Petitioner Dowling was convicted of robbing a Virgin Islands
bank while wearing a ski mask and carrying a small pistol. Relying
on Federal Rule of Evidence 404(b) -- which provides that evidence
of other crimes, wrongs, or acts may be admissible against a
defendant for purposes other than character evidence -- the
Government introduced at trial the testimony of one Henry, who
stated that a similarly masked and armed Dowling had been one of
two intruders who had entered her home two weeks after the bank
robbery. Although Dowling had been acquitted of charges in the
Henry case, the Government believed that Henry's description of him
strengthened its identification of him as the bank robber, and that
her testimony linked him to another individual thought to be
implicated in the bank robbery. The District Court permitted the
introduction of the testimony and twice instructed the jury about
Dowling's acquittal and the limited purpose for which the testimony
was being admitted. The Court of Appeals affirmed the conviction,
ruling that, although the Government was collaterally estopped by
the acquittal from offering Henry's testimony at trial and the
testimony was inadmissible under the Federal Rules of Evidence, its
admission was harmless because it was highly probable that the
error did not prejudice Dowling. The court declined to apply the
more stringent standard of
Chapman v. California,
386 U. S. 18,
386 U. S. 24,
applicable to constitutional errors because the District Court's
error was evidentiary, and not of constitutional dimension.
Held:
1. The admission of the testimony did not violate the collateral
estoppel component of the Double Jeopardy Clause. The collateral
estoppel doctrine prohibits the Government from relitigating an
issue of ultimate fact that has been determined by a valid and
final judgment,
Ashe v. Swenson, 397 U.
S. 436, but does not bar in all circumstances the later
use of evidence simply because it relates to alleged criminal
conduct for which a defendant has been acquitted. Here, the prior
acquittal did not determine the ultimate issue in the bank robbery
case, because in the second trial the Government was not required
to show beyond a reasonable doubt that Dowling was the man who
entered Henry's house. This decision is consistent with other cases
where this Court has held that an
Page 493 U. S. 343
acquittal in a criminal case does not preclude the Government
from relitigating an issue when it is presented in a subsequent
action governed by a lower standard of proof,
United States v.
One Assortment of 89 Firearms, 465 U.
S. 354,
465 U. S.
361-362;
One Lot Emerald Cut Stones v. United
States, 409 U. S. 232,
409 U. S. 235.
Even if the lower burden of proof at the second trial did not serve
to avoid the collateral estoppel component of the Double Jeopardy
Clause, Dowling failed to satisfy his burden of demonstrating that
the first jury determined that he was not one of the men who
entered Henry's home. Pp.
493 U. S.
347-352.
2. The introduction of the evidence did not violate the due
process test of "fundamental fairness." Especially in light of the
trial judge's limiting instructions, the testimony was not
fundamentally unfair, since the jury was free to assess the
truthfulness and significance of the testimony, since the trial
court's authority to exclude potentially prejudicial evidence
adequately addresses the possibility that introduction of such
evidence will create a risk that the jury will convict a defendant
based on inferences drawn from the acquitted conduct, since
inconsistent verdicts are constitutionally tolerable, and since the
tradition that the Government may not force a person acquitted in
one trial to defend against the same accusation in a subsequent
proceeding is amply protected by the Double Jeopardy Clause. Pp.
493 U. S.
352-354.
855 F.2d 114 (CA 3 1988), affirmed.
WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ.,
joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL
and STEVENS, JJ., joined,
post, p.
493 U. S.
354.
Justice WHITE delivered the opinion of the Court.
At petitioner's trial for various offenses arising out of a bank
robbery, testimony was admitted under Rule 404(b) of the Federal
Rules of Evidence, relating to an alleged crime
Page 493 U. S. 344
that the defendant had previously been acquitted of committing.
We conclude that neither the Double Jeopardy nor the Due Process
Clause barred the use of this testimony.
I
On the afternoon of July 8, 1985, a man wearing a ski mask and
armed with a small pistol robbed the First Pennsylvania Bank in
Frederiksted, St. Croix, Virgin Islands, taking over $7,000 in cash
from a bank teller, approximately $5,000 in cash from a customer,
and various personal and travelers' checks. The culprit ran from
the bank, scurried around in the street momentarily, and then
commandeered a passing taxi van. While driving away from the scene,
the robber pulled off his ski mask. An eyewitness, who had slipped
out of the bank while the robbery was taking place, saw the
maskless man and at trial identified him as petitioner, Reuben
Dowling. Other witnesses testified that they had seen Dowling
driving the hijacked taxi van outside of Frederiksted shortly after
the bank robbery.
Following his arrest, Dowling was charged with the federal
crimes of bank robbery, 18 U.S.C. § 2113(a), and armed robbery, §
2113(d), and with various crimes under Virgin Islands law. Dowling
pleaded not guilty to all charges. Dowling's first trial ended with
a hung jury. He was tried again and convicted, but the Third
Circuit reversed this conviction on appeal.
Government of
Virgin Islands v. Dowling, 814 F.2d 134 (1987). After a third
trial, Dowling was convicted on most of the counts; the trial judge
sentenced him to 70 years' imprisonment.
