Petition for Writ of Certiorari — Lawrence G. Hutchins, III, Petitioner v. United States

Supreme Court briefOct 11, 2019

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No. __________

IN THE

Supreme Court of the United States

LAWRENCE G. HUTCHINS III,

SERGEANT,

UNITED STATES MARINE CORPS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

S. BABU KAZA

CHRIS G. OPRISON

LtCol, USMCR

DLA Piper LLP (US)

THOMAS R. FRICTON

500 8th St, NW

Captain, USMC

Washington DC

Counsel of Record

Civilian Counsel for

U.S. Navy-Marine Corps

Petitioner

Appellate Defense Division 202-664-6543

1254 Charles Morris St, SE

Washington Navy Yard,

D.C. 20374

202-685-7291

Thomas.Fricton@navy.mil

QUESTION PRESENTED

In Ashe v. Swenson, 397 U.S. 436 (1970), this Court

held that the collateral estoppel aspect of the Double

Jeopardy Clause bars a prosecution that depends on a

fact necessarily decided in the defendant’s favor by an

earlier acquittal. Here, the Petitioner, Sergeant

Hutchins, successfully fought war crime charges at

his first trial which alleged that he had conspired with

his subordinate Marines to commit a killing of a

randomly selected Iraqi victim. The members panel

(jury) specifically found Sergeant Hutchins not guilty

of that aspect of the conspiracy charge, and of the

corresponding overt acts and substantive offenses.

The panel instead found Sergeant Hutchins guilty of

the lesser-included offense of conspiring to commit an

unlawful killing of a named suspected insurgent

leader, and found Sergeant Hutchins guilty of the

substantive crimes in furtherance of that specific

conspiracy.

After those convictions were later

reversed, Sergeant Hutchins was taken to a second

trial in 2015 where the Government once again

alleged that the charged conspiracy agreement was

for the killing of a randomly selected Iraqi victim, and

presented evidence of the overt acts and criminal

offenses for which Sergeant Hutchins had previously

been acquitted. Sergeant Hutchins was convicted of

the charges at the retrial.

The military appellate courts applied Ashe, and

held that the panel at the first trial acted rationally,

and had acquitted Sergeant Hutchins of the alleged

random victim conspiracy agreement and the related

overt acts and criminal offenses. But the Court of

Appeals for the Armed Forces (CAAF) found that even

if those same precluded ultimate facts were presented

as essential elements of the charges at the retrial,

issue preclusion did not apply, as different facts which

were not similarly precluded were available as an

alternative basis for the same essential elements.

Therefore, the question presented is:

Whether the right under the Double

Jeopardy Clause to the issue preclusive

effect of an acquittal applies where

precluded and un-precluded facts are

alternative grounds for essential

elements of a criminal charge.

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF CONTENTS ............................................ iii

TABLE OF AUTHORITIES ....................................... v

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISION INVOLVED ........ 1

STATUTES INVOLVED ............................................ 2

STATEMENT OF THE CASE .................................... 2

I. Legal Background.............................................. 2

II. Factual and Procedural Background. .............. 3

A. Government Case ....................................... 5

B. Defense Case ............................................... 6

C. Instructions ................................................. 7

D. Findings ...................................................... 8

E. Retrial ......................................................... 8

F. Decision of the Navy-Marine Corps

Court of Criminal Appeals ......................... 12

G. Decision of the United States Court of

Appeals for the Armed Forces .................. 13

REASONS TO GRANT REVIEW............................. 14

This case is emblematic of a gap in double

jeopardy jurisprudence that can only be

resolved by this Court. ................................... 15

II.

The question presented is important. . ......... 19

III.

This case presents an ideal vehicle to address

the question presented. ……… .................. .…21

CONCLUSION.......................................................... 21

APPENDIX................................................................ 1a

Text of Articles 81, 128, 130, 134, UCMJ. ........... 1a

Published Opinion of the United States Court of

Appeals for the Armed Forces, Dated May 29, 2019.

............................................................................... 4a

Unpublished Opinion of the United States NavyMarine Corps Court of Criminal Appeals, Dated

January 29, 2018 ................................................ 23a

Table of Authorities

United States Constitution

U.S. CONST. amend. V ............................................ 1, 2

Supreme Court of the United States

Ashe v. Swenson, 397 U.S. 436 (1970)............. 2, 14-15

Arizona v. California, 460 U.S. 605 (1983) .............. 21

Braverman v. United States, 317 U.S. 49 (1942) ..... 19

Bravo-Fernandez v. United States, 137 S.Ct. 352

(2016) ..................................................................... 2, 15

Chapman v. California, 386 U.S. 18 (1967) ............. 18

Christianson v. Colt Industries Operating Corp., 486

U.S. 800 (1998) .......................................................... 21

Currier v. Virginia, 138 S. Ct. 2144 (2018) ........ 14, 17

Dowling v. United States, 493 U.S. 342 (1990) .... 2, 15

Iannelli v. United States, 420 U.S. 770 (1975) ........ 15

Miranda v. Arizona, 384 U.S. 436 (1966) ................ 18

Morris v. Matthews, 475 U.S. 237 (1986) ................. 19

Price v. Georgia, 398 U.S. 323 (1970) ....................... 18

Sanabria v. United States, 437 U.S. 54 (1977) ........ 20

United States v. Jimenez Recio, 537 U.S.270

(2003) ................................................................... 15

Yeager v. United States, 557 U.S. 110

(2009) .................................................... 2, 14-15, 17

United States Court of Appeals for the Armed

Forces

United States v. Hutchins, 78 M.J. 437 (C.A.A.F.

2019)..............................................................passim

United States Circuit Courts of Appeals

United States v. Carboni, 204 F.3d 39 (2d Cir.

2000)..................................................................... 16

United States v. Gonzalez, 110 F.3d 936 (2d Cir.

1997)..................................................................... 16

United States v. Grimm, 738 F.3d 498 (2d Cir.

2013)..................................................................... 16

United States v. Parker, 553 F.3d 1309 (10th Cir.

2009)..................................................................... 16

United States v. Provenzano, 615 F.2d 37 (2d Cir.

1980)..................................................................... 16

United States v. Rosenblatt, 554 F.2d 36

(2d Cir. 1977) ....................................................... 16

United States v. Rubin, 844 F.2d 979

(2d Cir. 1988)……………………………………. .... 16

United States v. Salameh, 152 F.3d 88 (2d Cir.

1998)..................................................................... 16

United States v. Salmonese, 352 F.3d 608 (2d Cir.

2003)..................................................................... 16

United States v. Tanner, 629 F.2d 456 (7th Cir.

1980)..................................................................... 20

United States v. Tocco, 306 F.3d 279 (6th Cir.

2002)..................................................................... 20

Ward v. United States, 694 F.2d 654 (11th Cir.

1983) ........................................................................... 20

United States Navy-Marine Corps Court of

Criminal Appeals

United States v. Hutchins, No. 200800393, 2018 CCA

LEXIS 31 (N-M. Ct. Crim. App. Feb. 26,

2018).............................................................. passim

Statutes

10 U.S.C. § 881 ............................................................ 2

10 U.S.C. § 907 ............................................................ 2

10 U.S.C. § 918 ............................................................ 2

10 U.S.C. § 921 ............................................................ 2

10 U.S.C. § 928 ............................................................ 2

10 U.S.C. § 930 ............................................................ 2

10 U.S.C. § 934 ............................................................ 2

28 U.S.C. § 1259 .......................................................... 1

vii

Federal Rule of Evidence

Federal Rule of Evidence 404(b) .......................passim

PETITION FOR A WRIT OF CERTIORARI

Sergeant Lawrence G. Hutchins III, United States

Marine Corps, respectfully petitions this Court for a

writ of certiorari to review the decision of the United

States Court of Appeals for the Armed Forces.

OPINIONS BELOW

The published opinion of the United States Court

of Appeals for the Armed Forces appears at pages 4a

through 22a of the appendix to this petition. It is

reported at 78 M.J. 437. The unpublished opinion of

the United States Navy-Marine Corps Court of

Criminal Appeals appears at pages 23a through 204a

of the appendix. It is available at 2018 CCA LEXIS

31.

JURISDICTION

The United States Court of Appeals for the Armed

Forces issued its initial decision on May 29, 2019, and

denied a timely petition for reconsideration on July

16, 2019. Accordingly, this Court has jurisdiction

pursuant to 28 U.S.C. § 1259(3).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States

Constitution provides in pertinent part: “[N]or shall

any person be subject for the same offence to be twice

put in jeopardy of life or limb[.]”1

1 U.S. CONST. amend V.

STATUTES INVOLVED

The text of Articles 81, 128, 130, 134 UCMJ, 10

U.S.C. §§ 881, 928, 930, 934 appear at pages 1a

through 3a of the appendix to this petition.

STATEMENT OF THE CASE

In this case a United States court of appeals has

decided an important question of federal law that

has not been, but should be, settled by this Court,

concerning the issue preclusion component of the

Double Jeopardy Clause.

I. Legal Background

The Double Jeopardy Clause of the Fifth

Amendment protects a person from being “twice put

in jeopardy of life or limb” for the same offense.2

The doctrine of issue preclusion is embedded in the

Double Jeopardy Clause, and dictates that where a

jury’s acquittal has necessarily decided an issue of

ultimate fact in the defendant’s favor, the

prosecution is barred “from trying to convince a

different jury of that very same fact in a second

trial.”3 Issue preclusion ensures individuals who are

acquitted cannot be forced to defend a second time

against functionally the same allegations.

A defendant bears the burden “to demonstrate

that the issue whose relitigation he seeks to foreclose

2 Id.

3 Bravo-Fernandez v. United States, 137 S. Ct. 352, 359 (2016).

was actually decided in the first proceeding”4 Courts

examine the record of the first trial to determine

“whether a rational jury could have grounded its

verdict upon an issue other than that which the

defendant seeks to foreclose from consideration.”5 In

addition, a defendant must establish that the issue

he seeks to foreclose forms essential elements of

charges at a later trial.6 Further, issue preclusion

will not apply where the foreclosed evidence is not an

essential element, and is instead offered under a

separate Rule of Evidence requiring a lower standard

of proof, such as Rule of Evidence 404(b).7 “[W]e

decline to extend Ashe v. Swenson and the collateralestoppel component of the Double Jeopardy Clause to

exclude in all circumstances . . . relevant and

probative evidence that is otherwise admissible

under the Rules of Evidence simply because it relates

to alleged criminal conduct for which a defendant

has been acquitted.”8

II. Factual and Procedural Background

In April 2006, Sergeant Hutchins was a squad

leader in a U.S. Marine Corps infantry unit which was

deployed to Hamdaniyah, Iraq to conduct

counterinsurgency operations.9 The insurgents in the

Hamdaniyah region elusively blended into the

4 Dowling v. United States, 493 U.S. 342, 350-51

(1990) (citations omitted).

5 Ashe, 397 U.S. at 444 (internal quotation marks omitted)

(citation omitted).

