Currier v. Virginia:  Defendant who consented to severance cannot claim double jeopardy bars the second trial after the first trial ended in acquittal, but plurality raises questions about issue preclusion
          A defendant who requests severance of his charges into two separate trials cannot claim that the Double Jeopardy Clause precludes the second trial when the first trial ended in an acquittal, because the defendant had consented to two trials, the U.S. Supreme Court held June 22, in Currier v. Virginia.
          But while that general holding appeared to be endorsed by all nine justices, a plurality of four justices also ruled that civil issue preclusion cannot be imported into the Double Jeopardy Clause.  Four justices believed that issue preclusion may bar retrial on the facts of this case, while Justice Kennedy said the Court should not have addressed issue preclusion at all.   
          The 4-4 split on issue preclusion may raise doubt about existing Supreme Court precedent on double jeopardy, and will likely raise more questions in the future. 
          Michael Currier was charged with burglary, larceny and felon-in-possession of a firearm for stealing a safe with guns in it. 
          Because Currier did not want the jury to hear that he had prior convictions necessary to prove the possession count, he requested and received severance of his charges into two separate trials.
          The burglary and larceny trial occurred first.  He was acquitted in that trial.
          He then claimed that the Double Jeopardy Clause prevented him from being tried for felon-in-possession. 
          The Virginia courts held that the because the Double Jeopardy Clause was intended to avoid prosecutorial oppression and overreaching, it did not apply where Currier had requested the two trials for his own potential benefit.
          A fractured Supreme Court affirmed.
          Five Justices – Gorsuch, Roberts, Kennedy, Thomas and Alito – formed a majority opinion which held that because Currier had consented to two trials, he could not assert a double jeopardy bar. 
          “Even assuming without deciding that Mr. Currier’s second trial qualified as the retrial of the same offense … he consented to it,” they said, by asking for serverance.
          “[P]recedents 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,” the Court said.  “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.”
          The Clause guards against Government oppression, not the consequences of a defendant’s voluntary choice, the Court said.  Although Currier may have had to make a difficult choice whether to sever his offenses, “difficult strategic choices like these are not the same as no choice,” the Court said.
Plurality judgment
          All Justices in the majority – except Kennedy – then continued with a plurality judgment rejecting issue preclusion as being embodied in the Double Jeopardy Clause.
          Currier raised an alternative argument that issue preclusion prevented the Government from getting a second chance to present and prove the burglary and larceny evidence, without which the evidence would be insufficient to warrant conviction of felon-in-possession.
          Currier argued that double jeopardy should do more than bar retrial of the same offense; it should also prevent the parties from retrying any issue or introducing any evidence about a previously tried issue.
          But Gorsuch, Roberts, Thomas and Alito rejected this. 
          “[T]he Clause speaks not about prohibiting the relitigation of issues or evidence but offenses,” they said.  “[O]nly in the Seventh Amendment – and only for civil suits – can we find anything resembling contemporary issue preclusion doctrine.”
          The original public understanding of the Fifth Amendment was that it barred prosecution for the same identical act and crime, not retrial of particular issues or evidence, they said.
          Transplanting civil issue preclusion into the Double Jeopardy Clause would “quickly meet trouble,” and not necessarily benefit defendants, they said.  Blockberger precludes a trial on an offense only if a court has previously heard the same offense as measured by the statutory elements, and the Court has previously rejected the “more generous ‘same transaction’ or ‘same criminal episode’ test.”
          Would defendants want the Government to be able to use issue preclusion offensively against them in preventing them from relitigating issues decided against them in a prior trial?  “It’s an outcome few defendants would welcome,” the Justices said. 
Kennedy concurrence
          Justice Kennedy concurred in the affirmance, but said he would not have decided the issue preclusion claim.  He believed the five-justice majority opinion “resolves[s] this case in a full and proper way.”
          He said the plurality was attempting to reexamine the double jeopardy protections set forth in Ashe v. Swenson, 397 U.S. 436 (1970), which he said was unnecessary.
          Ashe held that where a defendant had been acquitted of robbing one of six people in a single incident, the Government could not retry him for robbing a second of the six people. 
Dissenting opinion
          Justice Ginsburg, joined by Breyer, Sotomayor, and Kagan, dissented from the issue preclusion plurality judgment. 
          Ginsburg explained that issue preclusion is not the same as claim preclusion.  “Unlike the right against a second trial for the same offense (claim preclusion), issue preclusion prevents relitigation of a previously rejected theory of criminal liability without necessarily barring a successive trial,” she said.
          “[I]ssue preclusion does not operate, as claim preclusion does, to bar a successive trial altogether.  Issue preclusion bars only a subset of possible trials – those in which the prosecution rests its case on a theory of liability a jury earlier rejected,” she said.  “That being so, consenting to a second trial is not inconsistent with – and therefore does not foreclose – a defendant’s gaining the issue-preclusive effect of an acquittal.”
          Applying this rule, Ginsburg said that issue preclusion would bar a second trial of Currier if the Government’s theory was that Currier participated in stealing the safe at the victim’s residence – which theory was rejected by the first jury.  But if the Government’s theory would be that Currier only helped to get rid of the safe later, and got the guns out of the safe later – a different theory than the first trial – then the second trial would not be barred.
          Ginsburg said that “the plurality would take us back to the [pre-Ashe] days before the Court recognized issue preclusion as a constitutionally grounded component of the Double Jeopardy Clause.”