During petitioner's third trial, the Government over
petitioner's objection called a woman named Vena Henry to the
stand. Ms. Henry testified that a man wearing a knitted mask with
cutout eyes and carrying a small handgun had, together with a man
named Delroy Christian, entered her home in Frederiksted
approximately two weeks after the First Pennsylvania Bank robbery.
Ms. Henry testified that
Page 493 U. S. 345
a struggle ensued and that she unmasked the intruder, whom she
identified as Dowling. Based on this incident, Dowling had been
charged under Virgin Islands law with burglary, attempted robbery,
assault, and weapons offenses, but had been acquitted after a trial
held before his third trial in the bank robbery case.
The Government assertedly elicited Henry's testimony for two
purposes. First, it believed that Henry's description of Dowling as
wearing a mask and carrying a gun similar to the mask worn and the
gun carried by the robber of the First Pennsylvania Bank
strengthened the Government's identification of Dowling as the bank
robber. Second, the Government sought to link Dowling with Delroy
Christian, the other man who entered Henry's home. The day before
the bank robbery, Dowling had borrowed a white Volkswagen from a
friend. At Dowling's trial for the First Pennsylvania Bank robbery,
a police officer testified that, shortly before the bank robbery,
she and her partner had come upon Christian and another man parked
in a white Volkswagen in front of the bank with the car door open
into the street; Christian was in the backseat. The officers told
the two men to close the door, and the men drove away to the north.
The police followed the Volkswagen for about a mile and, shortly
thereafter, received a radio message that the bank had been robbed.
The Government's theory was that Christian and his friend were to
drive the getaway car after Dowling robbed the bank.
Before opening statements, the Government disclosed its
intention to call Ms. Henry and explained its rationale for doing
so, relying on Rule 404(b) of the Federal Rules of Evidence, which
provides that evidence of other crimes, wrongs, or acts may be
admissible against a defendant for purposes other than character
evidence. After a hearing, the District Court characterized the
testimony as highly probative circumstantial evidence, and ruled
that it was admissible under Rule 404(b). App. 24-25. When Henry
left the stand, the
Page 493 U. S. 346
District Court instructed the jury that petitioner had been
acquitted of robbing Henry, and emphasized the limited purpose for
which Henry's testimony was being offered.
Id. at 28. The
court reiterated that admonition in its final charge to the jury.
Id. at 29.
On appeal, the Third Circuit determined that the District Court
should not have admitted Henry's testimony, but nevertheless
affirmed Dowling's conviction. 855 F.2d 114 (1988). Relying on its
decision in
United States v. Keller, 624 F.2d 1154 (1980),
the court held that petitioner's acquittal of the charges arising
out of the incident at Henry's home collaterally estopped the
Government from offering evidence of that incident at petitioner's
trial for the First Pennsylvania Bank robbery.
Alternatively, the Court of Appeals ruled that the evidence was
inadmissible under the Federal Rules of Evidence. The court noted
that we had recently held in
Huddleston v. United States,
485 U. S. 681
(1988), that
"[i]n the Rule 404(b) context, similar act evidence is relevant
only if the jury can reasonably conclude that the act occurred and
that the defendant was the actor."
Id. at
485 U. S. 689.
The Third Circuit found Henry's testimony inadmissible under Rule
404(b) because
"when the prior act sought to be introduced was the subject of
an acquittal by a jury, a second jury should not be permitted to
conclude 'that the act occurred and that the defendant was the
actor."
855 F.2d at 122. The court also relied on Rule 403 of the
Federal Rules of Evidence because, in the Third Circuit's opinion,
the danger of unfair prejudice outweighed the probative value of
Henry's testimony. 855 F.2d at 122.
The Third Circuit, however, held that the admission of Henry's
testimony was harmless because it was highly probable that the
error did not prejudice the petitioner.
Id. at 122-124.
The Court of Appeals explicitly declined to apply the more
stringent standard,
see Chapman v. California,
386 U. S. 18,
386 U. S. 24
(1967), applicable to constitutional errors because,
Page 493 U. S. 347
according to the court, the District Court's mistake was merely
evidentiary, and not of constitutional dimension. 855 F.2d at
122-123. Having rejected petitioner's other objections, the court
affirmed the conviction.
Id. at 124.
Dowling claims that the Third Circuit was wrong when it found
that the admission of Henry's testimony did not offend the
Constitution and therefore declined to apply the
Chapman v.
California, supra, harmless error standard. [
Footnote 1] We granted certiorari to consider
Dowling's contention that Henry's testimony was inadmissible under
both the Double Jeopardy and the Due Process Clauses of the Fifth
Amendment. 489 U.S. 1051 (1989).
II
A
There is no claim here that the acquittal in the case involving
Ms. Henry barred further prosecution in the present case. The issue
is the inadmissibility of Henry's testimony.
In
Ashe v. Swenson, 397 U. S. 436
(1970), we recognized that the Double Jeopardy Clause incorporates
the doctrine of collateral estoppel. In that case, a group of
masked men had robbed six men playing poker in the basement of a
home. The State unsuccessfully prosecuted Ashe for robbing one of
the men. Six weeks later, however, the defendant was convicted for
the robbery of one of the other players. Applying the doctrine of
collateral estoppel which we found implicit in the Double Jeopardy
Clause, we reversed Ashe's conviction, holding that his acquittal
in the first trial precluded the State from charging him for the
second offense.