6 See Yeager v. United States, 557 U.S. 110 (2009).

7 Dowling, 493 U.S. at 348.

8 Id.

9 Prosecution Exhibit (“PE”) 1 (2007 trial).

population, and their primary means of attacking the

Marines was the use of improvised explosive devices

(IEDs).10

Intelligence reports indicated that

Hamdaniyah resident Saleh Gowad was a “High

Value Individual” (HVI) and “prince” of the local

insurgency, and was responsible for the employment

of IEDs which had killed American servicemembers.11

Sergeant Hutchins arrested Gowad as part of an

operation to capture insurgent leaders, but Gowad

was released from detention shortly thereafter due to

a lack of evidence.12

The Government alleged that on the night of April

25, 2006, Sergeant Hutchins and the members of his

squad were emplaced in a palm grove in Hamdaniyah

to conduct a counter-IED ambush, but instead

concocted a plan to kidnap and kill Saleh Gowad, or if

he could not be found, then any random Iraqi male.13

According to the Government, Sergeant Hutchins’s

plan required four of his squad members (the “snatch

team”), to leave the ambush position, steal an AK-47

rifle and shovel, patrol to Saleh Gowad’s house, and

then unlawfully enter the house and kidnap a

victim—either Saleh Gowad himself (“Plan A”), a

relative of Gowad (“Plan B”), or any random Iraqi

military-aged male from any nearby house (“Plan

C”).14 The snatch team would thereafter bind the

victim with zip ties and bring him to a hole by the

ambush position, where Sergeant Hutchins would

falsely report that the squad had identified a man

10 Id.

11 PE 1 (2007 trial).

12 Id.

13 2007 Record of Trial (“OR”) at 1009-22; 1721-34.

14 OR at 1009-22; 1721-34.

digging by the road who had fired upon them with an

AK-47.15 The squad would then shoot the man, while

two members of the squad would shoot the AK-47 in

the air and save the shell casings, to later be scattered

around his body.16 The squad would maintain the

false story in any after-action reports.17

A. Government Case

At trial in 2007, the Government presented

testimony from two squad members that during the

early morning hours of April 26, 2006, Sergeant

Hutchins’s plan was executed as intended. The

snatch team first stole the AK-47 rifle and shovel, and

then went to Saleh Gowad’s house.18 At Gowad’s

house they thought they were detected, so in

accordance with the plan they went to a nearby house

and seized a random victim.19 The random victim was

bound with zip ties, brought back to the ambush

position, and then killed by the squad.20 However,

three of the squad members testified that Saleh

Gowad was the only intended target, and they

believed Gowad was the individual who was seized

and killed that night.21 The identity of the individual

who was actually killed was never established in

court.

15 Id.

16 Id.

17 Id.

18 OR at 1324-1383; 1406-1449.

19 Id.

20 Id.

21 OR at 1152-53, 1181, 1184, 1265-66, 1282-84

B. Defense Case

At the first trial, the defense conceded the

individual killed had not been digging by the side of

the road, but was instead taken from his home by the

snatch team and unlawfully killed.22 However, the

defense disputed the conspiracy agreement included

plans to kill alternative victims (“Plan ABC”),

maintaining that Sergeant Hutchins, had only

intended to kill Saleh Gowad (“Plan A”).23 The

defense challenged the veracity of the testimony that

the snatch team departed from Saleh Gowad’s house

and seized an individual from another house.24

The defense highlighted that Sergeant Hutchins

was authorized to enter Gowad’s home and detain him

at any time, as Gowad was a designated HVI.25 Thus,

even if there was no authority to kill Gowad, it was

still not criminal to enter his home, place him in

restraints and detain him. The defense further

argued that “premeditation” could not be established

for the offense of “premeditated murder,” as the

combat environment had placed Sergeant Hutchins in

a constant heat of passion.26 But despite these

concessions, the defense nevertheless requested the

members return findings of “not guilty” to all charges,

essentially as a matter of nullification.

22 OR at 1741-47.

23 Id.

24 Id.

25 OR at 1273.

26 OR at 1753-54.

C. Instructions

The members panel was instructed on each of the

following charged violations of the Uniform Code of

Military Justice: Article 81 (Conspiracy), Article 107

(False Official Statement); Article 118 (Premeditated

Murder); Article 121 (Larceny); Article 128 (Assault);

Article 130 (Housebreaking); and two specifications of

Article 134 (Kidnapping and Obstruction of Justice).27

The panel was instructed that Assault required

proof beyond a reasonable doubt of bodily harm

through unlawful force.28 “Unlawful” was defined as

an act or force “without legal justification or excuse.” 29

For Housebreaking, the members were instructed

that proof beyond a reasonable doubt was required of

an “unlawful entry” into a dwelling with the intent to

commit the offense of “kidnapping” therein.30 The

members were instructed that Kidnapping required

proof beyond a reasonable doubt that the accused

“wrongfully” held another against that person’s will,

that is, “without justification or excuse.”31

The members were explicitly instructed that if

they found Sergeant Hutchins had an honest and

reasonable belief that the individual allegedly seized

and killed by his squad was Saleh Gowad, and that he

had authority to detain Saleh Gowad, then they were

27 See United States v. Hutchins, 78 M.J. 437, 442 (C.A.A.F

2019).

28 OR at 1765-90.

29 Id.

30 OR at 1789-90; AE CXXIII at 2-4 (2007 trial).

31 Id.

required to find him “not guilty” of Housebreaking

and Kidnapping.32

D. Findings

The members found Sergeant Hutchins guilty of

offenses related to Plan A (Conspiracy, False Official

Statement, Unpremeditated Murder, Larceny), but

acquitted him of all Plan ABC charges and language.33

Specifically, the members acquitted Sergeant

Hutchins of the substantive offenses of Assault,

Housebreaking

and

Kidnapping,

removed

Housebreaking and Kidnapping as predicate offenses

of the conspiracy charge, and struck all overt acts

related to Plan ABC.34 As summarized by the lower

court, the struck overt acts were: “(1) four squad

members walked from the HVI’s house and entered an

unknown Iraqi man’s home; and (2) two squad

members took an unknown Iraqi man from his home

against his will.”35

E. Retrial

The findings and sentence from the first trial were

later set aside by the lower court, due to the use of an

unconstitutionally obtained confession.36 Sergeant

Hutchins was brought to a retrial in 2015, where he

was charged with the same offenses of which he had

been convicted at the first trial.

32 Id.

33 See Hutchins, 78 M.J. at 442.

34 Id.

35 Id.

36 United States v. Hutchins, 72 M.J. 300 (C.A.A.F 2013).

The substantive offenses and conspiracy predicate

offenses/overt acts for which Sgt Hutchins had been

acquitted were struck from the charging documents.

The remaining conspiracy charge broadly alleged a

conspiracy to kill an unknown Iraqi man, with the

predicate offenses of murder, larceny, false

statements and obstruction of justice.

The defense at the retrial filed a motion in limine,

preemptively requesting any evidence of conspiracy to

commit Plan ABC and its overt acts be suppressed,

due to the acquittals from the first trial.37

Specifically, the defense requested the Government be

forbidden from presenting any evidence or argument

the conspiracy agreement included kidnapping and

housebreaking, as Sergeant Hutchins had been

acquitted of housebreaking and kidnapping as

substantive offenses and as conspiracy predicate

offenses. Because kidnapping and housebreaking

required entry into a home and seizure of a victim who

was not a lawful target for detention, the Government

was precluded from alleging the intended victim of the

conspiracy plan was an individual who could not be

lawfully detained, i.e., the Plan ABC alternative

victims to Saleh Gowad. Therefore, the defense

argued, the Government should only be allowed to

allege Plan A as the agreement element of the

conspiracy charge, and be precluded from alleging

Plan ABC.

The military judge orally denied the motion:

The motion to suppress is denied.

There is no requirement to speculate on

37 AE XCVIII

the rationale on the last panel of

members. In fact, it’s folly to try to do

that. The real risk of confusing them is

if we try to parse the facts as proposed

by the defense counsel. Misconduct can

violate more than one article of the

UCMJ and the conduct alleged in . . .

the defense motion [is] not mutually

exclusive to the charges of which the

accused was acquitted.38

The military judge did not provide any additional

findings of fact or conclusions of law.

During the merits portion of the retrial, the

military judge provided the following Military Rule of

Evidence 404(b) instruction for the use of acquitted

acts evidence to prove a plan or design, denying a

defense request for a more expansive limiting

instruction:39

[T]he accused was acquitted at a prior

proceeding

the

offenses

kidnapping, housebreaking, assault,

obstruction of justice, premeditated

murder, and false official statement on

or about 8 May, as well as conspiracy to

commit

kidnapping

and

housebreaking. You may therefore

consider evidence that the accused may

have been involved in plans or acts

involving entering the alleged victim’s

home, moving him to another location,

38 Record (“R.”) at 778.

39 R. at 1624-30; AE CLIV.

involvement in a shooting, and

providing a statement to NCIS on or

about 8 May for the limited purpose of

its tendency, if any, to prove a plan or

design of the accused to commit the

charged acts. You may not consider this

evidence for any other purpose, and you

may not conclude from this evidence

that the accused is a bad person or has

general criminal tendencies, and that

he therefore committed the offenses

charged.40

At the retrial, the prosecution’s opening statement

explicitly alleged a Plan ABC conspiracy agreement:

“And that's where the accused brought his Marines in,

and he briefed them on the plan: Plan A, get Gowad;

Plan B, get Gowad's brothers; and Plan C. . . They

went to this house to execute Plan C where they would

get any Iraqi man.”41 The defense, unlike at the first

trial, did not concede Plan A, but instead pursued a

general reasonable doubt challenge to the entire

government case based on the failures of the original

investigation. The Government could not admit

Sergeant Hutchins’s suppressed confession into

evidence, and the defense highlighted that all but one

of the members of Sergeant Hutchins squad had

recanted their prior testimony, and refused to testify

at the retrial.42 Without defense concessions, and in

the absence of full testimony from the squad and

Sergeant Hutchins’s confession, there was very

40 R. at 1662, 2285-86 (emphasis added).

41 R. at 1260-61.

42 See Hutchins, 2018 CCA LEXIS at *48-49.

limited evidence presented of a Plan A conspiracy.43

The defense effectively forced the members panel to

either convict Sergeant Hutchins under Plan ABC, or

provide a full acquittal. After deliberations, the

members convicted Sergeant Hutchins of conspiracy,

murder and larceny.

F. Decision of the United States Navy

-Marine Corps Court of Criminal

Appeals (NMCCA)

NMCCA conducted an Ashe analysis, and

determined that Sergeant Hutchins was acquitted at

his first trial of conspiring and committing crimes

under Plan ABC:

With regard to the appellant’s liability

for committing housebreaking and

kidnapping, “[t]he single rationally

conceivable issue in dispute before the

jury was whether” the appellant had

conspired to enter the home of [Saleh

Gowad] and seize him or to break into

the home of someone else to kidnap

someone other than [Saleh Gowad]. “And

the jury by its verdict found” that the

appellant had not conspired to break into

the home of anyone other than [Saleh

Gowad] or kidnap anyone other than

43 Id.

The Government submitted into evidence portions of the

squad members’ testimony from the first trial. However, the

testimony which was read into the record did not include the

defense cross-examinations, and therefore the testimony which

most directly supported a Plan A-only conspiracy was not

presented.

[Saleh Gowad]. . . . Their decision to

acquit the appellant of housebreaking

and kidnapping demonstrates that the

members believed the mistake of fact

defense applied, and the conspiracy was

to get and kill [Saleh Gowad].44

Nevertheless, NMCCA held that the prosecution’s use

of Plan ABC as the conspiracy agreement underlying

the conspiracy charge was not a double jeopardy

violation, as whether the agreement element of the

conspiracy charge was Plan A or Plan ABC was not an

issue of ultimate fact at the retrial.45

G. Decision of the United States Court of

Appeals for the Armed Forces.

