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Currier v. Virginia, No. 16-1348 (2018), was a recent case in which the Supreme Court of the United States held held that the Double Jeopardy Clause does not bar retrial of the same offense when a criminal defendant consents to a severance, is found innocent in the first trial, and then raises a collateral estoppel claim to bar relitigation of issues in the second trial.

Facts
On March 7, 2012, a safe containing guns and thousands of dollars in cash was stolen from the home of Virginia resident, Paul Garrison II. Some time later, police recovered the safe from the Rockfish River in Nelson County; the safe had been disabled, the guns were destroyed, and much of the cash was missing. In their search for the perpetrators, the police, relying on several different leads and strands of evidence, ultimately zeroed in on Michael Currier. On the day the safe went missing, one of Garrison’s neighbors had seen a white truck with a safe in the back parked in Garrison’s drive way; the neighbor identified Currier as a passenger in the truck. A suspect the police had already developed, Bradley Wood, also identified Currier as a participant in the crime. The police obtained an arrest warrant for Currier on March 7, 2012, but did not locate and arrest Currier until October 18, 2012. A grand jury indicted Currier for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon. Currier had prior burglary and larceny convictions.

In order to prove the felon-in-possession count, the prosecution was allowed to introduce evidence regarding Currier’s prior felony convictions. That evidence would not have been admissible if Currier was only tried for the burglary and grand larceny, because it could prejudice the jury. And according to a Virginia practice, unless the government and the defendant agreed to hold try all three counts in one trial, the trial court had to hold two separate trials: one trial for the felon-in-possession charge and one for the burglary and grand larceny charges. Indeed according to Hackney v. Commonwealth, barring an affirmative agreement to join charges, the government must sever a felon-in-possession charge from other charges “that do not require proof of a prior conviction.

The government first tried Currier on the breaking and entering and grand larceny charges and the jury acquitted the defendant of both counts. Then, before the commencement of the second trial for the felon-in-possession charge, Currier argued that the second trial could not proceed as it would constitute double jeopardy.

Relying on Ashe v. Swenson, which held that relitigation of an issue can resemble the relitigation of an offense to the point that it violates the Double Jeopardy Clause, Currier contended that the government could not try him on the felon-in-possession charge. According to Currier, the jury definitively decided he had not participated in the alleged crime when it acquitted him in the first trial. In the alternative, Currier argued that at the second trial, the court was required to exclude any evidence regarding the burglary and larceny charges. The trial court disagreed with Currier’s double jeopardy-based collateral estoppel arguments and allowed the trial for the felon-in-possession charge to proceed. The court also allowed the prosecution to submit evidence relating to the burglary and larceny charges. The jury convicted Currier of the felon-in-possession charge and the court sentenced him to five years in prison.

Procedural History
Following sentencing, Currier, once again raising the similar claims, filed a motion to set aside the jury verdict, but the trial judge denied the motion. The Virginia Appellate court,  found that neither the Double Jeopardy Clause nor issue preclusion barred the second trial, because the trials had been severed with Currier’s “consent and for his benefit.” The Virginia Supreme Court summarily affirmed. Because circuits had split on the double jeopardy questions presented, the Supreme Court granted cert and affirmed the lower court’s decision.

Relevant Constitutional Provision
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: “No person shall be subject for the same offence to be twice put in jeopardy of life or limb. . . .” One of the purposes of the Clause is to prevent “the injustice our criminal justice system would invite if prosecutors could treat trials as dress rehearsals until they secure the convictions they seek.” In Ashe v. Swenson, the Court found for the first time that the principal of collateral estoppel is subsumed within the Fifth Amendment protection against double jeopardy.

Relevant Precedent
Ashe v. Swenson was the first case to hold that issue preclusion is embodied in the Fifth Amendment guarantee against double jeopardy. In Ashe, the defendant was accused of robbing 6 players at a poker game; the state choose to litigate each of the six charges in separate trials. In the first trial, the jury instructions stated that the jury should find the defendant guilty if it decided that he had been “one of the robbers,. . . even if he had not personally robbed [the victim].” The jury acquitted Ashe in the first trial. The state tried Ashe for robbing one of the other poker players a few weeks later, and this time the jury found Ashe guilty of participating in the robbery. While the jury issued a general verdict, the Court decided that by virtue of that verdict, the jury found that Ashe had not been one of the robbers. Therefore the Court reasoned:"After the first jury had acquitted the petitioner of robbing [the first victim], Missouri could certainly not have brought him to trial again upon that charge. Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of [the first victim] in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery."Just a few years later, in Jeffers v. United States, the Court concluded that when a defendant consents to two separate trials, but a single trial would have avoided double jeopardy concerns, if a defendant is acquitted in a first trial, he cannot then bring a double jeopardy claim to bar the second trial. Jeffers had been charged on two related drug charges—one the lesser included offense of the other--and opposed a motion to consolidate the charges in one trial. In the first trial, the jury convicted Jeffers of a lesser-included offense.[9] In pretrial motions on the second trial, Jeffers then argued “had been placed in jeopardy once for the same offense.” The same day that Jeffers was decided, the Court also decided Brown v. Ohio, holding, that once the government convicts a defendant of a lesser-included offense, it cannot then try him for a greater included offense because the government would violate the Double Jeopardy Clause. Still, the Court in Jeffers held that the general rule set forth in Brown v. Ohio was not applicable to Jeffers’ case because the “defendant expressly ask[ed] for separate trials on the greater and the lesser offenses.”