Id. at
397 U. S.
445-446. We defined the collateral estoppel doctrine as
providing that
"when an issue of ultimate fact has once been determined by a
valid and final judgment, that issue cannot again be litigated
between the same parties in any future lawsuit."
Id. at
397 U. S. 443.
Ashe's acquittal in the first trial foreclosed the
Page 493 U. S. 348
second trial because, in the circumstances of that case, the
acquittal verdict could only have meant that the jury was unable to
conclude beyond a reasonable doubt that the defendant was one of
the bandits. A second prosecution was impermissible because, to
have convicted the defendant in the second trial, the second jury
had had to have reached a directly contrary conclusion.
See
id. at
397 U. S.
445.
Dowling contends that, by the same principle, his prior
acquittal precluded the government from introducing into evidence
Henry's testimony at the third trial in the bank robbery case. We
disagree because, unlike the situation in
Ashe v. Swenson,
the prior acquittal did not determine an ultimate issue in the
present case. This much Dowling concedes, and we decline to extend
Ashe v. Swenson and the collateral estoppel component of
the Double Jeopardy Clause to exclude in all circumstances, as
Dowling 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.
For present purposes, we assume for the sake of argument that
Dowling's acquittal established that there was a reasonable doubt
as to whether Dowling was the masked man who entered Vena Henry's
home with Delroy Christian two weeks after the First Pennsylvania
Bank robbery. [
Footnote 2] But
to introduce evidence on this point at the bank robbery trial, the
Government did not have to demonstrate that Dowling was the man who
entered the home beyond a reasonable doubt: the Government sought
to introduce Henry's testimony under Rule 404(b), and, as mentioned
earlier, in
Huddleston v. United States, 485 U.S. at
485 U. S. 689,
we held that
"[i]n the Rule 404(b) context, similar act evidence is relevant
only if the jury can reasonably conclude that the act occurred and
that the defendant was the actor."
Because a jury might
Page 493 U. S. 349
reasonably conclude that Dowling was the masked man who entered
Henry's home, even if it did not believe beyond a reasonable doubt
that Dowling committed the crimes charged at the first trial, the
collateral estoppel component of the Double Jeopardy Clause is
inapposite.
Our decision is consistent with other cases where we have held
that an acquittal in a criminal case does not preclude the
government from relitigating an issue when it is presented in a
subsequent action governed by a lower standard of proof. In
United States v. One Assortment of 89 Firearms,
465 U. S. 354
(1984), for example, we unanimously agreed that a gun owner's
acquittal on a charge of dealing firearms without a license did not
preclude a subsequent
in rem forfeiture proceeding against
those firearms, even though forfeiture was only appropriate if the
jury in the forfeiture proceeding concluded that the defendant had
committed the underlying offense. Because the forfeiture action was
a civil proceeding, we rejected the defendant's contention that the
government was estopped from relitigating the issue of the
defendant's alleged wrongdoing:
"[The acquittal did] not prove that the defendant is innocent;
it merely proves the existence of a reasonable doubt as to his
guilt. . . . [T]he jury verdict in the criminal action did not
negate the possibility that a preponderance of the evidence could
show that [the defendant] was engaged in an unlicensed firearms
business. . . . It is clear that the difference in the relative
burdens of proof in the criminal and civil actions precludes the
application of the doctrine of collateral estoppel."
Id. at
465 U. S.
361-362. In
One Lot Emerald Cut Stones v. United
States, 409 U. S. 232,
409 U. S. 235
(1972), it was also held that the Double Jeopardy Clause did not
bar a forfeiture action subsequent to acquittal on the underlying
offense because
"the difference in the burden of proof in criminal and civil
cases precludes application of the doctrine of collateral
estoppel."
Helvering v.
Mitchell,
Page 493 U. S. 350
303 U. S. 391,
303 U. S. 397
(1938), likewise observed that
"[t]he difference in degree in the burden of proof in criminal
and civil cases precludes application of the doctrine of
res
judicata."
We thus cannot agree that the Government was constitutionally
barred from using Henry's testimony at the bank robbery trial, and
for the same reasons we find no merit in the Third Circuit's
holding that the common law doctrine of collateral estoppel in all
circumstances bars the later use of evidence relating to prior
conduct which the government failed to prove violated a criminal
law.
B
Even if we agreed with petitioner that the lower burden of proof
at the second proceeding does not serve to avoid the collateral
estoppel component of the Double Jeopardy Clause, we agree with the
Government that the challenged evidence was nevertheless admissible
because Dowling did not demonstrate that his acquittal in his first
trial represented a jury determination that he was not one of the
men who entered Ms. Henry's home. In
Ashe v. Swenson, we
stated that, where a previous judgment of acquittal was based on a
general verdict, courts must
"'examine the record of [the] prior proceeding, taking into
account the pleadings, evidence, charge, and other relevant matter,
and conclude whether a rational jury could have grounded its
verdict on an issue other than that which the defendant seeks to
foreclose from consideration.'"
397 U.S. at
397 U. S. 444
(citation omitted). The Courts of Appeals have unanimously placed
the burden on the defendant to demonstrate that the issue whose
relitigation he seeks to foreclose was actually decided in the
first proceeding.
