Imposition of Multiple Punishments for the Same Offense

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Double Jeopardy Clause protects against imposition of multiple punishment for the same offense.1 Footnote
Ex parte Lange, 85 U.S. (18 Wall.) 163, 173 (1874) ; North Carolina v. Pearce, 395 U.S. 711, 717 (1969) . The application of the principle leads, however, to a number of complexities. In a simple case, it was held that where a court inadvertently imposed both a fine and imprisonment for a crime for which the law authorized one or the other but not both, it could not, after the fine had been paid and the defendant had entered his short term of confinement, recall the defendant and change its judgment by sentencing him to imprisonment only.2 Footnote
Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874) . But the Court has held that the imposition of a sentence does not from the moment of imposition have the finality that a judgment of acquittal has. Thus, it has long been recognized that in the same term of court and before the defendant has begun serving the sentence the court may recall him and increase his sentence.3 Footnote
Bozza v. United States, 330 U.S. 160 (1947) . See also Pollard v. United States, 352 U.S. 354, 359–60 (1957) (imposition of prison sentence two years after court imposed an invalid sentence of probation approved). Dicta in some cases had cast doubt on the constitutionality of the practice. United States v. Benz, 282 U.S. 304, 307 (1931) . However, United States v. DiFrancesco, 449 U.S. 117, 133–36, 138–39 (1980) , upholding a statutory provision allowing the United States to appeal a sentence imposed on a “dangerous special offender,” removes any doubt on that score. The Court there reserved decision on whether the government may appeal a sentence that the defendant has already begun to serve. Moreover, a defendant who is retried after he is successful in overturning his first conviction is not protected by the Double Jeopardy Clause against receiving a greater sentence upon his second conviction.4 Footnote
North Carolina v. Pearce, 395 U.S. 711, 719–21 (1969) . See also Chaffin v. Stynchcombe, 412 U.S. 17, 23–24 (1973) . The principle of implicit acquittal of an offense drawn from Green v. United States, 355 U.S. 184 (1957) , does not similarly apply to create an implicit acquittal of a higher sentence. Pearce does hold that a defendant must be credited with the time served against his new sentence. 395 U.S. at 717–19 . An exception exists with respect to capital punishment, the Court having held that government may not again seek the death penalty on retrial when on the first trial the jury had declined to impose a death sentence.5 Footnote
Bullington v. Missouri, 451 U.S. 430 (1981) . Four Justices dissented. Id. at 447 (Justices Powell, White, Rehnquist, and Chief Justice Burger). The Court disapproved Stroud v. United States, 251 U.S. 15 (1919) , although formally distinguishing it. Bullington was followed in Arizona v. Rumsey, 467 U.S. 203 (1984) , also involving a separate sentencing proceeding in which a life imprisonment sentence amounted to an acquittal on imposition of the death penalty. Rumsey was decided by 7-2 vote, with only Justices White and Rehnquist dissenting. In Monge v. California, 524 U.S. 721 (1998) , the Court refused to extend the “narrow” Bullington exception outside the area of capital punishment. But see Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) (state may seek the death penalty in a retrial when defendant appealed following discharge of the sentencing jury under a statute authorizing discharge based on the court’s “opinion that further deliberation would not result in a unanimous agreement as to the sentence, in which case the court shall sentence the defendant to life imprisonment” ).

Applying and modifying these principles, the Court narrowly approved the constitutionality of a statutory provision for sentencing of “dangerous special offenders,” which authorized prosecution appeals of sentences and permitted the appellate court to affirm, reduce, or increase the sentence.6 Footnote
United States v. DiFrancesco, 449 U.S. 117 (1980) . Four Justices dissented. Id. at 143, 152 (Justices Brennan, White, Marshall, and Stevens). The Court held that the provision did not offend the Double Jeopardy Clause. Sentences had never carried the finality that attached to acquittal, and its precedents indicated to the Court that imposition of a sentence less than the maximum was in no sense an “acquittal” of the higher sentence. Appeal resulted in no further trial or other proceedings to which a defendant might be subjected, only the imposition of a new sentence. An increase in a sentence would not constitute multiple punishment, the Court continued, inasmuch as it would be within the allowable sentence and the defendant could have no legitimate expectation of finality in the sentence as first given because the statutory scheme alerted him to the possibility of increase. Similarly upheld as within the allowable range of punishment contemplated by the legislature was a remedy for invalid multiple punishments under consecutive sentences: a shorter felony conviction was vacated, and time served was credited to the life sentence imposed for felony-murder. Even though the first sentence had been commuted and hence fully satisfied at the time the trial court revised the second sentence, the resulting punishment was “no greater than the legislature intended,” hence there was no double jeopardy violation.7 Footnote
Jones v. Thomas, 491 U.S. 376, 381–82 (1989) .

