Double Jeopardy - Collateral Estoppel

Dowling v. United States, 493 U.S. 342 (1990)

The collateral estoppel component of the double jeopardy clause does not prohibit the use of a prior acquittal as 404(b) evidence in a subsequent trial.

Yeager v. United States, 129 S. Ct. 2360 (2009)

The Court re-affirms the principle announced in Ashe v. Swenson: if a jury acquits a defendant on certain charges, additional charges may not then be brought that would require, as proof, an element necessarily decided in favor of the defendant in the first trial. This is true even if the “additional charges” were separate counts in the first trial that resulted in a hung jury. Thus, as in this case, if the defendant is acquitted of certain fraud counts and failed to reach a verdict on insider trading counts, the government would be barred from retrying the defendant on the insider tranding counts if the court determines that the basis of the fraud acquittal necessarily included a finding that an element of the insider trading count was not proven. On remand to the Fifth Circuit, the court held that applying the Supreme Court’s standard, a subsequent prosecution of Yeager would be barred by the collateral estoppels doctrine. United States v. Yeager, 5th Cir. 2009).

United States v. Fernandez, 722 F.3d 1 (1st Cir. 2013)

The jury’s acquittal of the defendant on a charge of conspiring to violate § 666, the collateral estoppel doctrine foreclosed prosecuting the defendant for conspire to travel for the purpose of violating §666 and thus a conspiracy to violate the Travel Act could not be pursued.

United States v. Coughlin, 610 F.3d 89 (D.C.Cir. 2010)

Defendant’s acquittal on certain mail fraud counts (and a hung jury on several additional mail fraud counts) precluded, pursuant to the collateral estoppel doctrine, a retrial on the mail fraud counts that were part of the same scheme. The only logical explanation for the acquittals was a finding by the jury that there was no scheme to defraud. Given that finding, a retrial on the remaining mail fraud counts could not proceed.

United States v. Ohayon, 483 F.3d 1281 (11th Cir. 2007)

The defendant was charged with attempted possession of ecstasy and conspiracy to possess with intent to distribute the ecstasy. The defendant was enlisted by a drug dealer to transport a duffle bag from a courier to a drug dealer. The defendant claimed at trial that though he retrieved the duffle bag, he did not know the contents. The jury acquitted him of attempted possession of the drugs, but deadlocked on the conspiracy charge. In a lengthy decision that canvassed the law on the topic of collateral estoppel, the court concluded that a re-prosecution for the conspiracy charge was barred by the double jeopardy clause. The only rational explanation for the jury’s decision on the attempt charge was that the government failed to prove that the defendant knew the contents of the duffle bag. Given the unanimous decision on that “fact,” a subsequent jury could not find the defendant guilty of the conspiracy count. The court discounted the government’s argument that there are no legal elements common to the attempt and conspiracy offenses, holding that there are “facts” that needed to be proved for both offenses and having failed to convince the jury of these facts in one count, the government could not try again.

United States v. Castillo-Basa, 483 F.3d 890 (9th Cir. 2007)

The Ninth Circuit held that a defendant may not be prosecuted for perjury based on his testimony at a trial which resulted in his acquittal of another offense if, as a practical matter, the jury must have credited his testimony at that trial in order to return the not guilty verdict. . At the defendant illegal re-entry trial, he testified that he did not attend the deportation hearing that resulted in his prior deportation. The jury acquitted him which, given the practicalities of the case, meant that the jury believed what he said. The government later found a tape that established that he was, in fact, at the deportation hearing. The Ninth Circuit held that the defendant could not be prosecuted for perjury, because of collateral estoppel.

United States v. Ford, 371 F.3d 550 (9th Cir. 2004)

The defendant was previously acquitted of a charge of opening a house for the purpose of distributing cocaine. The government then charged him with managing and controlling a house for the same purpose. Though the double jeopardy clause did not bar the subsequent prosecution because of the distinct elements of these offenses, the collateral estoppel principle applied, because the objective activity proscribed by the two subsections is identical.

United States v. Gallardo-Mendez, 150 F.3d 1240 (10th Cir. 1998)

In 1991, the defendant was deported as an illegal alien following a guilty plea to a charge of being an alien who illegally reentered the country. In a subsequent criminal case for illegal reentry of a deported alien, the government urged the trial court to instruct the jury that alienage was not a disputed issue – that the defendant was collaterally estopped from contesting that he was, in fact, an alien. The trial court agreed. The Tenth Circuit reversed. The government may not use a judgment in a criminal case following a plea of guilty, to collaterally estop a defendant from relitigating an issue in a subsequent criminal proceeding.