The Court had held refused to extend double jeopardy protections to defendants in a number of circumstances where the defendant’s voluntarily created a situation where double jeopardy concerns would ordinarily apply. For example, in United States v. Dinitz the Court held that double jeopardy concerns are not present when the defendant’s motion for a mistrial leads to a second trial. The Court also cited to United States v. Scott for a similar proposition.

Petitioner’s Argument
Relying heavily on the 1970 case of Ashe v. Swenson, Currier argued that after being acquitted of robbery on the first trial, a second trial that relitigated issues decided in his favor in the first trial would violate the Double Jeopardy Clause of the Fifth Amendment. Even if the Court were to permit a second trial, Currier contended, the prosecution should be barred from relitigating any issue or introducing any evidence about an issue issue already decided in his favor. Currier rejected the notion that consenting to separate trials caused him to forfeit his double jeopardy claims, arguing, "there is no inconsistency between preferring separate trials and later seeking to prevent the government from relitigating an issue resolved against it at the first trial."

Majority opinion
The Court found that Currier’s case fell squarely within the Jeffers and Dinitz line of cases, this despite Currier’s attempt to distinguish his case from those cases, claiming that holding of two separate trials was not the result of some voluntary choice. Currier reasoned that without two separate trials, evidence of his prior convictions (necessary to prove the felon-in-possession charge) would prejudice the jury with regards to the burglary and larceny charges. But the Justice Gorsuch, writing for the majority explained, “no one disputes that the Constitution permitted Virginia to try all three charges at once with appropriate cautionary instructions. So this simply isn’t a case where the defendant had to give up one constitutional right to secure another.” Instead, the Court characterized Currier’s choice as a strategic one.

Justice Kennedy, writing for a five Justice majority, held that “when a defendant’s voluntary choices lead to a second prosecution he cannot later use the Double Jeopardy Clause, whether thought of as protecting against multiple trials or the relitigation of issues, to forestall that second prosecution.” Justice Kennedy did not join Justice Gorsuch’s plurality in reexamining the fundamentals of criminal issue preclusion as established in Ashe.

Four-justice Plurality
Justice Gorsuch, joined by the Chief Justice, and Justices Alito and Thomas, went further,  dismissing Currier’s alternative argument that even if a second trial were permitted, the government should not be able to introduce evidence about an issue decided in the first case. The plurality would have applied issue preclusion in criminal trials only when the need to relitigate an issue would completely bar a second trial. The plurality would not allow issue preclusion to serve as “a bar against the relitigation of issues or evidence” within a second trial. As is relevant to future cases, the plurality questioned whether criminal issue preclusion should apply following an acquittal. After considering the text, history, and intent of the Double Jeopardy Clause, Justice Gorsuch reasoned that civil issue preclusion does not apply to criminal cases via the Fifth Amendment.

Dissenting opinions
Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, would have held that Currier’s agreement to sever the two charges did not waive his issue preclusion argument. Focusing on the fact that Currier was acquitted in the first trial, Justice Ginsburg distinguished Jeffers, Dinitz, and Scott, noting that those cases did not address “the staying power of an acquittal.” Justice Ginsburg also noted that Currier’s consent to separate trials did not result in a waiver of his issue-preclusion claim, especially because the Court “indulge[s] every reasonable presumption against waiver of fundamental constitutional rights.”

Effects of the decision
Currier has left criminal issue preclusion and Ashe on shaky ground; indeed, Justice Gorsuch, in his four-justice plurality, questioned if collateral estoppel after an acquittal is even protected by the double jeopardy clause. Looking to the text of the clause and its “same offense” text, history and precedent, Justice Gorsuch "explained that civil collateral estoppel cannot be imported into the double jeopardy protection." However, in the 2019 case of Herrera v. Wyoming, Justice Kavanaugh, who would be needed to cast a decisive 5th vote to condemn criminal issue preclusion, joined a dissent written by Justice Alito that explained, "we have never adopted the blanket prohibition [against issue preclusion in criminal cases] Instead, we have said that preclusion doctrines should have 'guarded application.'"

External link

 * 16-1348 Full text of the opinion courtesy of Findlaw.com.

Category:2018 in law Category:United States Supreme Court cases