The Court is also quite deferential to legislative classification of recidivism sentencing enhancement factors as relating only to sentencing and as not constituting elements of an “offense” that must be proved beyond a reasonable doubt. Ordinarily, therefore, sentence enhancements cannot be construed as additional punishment for the previous offense, and the Double Jeopardy Clause is not implicated. “Sentencing enhancements do not punish a defendant for crimes for which he was not convicted, but rather increase his sentence because of the manner in which he committed his crime of conviction.” 8 Footnote
United States v. Watts, 519 U.S. 148, 154 (1997) (relying on Witte v. United States, 515 U.S. 389 (1995) , and holding that a sentencing court may consider earlier conduct of which the defendant was acquitted, so long as that conduct is proved by a preponderance of the evidence). See also Almendarez-Torres v. United States, 523 U.S. 224 (1998) (Congress’s decision to treat recidivism as a sentencing factor does not violate due process); Monge v. California, 524 U.S. 721 (1998) (retrial is permissible following appellate holding of failure of proof relating to sentence enhancement). Justice Scalia, whose dissent in Almendarez-Torres argued that there was constitutional doubt over whether recidivism factors that increase a maximum sentence must be treated as a separate offense for double jeopardy purposes ( 523 U.S. at 248 ), answered that question affirmatively in his dissent in Monge . 524 U.S. 740–41 .

For the Same Offence

Sometimes as difficult as determining when a defendant has been placed in jeopardy is determining whether he was placed in jeopardy for the same offense. As noted previously, the same conduct may violate the laws of two different sovereigns, and a defendant may be proceeded against by both because each may have different interests to serve.9 Footnote
See discussion supra under “Development and Scope.” The same conduct may transgress two or more different statutes, because laws reach lesser and greater parts of one item of conduct, or may violate the same statute more than once, as when one robs several people in a group at the same time.

Legislative Discretion as to Multiple Sentences

It frequently happens that one activity of a criminal nature will violate one or more laws or that one or more violations may be charged.10 Footnote
There are essentially two kinds of situations here. There are “double-description” cases in which criminal law contains more than one prohibition for conduct arising out of a single transaction. E.g., Gore v. United States, 357 U.S. 386, 392–93 (1958) (one sale of narcotics resulted in three separate counts: (1) sale of drugs not in pursuance of a written order, (2) sale of drugs not in the original stamped package, and (3) sale of drugs with knowledge that they had been unlawfully imported). And there are “unit-of-prosecution” cases in which the same conduct may violate the same statutory prohibition more than once. E.g., Bell v. United States, 349 U.S. 81 (1955) (defendant who transported two women across state lines for an immoral purpose in one trip in same car indicted on two counts of violating Mann Act). See Westen & Drubel , Toward a General Theory of Double Jeopardy , 1978 Sup. Ct. Rev. 81, 111–22 . Although the question is not totally free of doubt, it appears that the Double Jeopardy Clause does not limit the legislative power to split a single transaction into separate crimes so as to give the prosecution a choice of charges that may be tried in one proceeding, thereby making multiple punishments possible for essentially one transaction.11 Footnote
Albernaz v. United States, 450 U.S. 333, 343–44 (1981) (defendants convicted on separate counts of conspiracy to import marijuana and conspiracy to distribute marijuana, both charges relating to the same marijuana.) The concurrence objected that the clause does preclude multiple punishments for separate statutory offenses unless each requires proof of a fact that the others do not. Id. at 344 . Because the case involved separate offenses that met this test, Albernaz strictly speaking is not a square holding and previous dicta is otherwise, but Albernaz ’s dicta is well-considered in view of the positions of at least four of its Justices who have objected to the dicta in other cases suggesting a constitutional restraint by the clause. Whalen v. United States, 445 U.S. 684, 695, 696, 699 (1980) (Justices White, Blackmun, Rehnquist, and Chief Justice Burger). “Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger , a court’s task of statutory construction is at an end and . . . the trial court or jury may impose cumulative punishment under such statutes in a single trial.” 12 Footnote
Missouri v. Hunter, 459 U.S. 359, 368–69 (1983) (separate offenses of “first degree robbery,” defined to include robbery under threat of violence, and “armed criminal action” ). Only Justices Marshall and Stevens dissented, arguing that the legislature should not be totally free to prescribe multiple punishment for the same conduct, and that the same rules should govern multiple prosecutions and multiple punishments.

