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Petitioner: MICHAEL NELSON CURRIER VS Respondent: VIRGINIA
Court Name: Supreme Court of United States Judge(s):John G. Roberts, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan,
Clarence Thomas, Neil M. Gorsuch, Ruth Bader Ginsburg, Anthony M. Kennedy, Samuel Anthony Alito Title: MICHAEL NELSON CURRIER vs VIRGINIA Case No.: Date of Judgment:2018-07-22 Reported As: 2018 SCMR 1695 Result: Order accordingly Judgment IUDGMENT JUSTICE GORSUCH announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Part III, in which THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE ALITO join. About to face trial, Michael Currier worried the prosecution would introduce prejudicial but probative evidence against him on one count that could infect the jury's deliberations on others. To address the problem, he agreed to sever the charges and hold two trials instead of one. But after the first trial finished, Mr. Currier turned around and argued that proceeding with the second would violate his right against double jeopardy. All of which raises the question: can a defendant who agrees to have the charges against him considered in two trials later successfully argue that the second trial offends the Fifth Amendment's Double Jeopardy Clause? This case began when police dredged up a safe full of guns from a Virginia river. Paul Garrison, the safe's owner, had reported it stolen from his home. Before the theft, Mr. Garrison said, it contained not just the guns but also $71,000 in cash. Now, most of the money was missing. As the investigation unfolded, the police eventually found their way to Mr. Garrison's nephew. Once confronted, the nephew quickly confessed. Along the way, he pointed to Michael Currier as his accomplice. A neighbor also reported that she saw Mr. Currier leave the Garrison home around the time of the crime. On the strength of this evidence, a grand jury indicted Mr. Currier for burglary, grand larceny, and unlawful possession of a fire arm. by a convicted felon. The last charge followed in light of Mr. Currier's previous convictions for (as it happens) burglary and larceny.
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Because the prosecution could introduce evidence of his prior convictions to prove the felon-in- possession charge, and worried that the evidence might prejudice the jury's consideration of the other charges, Mr. Currier and the government agreed to a severance. They asked the court to try the burglary and larceny charges first. Then, they said, the felon-in-possession charge could follow in a second trial. Some jurisdictions routinely refuse requests like this. Instead, they seek to address the risk of prejudice with an instruction directing the jury to consider the defendant's prior convictions only when assessing the felon in-possession charge. See Brief for Indiana et al. as Amici Curiae 10. Other jurisdictions allow parties to stipulate to the defendant's past convictions so the particulars of those crimes don't reach the jury's ears. Ibid. Others take a more protective approach yet and view severance requests with favor. Id., at 11-12; see, e.g., Hackney v. Commonwealth, 28 Va. App. 288, 294-296, 504 S. E. 2d 385, 389 (1998) (en bane). Because Virginia falls into this last group, the trial court granted the parties' joint request in this case. The promised two trials followed. At the first, the prosecution produced the nephew and the neighbor who testified to Mr. Currier's involvement in the burglary and larceny. But Mr. Currier argued that the nephew lied and the neighbor was unreliable and, in the end, the jury acquitted. Then, before the second trial on the firearm charge could follow, Mr. Currier sought to stop it. Now, he argued, holding a second trial would amount to double jeopardy. Alternatively and at the least, he asked the court to forbid the government from relitigating in the second trial any issue resolved in his favor at the first. So, for example, he said the court should exclude from the new proceeding any evidence about the burglary and larceny. The court replied that it could find nothing in the Double Jeopardy Clause requiring either result so it allowed the second trial to proceed unfettered. In the end, the jury convicted Mr. Currier on the felon-in-possession charge. Before the Virginia Court of Appeals, Mr. Currier repeated his double jeopardy arguments without success. The court held that the "concern that lies at the core" of the Double Jeopardy Clause-- namely, "the avoidance of prosecutorial oppression and overreaching through successive trials"-- had no application here because the charges were severed for Mr. Currier's benefit and at his behest. Currier v. Commonwealth, 65 Va. App. 605, 609-613, 779 S. E. 2d 834, 836-837 (2015). The Virginia Supreme Court summarily affirmed. Because courts havereached conflicting results on the double jeopardy arguments Mr. Currier pressed in this case, we granted certiorari to resolve them. 583 U. S.