On August 27, 2018, the lower court granted

Sergeant Hutchins’ petition for review on the

following issue:

WHETHER THE MILITARY JUDGE

ERRED WHEN HE DENIED THE

DEFENSE MOTION TO SUPPRESS

EVIDENCE OF CONDUCT FOR

WHICH APPELLANT HAD BEEN

ACQUITTED AT HIS FIRST TRIAL.46

The lower court’s resulting decision did not adopt

NMCCA’s holding that the specific meeting of minds

for the conspiracy agreement was not an issue of

ultimate fact for a conspiracy charge. Instead the

44 Hutchins, 2018 CCA LEXIS at *29 -*30 (citing Ashe, 397 U.S.

at 445).

45 Id. at 11 (emphasis added).

46 United States v. Hutchins, 78 M.J. 437 (C.A.A.F. 2019).

lower court found that regardless of ultimate fact,

issue preclusion was not applicable as the

Government could prove the charged offenses without

necessarily relying on evidence of a Plan ABC

conspiracy agreement:

Appellant has failed to meet his burden

of demonstrating how any of the charges

of which he was convicted at the

rehearing required the Government to

prove this purported issue of ultimate

fact beyond a reasonable doubt. Stated

differently, at the rehearing the

Government could prove all of the

elements of the offenses of which

Appellant was convicted without having

to prove beyond a reasonable doubt that

Appellant committed any of the conduct

related to these offenses of which

Appellant was acquitted at the first

trial.47

REASONS TO GRANT REVIEW

The lower court addressed an issue not previously

considered by this Court, and created a novel

exception to issue preclusion doctrine with farreaching consequences. Issue preclusion is “an

extremely important principle in our adversary

system of justice.”48 This Court should continue its

recent clarification of the contours of the issue

47 Id at 446 (citing

Currier v. Virginia, 138 S. Ct. 2144, 2150

(2018); Yeager, 557 U.S. at 123).

48 Ashe, 397 U.S. at 443.

preclusion doctrine,49 and grant certiorari to provide

an analytical framework to address issue preclusion

where precluded and un-precluded facts form

alternative bases for elements of criminal offenses.

I. This case is emblematic of a gap in double

jeopardy jurisprudence that can only be

resolved by this Court.

Under Ashe and Dowling, acquitted acts evidence

is admissible at a later criminal trial if two conditions

are met: (1) the evidence is not an essential element

of a charged offense, and (2) the evidence is offered

under a Rule of Evidence with a lower burden of

proof.50

Here the evidence in question was an essential

element of charged offenses, and it did not fit into the

rubric of a Rule of Evidence. First, it is beyond cavil

that the specific terms of a conspiracy agreement are

an essential element of a conspiracy charge.51

49 See Yeager 557 U.S. 110 (hung jury); Bravo-Fernandez 137 S.

Ct. 352 (vacated convictions); Currier v. Virginia 138 S. Ct.

2144 (consent to severance).

50 See Ashe 397 U.S. 436; Dowling, 493 U.S. 342.

51 The “meeting of minds” and “agreement” between coconspirators is the quintessential fact of a conspiracy charge.

“[T]he essence of conspiracy is an agreement, an agreement to

commit some act condemned by law either as a separate federal

offense or for purposes of the conspiracy statute.” United States

v. Jimenez Recio, 537 U.S.270, 274 (2003), citing Iannelli v.

United States, 420 U.S. 770, 777 (1975). “Unlawful agreement”

is “[t]he fundamental element of a conspiracy.” United States v.

Rubin, 844 F.2d 979, 983 (2d Cir. 1988). It “determines both

the duration of the conspiracy, and whether the act relied on as

an overt act may properly be regarded as in furtherance of the

Second, the proffered Rule of Evidence, Rule

404(b), does not apply to evidence which is intrinsic to

charged offenses. “[E]vidence of uncharged criminal

activity is not considered other crimes evidence under

Fed. R. Evid. 404(b) if it arose out of the same

transaction or series of transactions as the charged

offense, if it is inextricably intertwined with the

evidence regarding the charged offense, or if it is

necessary to complete the story of the crime on trial.”52

“Because Rule 404(b) only limits evidence of ‘other’

crimes—those extrinsic to the charged crime—

evidence of acts or events that are part of the crime

itself, or evidence essential to the context of the crime,

does not fall under the other crimes limitations of Rule

404(b).”53

As further illustration, the 404(b)

instruction provided to the members at the retrial

permitted them to use the precluded evidence to

determine “plan or design,” a determination which

conspiracy.” United States v. Grimm, 738 F.3d 498, 502 (2d Cir.

2013) (quoting United States v. Salmonese, 352 F.3d 608, 614

(2d Cir. 2003) (internal quotation marks omitted)). In order to

prove an agreement to break the law, the government may not

rely upon evidence of “a vague agreement to do something

wrong.’” United States v. Salameh, 152 F.3d 88, 151 (2d Cir.

1998) (quoting United States v. Provenzano, 615 F.2d 37, 44 (2d

Cir. 1980)). The law, instead, requires not just “a general

agreement to engage in unspecified criminal conduct,” but an

agreement “as to the ‘object’ of the conspiracy.” United States v.

Rosenblatt, 554 F.2d 36, 38-39 (2d Cir. 1977).

52 United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000)(citing

United States v. Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997);

53 United States v. Parker, 553 F.3d 1309, 1314-1315 (10th Cir.

2009).

was functionally indistinguishable from

agreement element of the charged conspiracy.54

the

As the traditional prohibitions to issue preclusion

were not present in this case, they were not invoked

by the lower court.

Instead, the lower court

extrapolated from language in Currier and Yeager to

promulgate a new analytical framework for issue

preclusion.55

Under the framework, even if a

precluded issue forms an essential element of a charge

at a second trial, issue preclusion will not apply if

additional un-precluded evidence is available as an

alternate basis for the same element.56

Issue

preclusion will only apply where a charge must

“hinge” on the precluded evidence.57 Thus, under the

lower court’s new framework, the protections of issue

preclusion would be short-circuited if alternative

evidence was available to serve as a fig leaf.

The portions of Currier and Yeager relied upon by

the lower court, while open to interpretation, do not

provide strong support for the promulgated

framework. Yeager clarifies that issue preclusion

applies “for any charge for which [the precluded issue]

is an essential element.”58 Currier similarly defines

the threshold both as “a fact essential to a conviction

in the second [trial],” and also as an issue for which

the prosecution “must prevail” to secure a

conviction.59

54 R. at 1662, 2285-86

55 Hutchins, 78 M.J. at 446-447.

56 Id.

57 Id. at 446 (citing Currier, 138 S. Ct. at 2150).

58 Yeager, 557 U.S. at 123.

59 Currier, 138 S. Ct. at 2150

A plain reading of the language in Yeager and

Currier indicates that the standard is whether the

precluded evidence is an element of a charged offense,

not whether it is the sole basis for an element. This

plain reading is consistent with the protections of the

Double Jeopardy Clause. Otherwise, a jury could in

fact find a defendant guilty by relying on precluded

facts for an essential element, but as long as the

prosecution presented additional facts, however weak,

there would be no double jeopardy protection.

The lower court’s approach is in contrast to

analysis of other Fifth Amendment violations, such as

involuntary confessions, where the error is perfected

once the confession is admitted into evidence.60 The

impact of the confession on the outcome of the trial is

a separate question of harmless error pursuant to

Chapman v. California.61

Further, in circumstances where a defendant faces

a charge barred by double jeopardy, but is acquitted

of the charge, or the charge is reduced on appeal to a

lesser included unbarred offense, there is still error.62

The error was perfected once the defendant was

required to defend himself against charges for which

he was previously acquitted.63 “The Double Jeopardy

Clause, as we have noted, is cast in terms of the risk

or hazard of trial and conviction, not of the ultimate

legal consequences of the verdict.”64 The harmless

error analysis only requires a defendant to

60 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966).

61 See Chapman v. California, 386 U.S. 18 (1967)

62 See Price v. Georgia, 398 U.S. 323 (1970)

63 Id.

64 Id at 331.

demonstrate a reasonable probability that the

jeopardy-barred charge may have caused the

convictions for the nonjeopardy-barred charges.65

Hence, the lower court’s analytical framework is

unsupported by this Court’s precedent, and stands in

stark contrast to the review of other Fifth Amendment

violations.

II. The question presented is important.

Whether the Double Jeopardy Clause’s issue

preclusion component applies in the circumstances

presented here is a frequently recurring issue that has

significant implications for the criminal justice

system.

Specifically, the lower court’s opinion

effectively eliminates issue preclusion protection for

defendants facing conspiracy charges.

It has long been settled law that alleging

conspiracy to commit several crimes in a single

conspiracy count is not duplicitous.66 As this Court

explained, “[t]he single agreement is the prohibited

conspiracy, and however diverse its objects it violates

but a single statute.”67 Taking this guidance one step

further, federal courts have routinely observed

charging a single conspiracy, based on a single

agreement, must be charged in a single count and that

charging a conspiracy in separate counts results in

“multiplicitous” counts that violate the Double

65 See Morris v. Matthews, 475 U.S. 237, 246-47 (1986).

66 See Braverman v. United States, 317 U.S. 49, 54 (1942).

67 Id.

Jeopardy Clause.68 Similarly, this Court has observed

that if an indictment had alleged “each ‘theory of

liability’ in a separate count, the indictment would

have been subject to objection on grounds of

multiplicity, the charging of a single offense in

separate counts.”69

Because conspiracy must be placed within one

charge, if a jury elects to acquit on certain aspects of

a multi-object conspiracy agreement, the jury would

be unable to provide a single acquittal to an individual

charge. Instead, at best the jury could strike through

language which it rejected.

However, under the lower court’s framework, the

Government would not be restricted from recycling

any previously rejected conspiracy agreements, object

offenses and overt acts, as long as there was at least

one aspect of its charge which had not been previously

rejected. Hence, when a jury makes clear findings of

fact and refutes an object or agreement that would

have amounted to an acquittal had it been a

substantive or stand-alone count, in order to

effectuate the jury’s findings and to prevent against a

double jeopardy violation, issue preclusion is

necessary.

68 See United States v. Tocco, 306 F.3d 279, 289 n.12 (6th Cir.

2002); Ward v. United States, 694 F.2d 654, 660-61 (11th Cir.

1983); United States v. Tanner, 629 F.2d 456, 461 (7th Cir.

1980).

69 Sanabria v. United States, 437 U.S. 54, 65 n.19 (1977).

III. This case presents an ideal vehicle to

address the question presented.

This case comes to the Court in the best posture for

resolving the question presented. Petitioner raised

his double jeopardy argument at every stage of the

proceedings, and each court squarely addressed it.

First, NMCCA conducted an Ashe analysis, and

determined that the members panel at the original

trial acted rationally, and found that the conspiracy

agreement was only a Plan A agreement. NMCCA’s

Ashe findings were not appealed by the Government

to the lower court, thereby rendering those findings

the binding law of the case.70 Second, the lower court

limited its opinion to the applicability of issue

preclusion where barred and unbarred evidence are

alternative bases for essential elements of a criminal

charge. Accordingly, the question presented in this

petition is preserved and starkly defined for this

Court’s review.