United States v. Citron, 853 F.2d 1055,
1058 (CA2 1988);
United States v. Ragins, 840 F.2d 1184,
1194 (CA4 1988);
United States v. Gentile, 816 F.2d 1157,
1162 (CA7 1987);
United States v. Baugus, 761 F.2d 506,
508 (CA8 1985);
United States v. Mock, 640 F.2d 629, 631,
n. 1 (CA5 1981);
Page 493 U. S. 351
United States v. Hewitt, 663 F.2d 1381, 1387 (CA11
1981);
United States v. Lasky, 600 F.2d 765, 769 (CA9),
cert. denied, 444 U.S. 979 (1979). We see no reason to
depart from the majority rule in this case. [
Footnote 3]
The only clue to the issues in the earlier case was a discussion
between the prosecutor, Dowling's attorney, and the District Judge
that took place during the District Court's hearing on the
admission of Henry's testimony under Rule 404(b). App. 18-25.
Arguing against the admission of Henry's testimony, Dowling's
lawyer pointed out that Dowling had been acquitted of breaking into
Ms. Henry's home. The trial judge, who had also presided at
Dowling's first trial, recalled that Dowling "was not acquitted on
the issue of identification."
Id. at 21. The prosecutor
then contended that Dowling had not disputed identity, but rather
had claimed that a robbery had not taken place because he and
Christian allegedly "merely came to retrieve . . . money from an
individual in the house."
Ibid. The court then made the
statement that
"Mr. Dowling's presence in the house was not seriously contested
in the case, but he stated the general defense. Mr. Dowling, I
don't think took the stand."
Ibid.
Page 493 U. S. 352
There are any number of possible explanations for the jury's
acquittal verdict at Dowling's first trial. As the record stands,
there is nothing at all that persuasively indicates that the
question of identity was at issue and was determined in Dowling's
favor at the prior trial; at oral argument, Dowling conceded as
much. Tr. of Oral Arg. 16. As a result, even if we were to apply
the Double Jeopardy Clause to this case, we would conclude that
petitioner has failed to satisfy his burden of demonstrating that
the first jury concluded that he was not one of the intruders in
Ms. Henry's home.
III
Besides arguing that the introduction of Henry's testimony
violated the Double Jeopardy Clause, petitioner also contends that
the introduction of this evidence was unconstitutional because it
failed the due process test of "fundamental fairness." We recognize
that the introduction of evidence in circumstances like those
involved here has the potential to prejudice the jury or unfairly
force the defendant to spend time and money relitigating matters
considered at the first trial. The question, however, is whether it
is acceptable to deal with the potential for abuse through
nonconstitutional sources like the Federal Rules of Evidence,
[
Footnote 4] or whether the
introduction of this type of evidence is so extremely unfair that
its admission violates "fundamental conceptions of justice."
United States v. Lovasco, 431 U.
S. 783,
431 U. S. 790
(1977).
Beyond the specific guarantees enumerated in the Bill of Rights,
the Due Process Clause has limited operation. We, therefore, have
defined the category of infractions that violate "fundamental
fairness" very narrowly. As we observed in
Lovasco, supra
at
431 U. S.
790:
Page 493 U. S. 353
"Judges are not free, in defining 'due process,' to impose on
law enforcement officials [their] 'personal and private notions' of
fairness and to 'disregard the limits that bind judges in their
judicial function.'
Rochin v. California, 342 U. S.
165,
342 U. S. 170 (1952). . . .
[They] are to determine only whether the action complained of . . .
violates those 'fundamental conceptions of justice which lie at the
base of our civil and political institutions,'
Mooney v.
Holohan, 294 U. S. 103,
294 U. S.
112 (1935), and which define 'the community's sense of
fair play and decency,'
Rochin v. California, supra, at
342 U. S. 173."
Especially in light of the limiting instructions provided by the
trial judge, we cannot hold that the introduction of Henry's
testimony merits this kind of condemnation. Plainly Henry's
testimony was at least circumstantially valuable in proving
petitioner's guilt.
Petitioner lists four reasons why, according to him, admission
of Henry's testimony was fundamentally unfair. First, petitioner
suggests that evidence relating to acquitted conduct is inherently
unreliable. We disagree: the jury in this case, for example,
remained free to assess the truthfulness and the significance of
Henry's testimony, and petitioner had the opportunity to refute it.
Second, Dowling contends that the use of this type of evidence
creates a constitutionally unacceptable risk that the jury will
convict the defendant on the basis of inferences drawn from the
acquitted conduct; we believe that the trial court's authority to
exclude potentially prejudicial evidence adequately addresses this
possibility.
Third, petitioner claims that the exclusion of acquitted conduct
evidence furthers the desirable goal of consistent jury verdicts.
We, however, do not find any inconsistency between Dowling's
conviction for the First Pennsylvania Bank robbery and his
acquittal on the charge of robbing Ms. Henry for the obvious reason
that the jury's verdict in his second trial did not entail any
judgment with respect to the offenses charged in his first. In any
event, inconsistent verdicts are
Page 493 U. S. 354
constitutionally tolerable.
See Standefer v. United
States, 447 U. S. 10,
447 U. S. 25
(1980).