United States v. Gonzalez-Sanchez, 825 F.2d 572 (1st Cir. 1987)

The defendant was initially acquitted on a conspiracy charge. He was then tried for participation with the same co-conspirators in another conspiracy. It was reversible error for the trial court to permit the introduction of any evidence which related to the first conspiracy.

United States v. Pelullo, 14 F.3d 881 (3rd Cir. 1994)

Defendant was convicted of wire fraud in his first trial. At his second trial, which included a RICO count, the judge instructed the jury that the wire fraud conviction – one of the predicate offenses – was committed “as a matter of law.” The judge further instructed the jury that they did not have to further consider whether that offense had been committed, because, as a matter of law, it had been committed. This was reversible error. In a criminal trial, the prosecution must prove every element beyond a reasonable doubt, including the predicate offenses. The Third Circuit noted that the goal of collateral estoppel (efficiency and public policy concerns) is not necessarily consistent with the Sixth Amendment’s guarantee of a jury trial in all cases.

United States v. Morris, 79 F.3d 409 (5th Cir. 1996)

The defendant was acquitted of a substantive money laundering charge, but the jury was deadlocked on a conspiracy charge which included, as one of the overt acts, the same money laundering transaction. On retrial, the doctrine of collateral estoppel did not bar introduction of evidence of this transaction as an overt act in the conspiracy. However, the court concluded that the jury would be confused by this limited admissibility of the evidence and decided that, pursuant to Rule 403, Fed.R.Evid., the evidence would be excluded. The Fifth Circuit affirmed, concluding that this was within the district court’s Rule 403 discretion.

United States v. Frazier, 880 F.2d 878 (6th Cir. 1989)

In a prior trial, the defendant was acquitted on some counts, but the jury was unable to reach a verdict on other counts. In such a situation, the principle of collateral estoppel may preclude retrial of certain charges.

United States v. Bailin, 977 F.2d 270 (7th Cir. 1992)

In the first trial, certain counts resulted in acquittals; others resulted in a mistrial. On retrial, the government could not prove facts that were necessarily decided in the defendant’s favor in the initial trial. Double jeopardy does not apply, because, according to Richardson v. United States, 468 U.S. 317 (1984), the “new” prosecution of the mistried counts does not amount to “new” or “double” jeopardy – the original jeopardy continues past the declaration of a mistrial due to a hung jury. Collateral estoppel, however, does bar an attempt to prove facts which were necessarily decided at the first trial in favor of the defendants for the counts which resulted in acquittals. Among other things, the government cannot rely on counts which resulted in acquittals in attempting, once again, to prove the predicate offenses of a RICO violation.

United States v. Romeo, 114 F.3d 141 (9th Cir. 1997)

The defendant drove a car across the border with a trunkful of marijuana. He was tried on charges of importation and possession with intent to distribute. The jury acquitted him on the possession charge, but deadlocked on the importation charge. The defendant’s defense was that he had no idea what was in the trunk, having been asked to drive the car across the border by an acquaintance. The collateral estoppel component of the double jeopardy clause barred a retrial on the importation charge.

United States v. Stoddard, 111 F.3d 1450 (9th Cir. 1997)

The defendant’s previous acquittal of a drug conspiracy charge collaterally estopped a subsequent tax offense prosecution which required, for conviction, convincing the jury that the defendant was involved in a drug transaction that the earlier jury must have believed there was insufficient proof to convict.

United States v. McLaurin, 57 F.3d 823 (9th Cir. 1995)

The defendant was charged alternatively with bank robbery and receipt of stolen bank funds. The trial court inadvertently failed to instruct the jury that they should first consider the bank robbery charge and only if the defendant was not guilty of that offense should they consider the lesser charge of receiving the stolen money. The jury remained hung on the bank robbery charge but convicted the defendant of the lesser “receipt” offense. This verdict barred a retrial on the bank robbery charge. The jury’s verdict represented a finding that the defendant did not steal the money, but that he received it after it was stolen. This collaterally estopped the government from retrying the defendant on the robbery charge.

United States v. Weems, 49 F.3d 528 (9th Cir. 1995)

In a civil forfeiture proceeding, the district court held that the defendant was an innocent owner of his property, unaware of the growing marijuana on the property. The defendant was later prosecuted for structuring currency transactions in violation of 31 U.S.C. §5324. At trial, the government sought to introduce evidence of the marijuana on the defendant’s property. The Ninth Circuit held that the government was collaterally estopped from introducing this evidence.