Finally, the answer to the question presented

determines the outcome of petitioner’s case. If issue

preclusion applies, petitioner’s convictions must be

reversed.

CONCLUSION

For these reasons, Sergeant Hutchins respectfully

requests that this Court grant certiorari, reverse the

decision of the lower court, and hold that the Double

Jeopardy protections of issue preclusion apply where

70 See Arizona v. California, 460 U.S. 605, 618 (1983);

Christianson v. Colt Industries Operating Corp., 486 U.S. 800,

817 (1998)

the Government uses barred and unbarred evidence

for essential elements of criminal charges.

Respectfully submitted,

S. BABU KAZA

LtCol, USMCR

THOMAS R. FRICTON

Captain, USMC

Counsel of Record

U.S. Navy-Marine Corps

Appellate Defense Division

1254 Charles Morris St, SE

Washington Navy Yard,

D.C. 20374

202-685-7291

Thomas.Fricton@navy.mil

CHRIS G. OPRISON

DLA Piper LLP (US)

500 8th St, NW

Washington DC

Civilian Counsel for

Petitioner

202-664-6543

Relevant Punitive Articles of the Uniform Code

of Military Justice

10 U.S.C.§ 881

Art. 81. Conspiracy

(a) Any person subject to this chapter who

conspires with any other person to commit an offense

under this chapter shall, if one or more of the

conspirators does an act to effect the object of the

conspiracy, be punished as a court-martial may direct.

(b) Any person subject to this chapter who

conspires with any other person to commit an offense

under the law of war, and who knowingly performs an

overt act to effect the object of the conspiracy, shall be

punished, if death results to one or more of the

victims, by death or such other punishment as a

court– martial or military commission may direct ,

and, if death does not result to any of the victims, by

such punishment, other than death, as a court-martial

or military commission may direct.

10 U.S.C.§ 928

Art. 128. Assault

(a) Any person subject to this chapter who

attempts or offers with unlawful force or violence to

do bodily harm to another person, whether or not the

attempt or offer is consummated, is guilty of assault

and shall be punished as a court-martial may direct.

(b) Any person subject to this chapter who—

(1) commits an assault with a dangerous

weapon or other means or force likely to produce death

or grievous bodily harm; or

(2) commits an assault and intentionally

inflicts grievous bodily harm with or without a

weapon;

is guilty of aggravated assault and shall be punished

as a court-martial may direct.

10 U.S.C.§ 930

Art. 130. Housebreaking

Any person subject to this chapter who unlawfully

enters the building or structure of another with intent

to commit a criminal offense therein is guilty of

housebreaking and shall be punished as a courtmartial may direct.

10 U.S.C.§ 934

Art. 134. General Article: Kidnapping

a. Text of statute

Though not specifically mentioned in this chapter,

all disorders and neglects to the prejudice of good

order and discipline in the armed forces, all conduct of

a nature to bring discredit upon the armed forces, and

crimes and offenses not capital, of which persons

subject to this chapter may be guilty, shall be taken

cognizance of by a general, special, or summary courtmartial, according to the nature and degree of the

offense, and shall be punished at the discretion of that

court.

b. Elements

(1) That the accused seized, confined, inveigled,

decoyed, or carried away a certain person;

(2) That the accused then held such person against

that person’s will;

(3) That the accused did so willfully and

wrongfully; and

(4) That, under the circumstances, the conduct of

the accused was to the prejudice of good order and

discipline in the armed forces or was of a nature to

bring discredit upon the armed forces.

UNITED STATES,

Appellee

Lawrence G. HUTCHINS III, Sergeant

United States Marine Corps,

Appellant

United States Court of Appeals for the Armed Forces

January 23, 2019, Argued;

May 29, 2019, Decided

No. 18-0234

Prior History: Crim. App. No. 200800393. Military

Judges: Michael B. Richardson (arraignment at

rehearing) and A. H. Henderson (rehearing).

United States v. Hutchins, 2018 CCA LEXIS 31 (NM.C.C.A., Jan. 29, 2018.

For Appellant: Lieutenant Colonel S. Babu Kaza,

USMCR (argued); Captain Thomas R. Fricton,

USMC, and Christopher Oprison, Esq. (on brief);

Lieutenant Doug Ottenwess, JAGC, USN.

For Appellee: Lieutenant Kimberly Rios, JAGC,

USN (argued); Colonel Mark K. Jamison, USMC,

Major Kelli A. O'Neil, USMC, and Brian K. Keller,

Esq. (on brief)

.Judges: Judge OHLSON delivered the opinion of

the Court, in which Chief Judge STUCKY, and

Judges RYAN, SPARKS, and MAGGS, joined

Opinion by: Judge OHLSON

Court.

Judge OHLSON delivered the opinion of the

At a 2007 general court-martial, a panel

convicted Appellant of a number of offenses related to

the 2006 unlawful killing of an unknown Iraqi man in

the Hamdaniyah area of Iraq. However, the panel also

acquitted Appellant of a number of other offenses

related to this same incident. Upon appellate review

in 2013, this Court set aside the findings and sentence

and authorized a rehearing. United States v.

Hutchins, 72 M.J. 294, 300 (C.A.A.F. 2013). At the

2015 rehearing, Appellant was charged only with

those offenses of which he was convicted at the first

trial, and he was convicted of most of these charged

offenses. The issue now before us is whether at the

rehearing the military judge erred when he denied a

defense motion to suppress evidence related to

offenses of which Appellant had been acquitted at his

first trial. We hold that the military judge did not err

because the doctrine of issue preclusion does not apply

in this case, and therefore the military judge was

permitted to examine whether the evidence was

admissible under the Military Rules of Evidence

(M.R.E.).

I. Factual and Procedural Overview

A. The First Trial

The following evidence was introduced at the

2007 court-martial:

The appellant was assigned as squad

leader for 1st Squad, 2nd Platoon, Kilo

Company, 3rd Battalion, 5th Marines,

assigned to Task Force Chromite,

conducting

counter-insurgency

operations in the Hamdaniyah area of

Iraq in April 2006. In the evening hours

of 25 April 2006, the appellant led a

combat patrol to conduct a deliberate

ambush

aimed

interdicting

insurgent emplacement of improvised

explosive devices (IEDs). The courtmartial received testimony from

several members of the squad that

indicated the intended ambush mission

morphed into a conspiracy to

deliberately capture and kill [an Iraqi

insurgent who was] a high value

individual (HVI), believed to be a

leader of the insurgency. The witnesses

gave varying testimony as to the depth

of their understanding of alternative

targets, such as family members of the

HVI or another random military-aged

Iraqi male.

Considerable effort and preparation

went into the execution of this

conspiracy. Tasks were accomplished

by various Marines and their

corpsman, including the theft of a

shovel and AK-47 from an Iraqi

dwelling to be used as props to

manufacture a scene where it appeared

that an armed insurgent was digging to

emplace an IED. Some squad members

advanced to the ambush site while

others captured an unknown Iraqi

man, bound and gagged him, and

brought him to the would-be IED

emplacement.

The stage set, the squad informed

higher headquarters by radio that they

had come upon an insurgent planting

an IED and received approval to

engage. The squad opened fire,

mortally wounding the man. The

appellant approached the victim and

fired multiple rifle rounds into the

man's face at point blank range.

The scene was then manipulated to

appear

consistent

with

the

insurgent/IED story. The squad

removed the bindings from the victim's

hands and feet and positioned the

victim's body with the shovel and AK47 rifle they had stolen from local

Iraqis. To simulate that the victim fired

on the squad, the Marines fired the AK47 rifle into the air and collected the

discharged casings. When questioned

about the action, the appellant, like

other members of the squad, made false

official statements, describing the

situation as a legitimate ambush and a

"good shoot." The death was brought to

the appellant's battalion commander's

attention by a local sheikh and the

ensuing investigation led to the case

before us.

Hutchins, 72 M.J. at 296 (citation omitted).

At trial, the Government proceeded under the

theory that Appellant and his squad developed three

alternative plans to "murder[] [a] man in cold blood"

for the purpose of sending a message to the local Iraqi

population. Plan A involved forcing the HVI from his

house in the middle of the night, taking him to a

previously created IED hole, killing him, and staging

the scene to make it appear as if the HVI had been

planting an IED. Plan B involved taking and killing

one of the HVI's brothers if the HVI was not home.

Plan C involved murdering any adult Iraqi man if the

squad could not execute plan A or plan B. Trial

counsel explained that the squad ultimately executed

plan C. The defense, however, took the position that

the command directed Appellant and his squad to

"get" the HVI, that Appellant interpreted this

directive to mean that his mission was to capture or

kill the HVI, and that Appellant believed at the time

that his squad had lawfully killed the correct person.

The members' general verdict convicted

Appellant of four offenses: one specification of

conspiracy to commit offenses under the UCMJ

(larceny, false official statements, murder, and

obstruction of justice), one specification of making a

false official statement, one specification of

unpremeditated murder of an unknown Iraqi man,

and one specification of larceny, in violation of Articles

81, 107, 118, and 121, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 881, 907, 918, 921

(2006). The members found a number of overt acts to

be part of the conspiracy, including: (1) four squad

members took an unknown Iraqi man to the IED hole;

(2) three of these squad members forced the unknown

Iraqi man to the ground and bound his hands and feet;

and (3) after the squad members left the IED hole, five

squad members, including Appellant, fired their

weapons toward the unknown Iraqi man resulting in

his death.

The members acquitted Appellant of seven

other offenses: one specification of making false

official statements, the greater offense of

premeditated murder of an unknown Iraqi man, one

specification of assault on an unknown Iraqi man by

unlawfully forcing him to the ground and binding his

hands and feet, one specification of housebreaking

involving the dwelling of an unknown Iraqi man, one

specification of kidnapping an unknown Iraqi man,

and two specifications of obstruction of justice,1 in

violation of Articles 107, 118, 128, 130, and 134,

UCMJ, 10 U.S.C. §§ 907, 918, 928, 930, 934 (2006).

Additionally, for the conspiracy specification the

members excepted "housebreaking" and "kidnapping"

from the list of UCMJ offenses that were part of the

conspiracy agreement, and they also excepted four

charged overt acts including that: (1) four squad

members walked from the HVI's house and entered an

unknown Iraqi man's home; and (2) two squad

members took an unknown Iraqi man from his home

against his will.2

1 In accordance with the military judge’s instructions, (the

members acquitted Appellant of the obstruction of justice

specifications because they convicted him of the same conduct

as part of the conspiracy.

2 The other two overt acts excepted from the conspiracy

specification were that: (1) Appellant made a false statement to

a staff sergeant on April 26, 2006, relating to the circumstances

of the unknown Iraqi man’s death; and (2) Appellant made a

false statement to the Naval Criminal Investigative Service

(NCIS) about the unknown Iraqi man’s death on May 8, 2006.

These two overt acts do not play a direct role in this appeal.

10a

Based on the convictions, the members

sentenced Appellant to a dishonorable discharge,

confinement for fifteen years, a reprimand, and a

reduction to E-1. The convening authority approved

only so much of the sentence as provided for a

dishonorable discharge, confinement for eleven years,

and a reduction to E-1. In 2013 after extended

appellate proceedings,3 we set aside the findings of

guilty due to a violation of Appellant's Fifth

Amendment right against self-incrimination and we

authorized a rehearing. Hutchins, 72 M.J. at 299-300.