Fourth, petitioner argues that the introduction of Henry's
testimony in this case contravenes a tradition that the government
may not force a person acquitted in one trial to defend against the
same accusation in a subsequent proceeding. We acknowledge the
tradition, but find it amply protected by the Double Jeopardy
Clause. We decline to use the Due Process Clause as a device for
extending the double jeopardy protection to cases where it
otherwise would not extend.
IV
Because we conclude that the admission of Ms. Henry's testimony
was constitutional and the Court of Appeals therefore applied the
correct harmless error standard, we affirm the judgment of the
Court of Appeals.
It is so ordered.
[
Footnote 1]
Dowling does not challenge the holding that the error was
harmless under the less strict standard applied by the Court of
Appeals.
[
Footnote 2]
It is not clear from the record that this finding formed the
basis for the jury's verdict.
See discussion
infra, at
493 U. S.
[
Footnote 3]
Dowling notes that the party introducing evidence carries the
burden of demonstrating the evidence's relevance. He argues that
this duty, in the context of the collateral estoppel component of
the Double Jeopardy Clause, requires the government to establish
that a previous acquittal did not resolve a question at issue in a
second trial. We disagree. Relevancy is a threshold inquiry. That
the burden is on the introducing party to establish relevancy does
not also require the introducing party to anticipate and rebut
possible objections to the offered evidence.
Dowling also suggests that we should place the burden on the
government in this instance because, as opposed to the situation in
Ashe v. Swenson, 397 U. S. 436
(1970), for example, he does not seek to terminate the prosecution,
but merely hopes to exclude evidence. This is a distinction without
a difference. If anything, the equities weigh in the other
direction: in this case, Dowling only faces the risk of the
introduction of prejudicial evidence, whereas, in
Ashe v.
Swenson, the defendant was threatened with an illegitimate
conviction.
[
Footnote 4]
The Third Circuit, as noted above, found Henry's testimony
inadmissible under both Rule 404(b) and Rule 403. 855 F.2d 114, 122
(1988). The United States urges that this was error, but in
affirming we need not pass on the validity of the Court of Appeals'
judgment in this respect.
Justice BRENNAN, with whom Justice MARSHALL and Justice STEVENS
join, dissenting.
At petitioner's trial for bank robbery, the prosecutor
introduced the testimony of Vena Henry that petitioner had
attempted to rob her in her home several weeks prior to the bank
robbery. Petitioner, however, had already been tried in connection
with that incident and had been acquitted of burglary, attempted
robbery, assault, and weapons offenses. Because the introduction of
this testimony effectively forced petitioner to defend against
charges for which he had already been acquitted, the doctrine of
criminal collateral estoppel grounded in the Double Jeopardy Clause
should have prohibited the Government from introducing the
testimony. I would reverse the judgment of the Court of Appeals for
the Third Circuit and remand for consideration of whether the
admission of this testimony was harmless error under the standard
enunciated in
Chapman v. California, 386 U. S.
18,
386 U. S. 24
(1967). Therefore, I respectfully dissent.
Page 493 U. S. 355
I
"The. Law
attaches particular significance to an
acquittal.'" United States v. DiFrancesco, 449 U.
S. 117, 449 U. S. 129
(1980) (quoting United States v. Scott, 437 U. S.
82, 437 U. S. 91
(1978)). The core protection of the Double Jeopardy Clause attaches
to an acquittal and prohibits retrial for the "same offense" after
an acquittal. United States v. Martin Linen Supply Co.,
430 U. S. 564,
430 U. S. 571
(1977). Two offenses are considered the "same offense" for double
jeopardy purposes unless each offense requires proof of a fact that
the other does not. Blockburger v. United States,
284 U. S. 299,
284 U. S. 304
(1932). An acquittal on a greater or lesser included offense, for
example, bars prosecution on the other offense. Brown v.
Ohio, 432 U. S. 161,
432 U. S. 168
(1977). This protection applies even if the acquittal is based on
an "egregiously erroneous foundation." Fong Foo v. United
States, 369 U. S. 141,
369 U. S. 143
(1962) (per curiam ); Sanabria v. United States,
437 U. S. 54,
437 U. S. 68-69
(1978).
According such significance to an acquittal reflects both an
institutional interest in preserving the finality of judgments and
a strong public interest in protecting individuals against
governmental overreaching.
See Brown v. Ohio, 432 U.S. at
432 U. S. 165
("Where successive prosecutions are at stake, the [Double Jeopardy
Clause] serves
a constitutional policy of finality for the
defendant's benefit'") (quoting United States v. Jorn,
400 U. S. 470,
400 U. S. 479
(1971) (plurality opinion)). The overriding concern is
that
"[t]o permit a second trial after an acquittal, however mistaken
the acquittal may have been, would present an unacceptably high
risk that the Government, with its vastly superior resources, might
wear down the defendant, so that 'even though innocent, he may be
found guilty.'"
Scott, 437 U.S. at
437 U. S. 91
(quoting
Green v. United States, 355 U.
S. 184,
355 U. S. 188
(1957)). The rule also protects a defendant against being compelled
"to live in a continuous state of anxiety and insecurity" about
whether he will be retried and from the
Page 493 U. S. 356
"embarrassment, expense and ordeal" of an actual reprosecution.
Green, 355 U.S. at
355 U. S.
187.
These concerns are most clearly implicated when the defendant is
retried for the "same offense" after an acquittal. In
Ashe v.