(2017). The Double Jeopardy Clause, applied to the States through the Fourteenth Amendment, provides that no person may be tried more than once "for the same offence." This guarantee recognizes the vast power of the sovereign, the ordeal of a criminal trial, and the injustice our criminal justice system would invite if prosecutors could treat trials as dress rehearsals until they secure the convictions they seek. See Green v. United States, 355 U. S. 187, 188 (1957). At the same time, this Court has said, the Clause was not written or originally understood to pose "an insuperable obstacle to the administration of justice" in cases where "there is no semblance of [these] type[s] of oppressive practices." Wade v. Hunter, 336 U. S. 684, 688-689' (1949). On which side of the line does our case fall? Mr. Currier suggests this Court's decision in Ashe v. Swenson, 397 U. S. 436 (1970), requires a ruling for him. There, the government accused a defendant of robbing six poker players in &game at a private home. At the first trial, the jury acquitted the defendant of robbing one victim. Then the State sought to try the defendant for robbing a second victim. This Court held the second prosecution violated the Double Jeopardy Clause. Id., at 446. To be sure, the Clause speaks of barring successive trials for the same offense. And, to be sure, the State sought to try the defendant for a different robbery. But, the Court reasoned, because the first jury necessarily found that the defendant "was not one of the robbers," a second jury could not "rationally" convict the defendant of robbing the second victim without calling into question the earlier acquittal. Id., at 445-446. In these circumstances, the Court indicated, any relitigation of the
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issue whether the defendant participated as "one of the robbers" would be tantamount to the forbidden relitigation of the same offense resolved at the first trial. Id., at 445; see Yeager v. United States, 557 U. S. 110, 119-120 (2009). Ashe's suggestion that the relitigation of an issue can sometimes amount to the impermissible relitigation of an offense represented a significant innovation in our jurisprudence. Some have argued that it sits uneasily with this Court's double jeopardy precedent and the Constitution's original meaning. See, e.g., Ashe, supra, at 460-461 (Burger, C. J., dissenting); Yeager, supra, at 127- 128 (Scalia, J., dissenting). But whatever else may be said about Ashe, we have emphasized that its test is a demanding one. Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant's favor in the first trial. See Yeager, supra, at 119-120; id., at 127 (KENNEDY, J., concurring in part and concurring in judgment); id:, at 133-134 (ALITO, J., dissenting). A second trial "is not precluded simply because it is unlikely--or even very unlikely--that the original jury acquitted without finding the fact in question." Ibid. To say that the second trial is tantamount to a trial of the same offense as the first and thus forbidden by the Double Jeopardy Clause, we must be able to say that "it would have been irrational for the jury" in the first trial to acquit without finding in the defendant's favor on a fact essential to a conviction in the second. Id., at 127 (opinion of KENNEDY, J.) (internal quotation marks omitted). Bearing all that in mind, a critical difference immediately emerges between our case and Ashe. Even assuming without deciding that Mr. Currier's second trial qualified as the retrial of the same offense under Ashe, he consented to it. Nor does anyone doubt that trying all three charges in one trial would have prevented any possible Ashe complaint Mr. Currier might have had. How do these features affect the double jeopardy calculus? A precedent points the way. In Jeffers v. United States, 432 U. S. 137 (1977), the defendant sought separate trials on each of the counts against him to reduce the possibility of prejudice. The court granted his request. After the jury convicted the defendant in the first trial of a lesser-included offense, he argued that the prosecution could not later try him for a greater offense. In any other circumstance the defendant likely would have had a good argument. Historically, courts have treated greater and lesser- included offenses as the same offense for double jeopardy purposes, so a conviction on one normally precludes a later trial on the other. Id., at 150-151 (plurality opinion); Brown v. Ohio, 432 U. S. 161, 168-169 (1977) (collecting authorities). But, Jeffers concluded, it's different when the defendant consents to two trials where one could have done. If a single trial on multiple charges would suffice to avoid a double jeopardy complaint, "there is no violation of the Double Jeopardy Clause when [the defendant] elects to have the . . . offenses tried separately and persuades the trial court to honor his election." 