B. The Rehearing

Upon receipt of the record, the convening

authority referred to a general court-martial for

rehearing only those charges of which Appellant was

convicted at the 2007 trial. None of the acquitted

charges and none of the language excepted from the

conspiracy specification at the first trial was referred

to the rehearing.

The defense filed a motion to suppress "all

evidence, allegations and inferences of conduct subject

to 'not guilty' findings" at the first trial, arguing that

the admission of this evidence violated the issue

preclusion component of the Fifth Amendment's

Double Jeopardy Clause. The military judge denied

3 Following the convening authority’s action, Appellant’s case

proceeded as follows: (1) the United States Navy-Marine Corps

Court of Criminal Appeals (CCA) ordered a fact-finding hearing

in 2009; (2) the CCA set aside the findings and sentence in 2010

be-cause of an improper severance of the attorney-client

relationship; (3) this Court reversed the CCA’s decision and

remanded for fur-ther review in 2011; and (4) the CCA affirmed

the findings and sentence in 2012.

11a

this motion at an Article 39(a), UCMJ, 10 U.S.C. §

839(a) (2012), session by concluding:

There is no requirement to speculate on the

rationale [of] the last panel of members. In fact, it's

folly to try to do that. The real risk of confusing [the

current panel members will arise] if we try to parse

the facts as proposed by the defense counsel.

Misconduct can violate more than one article of the

UCMJ and the conduct [that the defense has sought

to have suppressed is] not mutually exclusive to the

charges of which the accused was acquitted.

Following this ruling, the Government relied on

the same theory at the rehearing that it had used at

the first trial, and it also relied on similar evidence.

Specifically, trial counsel asserted that Appellant was

the "mastermind" of "a perfect plan to commit a

murder and send a message," which "his squad

executed." Trial counsel went on to describe the

"three-tiered plan": (1) plan A—capture and kill the

Iraqi HVI; (2) plan B—capture and kill the HVI's

brother; or (3) plan C—kill any Iraqi male they could

find. Trial counsel explained that the squad

abandoned plans A and B and instead executed plan

C by grabbing an unknown Iraqi man who was

sleeping in his house, dragging him to a nearby IED

crater, and murdering him.

At the conclusion of the parties' presentation of

evidence, the military judge instructed the members

that:

The burden is on the prosecution to

prove each and every element of each

offense beyond a reasonable doubt.

12a

Proof of one offense carries with it no

inference that the accused is guilty of

any other offense. I remind you again

that the accused was acquitted at a prior

proceeding of the offenses of kidnapping,

housebreaking, assault, obstruction of

justice, premeditated murder, and false

official statement on or about 8 May, as

well

conspiracy

commit

kidnapping and housebreaking. You

may therefore consider evidence that the

accused may have been involved in

plans or acts involving entering the

alleged victim's home, moving him to

another location, involvement in a

shooting, and providing a statement to

NCIS on or about 8 May for the limited

purpose of its tendency, if any, to prove a

plan or design of the accused to commit

the charged acts .... [Y]ou may not

conclude from this evidence that the

accused is a bad person or has general

criminal tendencies, and that he

therefore committed the offenses

charged.

(Emphases added.) The members returned a

mixed verdict by acquitting Appellant of the sole

specification of making a false official statement,

excepting two overt acts from the conspiracy

specification,4 and convicting Appellant of the

conspiracy, unpremeditated murder, and larceny

4 The two excepted overt acts alleged that Appellant submitted

a false written report about the unknown Iraqi man’s death on

April 28, 2006, and that a squad member made a false

statement to NCIS about the unknown Iraqi man’s death.

13a

specifications. The members sentenced Appellant to a

bad-conduct discharge and 2,627 days of confinement,

and the convening authority approved the adjudged

sentence.

C. CCA Opinion

Appellant presented thirteen assignments of

error to the CCA, including whether the military

judge erred in denying the motion to suppress

evidence relating to conduct of which he was

acquitted. United States v. Hutchins, No. NMCCA

200800393, 2018 CCA LEXIS 31, at *2-3, 2018 WL

580178, at *1 (N-M. Ct. Crim. App. Jan. 29, 2018)

(unpublished). The CCA concluded that the issue

preclusion component of the Double Jeopardy Clause

did not apply in this case because the evidence

Appellant wanted excluded—i.e., evidence regarding

the conspiracy to murder the HVI's brother or a

random Iraqi male—did not constitute an issue of

ultimate fact. Id. 2018 CCA LEXIS 31, at *19-20, 2018

WL 580178 at *7. The CCA further concluded that the

military judge did not abuse his discretion in

admitting evidence involving "issue[s] of less than

ultimate fact" of which Appellant had been acquitted

at the first trial because this evidence was probative

under M.R.E. 401 and M.R.E. 404(b) and was not

unfairly prejudicial under M.R.E. 403. Hutchins, 2018

CCA LEXIS 31, at *20, *35-43, 2018 WL 580178, at

*7, *12-14. Following a thorough review of the

remaining issues, the CCA affirmed the findings and

sentence. Id. 2018 CCA LEXIS 31, at *202, 2018 WL

580178, at *68.

D. Order Granting Review

14a

issue:

We granted review to resolve the following

Whether the military judge erred when

he denied the defense motion to

suppress evidence of conduct for which

Appellant had been acquitted at his first

trial.

United States v. Hutchins, 78 M.J. 111 (C.A.A.F. 2018)

(order granting review).

II. Standard of Review

We review a military judge's ruling to admit or

suppress evidence for an abuse of discretion. United

States v. Jerkins, 77 M.J. 225, 228 (C.A.A.F. 2018)

(admission of evidence); United States v. Eppes, 77

M.J. 339, 344 (C.A.A.F. 2018) (suppression of

evidence). An abuse of discretion occurs when the

military judge's factual findings are clearly erroneous,

view of the law is erroneous, or decision is outside of

the range of reasonable choices. United States v. Bess,

75 M.J. 70, 73 (C.A.A.F. 2016). The questions of

"[w]hether a prosecution violates the Double Jeopardy

Clause or [the doctrine of issue preclusion] are issues

of law." United States v. Brown, 571 F.3d 492, 497 (5th

Cir. 2009); see also Schiro v. Farley, 510 U.S. 222, 232,

114 S. Ct. 783, 127 L. Ed. 2d 47 (1994) (stating that

"[t]he preclusive effect of the jury's verdict ... is a

question of law"). We review these issues of law de

novo. See United States v. Paul, 73 M.J. 274, 277

(C.A.A.F. 2014); United States v. Cessa, 861 F.3d 121,

140 (5th Cir. 2017).

III. Legal Principles

15a

The Double Jeopardy Clause of the Fifth

Amendment states that no person shall "be subject for

the same offence to be twice put in jeopardy of life or

limb." U.S. Const. amend. V. In Ashe v. Swenson, the

Supreme Court held that this clause "embodie[s]" the

"extremely important principle" of issue preclusion.5

397 U.S. 436, 442-43, 90 S. Ct. 1189, 25 L. Ed. 2d 469

(1970).

Issue preclusion "means simply that when an

issue of ultimate fact has once been determined by a

valid and final judgment, that issue cannot again be

litigated between the same parties in any future

lawsuit."6 Id. at 443. An issue of ultimate fact is an

issue that was "necessary to the [initial] judgment."

Bobby v. Bies, 556 U.S. 825, 835, 129 S. Ct. 2145, 173

L. Ed. 2d 1173 (2009) (internal quotation marks

omitted) (citation omitted). A "determination ranks as

necessary ... only when the final outcome hinge[d] on

it." Id.

5 The Ashe opinion uses the term “collateral estoppel,” but in

“modern usage” this term is now referred to as “issue

preclusion.” Schiro, 510 U.S. at 232; see also Bravo-Fernandez

v. United States, 137 S. Ct. 352, 356 n.1 (2016) (describing issue

preclusion as “the more descriptive term”). This opinion follows

the modern usage.

6 Issue preclusion is recognized under Rule for Courts-Martial

(R.C.M.) 905(g). See United States v. Harris, 67 M.J. 611, 614

(A.F. Ct. Crim. App. 2009); Manual for Courts-Martial, United

States, Analysis of Rules for Courts-Martial app. 21 at A21-53

(2016 ed.). Appellant appears to take the position that the right

in R.C.M. 905(g) is no different than the issue preclusion

component of the Double Jeopardy Clause. This opinion

similarly treats the issue preclusion rule in R.C.M. 905(g) the

same as the issue preclusion rule of the Fifth Amendment.

16a

An appellant bears the burden "to demonstrate

that the issue whose relitigation he seeks to foreclose

was actually decided in the first proceeding." Dowling

v. United States, 493 U.S. 342, 350-51, 110 S. Ct. 668,

107 L. Ed. 2d 708 (1990) (citations omitted). Courts

examine "all the circumstances of" the first trial,

including "the pleadings, evidence, charge, and other

relevant matter," to determine "whether a rational

[fact-finder] could have grounded its verdict upon an

issue other than that which the [accused] seeks to

foreclose from consideration." Ashe, 397 U.S. at 444

(internal quotation marks omitted) (citation omitted).

In Currier v. Virginia, the Supreme Court

stated: "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." 138 S. Ct. 2144, 2150, 201 L. Ed. 2d

650 (2018). Thus, an appellant can prevail under the

doctrine of issue preclusion only if he can satisfy both

prongs of the following test: (1) the appellant first

must demonstrate from evidence in the record that

the panel's acquittal at the first court-martial

necessarily determined an issue of ultimate [*445]

fact in his favor; and (2) the appellant then must

demonstrate that in order to obtain a conviction at the

second court-martial, the government was required to

prove beyond a reasonable doubt the existence of that

same issue of ultimate fact. See id.; Yeager v. United

States, 557 U.S. 110, 123, 129 S. Ct. 2360, 174 L. Ed.

2d 78 (2009).

The Ashe test "is a demanding one." Currier,

138 S. Ct. at 2150. The Supreme Court therefore has

limited its application by, for instance, declining to

extend "the [issue preclusion] component of the

17a

Double Jeopardy Clause to exclude in all

circumstances ... relevant and probative evidence that

is otherwise admissible under the Rules of Evidence

simply because it relates to alleged criminal conduct

for which a defendant has been acquitted." Dowling,

493 U.S. at 348.

Consistent with Supreme Court precedent, we

have held that a military judge may admit "otherwise

admissible evidence even though it was previously

introduced on charges of which an accused has been

acquitted" as long as "the evidence is relevant" and

"the probative value of the proffered evidence is [not]

outweighed by its prejudicial effect." United States v.

Cuellar, 27 M.J. 50, 54 (C.M.A. 1988) (internal

quotation marks omitted) (quoting United States v.

Hicks, 24 M.J. 3, 8 (C.M.A. 1987)). As the Supreme

Court held in Dowling, "[A]n acquittal in a criminal

case does not preclude the Government from

relitigating an issue when it is presented in a

subsequent action governed by a lower standard of

proof" such as in an M.R.E. 404(b) context. 493 U.S. at

349; see also Hicks, 24 M.J. at 9. "The fact of the prior

acquittal may diminish the probative value of the

evidence, however, and should be considered by the

military judge when" conducting the M.R.E. 403

analysis. Hicks, 24 M.J. at 9.