Successive Prosecutions for the Same Offense

Successive prosecutions raise fundamental double jeopardy concerns extending beyond those raised by enhanced and multiple punishments. It is more burdensome for a defendant to face charges in separate proceedings, and if those proceedings are strung out over a lengthy period the defendant is forced to live in a continuing state of uncertainty. At the same time, multiple prosecutions allow the state to hone its trial strategies through successive attempts at conviction.22 Footnote
See Grady v. Corbin, 495 U.S. 508, 518–19 (1990) . In Brown v. Ohio ,23 Footnote
432 U.S. 161 (1977) . Cf. In re Nielsen, 131 U.S. 176 (1889) (prosecution for adultery held impermissible following the defendant's conviction for cohabiting with more than one woman, even though second prosecution required proof of an additional fact—that he was married to another woman). the Court, apparently for the first time, applied the same evidence test to bar successive prosecutions in state court for different statutory offenses involving the same conduct. The defendant had been convicted of “joyriding,” defined as operating a motor vehicle without the owner’s consent, and was then prosecuted and convicted of stealing the same automobile. Because the state courts had conceded that joyriding was a lesser included offense of auto theft, the Court observed that each offense required the same proof and for double jeopardy purposes met the Blockburger test. The second conviction was overturned.24 Footnote
See also Harris v. Oklahoma, 433 U.S. 682 (1977) (defendant who had been convicted of felony murder for participating in a store robbery with another person who shot a store clerk could not be prosecuted for robbing the store, since store robbery was a lesser-included crime in the offense of felony murder). Application of the same principles resulted in a holding that a prior conviction of failing to reduce speed to avoid an accident did not preclude a second trial for involuntary manslaughter, because failing to reduce speed was not a necessary element of the statutory offense of manslaughter, unless the prosecution in the second trial had to prove failing to reduce speed to establish this particular offense.25 Footnote
Illinois v. Vitale, 447 U.S. 410 (1980) . In 1990, the Court modified the Brown approach, stating that the appropriate focus is on same conduct rather than same evidence.26 Footnote
Grady v. Corbin, 495 U.S. 508 (1990) (holding that the state could not prosecute a traffic offender for negligent homicide because it would attempt to prove conduct for which the defendant had already been prosecuted—driving while intoxicated and failure to keep to the right of the median). A subsequent prosecution is barred, the Court explained, if the government, to establish an essential element of an offense, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. Id. at 521 . That interpretation held sway only three years, however, before being repudiated as “wrong in principle [and] unstable in application.” 27 Footnote
United States v. Dixon, 509 U.S. 688, 709 (1993) (applying Blockburger test to determine whether prosecution for a crime, following conviction for criminal contempt for violation of a court order prohibiting that crime, constitutes double jeopardy). The Brown Court had noted some limitations applicable to its holding,28 Footnote
The Court suggested that if the legislature had provided that joyriding is a separate offense for each day the vehicle is operated without the owner’s consent, so that the two indictments each specifying a different date on which the offense occurred would have required different proof, the result might have been different, but this, of course, met the Blockburger problem. Brown v. Ohio, 432 U.S. 161, 169 n.8 (1977) . The Court also suggested that an exception might be permitted where the State is unable to proceed on the more serious charge at the outset because the facts necessary to sustain that charge had not occurred or had not been discovered. Id. at 169 n.7 . See also Jeffers v. United States, 432 U.S. 137, 150–54 (1977) (plurality opinion) (exception where defendant elects separate trials); Ohio v. Johnson, 467 U.S. 493 (1984) (trial court’s acceptance of guilty plea to lesser included offense and dismissal of remaining charges over prosecution’s objections does not bar subsequent prosecution on those “remaining” counts). and more have emerged subsequently. Principles appropriate in the “classically simple” lesser-included-offense and related situations are not readily transposable to “multilayered conduct” governed by the law of conspiracy and continuing criminal enterprise, and it remains the law that “a substantive crime and a conspiracy to commit that crime are not the ‘same offense’ for double jeopardy purposes.” 29 Footnote
United States v. Felix, 503 U.S. 378, 389 (1992) . The fact that Felix constituted a “large exception” to Grady was one of the reasons the Court cited in overruling Grady . United States v. Dixon, 509 U.S. 688, 709–10 (1993) . For double jeopardy purposes, a defendant is “punished . . . only for the offense of which [he] is convicted” ; a later prosecution or later punishment is not barred simply because the underlying criminal activity has been considered at sentencing for a different offense.30 Footnote
Witte v. United States, 515 U.S. 389 (1995) (consideration of defendant’s alleged cocaine dealings in determining sentence for marijuana offenses does not bar subsequent prosecution on cocaine charges). Similarly, recidivism-based sentence enhancement does not constitute multiple punishment for the “same” prior offense, but instead is a stiffened penalty for the later crime.31 Footnote
Monge v. California, 524 U.S. 721, 728 (1998) .