Swenson, 397 U. S. 436
(1970), however, the Court significantly expanded the protection to
which a defendant is constitutionally entitled after an acquittal
by holding that the Double Jeopardy Clause incorporates the
doctrine of criminal collateral estoppel.
Id. at
397 U. S.
445-446. The doctrine of collateral estoppel
"means simply that, when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again
be litigated between the same parties in any future lawsuit."
Id. at
397 U. S. 443.
In a criminal case, collateral estoppel prohibits the Government
from relitigating any ultimate facts resolved in the defendant's
favor by the prior acquittal.
Id. at
397 U. S.
445-446. Thus, in addition to being protected against
retrial for the "same offense," the defendant is protected against
prosecution for an offense that requires proof of a fact found in
his favor in a prior proceeding.
The question in this case is whether the criminal collateral
estoppel doctrine should apply when the Government seeks to
introduce in a subsequent trial evidence relating to a prior
criminal offense for which the defendant has been acquitted. Before
a jury can consider facts relating to a prior criminal offense as
proof of an element of the presently charged offense, the jury must
conclude by a preponderance of the evidence "that the act occurred
and that the defendant was the actor."
Huddleston v. United
States, 485 U. S. 681,
485 U. S. 689
(1988). To the extent that the acquittal of the prior offense
determined either of those factual issues in the defendant's favor,
the introduction of this evidence imposes on the defendant the
burden of relitigating those facts, and thereby increases the
likelihood of an erroneous conviction on the charged offense. Thus,
I would extend the collateral estoppel doctrine to preclude the
Government from introducing
Page 493 U. S. 357
evidence which relies on facts previously determined in the
defendant's favor by an acquittal. [
Footnote 2/1]
The Court refuses to apply the collateral estoppel doctrine in
this case for two reasons. First, it asserts that petitioner failed
to carry his burden of proving that the issue on which he sought to
foreclose relitigation was decided in his favor by the first
acquittal. More importantly, the Court refuses to apply the
collateral estoppel doctrine when facts underlying a prior
acquittal are used as evidence of another offense. Both the Court's
conclusions are inconsistent with the purposes of the collateral
estoppel rule.
A
The Court first asserts that petitioner did not prove that the
issue on which he sought to foreclose relitigation "was actually
decided in the first proceeding."
Ante at
493 U.S. 350. The Court's summary
conclusion that the defendant should bear the burden of proof when
invoking the collateral estoppel doctrine fails to serve the
purposes of the doctrine and the Double Jeopardy Clause in general.
Since the doctrine serves to protect defendants against
governmental overreaching, the Government should bear the burden of
proving that the issue it seeks to relitigate was not decided in
the defendant's favor by the prior acquittal. As we noted in
Ashe, because criminal verdicts are general verdicts, it
is usually difficult to determine the precise route of the jury's
reasoning and the basis on which the verdict rests.
See
397 U.S. at
Page 493 U. S. 358
397 U. S. 444.
By putting the burden on the defendant to prove what issues were
"actually decided," the Court essentially denies the protection of
collateral estoppel to those defendants who affirmatively contest
more than one issue or who put the Government to its burden of
proof with respect to all elements of the offense. This result is
inconsistent with our admonition in
Ashe that an
excessively technical approach to collateral estoppel
"would, of course, simply amount to a rejection of the rule of
collateral estoppel in criminal proceedings, at least in every case
where the first judgment was based upon a general verdict of
acquittal."
Ibid. Indeed, forcing defendants to choose between
forgoing the protections of the Double Jeopardy Clause and
abandoning the defense of a general denial raises grave due process
concerns.
Even assuming that petitioner was properly required to bear the
burden of proof, I conclude that petitioner carried it in this
case. Vena Henry testified that petitioner had entered her home
wearing a mask and carrying a gun but that, after a struggle in
which she pulled off the mask, he ran away. There is every reason
to believe that the jury rested its verdict on the belief that
petitioner was not present in the Henry home. Petitioner was
charged with such a wide array of offenses relating to the Henry
incident that no other conclusion is "rationally conceivable."
Ashe, 397 U.S. at
397 U. S. 445. For example, if the jury had acquitted
petitioner of attempted robbery because he lacked the requisite
intent, it would still have found him guilty of a weapons offense.
Neither the comments of the trial judge in this trial that
petitioner had not "seriously contested" the issue of identity in
the Henry trial but had stated a general defense, App. 21, nor the
prosecutor's statement in this case that petitioner's codefendant
in the Henry trial had admitted being in the house,
ibid.,
provides a sufficient basis on which to conclude that the issue of
identity was not resolved in petitioner's
Page 493 U. S. 359
favor by the acquittal. [
Footnote
2/2] Thus, if collateral estoppel applies to the evidentiary
use of facts, the Government should not have been allowed to
introduce Henry's testimony.
B
The Court holds, however, that collateral, estoppel does not
apply when facts previously found in a defendant's favor are later
introduced as evidence of a second offense. The Court excepts from
the normal rule of criminal collateral estoppel those situations
when the jury can consider the facts under a lower standard of
proof in the second proceeding than in the first trial. The Court
endorses this exception without any consideration of the purposes
underlying the collateral estoppel doctrine; it is not surprising
that the Court's holding reflects an unrealistic view of the risks
and burdens imposed on the defendant when facts relating to a prior
offense for which has been acquitted are introduced in a subsequent
criminal proceeding.