United States v. Barragan-Cepeda, 29 F.3d 1378 (9th Cir. 1994)

In a 1980 trial, the defendant was charged with being an alien who re-entered the country after deportation. He was acquitted. In this case, he was prosecuted for the same offense. He submitted affidavits from some 1980 jurors to the effect that they decided that he was not an alien. These affidavits were admissible, because the affidavits were not offered on the question of the validity of the 1980 verdict. Because the 1980 jury decided that the defendant was not an alien, the government was collaterally estopped from re-litigating this issue in this prosecution.

United States v. Cejas, 817 F.2d 595 (9th Cir. 1987)

The defendant was prosecuted for conspiracy in one district and convicted. Subsequently, he was prosecuted again and contended that the double jeopardy clause barred the indictment because many of the same overt acts were used in the second indictment as were used in the first indictment. The district court dismissed the indictment. The government did not appeal, instead they simply obtained a new indictment. The Court of Appeals holds that the dismissal of the indictment was a judgment on the merits of the double jeopardy claim and since it was not appealed, it constituted a final order. As such, it had a collateral estoppel effect on any future indictment for the same offense.

United States v. Rogers, 960 F.2d 1501 (10th Cir. 1992)

A prior civil case can erect a collateral estoppel bar to a subsequent criminal prosecution. Here, a prior SEC case resolved the tax shelter fraud charges in favor of the defendant. This precluded a subsequent prosecution for mail fraud relating to the same scheme.

Buck v. Maschner, 878 F.2d 344 (10th Cir. 1989)

The defendant was tried and acquitted on two counts of child molestation in 1982. In 1984 he was again tried for child molestation and the state was permitted to introduce evidence of the prior charges. The Tenth Circuit holds that the doctrine of collateral estoppel bars the use of such testimony as a matter of constitutional law. The risk is that the government may view scant evidence of a subsequent violation of the law as an opportunity to once again present evidence of the defendant’s prior alleged wrong-doing to a second jury, the vice which the Fifth Amendment specifically was designed to prevent. The risk is also great that the defendant will be convicted based not on the evidence for which he is charged but upon the evidence of the prior incident.

United States v. Shenberg, 89 F.3d 1461 (11th Cir. 1996)

The collateral estoppel bar may apply even in cases in which the double jeopardy clause would not bar a prosecution. In this case, the prior acquittal of the defendants on certain substantive counts barred the government from using these crimes as predicate offenses in a substantive RICO prosecution.

United States v. Garcia, 78 F.3d 1517 (11th Cir. 1996)

The defendant’s prior acquittal, on a Rule 29 motion, of conspiracy to import and possess cocaine, barred a subsequent Travel Act prosecution. The earlier acquittal was predicated on the government’s failure to prove that the defendant knew that the boat on which he was traveling was laden with cocaine. Given this finding, a prosecution for a Travel Act offense, based on the same venture, was barred.

United States v. Harnage, 976 F.2d 633 (11th Cir. 1992)

Though a criminal defendant may utilize collateral estoppel to bar a prosecution or argument of facts necessarily established in a prior proceeding or to completely bar a subsequent prosecution where one of the facts necessarily determined in the former trial is an essential element of the conviction the government seeks, the government may not collaterally estop a criminal defendant from relitigating an issue decided against him in a different court proceeding. Here, the trial court barred the defendant from asserting the attorney-client privilege concerning some discussions about a planned drug transaction. In a prior case, in another district, this same defense had been rejected by the trial court.

United States v. Farmer, 923 F.2d 1557 (11th Cir. 1991)

Initially charged with one count of conspiring to violate a person’s civil rights (18 U.S.C. §241) and one count of violating a person’s rights under color of state law (18 U.S.C. §242), the defendant was tried and acquitted of the former (conspiracy) and a hung jury resulted in a mistrial on the misdemeanor count (§242). The defendant was a private citizen who “worked over” a suspect with two law enforcement officers. Prior to his retrial, he argued that a retrial was barred under the principle of collateral estoppel because, as a private citizen, if he did not conspire with the law enforcement officers, he could not possibly have been acting “under color of state law,” an ingredient of the §242 offense. In a lengthy decision which reviews the doctrine of collateral estoppel, the Court rejected the argument. Conspiring with law enforcement officers is not the same as acting under color of state law. That is, a private citizen can act under color of state law without conspiring with law enforcement officers.

United States v. Corley, 824 F.2d 931 (11th Cir. 1987)

The defendant was acquitted of aiding and abetting the embezzlement of funds from a savings and loan. The jury was deadlocked on a conspiracy count relating to the same scheme. In retrying the defendant on the conspiracy count, the government was precluded from introducing any evidence relating to the aiding and abetting offense.