The Same Transaction Problem

Then in United States v. Powell , the Court rejected the argument that issue preclusion barred the acceptance of an “inconsistent” jury verdict that included an acquittal on a drug charge but guilty verdicts of using a telephone to “caus[e] and faciliat[e]” that same drug offense.40 Footnote
See United States v. Powell, 469 U.S. 57, 68 (1984) . Reaffirming a precedent from more than a half a century before,41 Footnote
See Dunn v. United States, 284 U.S. 390, 392 (1932) . the Powell Court held that the “Government’s inability to invoke review, the general reluctance to inquire into the workings of the jury, and the possible exercise of lenity” by the jury cautioned against allowing defendants to challenge inconsistent verdicts on issue preclusion grounds.42 Footnote
469 U.S. at 68–69 .

Footnotes 1 Ex parte Lange, 85 U.S. (18 Wall.) 163, 173 (1874) ; North Carolina v. Pearce, 395 U.S. 711, 717 (1969) . 2 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874) . 3 Bozza v. United States, 330 U.S. 160 (1947) . See also Pollard v. United States, 352 U.S. 354, 359–60 (1957) (imposition of prison sentence two years after court imposed an invalid sentence of probation approved). Dicta in some cases had cast doubt on the constitutionality of the practice. United States v. Benz, 282 U.S. 304, 307 (1931) . However, United States v. DiFrancesco, 449 U.S. 117, 133–36, 138–39 (1980) , upholding a statutory provision allowing the United States to appeal a sentence imposed on a “dangerous special offender,” removes any doubt on that score. The Court there reserved decision on whether the government may appeal a sentence that the defendant has already begun to serve. 4 North Carolina v. Pearce, 395 U.S. 711, 719–21 (1969) . See also Chaffin v. Stynchcombe, 412 U.S. 17, 23–24 (1973) . The principle of implicit acquittal of an offense drawn from Green v. United States, 355 U.S. 184 (1957) , does not similarly apply to create an implicit acquittal of a higher sentence. Pearce does hold that a defendant must be credited with the time served against his new sentence. 395 U.S. at 717–19 . 5 Bullington v. Missouri, 451 U.S. 430 (1981) . Four Justices dissented. Id. at 447 (Justices Powell, White, Rehnquist, and Chief Justice Burger). The Court disapproved Stroud v. United States, 251 U.S. 15 (1919) , although formally distinguishing it. Bullington was followed in Arizona v. Rumsey, 467 U.S. 203 (1984) , also involving a separate sentencing proceeding in which a life imprisonment sentence amounted to an acquittal on imposition of the death penalty. Rumsey was decided by 7-2 vote, with only Justices White and Rehnquist dissenting. In Monge v. California, 524 U.S. 721 (1998) , the Court refused to extend the “narrow” Bullington exception outside the area of capital punishment. But see Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) (state may seek the death penalty in a retrial when defendant appealed following discharge of the sentencing jury under a statute authorizing discharge based on the court’s “opinion that further deliberation would not result in a unanimous agreement as to the sentence, in which case the court shall sentence the defendant to life imprisonment” ). 6 United States v. DiFrancesco, 449 U.S. 117 (1980) . Four Justices dissented. Id. at 143, 152 (Justices Brennan, White, Marshall, and Stevens). 7 Jones v. Thomas, 491 U.S. 376, 381–82 (1989) . 