432 U. S., at 152. What was true in Jeffers, we hold, can be no less true here. If a defendant's consent to two trials can overcome concerns lying at the historic core of the Double Jeopardy Clause, so too we think it must overcome a double jeopardy complaint under Ashe. Nor does anything in Jeffers suggest that the outcome should be different if the first trial yielded an acquittal rather than a conviction when a defendant consents to severance. While we acknowledge that Ashe's protections apply only to trials following acquittals, as a general rule, the Double Jeopardy Clause "'protects against a second prosecution for the same offense after conviction" as well as "'against a second prosecution for the same offense after acquittal.'" Brown, supra, at 165. Because the Clause applies equally in both situations, consent to a second trial should in general have equal effect in both situations. Holding otherwise would introduce an unwarranted inconsistency not just with Jeffers but with other precedents too. In United States v. Dinitz, 424 U. S. 600 (1976), for example, this Court held that a defendant's mistrial motion implicitly invited a second trial and was enough to foreclose any double jeopardy complaint about it. In reaching this holding, the Court expressly rejected "the
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contention that the permissibility of a retrial depends on a knowing, voluntary, and intelligent waiver" from the defendant. Id., at 609 n. 11. Instead, it explained, none of the "prosecutorial or judicial overreaching" forbidden by the Constitution can be found when a second trial follows thanks to the defendant's motion. Id. at 607. In United States v. Scott, 437 U. S. 82 (1978), this Court likewise held that a defendant's motion effectively invited a retrial of the same offense, and "the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of [a] voluntary choice" like that. Id., at 96, 99; see also Evans v. Michigan, 568 U. S. 313, 326 (2013) ("[R]etrial is generally allowed [when] the defendant consents to a disposition that contemplates reprosecution"). While relinquishing objections sometimes turns on state or federal procedural rules, these precedents teach that consenting to two trials when one would have avoided a double jeopardy problem precludes any constitutional violation associated withholding a second trial. In these circumstances, our cases hold, the defendant wins a potential benefit and experiences none of the prosecutorial "oppression" the Double Jeopardy Clause exists to prevent. Nor, again, can we discern a good reason to treat Ashe double jeopardy complaints more favorably than traditional ones when a defendant consents to severance. Against these precedents, Mr. Currier asks us to consider others, especially Harris v. Washington, 404 U. S. 55 (1971) (per curiam) and Turner v. Arkansas, 407 U. S. 366 (1972) (per curiam). But these cases merely applied Ashe's test and concluded that a second trial was impermissible. They did not address the question whether double jeopardy protections apply if the defendant consents to a second trial. Meanwhile, as we've seen, Jeffers, Dinitz, and Scott focus on that question directly and make clear that a defendant's consent dispels any specter of double jeopardy abuse that holding two trials might otherwise present. This Court's teachings are consistent and plain: the "Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice." Scott, supra, at 99. Mr. Currier replies that he had no real choice but to seek two trials. Without a second trial, he says, evidence of his prior convictions would have tainted the jury's consideration of the burglary and larceny charges. And, he notes, Virginia law guarantees a severance in cases like his unless the defendant and prosecution agree to a single trial. But 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, Mr. Currier faced a lawful choice between two courses of action that each bore potential costs and rationally attractive benefits. It might have been a hard choice. But litigants every day face difficult decisions. Whether it's the defendant who finds himself in the shoes of Jeffers, Dinitz, and Scott and forced to choose between allowing an imperfect trial to proceed or seeking a second that promises its own risks. Or whether it's the defendant who must decide between exercising his right to testify in his own defense or keeping impeachment evidence of past bad acts from the jury. See, e.g., Brown v. United States, 356 U. S. 148, 154-157 (1958). This Court has held repeatedly that difficult strategic choices like these are "not the same as no choice," United States v. Martinez-Salazar, 528 U. S. 304, 315 (2000), and the