Currier v. Virginia, 585 U.S. ___, 138 S. Ct. 2144 (Jun. 22, 2018)

When a defendant agrees to have charges against him considered in two trials, he cannot later successfully argue that the second trial offends the Double Jeopardy Clause. Facing trial on charges of burglary, grand larceny, and unlawful possession of a firearm by a felon, defendant Michael Currier worried that because the prosecution could introduce evidence of his prior convictions to prove the felon-in-possession charge, that evidence might prejudice the jury’s consideration of the other charges. Currier and the government agreed to a severance, with the burglary and larceny charges to be tried first, followed by a second trial on the felon-in-possession charge. But after the first trial ended in an acquittal, Currier argued that the second trial would violate double jeopardy. Alternatively he asked the trial 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 trial court should exclude from the new proceeding any evidence about the burglary and larceny. The trial court rejected his arguments and allowed the second trial to proceed. The jury convicted Currier on the felon-in-possession charge. After his unsuccessful appeal in the state courts, the Supreme Court granted review.

                  Currier argued that Ashe v. Swenson, 397 U. S. 436 (1970), required a ruling in his favor. The Court rejected this argument, noting, in part, that 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. It found Ashe distinguishable, noting that in the case before it, the defendant consented to the second trial. Instead, the Court found guidance in Jeffers v. United States, 432 U.S. 137 (1977), in which the defendant sought separate trials on each count 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. The Jeffers Court concluded that 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.” (citation omitted). The Court continued:

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.’” Because the Clause applies equally in both situations, consent to a second trial should in general have equal effect in both situations. (citation omitted)

The Court went on to explain that holding otherwise would create inconsistency not just with Jeffers but with other Court precedents as well. It concluded: “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.’”

                  The Court continued in Part III of the Opinion, which garnered only four votes, rejecting Currier’s argument that even if he voluntarily consented to holding the second trial, that consent did not extend to the relitigation of any issues the first jury resolved in his favor. This argument turned on issue preclusion principles in civil cases that Currier invited the Court to import into the criminal law through the Double Jeopardy Clause. As noted, however, this aspect of the Court’s opinion did not enjoy the support of a majority of the Court.