8 United States v. Watts, 519 U.S. 148, 154 (1997) (relying on Witte v. United States, 515 U.S. 389 (1995) , and holding that a sentencing court may consider earlier conduct of which the defendant was acquitted, so long as that conduct is proved by a preponderance of the evidence). See also Almendarez-Torres v. United States, 523 U.S. 224 (1998) (Congress’s decision to treat recidivism as a sentencing factor does not violate due process); Monge v. California, 524 U.S. 721 (1998) (retrial is permissible following appellate holding of failure of proof relating to sentence enhancement). Justice Scalia, whose dissent in Almendarez-Torres argued that there was constitutional doubt over whether recidivism factors that increase a maximum sentence must be treated as a separate offense for double jeopardy purposes ( 523 U.S. at 248 ), answered that question affirmatively in his dissent in Monge . 524 U.S. 740–41 . 9 See discussion supra under “Development and Scope.” 10 There are essentially two kinds of situations here. There are “double-description” cases in which criminal law contains more than one prohibition for conduct arising out of a single transaction. E.g., Gore v. United States, 357 U.S. 386, 392–93 (1958) (one sale of narcotics resulted in three separate counts: (1) sale of drugs not in pursuance of a written order, (2) sale of drugs not in the original stamped package, and (3) sale of drugs with knowledge that they had been unlawfully imported). And there are “unit-of-prosecution” cases in which the same conduct may violate the same statutory prohibition more than once. E.g., Bell v. United States, 349 U.S. 81 (1955) (defendant who transported two women across state lines for an immoral purpose in one trip in same car indicted on two counts of violating Mann Act). See Westen & Drubel , Toward a General Theory of Double Jeopardy , 1978 Sup. Ct. Rev. 81, 111–22 . 11 Albernaz v. United States, 450 U.S. 333, 343–44 (1981) (defendants convicted on separate counts of conspiracy to import marijuana and conspiracy to distribute marijuana, both charges relating to the same marijuana.) The concurrence objected that the clause does preclude multiple punishments for separate statutory offenses unless each requires proof of a fact that the others do not. Id. at 344 . Because the case involved separate offenses that met this test, Albernaz strictly speaking is not a square holding and previous dicta is otherwise, but Albernaz ’s dicta is well-considered in view of the positions of at least four of its Justices who have objected to the dicta in other cases suggesting a constitutional restraint by the clause. Whalen v. United States, 445 U.S. 684, 695, 696, 699 (1980) (Justices White, Blackmun, Rehnquist, and Chief Justice Burger). 12 Missouri v. Hunter, 459 U.S. 359, 368–69 (1983) (separate offenses of “first degree robbery,” defined to include robbery under threat of violence, and “armed criminal action” ). Only Justices Marshall and Stevens dissented, arguing that the legislature should not be totally free to prescribe multiple punishment for the same conduct, and that the same rules should govern multiple prosecutions and multiple punishments. 13 United States v. Universal C.I.T. Corp., 344 U.S. 218, 221–22 (1952) . 14 284 U.S. 299, 304 (1932) . This case itself was not a double jeopardy case, but it derived the rule from Gavieres v. United States, 220 U.S. 338, 342 (1911) , which was a double jeopardy case. See also Carter v. McClaughry, 183 U.S. 365 (1902) ; Morgan v. Devine, 237 U.S. 632 (1915) ; Albrecht v. United States, 273 U.S. 1 (1927) ; Pinkerton v. United States, 328 U.S. 640 (1946) ; American Tobacco Co. v. United States, 328 U.S. 781 (1946) ; United States v. Michener , 331 U.S. 789 (1947) ; Pereira v. United States, 347 U.S. 1 (1954) ; Callanan v. United States, 364 U.S. 587 (1961) . 15 357 U.S. 386 (1958) . 