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Currier v. Virginia

United States Supreme Court

June 22, 2018

MICHAEL NELSON CURRIER, PETITIONER
v.
VIRGINIA

          Argued February 20, 2018

          ON WRIT OF CERTIORARI TO THE SUPREME COURT OF VIRGINIA No. 16-1348.

         Petitioner Michael Currier was indicted for burglary,

grand larceny, and unlawful possession of a firearm by a convicted felon. Because the prosecution could introduce evidence of Mr. Currier's prior burglary and larceny convictions to prove the felon-in-possession charge, and worried that evidence might prejudice the jury's consideration of the other charges, Mr. Currier and the government agreed to a severance and asked the court to try the burglary and larceny charges first, followed by a second trial on the felon-in-possession charge. At the first trial, Mr. Currier was acquitted. He then sought to stop the second trial, arguing that it would amount to double jeopardy. Alternatively, he asked the court to prohibit the state from relitigating at the second trial any issue resolved in his favor at the first. The trial court denied his requests and allowed the second trial to proceed unfettered. The jury convicted him on the felon-in-possession charge. The Virginia Court of Appeals rejected his double jeopardy arguments, and the Virginia Supreme Court summarily affirmed.

         Held: The judgment is affirmed.

292 Va. 737, 798 S.E.2d 164, affirmed.
JUSTICE Gorsuch delivered the opinion of the Court with respect to Parts I and II, concluding that, because Mr. Currier consented to a severance, his trial and conviction on the felon-in-possession charge did not violate the Double Jeopardy Clause, which provides that no person may be tried more than once "for the same offence." Mr. Currier argues that Ashe v. Swenson, 397 U.S. 436, requires a ruling for him. There, the Court held that the Double Jeopardy Clause barred a defendant's prosecution for robbing a poker player because the defendant's acquittal in a previous trial for robbing a different poker player from the same game established that the defendant "was not one of the robbers," id., at 446. Ashe's suggestion that the relitigation of an issue may amount to the impermissible relitigation of an offense represented a significant innovation in this Court's jurisprudence. But whatever else may be said about Ashe, the Court has 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. 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. 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, the Court 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.
Bearing all that in mind, a critical difference emerges between this case and Ashe: Even assuming that Mr. Currier's second trial qualified as the retrial of the same offense under Ashe, he consented to the second trial. In Jeffers v. United States, 432 U.S. 137, where the issue was a trial on a greater offense after acquittal on a lesser-included offense, the Court held that the Double Jeopardy Clause is not violated when the defendant "elects to have the . . . offenses tried separately and persuades the trial court to honor his election." Id., at 152. If consent can overcome a traditional double jeopardy complaint about a second trial for a greater offense, it must also suffice to overcome a double jeopardy complaint under Ashe's more innovative approach. Holding otherwise would be inconsistent not only with Jeffers but with other cases too. See, e.g., United States v. Dinitz, 424 U.S. 600. And cases Mr. Currier cites for support, e.g., Harris v. Washington, 404 U.S. 55, merely applied Ashe's test and concluded that a second trial was impermissible. They do not address the question whether the Double Jeopardy Clause prevents a second trial when the defendant consents to it.
Mr. Currier contends that he had no choice but to seek two trials, because evidence of his prior convictions would have tainted the jury's consideration of the burglary and larceny charges. This is not a case, however, 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. Difficult strategic choices are "not the same as no choice," United States v. Martinez-Salazar, 528 U.S. 304, 315, and the Constitution "does not . . . forbid requiring" a litigant to make them, McGauthav. California, 402 U.S. 183, 213. Pp. 3-8.
Justice Gorsuch, joined by The Chief Justice, Justice Thomas, and JUSTICE Alito, concluded in Part III that civil issue preclu- sion principles cannot be imported into the criminal law through the Double Jeopardy Clause to prevent parties from retrying any issue or introducing any evidence about a previously tried issue. Mr. Currier argues that, even if he consented to a second trial, that consent did not extend to the relitigation of any issues the first jury resolved in his favor. 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, his argument must be rejected on a narrower ground as refuted by the text and history of the Double Jeopardy Clause and by this Court's contemporary double jeopardy cases, e.g., Blockburger v. United States, 284 U.S. 299; Dowling v. United States, 493 U.S. 342. Nor is it even clear that civil preclusion principles would help defendants like Mr. Currier. See, e.g., Bravo-Fernandez v. United States, 580 U.S.__, __. Grafting civil preclusion principles onto the criminal law could also invite ironies-e.g., making severances more costly might make them less freely available. Pp. 8-16.
JUSTICE KENNEDY concluded that, because Parts I and II of the Court's opinion resolve this case in a full and proper way, the extent of the Double Jeopardy Clause protections discussed and defined in Ashe need not be reexamined here. Pp. 1-2.

          GORSUCH, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which ROBERTS, C. J., and KENNEDY, THOMAS, and Alito, JJ., joined, and an opinion with respect to Part III, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined. KENNEDY, J., filed an opinion concurring in part. GlNSBURG, J., filed a dissenting opinion, in which BREYER, So-TOMAYOR, and Kagan, JJ., joined.

          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.

          OPINION

          GORSUCH JUSTICE.

         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?

         I

         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 firearm by a convicted felon. The last charge followed in light of Mr. Currier's previous convictions for (as it happens) burglary and larceny.

         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 banc). 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 testi- fied 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 have reached conflicting results on the double jeopardy arguments Mr. Currier pressed in this case, we granted certiorari to resolve them. 583 U.S. (2017).

         II

         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 a 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 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 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 with holding 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 ...


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