As the Court notes, we have held that an acquittal in a criminal
case does not bar subsequent civil forfeiture actions for the same
transaction because the acquittal "merely
Page 493 U. S. 360
proves the existence of a reasonable doubt as to [the
defendant's] guilt."
United States v. One Assortment of 89
Firearms, 465 U. S. 354,
465 U. S. 361
(1984);
see also One Lot Emerald Cut Stones v. United
States, 409 U. S. 232,
409 U. S. 235
(1972);
Helvering v. Mitchell, 303 U.
S. 391,
303 U. S. 397
(1938). However, those forfeiture cases involved civil remedial
measures rather than criminal punishment.
89 Firearms, 465
U.S. at
465 U. S.
362-366;
Helvering, 303 U.S. at
303 U. S.
397-398. We have never before applied such reasoning to
a successive criminal prosecution in which the Government seeks to
punish the defendant and hinges that punishment at least in part on
a criminal act for which the defendant has been acquitted.
[
Footnote 2/3] Indeed, in
Ashe we indicated to the contrary:
"'It is much too late to suggest that [collateral estoppel] is
not fully applicable to a former judgment in a criminal case, . . .
because the judgment may reflect only a belief that the Government
had not met the higher burden of proof exacted in such cases for
the Government's evidence as a whole. . . .'"
397 U.S. at
397 U. S. 443
(quoting
United States v. Kramer, 289 F.2d 909, 913 (CA2
1961)). We have always recognized a distinction between
governmental action intended to punish and that which is not,
see, e.g., United States v. Halper, 490 U.
S. 435,
490 U. S.
446-448 (1989) (Double Jeopardy Clause implicated when
civil fine is punitive);
United States v. Salerno,
481 U. S. 739,
481 U. S.
746-747 (1987) (upholding Bail Reform Act as regulatory
rather than punitive measure). Thus, it would be consistent to hold
that
Page 493 U. S. 361
the collateral estoppel doctrine applies in the criminal (or
quasi-criminal) context and not in the civil; when the Government
seeks to punish a defendant, the concern for fairness is much more
acute. [
Footnote 2/4]
Whenever a defendant is forced to relitigate the facts
underlying a prior offense for which he has been acquitted, there
is a risk that the jury erroneously will decide that he is guilty
of that offense. That risk is heightened because the jury is
required to conclude that the defendant committed the prior offense
only by a preponderance of the evidence.
Cf. In re
Winship, 397 U. S. 358,
397 U. S. 363
(1970) (reasonable doubt standard "is a prime instrument for
reducing the risk of convictions resting on factual error"). The
fact that the prior offense is used as evidence of the presently
charged offense raises concerns about the reliability of the jury's
ultimate conclusion that the defendant committed the presently
charged offense. These concerns stem in large part from the
inherent danger of evidence relating to an extrinsic
Page 493 U. S. 362
criminal offense. First,
"[o]ne of the dangers inherent in the admission of extrinsic
offense evidence is that the jury may convict the defendant not for
the offense charged but for the extrinsic offense. This danger is
particularly great where . . . the extrinsic activity was not the
subject of a conviction; the jury may feel the defendant should be
punished for that activity even if he is not guilty of the offense
charged."
United States v. Beechum, 582 F.2d 898, 914 (CA5 1978)
(en banc) (citations omitted). Alternatively, there is the danger
that the evidence "may lead [the jury] to conclude that, having
committed a crime of the type charged, [the defendant] is likely to
repeat it."
Ibid. Thus, the fact that the defendant is
forced to relitigate his participation in a prior criminal offense
under a low standard of proof combined with the inherently
prejudicial nature of such evidence increases the risk that the
jury erroneously will convict the defendant of the presently
charged offense.
The Court's only response is that the defendant is free to
introduce evidence to rebut the contention that he committed the
prior offense. This response, of course, underscores the flaw in
the Court's reasoning: introduction of this type of evidence
requires the defendant to mount a second defense to an offense for
which he has been acquitted. That the facts relating to the prior
offense are used only as evidence of another crime does not reduce
the burden on the defendant; he is still required to defend against
the prior charges. Moreover, because of the significance a jury may
place on evidence of a prior criminal offense, presenting a defense
against that offense may be as burdensome as defending against the
presently charged offense. Finally, since the lower standard of
proof makes it easier for the jury to conclude that the defendant
committed the prior offense, the defendant is essentially forced to
present affirmative evidence to rebut the contention that he
committed that offense. [
Footnote
2/5]
Page 493 U. S. 363
The Court today adds a powerful new weapon to the Government's
arsenal. The ability to relitigate the facts relating to an offense
for which the defendant has been acquitted benefits the Government
because there are many situations in which the defendant will not
be able to present a second defense because of the passage of time,
the expense, or some other factor. Indeed there is no discernible
limit to the Court's rule; the defendant could be forced to
relitigate these facts in trial after trial. Moreover, the Court's
reasoning appears to extend even further than the facts of this
case, and seems to allow a prosecutor to rely on a prior criminal
offense (despite an acquittal) as evidence in a trial for an
offense which is part of the
same transaction as the prior
offense. For example, a prosecutor could introduce facts relating
to a substantive offense as evidence in a trial for conspiracy,
even though the defendant had been acquitted of the
substantive offense.