16 See also Albernaz v. United States, 450 U.S. 333 (1981) ; Iannelli v. United States, 420 U.S. 770 (1975) (defendant convicted on two counts, one of the substantive offense, one of conspiracy to commit the substantive offense; defense raised variation of Blockburger test, Wharton’s Rule requiring that one may not be punished for conspiracy to commit a crime when the nature of the crime necessitates participation of two or more persons for its commission; Court recognized Wharton’s Rule as a double-jeopardy inspired presumption of legislative intent but held that congressional intent in this case was “clear and unmistakable” that both offenses be punished separately). 17 United States v. Felix, 503 U.S. 378, 391 (1992) . But cf. Rutledge v. United States, 517 U.S. 292 (1996) ( 21 U.S.C. § 846 , prohibiting conspiracy to commit drug offenses, does not require proof of any fact that is not also a part of the continuing criminal enterprise offense under 21 U.S.C. § 848 , so there are not two separate offenses). 18 Garrett v. United States, 471 U.S. 773 (1985) ( “continuing criminal enterprise” is a separate offense under the Comprehensive Drug Abuse Prevention and Control Act of 1970). 19 445 U.S. 684 (1980) . 20 The Court reasoned that a conviction for killing in the course of rape could not be had without providing all of the elements of the offense of rape. See also Jeffers v. United States, 432 U.S. 137 (1977) (no indication in legislative history Congress intended defendant to be prosecuted both for conspiring to distribute drugs and for distributing drugs in concert with five or more persons); Simpson v. United States, 435 U.S. 6 (1978) (defendant improperly prosecuted both for committing bank robbery with a firearm and for using a firearm to commit a felony); Bell v. United States, 349 U.S. 81 (1955) (simultaneous transportation of two women across state lines for immoral purposes one violation of Mann Act rather than two). 21 United States v. Broce, 488 U.S. 563 (1989) (defendant who pled guilty to two separate conspiracy counts is barred from collateral attack alleging that in fact there was only one conspiracy and that double jeopardy applied). 22 See Grady v. Corbin, 495 U.S. 508, 518–19 (1990) . 23 432 U.S. 161 (1977) . Cf. In re Nielsen, 131 U.S. 176 (1889) (prosecution for adultery held impermissible following the defendant's conviction for cohabiting with more than one woman, even though second prosecution required proof of an additional fact—that he was married to another woman). 24 See also Harris v. Oklahoma, 433 U.S. 682 (1977) (defendant who had been convicted of felony murder for participating in a store robbery with another person who shot a store clerk could not be prosecuted for robbing the store, since store robbery was a lesser-included crime in the offense of felony murder). 25 Illinois v. Vitale, 447 U.S. 410 (1980) . 26 Grady v. Corbin, 495 U.S. 508 (1990) (holding that the state could not prosecute a traffic offender for negligent homicide because it would attempt to prove conduct for which the defendant had already been prosecuted—driving while intoxicated and failure to keep to the right of the median). A subsequent prosecution is barred, the Court explained, if the government, to establish an essential element of an offense, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. Id. at 521 . 27 United States v. Dixon, 509 U.S. 688, 709 (1993) (applying Blockburger test to determine whether prosecution for a crime, following conviction for criminal contempt for violation of a court order prohibiting that crime, constitutes double jeopardy). 