IV. Analysis

A. Issue Preclusion

Appellant argues that issue preclusion barred

the Government at the rehearing from presenting the

18a

"narrative"7 that he conspired to murder a random

Iraqi male at the rehearing. As noted above, in order

to prevail Appellant must meet both prongs of the

issue preclusion test. Specifically, Appellant first

must demonstrate from evidence in the record that

the panel's acquittals at the first court-martial

necessarily determined a specific issue of ultimate fact

in his favor, and then he must demonstrate that in

order to obtain a conviction at the rehearing the

Government was required to prove beyond a

reasonable doubt the existence of that same issue of

ultimate fact.

There are two instances where Appellant has

failed to meet his burden under the first prong of the

issue preclusion test. First, Appellant's acquittals

regarding the obstruction of justice specifications did

not determine any issue of ultimate fact. The military

judge instructed the members that they were required

to acquit Appellant of these offenses if they convicted

him of the conspiracy involving obstruction of justice.

Thus, no issue of ultimate fact can be deduced from

these acquittals because the panel members were

compelled to comply with the military judge's legal

instructions.

7 We note that issue preclusion is concerned with issues of

ultimate fact, not impressions, generalizations or, as Appellant

characterizes it in his brief, a “narrative” of the underlying

crime which is drawn from those facts. Brief for Appellant at

25, United States v. Hutchins, No. 18-0234 (C.A.A.F. Oct. 10,

2018); see Cessa, 861 F.3d at 140 (“The doctrine of [issue

preclusion] as delineated in Ashe … deals with facts not

theories.” (alteration in original) (internal quotation marks

omitted) (citation omitted)).

19a

Second, in regard to Appellant's acquittal for

assault, there is an inconsistency between the

members' not guilty finding for this substantive

offense and the members' guilty finding for the

conspiracy offense that involved overt acts that

formed the basis for this same substantive offense.

Given this inconsistency, no issue of ultimate fact can

be identified. Bravo-Fernandez, 137 S. Ct. at 356-57

(explaining that where "verdicts are rationally

irreconcilable, the acquittal gains no preclusive effect"

(citing United States v. Powell, 469 U.S. 57, 68, 105 S.

Ct. 471, 83 L. Ed. 2d 461 (1984))).

Even if we were to assume arguendo that in

certain instances Appellant has met the first prong of

the issue preclusion test because he can identify

issues of ultimate fact resolved in his favor arising

from other acquittals at his first trial, he still cannot

meet his burden under the second prong of the test.

To begin with, Appellant has not cited, and we

cannot discern, any nexus between an issue of

ultimate fact resulting from Appellant's acquittal on

the false official statement specification at the first

trial and any charges at the rehearing.

Next, the issue of ultimate fact that Appellant

asserts was resolved in his favor at the first trial—

that he was not involved in a conspiracy to murder a

random Iraqi man—did not preclude the Government

from proving at the rehearing the conspiracy,

unpremeditated murder, and larceny offenses. It is

important to note that Appellant was convicted of

these three offenses at the first trial, thereby

demonstrating that the Government's success at the

rehearing did not hinge on the purported ultimate fact

20a

now cited by Appellant. See United States v. Citron,

853 F.2d 1055, 1059 (2d Cir. 1988) ("[A]n acquittal

accompanied by a conviction on the count sought to be

retried does not have a similar preclusive effect; the

conviction casts doubt on whatever factual findings

might otherwise be inferred from the related

acquittal." (citations omitted)); see also BravoFernandez, 137 S. Ct. at 366 & n.8 ("The split verdict

does not impede the Government from renewing the

prosecution."). Moreover, this purported ultimate fact

did not prevent the Government from obtaining

convictions on the conspiracy, unpremeditated

murder, and larceny offenses at the rehearing because

no element of the offenses of conviction at the

rehearing hinged on Appellant's involvement in a

conspiracy to kill a random Iraqi male.8 See Currier,

138 S. Ct. at 2150.

In regard to the 2007 acquittals for

housebreaking, kidnapping, and conspiracy to commit

housebreaking and kidnapping, Appellant appears to

argue broadly that the issue of ultimate fact from

these acquittals is that he had nothing to do

whatsoever with any conduct related to these offenses,

and therefore no evidence related to this conduct was

admissible at the rehearing. However, we first note

that these particular offenses were not charged at the

rehearing. Moreover, we further note that Appellant

has failed to meet his burden of demonstrating how

any of the charges of which he was convicted at the

rehearing required the Government to prove this

8 The conspiracy to commit murder charge did not specify the

identity of the victim. Therefore, Appellant was not necessarily

charged with a conspiracy to murder any random Iraqi male at

the first trial. No issue of ultimate fact can be discerned under

these circumstances.

21a

purported issue of ultimate fact beyond a reasonable

doubt. Stated differently, at the rehearing the

Government could prove all of the elements of the

offenses of [**18] which Appellant was convicted

without having to prove beyond a reasonable doubt

that Appellant committed any of the conduct related

to these offenses of which Appellant was acquitted at

the first trial. Currier, 138 S. Ct. at 2150; Yeager, 557

U.S. at 123.

And finally, Appellant's acquittal for

premeditated murder of an unknown Iraqi man at the

first trial did not preclude the Government from

proving unpremeditated murder of an unknown Iraqi

man at the rehearing. To begin with, we underscore

the point that Appellant was actually convicted of

unpremeditated murder of an unknown Iraqi man at

the first trial. See Citron, 853 F.2d at 1059; see also

Bravo-Fernandez, 137 S. Ct. at 366. Further, the

acquittal for premeditated murder of an unknown

Iraqi man at the first trial at most established that

Appellant did not act with premeditation in killing the

unknown Iraqi man.9 This fact was not necessary for

proving the charged conspiracy to murder at the

rehearing because Appellant's agreement to murder

the HVI, and overt acts in furtherance of this

agreement, would suffice to establish the conspiracy.

See United States v. Simpson, 77 M.J. 279, 284

(C.A.A.F. 2018) (noting that a conspiracy only

requires an agreement to commit an offense and an

overt act).

Based on the foregoing analysis, we conclude

that the issue preclusion component of the Fifth

Amendment's Double Jeopardy Clause does not apply

in this case.

22a

B. Admissibility of Evidence

Because issue preclusion is inapplicable in this

case, the military judge properly examined whether

the evidence related to the acquitted offenses was

admissible at trial under M.R.E. 403 and M.R.E.

404(b). As noted above, the Supreme Court stated in

Dowling that the holding in Ashe is not intended "to

exclude in all circumstances ... relevant and probative

evidence that is otherwise admissible under the Rules

of Evidence simply because it relates to alleged

criminal conduct for which a defendant has been

acquitted." 493 U.S. at 348. Rather, the proper way to

decide this issue is to factor in the prior acquittal as

part of the balancing test under M.R.E. 403. See

Hicks, 24 M.J. at 9. Therefore, the evidence offered by

the Government at the rehearing in the instant case

was not barred as a matter of issue preclusion under

Ashe. Accordingly, the military judge was correct

when he determined that the admissibility of the

Government's evidence should be decided using the

framework of M.R.E. 404(b) and M.R.E. 403. Because

Appellant does not meaningfully contest the military

judge's application of those rules on their own terms,

we need not address the military judge's specific

analysis of those rules.

V. Conclusion

We affirm the judgment of the United States

Navy-Marine Corps Court of Criminal Appeals.

23a

U NITED S TATES N AVY –M ARINE C ORPS

C OURT OF C RIMINAL A PPEALS

_________________________

No. 200800393

_________________________

UNITED STATES OF AMERICA

Appellee

LAWRENCE G. HUTCHINS III

Sergeant (E-5), U.S. Marine Corps

Appellant

_________________________

Appeal from the United States Navy -Marine Corps

Trial Judiciary

Military Judge: Captain A.H. Henderson, JAGC, USN.

Convening Authority: Commander, U.S. Marine Corps

Forces Central Command, MacDill Air Force Base, FL.

Staff Judge Advocate’s Recommenda tion: Colonel John

R. Woodworth, USMC.

For Appellant: Christopher Oprison, Esq.; Lieutenant

Colonel S. Babu Kaza, USMCR; Lieutenant Doug

Ottenwess, JAGC, USN.

For Appellee: Major Cory A. Carver, USMC; Lieutenant

James M. Belforti, JAGC, USN.

_________________________

Decided 29 January 2018

_________________________

Before G LASER -A LLEN , M ARKS , and H UTCHISON ,

Appellate Military Judges

_________________________

24a

This opinion does not serve as binding precedent but may

be cited as persuasive authority under NMCCA Rule of

Practice and Procedure 18.2.

_________________________

MARKS, Senior Judge:

A general court-martial comprised of members

with enlisted representation convicted the appellant,

contrary to his pleas, of one specification each of

conspiracy,1 unpremeditated murder, and larceny in

violation of Articles 81, 118, and 121, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 881, 918, and

921 (2005).2 The members sentenced the appellant to

2,627 days’ confinement3 and a bad-conduct

1 The sole specification of conspiracy alleged that the appellant

conspired with the seven junior members of his squad to commit

larceny, false official statements, murder, and obstruction of

justice and enumerated 17 overt acts in support of the

conspiracy. The members excepted two of the 17 overt acts:

m. The said Sergeant Hutchins did, on or about

28 April 2006, at or near Patrol Base Bushido,

Iraq, submit a false written report regarding the

facts and circumstances related to the unknown

Iraqi man’s death;

....

o. The said Private First Class Jodka did, on or

about 9 May 2006, at or near Hamdaniyah, Iraq,

make a false statement to Special Agents [J.C.]

and [S.L.], Naval Criminal Investigative Service,

regarding the facts and circumstances related to

the unknown Iraqi man’s death;

Charge Sheet; Appellate Exhibit (AE) CXCIII at 3;

Record at 2358.

2 The members also acquitted the appellant of a single

specification of making a false official statement.

3 The adjudged confinement amounted to time the appellant had

served pursuant to a sentence awarded at a prior court-martial

for the same allegations.

25a

discharge. The convening authority (CA) approved the

sentence as adjudged and, except for the punitive

discharge, ordered the sentence executed.

The appellant raises 13 assignments of error

(AOE): (1) the military judge’s denial of the defense

motion to suppress evidence of conduct for which the

appellant was acquitted at his first trial; (2) admission

of former testimony where the declarants were not

unavailable and there was no similar motive for crossexamination; (3) unlawful command influence (UCI)

from the Secretary of the Navy; (4) the military judge’s

finding that apparent UCI stemming from the

prosecution’s search of defense counsel’s office in

another case was harmless beyond a reasonable

doubt; (5) denial of the defense motion for recusal; (6)

denial of the defense request to abate proceedings

until the appellant’s attorney-client relationship was

restored; (7) denial of the defense motion to dismiss

based on the government’s violation of the appellant’s

Article 13, UCMJ, rights; (8) denial of the defense

request for a site visit; (9) admission of an exhibit

founded on hearsay; (10) denial of the defense request

for a mistrial after the members heard a government

witness testify that the appellant asserted his right to

remain silent; (11) the impact of the significant

accumulation of errors on the outcome of the case; (12)

the appellant’s excessive and disproportionate

sentence to roughly six years’ confinement in light of

companion cases; and (13) the legal and factual

insufficiency of the findings.

After carefully considering the pleadings, oral

arguments, and the record of trial, we find no error

materially prejudicial to the substantial rights of the

26a

appellant and affirm the findings and sentence. Arts.

59(a) and 66(c), UCMJ.

I. BACKGROUND

First, a procedural orientation may be helpful.

