For the Same Offence

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.


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.144 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.145 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.146 “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.”147

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”148 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,149 “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,150 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.151 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,”152 or the related principle that Congress may prescribe that predicate offenses and “continuing criminal enterprise” are separate offenses.153 On the other hand, in Whalen v. United States,154 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.155 In this as in other areas, a guilty plea ordinarily precludes collateral attack.156

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.157 In Brown v. Ohio,158 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.159 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.160 In 1990, the Court modified the Brown approach, stating that the appropriate focus is on same conduct rather than same evidence.161 That interpretation held sway only three years, however, before being repudiated as “wrong in principle [and] unstable in application.”162 The Brown Court had noted some limitations applicable to its holding,163 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.”164 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.165 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.166

The “Same Transaction” Problem.— The Supreme Court has also interpreted the Double Jeopardy Clause to incorporate the doctrine of “collateral estoppel” or “issue preclusion”167 –that is, the general legal principle that prohibits the relitigation of an issue of fact or law raised and necessarily resolved by a prior judgment.168 The Court first recognized the Double Jeopardy Clause’s issue-preclusion component in Ashe v. Swenson.169 Ashe involved a robbery of six poker players.170 The defendant in Ashe, after being acquitted of robbing one of the players because of insufficient evidence, was tried and convicted of robbing another player.171 The Court held that because the sole issue in dispute in the first trial was whether Ashe had been one of the robbers, “[o]nce a jury had determined . . . that there was at least a reasonable doubt” as to that issue, the Constitution protected a “man who has been acquitted from having to ‘run the gantlet’ a second time.”172 In so holding, Ashe explained that issue preclusion in criminal cases must be applied with “realism and rationality” with a close examination of the underlying record to determine what was “actually decided” by the prior jury’s verdict of acquittal.173 If a criminal judgment does not depend on a jury’s determination of a particular factual issue, relitigation of that issue can occur.174

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.175 Reaffirming a precedent from more than a half a century before,176 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.177

Several decades later, the Court extended the logic of Powell in Bravo-Fernandez v. United States.178 In that case, a jury had returned inconsistent verdicts of conviction and acquittal with respect to two criminal defendants, but their convictions were later vacated for legal errors unrelated to the inconsistency.179 The Court, recognizing Powell’s conclusion that inconsistent verdicts do not indicate whether the acquittal was the result of “mistake, compromise, or lenity,”180 held that re-prosecution on the counts on which a conviction was initially obtained could occur. According to the Court, because of the “irrationality” of the earlier inconsistent verdicts,181 the criminal defendants failed to demonstrate that the first jury had “actually decided” that they did not commit the crime underlying the second trial.182 As a result, while the government was prohibited from re-prosecuting the defendants in Bravo-Fernandez on the charges that had earlier resulted in an acquittal,183 issue preclusion could not be used to prevent a second trial on the charges that had previously resulted in guilty verdicts.

144 See discussion supra under “Development and Scope.”

145 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.

146 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).

147 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.

148 United States v. Universal C.I.T. Corp., 344 U.S. 218, 221–22 (1952).

149 284 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).

150 357 U.S. 386 (1958).

151 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).

152 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).

153 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).

154 445 U.S. 684 (1980).

155 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).

156 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).

157 See Grady v. Corbin, 495 U.S. 508, 518–19 (1990).

158 432 U.S. 161 (1977). Cf. In re Nielsen, 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).

159 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).

160 Illinois v. Vitale, 447 U.S. 410 (1980).

161 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.

162 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).

163 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).

164 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).

165 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).

166 Monge v. California, 524 U.S. 721, 728 (1998).

167 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”).

168 See Restatement (Second) Of Judgments § 27 (Am. Law Inst. 1981).

169 397 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).

170 397 U.S. at 437.

171 397 U.S. at 439–40.

172 Id. at 446 (quoting Green v. United States, 355 U.S. 184, 190 (1957)).

173 Id. at 444.

174 See Bobby v. Bies, 556 U.S. 825, 834 (2009) (citing Restatement (Second) Of Judgments § 27 cmt. h).

175 See United States v. Powell, 469 U.S. 57, 68 (1984).

176 See Dunn v. United States, 284 U.S. 390, 392 (1932).

177 469 U.S. at 68–69.

178 580 U.S. ___, No. 15–537, slip op. at 2 (2016) (“We therefore bracket this case with Powell. . .”).

179 Id. at 9–10. 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).

180 See Bravo-Fernandez, slip op. at 17.

181 Id. at 18.

182 Id. at 16. 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, slip op. at 16– 18.

183 See Bravo-Fernandez, slip op. at 19 (noting that the earlier acquittals “remain inviolate”).

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