28 The Court suggested that if the legislature had provided that joyriding is a separate offense for each day the vehicle is operated without the owner’s consent, so that the two indictments each specifying a different date on which the offense occurred would have required different proof, the result might have been different, but this, of course, met the Blockburger problem. Brown v. Ohio, 432 U.S. 161, 169 n.8 (1977) . The Court also suggested that an exception might be permitted where the State is unable to proceed on the more serious charge at the outset because the facts necessary to sustain that charge had not occurred or had not been discovered. Id. at 169 n.7 . See also Jeffers v. United States, 432 U.S. 137, 150–54 (1977) (plurality opinion) (exception where defendant elects separate trials); Ohio v. Johnson, 467 U.S. 493 (1984) (trial court’s acceptance of guilty plea to lesser included offense and dismissal of remaining charges over prosecution’s objections does not bar subsequent prosecution on those “remaining” counts). 29 United States v. Felix, 503 U.S. 378, 389 (1992) . The fact that Felix constituted a “large exception” to Grady was one of the reasons the Court cited in overruling Grady . United States v. Dixon, 509 U.S. 688, 709–10 (1993) . 30 Witte v. United States, 515 U.S. 389 (1995) (consideration of defendant’s alleged cocaine dealings in determining sentence for marijuana offenses does not bar subsequent prosecution on cocaine charges). 31 Monge v. California, 524 U.S. 721, 728 (1998) . 32 See Ashe v. Swenson, 397 U.S. 436, 445 (1970) . Collateral estoppel and issue preclusion are synonymous terms. See BLACK’S LAW DICTIONARY 312 (10th ed. 2014) (defining “collateral estoppel” ). 33 See RESTATEMENT (SECOND) OF JUDGMENTS § 27 (Am. Law Inst. 1981). 34 397 U.S. at 445 . Previously, the Court in Hoag v. New Jersey , concluded that successive trials arising out of a tavern hold-up in which five customers were robbed did not violate the Due Process Clause of the Fourteenth Amendment. See 356 U.S. 464, 466 (1958) . 35 397 U.S. at 437 . 36 397 U.S. at 439–40 . 37 Id. at 446 (quoting Green v. United States, 355 U.S. 184, 190 (1957) ). 38 Id. at 444 . 39 See Bobby v. Bies, 556 U.S. 825, 834 (2009) (citing RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. h). 40 See United States v. Powell, 469 U.S. 57, 68 (1984) . 41 See Dunn v. United States, 284 U.S. 390, 392 (1932) . 42 469 U.S. at 68–69 . 43 No. 15-537, Slip Op. at 15, 20 (June 29, 2016) ( “We therefore bracket this case with Powell . . .” ). 44 Id. at 361 . Had the convictions been overturned because of lack of evidence, the government would have been prohibited from retrying the defendants, as a court’s evaluation of the evidence as insufficient to convict is the equivalent to an acquittal and, accordingly, bars reprosecution for that same offense. See Burks v. United States, 437 U.S. 1, 10–11 (1978) . 45 See Bravo-Fernandez , No. 15-537, Slip Op. at 15 . 46 Id. at 16 . 47 Id. at 15 . The Bravo-Fernandez Court distinguished the case from Yeager v. United States, 557 U.S. 110 (2009) , where the Court held that Powell did not extend to the situation where a jury returned a verdict of acquittal on one count and hung on another count and prosecutors attempted to retry on the hung count. Id. at 124 . Because the jury “speaks only though its verdict,” a hung count did not reveal anything about the jury’s reasoning and only the acquittal could factor into the issue preclusion analysis. Id. at 122 . Unlike in Yeager , the acquittals in Bravo-Fernandez were accompanied with inconsistent guilty verdicts, leading the Court to conclude that the criminal defendants could not demonstrate that the jury had actually decided the underlying issue at the second trial. See Bravo-Fernandez , No. 15-537, Slip Op. at 15-16 . 48 See Bravo-Fernandez , No. 15-537, Slip Op. at 16 (noting that the earlier acquittals “remain inviolate” ).

The following state regulations pages link to this page.