Constitution "does not . . . forbid requiring" a litigant to make them, Mc Gautha v. California, 402 U. S. 183, 213 (1971). III Even if he voluntarily consented to holding the second trial, Mr. Currier argues, that consent did not extend to the relitigation of any issues the first jury resolved in his favor. So, Mr. Currier says, the court should have excluded evidence suggesting he possessed the guns in Mr. Garrison's home, leaving the prosecution to prove that he possessed them only later, may be down by the river. To support this argument, Mr. Currier points to issue preclusion principles in civil cases and invites us to import them for the first time into the criminal law through the Double Jeopardy Clause. In his view, the Clause should do much more than bar the retrial of the same offense (or crimes tantamount to the same offense under Ashe); it should be read now to prevent the parties from
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retrying any issue or introducing any evidence about a previously tried issue. While the dissent today agrees with us that the trial court committed no double jeopardy violation in holding the second trial, on this alternative argument it sides with Mr. Currier. See post, at 11, 12, 14-15. We cannot. Even assuming for argument's sake that Mr. Currier's consent to holding a second trial didn't more broadly imply consent to the manner it was conducted, we must reject his argument on a narrower ground. Just last Term this Court warned that issue preclusion principles should have only "guarded application . . . in criminal cases." Bravo-Fernandez v. United States, 580 U. S. (2016) (slip op. at 4). We think that caution remains sound. Mr. Currier's problems begin with the text of the Double Jeopardy Clause. As we've seen, the Clause speaks not about prohibiting the relitigation of issues or evidence but offenses. Contrast this with the language of the Reexamination Clause. There, the Seventh Amendment says that "Mil Suits at common law . . . no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."(Emphasis added.) Words in one provision are, of course, often understood "by comparing them with other words and sentences in the same instrument." 1 J. Story, Commentaries on the Constitution of the United States 400, p. 384 (1833). So it's difficult to ignore that only in the Seventh Amendment--and only for civil suits--can we find anything resembling contemporary issue preclusion doctrine. What problems the text suggests, the original public understanding of the Fifth Amendment confirms. The Double Jeopardy Clause took its cue from English common law pleas that prevented courts from retrying a criminal defendant previously acquitted or convicted of the crime in question. See Scott, 437 U. S., at 87; 4 W. Blackstone, Commentaries on the Laws of England 329-330 (1769). But those pleas barred only repeated "prosecution for the same identical act and crime," not the retrial of particular issues or evidence. Id., at 330 (emphasis added). As Sir Matthew Hale explained: "If A. commit a burglary . . . and likewise at the same time steal goods out of the house, if he be indicted of larciny for the goods and acquitted, yet he may be indicted for the burglary notwithstanding the acquittal. And converso, if indicted for the burglary and acquitted, yet he may be indicted of the larciny, for they are several offenses, the committed at the same time." 2 M. Hale, The History of the Pleas of the Crown, ch. 31, pp. 245-246 (173 ed.). Both English and early American cases illustrate the point. In Turner's Case, 30 Kel. J. 30, 84 Eng. Rep. 1068 (K. B. 1663), for example, a jury acquitted the defendant of breaking into a home and stealing money from the owner. Even so, the court held that the defendant could be tried later for the theft of money "stolen at the same time" from the owner's servant. Ibid. In Commonwealth v. Roby, 12 Pickering 496 (Mass. 1832), the court, invoking Blackstone, held that "[i]n considering the identity of the offence, it must appear by the plea, that the offence charged in both cases was the same in law and in fact." Id., at 509. The court explained that a second prosecution isn't precluded "if the offences charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact." Ibid. (emphasis added). Another court even ruled "that a man acquitted for stealing the horse hath yet been arraigned and convict for stealing the saddle, tho both were done at the same time." 2 Hale, supra, at 246. These authorities and many more like them demonstrate that early courts regularly confronted cases just like ours and expressly rejected the notion that the Double Jeopardy Clause barred the relitigation of issues or facts. See also Grady v. Corbin, 495 U. S. 508, 533-535 (1990) (Scalia, J., dissenting) (collecting authorities); 2 W. Hawkins, Pleas of the Crown, ch. 35, p. 371 (1726 ed.); 1 J.Chitty, Criminal Law 452-457 (1816); M. Friedland, Double Jeopardy 179, and n. 2 (1969). Any suggestion that our case presents a new phenomenon, then, risks overlooking this long history. See post, at 4-5 (GINSBURG, J., dissenting). This Court's contemporary double jeopardy cases confirm what the text and history suggest. Under Block-burger v. United States, 284 U. S. 299 (1932), the courts apply today much the same double
