The "Same Transaction" Problem
"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.138 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.139 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.140 "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."141
138 See discussion supra under "Development and Scope."
139 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.
140 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. Inasmuch as the case involved separate offenses which met this test, Albernaz strictly speaking is not a square holding and previous dicta is otherwise, but Albernaz is well-considered dicta 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, Black-mun, Rehnquist, and Chief Justice Burger).
141 Missouri v. Hunter, 459 U.S. 359 (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.
The clause does, however, create a rule of construction, a presumption against the judiciary imposing multiple punishments for the same transaction unless Congress has "spoken in language that is clear and definite"142 to pronounce its intent that multiple punishments indeed be imposed. The commonly used test in determining whether Congress would have wanted to punish as separate offenses conduct occurring in the same transaction, absent otherwise clearly expressed intent, is the "same evidence" rule. The rule, announced in Blockburger v. United States,143 "is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Thus, in Gore v. United States,144 the Court held that defendant's one act of selling narcotics had violated three distinct criminal statutes, each of which required proof of a fact not required by the others; prosecuting him on all three counts in the same proceeding was therefore permissible.145 So too, the same evidence rule does not upset the "established doctrine" that, for double jeopardy purposes, "a conspiracy to commit a crime is a separate offense from the crime itself,"146 or the related principle that Congress may prescribe that predicate offenses and "continuing criminal enterprise" are separate offenses.147 On the other hand, in Whalen v. United States,148 the Court determined that a defendant could not be separately punished for rape and for killing the same victim in the perpetration of the rape, because it is not the case that each statute requires proof of a fact that the other does not, and no indication existed in the statutes and the legislative history that Congress wanted the separate offenses punished.149 In this as in other areas, a guilty plea ordinarily precludes collateral attack.150
143 284 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).
144 357 U.S. 386 (1958).
145 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).
146 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).
147 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).
148 445 U.S. 684 (1980).
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.151 In Brown v. Ohio,152 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.153 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, inasmuch as 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.154 In 1990, the Court modified the Brown approach, stating that the appropriate focus is on same conduct rather than same evidence.155 That interpretation held sway only three years, however, before being repudiated as "wrong in principle [and] unstable in application."156 The Brown Court had noted some limitations applicable to its holding,157 and more have emerged subsequently. Principles appropriate in the "classically simple" lesser-included-offense and related situations are not readily transposible 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."158 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.159 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.160
149 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).
150 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).
152 432 U.S. 161 (1977). Cf. In re Nielson, 131 U.S. 176 (1889) (prosecution of Mormon for adultery held impermissible following his 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).
153 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).
154 Illinois v. Vitale, 447 U.S. 410 (1980).
155 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.
156 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).
157 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).
158 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).
159 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).
The "Same Transaction" Problem.—The same conduct may also give rise to multiple offenses in a way that would satisfy the Blockburger test if that conduct victimizes two or more individuals, and therefore constitutes a separate offense as to each of them. In Hoag v. New Jersey,161 before the double jeopardy clause was applied to the States, the Court found no due process problem in successive trials arising out of a tavern hold-up in which five customers were robbed. Ashe v. Swenson,162 however, presented the Court with the Hoag fact situation directly under the double jeopardy clause. The defendant had been acquitted at trial of robbing one player in a poker game; the defense offered no testimony and did not contest evidence that a robbery had taken place and that each of the players had lost money. A second trial was held on a charge that the defendant had robbed a second of the seven poker players, and on the basis of stronger identification testimony the defendant was convicted. Reversing the conviction, the Court held that the doctrine of collateral estoppel163 was a constitutional rule made applicable to the States through the double jeopardy clause. Because the only basis upon which the jury could have acquitted the defendant at his first trial was a finding that he was not present at the robbery, hence was not one of the robbers, the State could not relitigate that issue; with that issue settled, there could be no conviction.164 Several Justices would have gone further and required a compulsory joinder of all charges against a defendant growing out of a single criminal act, occurrence, episode, or transaction, except where a crime is not discovered until prosecution arising from the same transaction has begun or where the same jurisdiction does not have cognizance of all the crimes.165 But the Court has "steadfastly refused to adopt the 'single transaction' view of the Double Jeopardy Clause."166
Yeager v. United States,10 unlike Ashe, “entail[ed] a trial that included multiple counts rather than a trial for a single offense. And, while Ashe involved an acquittal for that single offense, this case [Yeager] involves an acquittal on some counts and a mistrial declared on others. The reasoning in Ashe is nevertheless controlling because, for double jeopardy purposes, the jury's inability to reach a verdict on [some] counts was a nonevent and the acquittals on the [other] counts are entitled to the same effect as Ashe’s acquittal.” The lower court in Yeager had “reasoned that the hung counts must be considered to determine what issues the jury decided in the first trial. Viewed in isolation, the [lower] court explained, the acquittals . . . would preclude retrial because [of the facts that the jury would have had to have found in light of its acquittals]. Viewed alongside the hung counts, however, the acquittals appeared less decisive,”11 because, if the jury had actually found the facts implied by its acquittals, then it would have acquitted on the hung counts as well. In other words, its having acquitted on some counts and not on others was logically inconsistent.12 The Supreme Court, however, found that nothing should be inferred from the failure to acquit on some counts, because “there is no way to decipher what a hung count represents… A host of reasons — sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few — could work alone or in tandem to cause a jury to hang… Accordingly, we hold that the consideration of hung counts has no place in the issue-preclusion analysis.”13
162 397 U.S. 436 (1970).