The appellant was originally convicted in August 2007

for his role in the shooting death of an unknown Iraqi

man in Hamdaniyah, Iraq, the morning of 26 April

2006. This court set aside the findings and sentence

for an improper severance of attorney-client

relationship in April 2010. United States v. Hutchins,

68 M.J. 623, 631 (N-M. Ct. Crim. App. 2010) (Hutchins

I). The Court of Appeals for the Armed Forces (CAAF)

reversed that decision and remanded the case to this

court to complete its review under Article 66, UCMJ,

in January 2011. United States v. Hutchins, 69 M.J.

282, 293 (C.A.A.F. 2011) (Hutchins II). This court

completed that review and affirmed the findings and

sentence of the first court-martial in March 2012.

United States v. Hutchins, No. 200800393, 2012 CCA

LEXIS 93, *32, unpublished op. (N-M. Ct. Crim. App.

20 Mar 2012) (Hutchins III). Finding a violation of the

appellant’s Fifth Amendment rights against selfincrimination, the CAAF reversed our 2012 decision,

set aside the findings and sentence of the 2007 courtmartial, and remanded the case with authorization for

a rehearing. United States v. Hutchins, 72 M.J. 294,

301 (C.A.A.F. 2013) (Hutchins IV). The results of that

rehearing are before us here.

As for the events of the night and early morning

of 25-26 April 2006, we revisit our summary from

27a

Hutchins III, which the CAAF republished in

Hutchins IV:

The appellant was assigned as squad

leader for 1st Squad, 2nd Platoon, Kilo

Company, 3rd Battalion, 5th Marines,

assigned to Task Force Chromite,

conducting

counter-insurgency

operations in the Hamdaniyah area of

Iraq in April 2006. In the evening hours

of 25 April 2006, the appellant led a

combat patrol to conduct a deliberate

ambush aimed at interdicting insurgent

emplacement of improvised explosive

devices (IEDs). The court-martial

received

testimony

from

several

members of the squad that indicated the

intended ambush mission morphed into

a conspiracy to deliberately capture and

kill a high value individual (HVI),

believed to be a leader of the insurgency.

The witnesses gave varying testimony as

to the depth of their understanding of

alternative targets, such as family

members of the HVI or another random

military-aged Iraqi male.

Considerable effort and preparation

went into the execution of this

conspiracy. Tasks were accomplished by

various Marines and their corpsman,

including the theft of a shovel and AK-47

from an Iraqi dwelling to be used as

props to manufacture a scene where it

appeared that an armed insurgent was

28a

digging to emplace an IED. Some squad

members advanced to the ambush site

while others captured an unknown Iraqi

man, bound and gagged him, and

brought him to the would-be IED

emplacement.

The stage set, the squad informed higher

headquarters by radio that they had

come upon an insurgent planting an IED

and received approval to engage. The

squad opened fire, mortally wounding

the man. The appellant approached the

victim and fired multiple rifle rounds

into the man's face at point blank range.

The scene was then manipulated to

appear

consistent

with

the

insurgent/IED story. The squad removed

the bindings from the victim's hands and

feet and positioned the victim’s body

with the shovel and AK-47 rifle they had

stolen from local Iraqis. To simulate that

the victim fired on the squad, the

Marines fired the AK-47 rifle into the air

and collected the discharged casings.

When questioned about the action, the

appellant, like other members of the

squad, made false official statements,

describing the situation as a legitimate

ambush and a “good shoot.” The death

was brought to the appellant’s battalion

commander’s attention by a local sheikh

and the ensuing investigation led to the

case before us.

29a

Hutchins IV, 72 M.J. at 296 (quoting Hutchins III,

2012 CCA LEXIS 93 at *4-6).

For ease of understanding the hierarchy within

the appellant’s squad, his squad members and coconspirators will be identified by the ranks they held

on 26 April 2006. They were Corporal (Cpl)

Magincalda, Cpl Thomas, Lance Corporal (LCpl)

Jackson, LCpl Pennington, LCpl Shumate, Private

First Class (PFC) Jodka, and Navy corpsman,

Hospitalman Third Class (HM3) Bacos. Other

witnesses will also be identified by ranks they held in

2006.

We will incorporate additional facts as we

address the AOEs.

II. DISCUSSION

A. Admissibility

preclusion

evidence

and

issue

In his first AOE, the appellant avers that the

military judge erred in admitting evidence of conduct

of which the appellant had been acquitted at his first

trial. Specifically, the evidence of acquitted

misconduct included “evidence of ‘housebreaking,’

‘kidnapping,’ the alternate plan to seize a random

Iraqi, and the alleged seizure of a random Iraqi by the

snatch team.”4

We review a military judge’s ruling on a motion

to suppress evidence for an abuse of discretion. United

States v. Harrell, 75 M.J. 359, 362 (C.A.A.F. 2016).

The military judge’s findings of fact are reviewed for

4 Appellant’s Brief of 28 Jun 2016 at 30-31 (citation omitted).

30a

clear error; conclusions of law are reviewed de novo.

Id. “If the military judge fails to place his findings and

analysis on the record, less deference will be

accorded.” United States v. Flesher, 73 M.J. 303, 312

(C.A.A.F. 2014).

Intertwined with the appellant’s AOE

regarding the admission of evidence are two related

issues—collateral estoppel (also known as issue

preclusion) and the appellant’s purported acquittal of

conspiring to kill anyone other than high value

individual and suspected insurgency leader, S.G.5 We

must address these two issues and their relationships

to admissibility of evidence before reviewing the

military judge’s ruling. It is helpful to keep in mind

that the case before us is a rehearing.

1. Collateral estoppel / issue preclusion

When, as here, the government retries a

criminal case, findings of not guilty from the first trial

establish precedents limiting all future prosecutions

of the same matter. Once acquitted of an offense, an

accused need never “‘run the gantlet’” again with

regard to that specific offense. Ashe v. Swenson, 397

U.S. 436, 446 (1970) (quoting Green v. United States,

355 U.S. 184, 190 (1957)). The Double Jeopardy clause

of the Fifth Amendment to the Constitution protects

the accused from being “subject, for the same offence,

to be twice put in jeopardy of life or limb[.]” U.S.

CONST., amend. V. Courts have long recognized the

5 S.G. was a suspected Iraqi insurgency leader and an HVI in the

Hamdaniyah area, believed to be responsible for a number of IED

attacks on American forces. He was also the intended target of

the conspiracy and killing at issue in this case.

31a

civil litigation concept of collateral estoppel. See Hoag

v. New Jersey, 356 U.S. 464, 470 (1958) (“‘[W]here a

question of fact essential to the judgment is actually

litigated and determined by a valid and final

judgment, the determination is conclusive between

the parties in a subsequent action on a different cause

of action.’”) (quoting RESTATEMENT, JUDGMENTS, §

68(1) (1942)). In Ashe, the Supreme Court held that

criminal collateral estoppel was embodied in the Fifth

Amendment’s guarantee against double jeopardy. 397

U.S. at 445. After the incorporation of criminal

collateral estoppel into double jeopardy protection in

Ashe, courts began to refer to it as issue preclusion.

See Schiro v. Farley, 510 U.S. 222, 232 (1994).

The Ashe Court concluded that when a final

and valid verdict resolved an issue of ultimate fact,

the government could not litigate it again in a

subsequent prosecution. Ashe, 397 U.S. at 446. An

issue of fact is ultimate when it is critical to the

verdict. “Issue preclusion bars successive litigation of

‘an issue of fact or law’ that ‘is actually litigated and

determined by a valid and final judgment, and . . . is

essential to the judgment.’” Bobby v. Bies, 556 U.S.

825, 834 (2009) (citation omitted) (emphasis added).

The issue of ultimate fact in Ashe’s case was

whether he was among the band of robbers who broke

into a poker game in a private home and stole money

and a car from the six players around the table. Id. at

437. Ashe had been arrested in connection with the

robbery and charged with robbing one of the players.

Id. at 437-38. There was no question that the poker

player had been robbed; the only issue in dispute was

whether Ashe was one of the robbers. Id. at 438-39.

32a

Despite a jury’s acquittal at this first trial, Ashe was

later charged and convicted of robbing a different

player at the same game. Id. at 439-440. On a petition

for habeas corpus, the Ashe Court honed in on the

“issue in dispute,” finding:

[T]he record is utterly devoid of any

indication that the first jury could

rationally have found that an armed

robbery had not occurred, or that [the

victim in the first trial] had not been a

victim of that robbery. The single

rationally conceivable issue in dispute

before the jury was whether the

petitioner had been one of the robbers.

And the jury by its verdict found that he

had not. The federal rule of law,

therefore, would make a second

prosecution for the robbery of [the victim

the

second

trial]

wholly

impermissible.

Id. at 445 (emphasis added). The issue in dispute,

Ashe’s presence at the robbery, was an issue of

ultimate fact as it was essential to charges of robbery

at his first and second trials. With reasonable doubt

as to this essential ultimate fact, the government

could not proceed with it at a second trial that also

depended on it. Id. at 446. See also Dowling v. United

States, 493 U.S. 342, 348 (1990) (rejecting the claim of

collateral estoppel because “the prior acquittal did not

determine an ultimate issue in the present case”); see

also id. at 356 (Brennan, J., dissenting) (“Thus, in

addition to being protected against retrial for the

‘same offense,’ the defendant is protected against

33a

prosecution for an offense that requires proof of a fact

found in his favor in a prior proceeding.” (emphasis

added)).

The burden is on the accused to proffer that a

previous set of not guilty findings resolved an issue of

ultimate fact and move for dismissal of subsequent

charges also dependent on that same issue. The

accused must identify the issue in dispute,

demonstrate that the verdict in the previous trial

definitively resolved the proffered issue, and pray that

it be foreclosed from further dispute in court. Dowling,

493 U.S. at 350. Once the accused proffers an issue of

ultimate fact, the court must then test the accused’s

proffer. Ashe, 397 U.S. at 444. The Ashe Court charged

trial courts testing for issue preclusion with delving

back into prior findings:

[T]he rule of collateral estoppel in

criminal cases is not to be applied with

the hypertechnical and archaic approach

of a 19th century pleading book, but with

realism and rationality. Where a

previous judgment of acquittal was

based upon a general verdict, as is

usually the case, this approach requires

a court to “examine the record of [the]

prior proceeding, taking into account the

pleadings, evidence, charge, and other

relevant matter, and conclude whether a

rational jury could have grounded its

verdict on an issue other than that which

the defendant seeks to foreclose from

consideration.”

34a

Id. (citations omitted). See also Bravo-Fernandez v.

United States, 580 U.S. __, 137 S. Ct. 352, 359 (2016)

(noting that “[t]o identify what a jury in a previous

trial necessarily decided . . . a court ‘must examine the

record of a prior proceeding, taking into account the

pleadings, evidence, charge, and other relevant

matter’” (quoting Ashe, 397 U.S. at 444)). Cf Dowling,

493 U.S. at 352 (finding “any number of possible

explanations for the jury’s acquittal verdict at

Dowling’s first trial[,]” the Court concluded that “the

petitioner has failed to satisfy his burden of

demonstrating” the proffered issue had been resolved

in his favor). Having established that issue preclusion

protects an issue of ultimate fact that is essential to

both prior trial and trial at hand, we now consider

issues of less than ultimate fact—relevant but not

essential to pending charges.