Cf. Ashe, 397 U.S. at
397 U. S. 445,
n. 10 (the question whether collateral estoppel was a
constitutional requirement was of little concern until modern
statutes gave prosecutors the ability to "spin out a startlingly
numerous series of offenses from a single alleged criminal
transaction"). Indeed, the Court's reasoning could apply even more
broadly to justify the introduction of evidence of a prior offense
for which the defendant had been acquitted in order to enhance a
defendant's sentence under a sentencing scheme that requires proof
by less than a reasonable doubt.
See, e.g., McMillan v.
Pennsylvania, 477 U. S. 79,
477 U. S. 91-93
(1986) (upholding constitutionality of sentencing scheme requiring
proof of additional facts by preponderance of evidence). Only by
ignoring the principles upon which the collateral estoppel doctrine
is based is it possible for the Court to tip the scales this far in
the prosecution's favor.
II
The Court's holding today deprives an acquitted defendant of his
rightful end to the "blight and suspicious aura which surround an
accusation that he is guilty of a specific crime."
Page 493 U. S. 364
Wingate v. Wainwright, 464 F.2d 209, 215 (CA5 1972).
Because the Court's holding is based on a hypertechnical view of an
acquittal and reflects a naive view of the defendant's burden in a
criminal trial, I respectfully dissent.
[
Footnote 2/1]
The cases often refer to this situation as collateral estoppel
with respect to an "evidentiary fact" in order to distinguish it
from the situation present in
Ashe v. Swenson,
397 U. S. 436
(1970).
See, e.g., United States v. Keller, 624 F.2d 1154,
1159 (CA3 1980). In
Ashe, the prior acquittal determined
facts which were a necessary element of the second offense. 397
U.S. at 445-446 (since issue of identity determined in trial for
robbery of one victim, collateral estoppel precluded prosecution
for robbery of second victim). In this situation, by contrast, the
previously litigated facts are introduced only as evidence of an
element of another offense.
[
Footnote 2/2]
In fact, in this case, the acquittal alone should have been
sufficient to estop the Government from introducing the Henry
evidence. Henry's testimony was introduced not as direct proof, but
as circumstantial evidence that petitioner was also the masked bank
robber, because the mask worn by the intruder in Henry's home was
not the same as the mask worn by the bank robber. App. 27. Thus,
the jury was invited to infer from the fact that petitioner had
allegedly once before worn a different mask and carried a gun that
he was the masked bank robber. The jury was instructed that it was
to consider the testimony only
"to the extent that it helps you in determining the identity of
the person who committed the [bank robbery]. . . . Mr. Dowling was
found not guilty of the crime of robbery in connection with
that."
Id. at 29. Nothing in the instructions ensured that the
jury did not consider the fact that petitioner had worn a mask and
carried a gun during a prior attempted robbery as evidence that
petitioner was the masked bank robber. Since the acquittal at least
determined that petitioner had not committed an attempted robbery,
the acquittal should have been enough to preclude the Government
from asking the jury to draw that inference.
[
Footnote 2/3]
The Government cites
Standefer v. United States,
447 U. S. 10
(1980), as support for its argument that the doctrine of collateral
estoppel should not apply to the evidentiary use of facts. In
Standefer, the Court held that a defendant could not
invoke the acquittal of the principal as a bar to his prosecution
as an accomplice.
Id. at
447 U. S. 24.
Although the Court noted that collateral estoppel should be applied
sparingly against the Government,
id. at
447 U. S. 22-24,
the defendant in
Standefer had not yet been tried. Thus,
the concerns which protect a defendant against relitigation were
not implicated. When those concerns are implicated, they outweigh
any need to apply collateral estoppel cautiously against the
Government.
[
Footnote 2/4]
The higher reasonable doubt standard is employed in the criminal
context to ensure the accuracy of convictions and thereby protect
defendants, not to permit introduction of evidence of crimes for
which the defendant has been acquitted.
In Re Winship,
397 U. S. 358,
397 U. S. 363
(1970). By definition, when the Government fails to prove a
defendant guilty by a reasonable doubt, the defendant is considered
legally innocent. Unlike the majority of the Court, I believe that,
at least with respect to subsequent criminal prosecutions,
"the acquitted defendant is to be treated as innocent and in the
interests of fairness and finality made no more to answer for his
alleged crime."
State v. Wakefield, 278 N.W.2d
307, 308 (Minn.1979). It is ironic that petitioner would have
been better off, in his second trial, if he had not been
represented by counsel at the first trial and had been convicted
because uncounseled convictions may not be used in any capacity in
subsequent trials.
See Loper v. Beto, 405 U.
S. 473,
405 U. S. 483
(1972) (impeachment);
United States v. Tucker,
404 U. S. 443,
404 U. S. 447
(1972) (sentencing enhancement);
Burgett v. Texas,
389 U. S. 109,
389 U. S. 115
(1967) (substantive evidence).
[
Footnote 2/5]
The fact that the trial judge may instruct the jury that the
defendant was acquitted does not sufficiently protect the defendant
from the need to present evidence. There is no guarantee that the
jury will give any weight to the acquittal; the jury may disregard
it or even conclude that the first jury made a mistake.