so the possibility of multiple trials just wasn't there in the same way that it's become today where one criminal event, because of the greater specificity and just volume of our criminal law, could be the basis for 10, 15 different charges. And so the dissent is worried that that provides an opportunity for the government to basically do dress rehearsals and to try people over and over again until they get the result they want because there's always another charge that they could bring related to that same conduct. And so, as a result of that, the dissent thinks it's ever more important that we have a more robust Double Jeopardy protection, and that's where issue preclusion comes in.
And the majority notes that that is a possibility, and Justice Gorsuch recognizes that. However, from the majority's point of view, and Justice Gorsuch says this at the very end of the opinion, "While the growing number of criminal offenses in our statute books may be cause for concern, no one should expect or want judges to revise the Constitution to address every social problem they happen to perceive." And Gorsuch says that's the legislature, which is properly suited to address this issue, and he notes some states already have, and he says, "On these matters, the Constitution dictates no answers but entrusts them to a self-governing people to resolve." And so, from the majority standpoint, "Yeah, that's an issue, but it's not ours to resolve." The dissent would say, "No, it's ours to read the Constitution to address that."
What none of them really, I think, recognize is that while it is true that the government has more power to charge than it may have once upon a time, it also has plenty of incentive to get everything done in one trial. Trials—and the majority notes this at one point in its opinion—that trials are costly and they take up a lot of time and resources, and both sides have an interest in not doing them over and over again. It's just a resource issue. And so while there are more -- there is, in theory, the potential that the government could just keep charging you for the same conduct over and over again with different offenses, in reality, few, I think, prosecutor's offices have the resources or will to do something like that.
Micah Wallen: Interesting. While keeping the question line open, I'd like to announce that our next regularly scheduled teleforum conference call will be next Monday, July 9th at 3:00 p.m. Eastern Time. That call will be on the GDPR and the future of internet privacy. Joining us on that call will be Sunny Seon Kang who is an International Consumer Counsel for the Electronic Privacy Information Center, and Roslyn Layton who is a Visiting Scholar at the American Enterprise Institute, as well as Adam Thierer who is a Senior Research Fellow at Mercatus Center at George Mason University.
Well, I'm not seeing any questions in the queue. John, I'd like to give you a chance for any closing remarks.
John Hill: Thanks, Micah. Just, I think we'll have to stay tuned and see where we go with this and see how the court will both look at its past precedents going forward and whether it sort of takes the cue from Justice Gorsuch that Ashe should be reframed so that it's limited, or perhaps even in the future, revisited and overturned.
Micah Wallen: All right. Well, on behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. And we welcome listener feedback by email at firstname.lastname@example.org. Thank you all for joining us. We are adjourned.