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jeopardy test they did at the founding. Id., at 304. To prevent a second trial on anew charge, the defendant must show an identity of statutory elements between the two charges against him; it's not enough that "a substantial overlap [exists] in the proof offered to establish the crimes." lannelli v. United States, 420 U. S. 770, 785, n. 17 (1975) (emphasis added). Of course, Ashe later pressed Blockburger's boundaries by suggesting that, in narrow circumstances, the retrial of an issue can be considered tantamount to the retrial of an offense. See Yeager, 557 U. S., at 119. But, as we've seen, even there a court's ultimate focus remains on the practical identity of offenses, and the only available remedy is the traditional double jeopardy bar against the retrial of the same offense--not a bar against the relitigation of issues or evidence. See id., at 119-120. Even at the outer reaches of our double jeopardy jurisprudence, then, this Court has never sought to regulate the retrial of issues or evidence in the name of the Double Jeopardy Clause. Nor in acknowledging this do we plow any new ground. In Dowling v. United States, 493 U. S. 342 (1990), the defendant faced charges of bank robbery. At trial, the prosecution introduced evidence of the defendant's involvement in an earlier crime, even though the jury in that case had acquitted. Like Mr. Currier, the defendant in Dowling argued that the trial court should have barred relitigation of an issue resolved in his favor in an earlier case and therefore excluded evidence of the acquitted offense. But the Court refused the request and in doing so expressly "decline[d] to extend Ashe . . to exclude in all circumstances, as [the defendant] would have it, relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted." Id., at 348. If a second trial is permissible, the admission of evidence at that trial is governed by normal evidentiary rules--not by the terms of the Double Jeopardy Clause. "So far as merely evidentiary . . . facts are concerned," the Double Jeopardy Clause "is inoperative." Yates v. United States, 354 U. S. 298, 338 (1957). On its own terms, too, any effort to transplant civil preclusion principles into the Double Jeopardy Clause would quickly meet trouble. While the Clause embodies a kind of "claim preclusion" rule, even this rule bears little in common with its civil counterpart. In civil cases, a claim generally may not be tried if it arises out of the same transaction or common nucleus of operative facts as another already tried. Restatement (Second) of Judgments 19 (1982); Moschzisker, Res Judicata, 38 Yale L. J.299, 325 (1929). But in a criminal case, Blockburger precludes a trial on an offense only if a court has previously heard the same offense as measured by its statutory elements. 284 U. S., at 304. And this Court has emphatically refused to import into criminal double jeopardy law the civil law's more generous "same transaction" or same criminal "episode" test. See Garrett v. United States, 471 U. S. 773, 790 (1985); see also Ashe, 397 U. S., at 448 (Harlan, J., concurring). It isn't even clear that civil preclusion principles would help defendants like Mr. Currier. Issue preclusion addresses the effect in a current case of a prior adjudication in another case. So it doesn't often have much to say about the preclusive effects of rulings "within the framework of a continuing action." 18A C. Wright & A. Miller, Federal Practice and Procedure 4434 (2d ed. 2002); see ,also id., 4478. Usually, only the more flexible law of the case doctrine governs the preclusive effect of an earlier decision "within a single action." Ibid. And that doctrine might counsel against affording conclusive effect to a prior jury verdict on a particular issue when the parties agreed to hold a second trial covering much the same terrain at a later stage of the proceedings. Besides, even if issue preclusion is the right doctrine for cases like ours, its application usually depends "on 'an underlying confidence that the result achieved in the initial litigation was substantially correct.' " Bravo-Fernandez, 580 U. S., at (slip op., at 4) (quoting Standefer v. United States, 447 U. S. 10, 23, n. 18 (1980)). As a result, the doctrine does not often bar the relitigation of issues when the party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action."…
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