163 "'Collateral estoppel' is an awkward phrase . . . [which] means simply that when an issue of ultimate fact has once been determined by a final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 443. First developed in civil litigation, the doctrine was applied in a criminal case in United States v. Oppenheimer, 242 U.S. 85 (1916). See also Sealfon v. United States, 332 U.S. 575 (1948). The term “collateral estoppel” has been replaced by “issue preclusion,” which also includes the doctrine formerly known as “direct estoppel.” Taylor v. Sturgell, 128 S. Ct. 2161, 2171 n.5 (2008), quoted in Bobby v. Bies, 129 S. Ct. 2145, 2149 n.1 (2009).
164 Ashe v. Swenson, 397 U.S. 436, 466 (1970). See also Harris v. Washington, 404 U.S. 55 (1971); Turner v. Arkansas, 407 U.S. 366 (1972). Cf. Dowling v. United States, 493 U.S. 342 (1990), in which the Court concluded that the defendant's presence at an earlier crime for which he had been acquitted had not necessarily been decided in his acquittal. Dowling is distinguishable from Ashe, however, because in Dowling the evidence relating to the first conviction was not a necessary element of the second offense. In Bobby v. Bies, 129 S. Ct. 2145 (2009), the Court noted that “issue preclusion is a plea available to prevailing parties. The doctrine bars relitigation of determinations necessary to the ultimate outcome of a prior proceeding.” Id. at 2149. “In addition, even where the core requirements of issue preclusion are met, an exception to the general rule may apply when a ‘change in [the] applicable legal context’ intervenes.” Id. at 2152, quoting Restatement (Second) of Judgments, § 28, Comment c.
165 Ashe v. Swenson, 397 U.S. 436, 448 (1970) (Justices Brennan, Douglas, and Marshall concurring). Justices Brennan and Marshall adhered to their position in Brown v. Ohio, 432 U.S. 161, 170 (1977) (concurring); and Thompson v. Oklahoma, 429 U.S. 1053 (1977) (dissenting from denial of certiorari).
166 Garrett v. United States, 471 U.S. 773, 790 (1985). Earlier, the approach had been rejected by Chief Justice Burger in Ashe v. Swenson, 397 U.S. 436, 468 (1970) (dissenting), by him and Justice Blackmun in Harris v. Washington, 404 U.S. 55, 57 (1971) (dissenting), and, perhaps, by Justice Rehnquist in Turner v. Arkansas, 407 U.S. 366, 368 (1972) (dissenting).
10 129 S. Ct. 2360, 2367 (2009).
11 129 S. Ct. at 2367.
12 The Court drew an analogy between its finding that this logical inconsistency does not affect the preclusive force of the acquittals under the Double Jeopardy Clause, and Justice Holmes’ holding, in Dunn v. United States, 284 U.S. 390, 393 (1932), “that a logical inconsistency between a guilty verdict and a verdict of acquittal does not impugn the validity of either verdict.” 129 S. Ct. at 2362.
13 129 S. Ct. at 2368.