2. Extension

suppression

issue

preclusion

evidence

When an issue of fact is not essential to both

verdicts and thus not ultimate in both cases,

preclusion is not automatic. The government need not

prove the acquitted issue beyond a reasonable doubt

to secure a new conviction, so it can proceed with the

new prosecution. But can the government present

evidence of that acquitted issue at a pending trial?

With varying degrees of success, criminal defendants

have invoked issue preclusion to suppress evidence

from a prior acquittal in a subsequent trial. See

Dowling, 493 U.S. at 348 (declining to extend Ashe’s

bar on relitigation “to exclude in all circumstances . . .

relevant and probative evidence that is otherwise

admissible under the Rules of Evidence simply

35a

because it relates to alleged criminal conduct for

which a defendant has been acquitted”); see also

United States v. Hicks, 24 M.J. 3, 8 (C.M.A. 1987)

(noting “disagreement among the courts about the

extent of the application of the doctrine of collateral

estoppel to the evidentiary use of prior acts of which

an accused has been acquitted.”)

The appellant urges us to follow case precedent

from the Second and Fifth Circuits and extend issue

preclusion beyond issues of ultimate fact to evidence

of prior bad acts subject to acquittal. See United States

v. Mespoulede, 597 F.2d 329, 334 (2d Cir. 1979)

(challenging the notion that collateral estoppel only

applies to facts essential to conviction); Wingate v.

Wainwright, 464 F.2d 209, 213 (5th Cir. 1972) (finding

no “meaningful difference in the quality of ‘jeopardy’

to which a defendant is again subjected when the state

attempts to prove his guilt by relitigating a settled

fact issue which depends upon whether the relitigated

issue is one of ‘ultimate’ fact or merely an ‘evidentiary’

fact in the second prosecution”).

In Hicks, our superior court explicitly rejected

what it characterized as the minority approach of

allowing

collateral

estoppel

“to

determine

admissibility of evidence which resulted in acquittal

at a prior trial.” 24 M.J. at 8.6 Opting for the majority

approach, the court declared that, “otherwise

admissible evidence” was still admissible, “even

Citing E. Imwinkelried, Uncharged Misconduct Evidence §§

10:03 through 10:07 (1984); Annot., 25 A.L.R. 4th 934 (1983); 2

Weinstein's Evidence, ¶ 404[10] at 404-58 (1982); 22 Wright and

Graham, Federal Practice and Procedure: Evidence § 5249 at

535-56 (1978).

36a

though it was previously introduced on charges of

which an accused has been acquitted.” Id. (citations

omitted). As the court succinctly stated in an opinion

nearly thirty years later, “the admissibility of other

acts evidence is governed by the Military Rules of

Evidence . . . , and not by the members’ verdict.”

United States v. Washington, 63 M.J. 418, 422

(C.A.A.F. 2006). See also United States v. Miller, 46

M.J. 63, 66 (C.A.A.F. 1997) (affirming a military

judge’s application of Military Rule of Evidence

404(b), SUPPLEMENT TO MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.) (MIL. R. EVID.)

and the Reynolds test7 in admitting evidence of prior

misconduct for which the appellant was acquitted).

In Hicks, trial defense counsel (TDC) sought to

suppress the testimony of four women who would

describe Sergeant (Sergeant) Hicks extorting them. 24

M.J. at 6-7. Sergeant Hicks was charged with

demanding sex from a woman in return for not

reporting her boyfriend’s misconduct. Id. at 5. The

trial court found the evidence of uncharged

misconduct “highly probative of a certain method or

scheme employed by appellant to use his position of

authority ‘to orchestrate events’ to obtain sexual or

monetary favors from vulnerable females.” Id. at 7

(citation omitted). Hicks argued that collateral

estoppel should prevent two of the women from

testifying because he had been acquitted of their

allegations at courts-martial. Id. In rejecting Hicks’

argument to apply collateral estoppel and suppress

some of the evidence in his case, the Court of Military

7 United States v. Reynolds, 25 M.J. 105, 109 (C.M.A. 1989).

37a

Appeals distinguished his case from Ashe. “In Ashe v.

Swenson, . . . the fact underlying the issue of

identity—that is, whether the accused was present at

the robbery—was an ultimate fact and essential for

conviction in both proceedings. On the other hand, the

other-acts evidence here was totally separate from the

instant offenses in time and place; was used for a

limited evidentiary point; did not require proof beyond

a reasonable doubt; and, although probative, was

unnecessary to support a conviction of the instant

charges.” Id. at 8-9.

3. Admissibility of evidence from an acquittal at

court-martial

Instead of issue preclusion, three Military

Rules of Evidence govern the relevance and

admissibility of evidence of conduct already litigated

in a prior court-martial. Miller, 46 M.J. at 66; Hicks,

24 M.J. at 8. First, “[e]vidence is relevant if: (a) it has

any tendency to make a fact more or less probable

than it would be without the evidence; and (b) the fact

is of consequence in determining the action.” MIL. R.

EVID. 401. “The military judge may exclude relevant

evidence if its probative value is substantially

outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues,

misleading the members, undue delay, wasting time,

or needlessly presenting cumulative evidence.” MIL.

R. EVID. 403. “Evidence of a crime, wrong, or other act

is not admissible to prove a person’s character in order

to show that on a particular occasion the person acted

in accordance with the character.” MIL. R. EVID.

404(b)(1). But “[t]his evidence may be admissible for

another purpose, such as proving motive, opportunity,

38a

intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident” MIL. R. EVID.

404(b)(2).

In United States v. Reynolds, 29 M.J. 105

(C.M.A. 1989), the Court of Military Appeals

articulated a three-part test for the admissibility of

uncharged misconduct, including prior misconduct of

which the accused was acquitted:

1. Does the evidence reasonably support

a finding by the court members that

appellant committed prior crimes,

wrongs, or acts?

2. What “fact . . . of consequence” is made

“more” or “less probable” by the existence

of this evidence?

3. Is the “probative value . . .

substantially outweighed by the danger

of unfair prejudice”?

Id. at 109 (internal citations omitted, alterations in

original).

Although the Military Rules of Evidence and

the Reynolds test, not issue preclusion, govern the

admissibility of uncharged misconduct, the fact of an

acquittal is still a factor in the analysis. When an

accused has been acquitted of conduct the government

seeks to present as evidence in a subsequent case, that

acquittal is a factor in the test for admissibility. “The

fact of the prior acquittal may diminish the probative

value of the evidence, however, and should be

considered by the military judge when determining

whether ‘probative value is substantially outweighed

39a

by the danger of unfair prejudice, confusion of the

issues, or misleading the members, or by

considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.’” Hicks,

24 M.J. at 9 (quoting MIL. R. EVID. 403). An accused

also has the right to prove that he or she was

previously acquitted of the acts admitted into

evidence under MIL. R. EVID. 404(b). United States v.

Cuellar, 27 M.J. 50, 56 (C.M.A. 1988). While issue

preclusion is not a sword at the appellant’s disposal in

this case, does he nonetheless deserve the benefit of

his purported acquittal of an issue of ultimate fact at

his first court-martial? Our superior court has not

prohibited us from querying whether we can

extrapolate an acquittal from prior findings. To begin

to answer whether that purported acquittal affects

the admissibility of related evidence, we must

consider the proffered acquittal.

4. Proffered acquittal of conspiring to kill anyone

other than S.G.

As part of his motion in limine to suppress

evidence of uncharged misconduct, the appellant

asserted that the findings of his first court-martial

indicated an acquittal of an issue of ultimate fact.

Based on specific instructions to the members and

their not guilty findings to housebreaking,

kidnapping, and conspiring to commit them, the

appellant asserted that the members must have

concluded that (1) the appellant did not order his

Marines to seize anyone other than suspected

insurgency leader and HVI, S.G.; (2) the appellant

believed that the individual seized was S.G.; and (3)

the appellant was not responsible for his squad

40a

members going to a house and seizing an unknown

Iraqi man (who was not S.G.).8 TDC exhorted the

military judge to examine the findings and exceptions

made by the members at his first trial to confirm that

they resolved this issue in the appellant’s favor. Citing

collateral estoppel, the appellant sought to exclude

evidence that the appellant conspired to kill anyone

other than S.G.

a. Not an issue of ultimate fact in the case before

Whom the appellant conspired to kill was

central to the government’s theme and theory at both

trials but was not an issue of ultimate fact at his

second court-martial. The conspiracy specification did

not name the victim the appellant and his coconspirators agreed to murder. Whether the man shot

by the IED crater was the same man the appellant

intended to kill was not critical to a finding of guilty

for murder. As the military judge instructed the

members, in cases of mistake or carelessness, “the

intent to kill or inflict bodily harm is transferred in

the intended victim of [the accused’s] action to the

actual victim.”9 And for the same reasons, the identity

of the appellant’s intended victim was not essential to

the other charges referred to his second court-martial.

With no pending charges dependent upon whom the

appellant agreed to kidnap and kill, there is no issue

of ultimate fact.

8 AE XCVIII at 6-7.

9 Record at 2276.

41a

Without the required issue of ultimate fact at

the pending court-martial,10 we can find no abuse of

discretion in the military judge’s apparent decision

not to explore the findings and record of the first

court-martial for the purported acquittal. The

military judge made no written findings of fact or

conclusions of law in response to the appellant’s

request that he examine the first record of trial but

said “[t]here is no requirement to speculate on the

rationale on the last panel of members. In fact it’s folly

to try to do that.”11

Though there appears to be no requirement to

mine a prior record of trial for acquittal of an issue of

less than ultimate fact, our superior court has not

prohibited it. The analysis and conclusion of acquittal

exemplified in Ashe is a preliminary step that may,

but need not, result in issue preclusion. Even with

issue preclusion off the table, the existence of an

acquittal remains relevant to admission of evidence

under the Military Rules of Evidence and Reynolds.

For that reason, we believe the appellant’s proffered

acquittal deserves our consideration.

b. Findings of the appellant’s first court-martial

10 See Ashe, 397 U.S. at 443; Dowling, 493 U.S. at 348, discussed

supra.

11 Record at 778.

42a

The first panel of members returned mixed, and

to some extent inconsistent,12 findings. Those findings

are summarized below:

Charge I: Conspiracy - Guilty of one

specification of conspiracy to commit larceny, false

official statements, murder, and obstruction of justice;

but not guilty of conspiracy to commit housebreaking

and kidnapping and excepting four of 21 overt acts

effecting the conspiracy.13

Charge II: False Official Statement - Guilty of

one specification of false official statement for a

written statement made on 28 April 2006; but not

guilty of a second false official statement for the 8 May

2006 interview with the NCIS Special Agents.

Charge III: Premeditated Murder - Not guilty

of premeditated murder, but guilty of the lesser

included offense of unpremeditated murder of an

unknown Iraqi man;

12 As previously stated, the appellant’s acquittal of premeditated

murder and conviction of conspiracy to commit murder are

irreconcilably inconsistent.

13 The four excepted overt acts were: (1) Cpl Magincalda, Cpl

Thomas, LCpl Pennington, and HM3 Bacos walking from S.G.’s

house to the home of an unknown Iraqi and Cpl Magincalda and

Cpl Thomas entering the house; (2) Cpl Magincalda and Cpl

Thomas taking an unknown Iraqi man from his house against

his will; (3) the appellant’s false statements to Staff Sergeant

O.B. on 26 April 2006 regarding the facts and circumstances of

the unknown Iraqi man’s death; and (4) the appellant’s false

statements to Special Agents J.C. and S.L., Naval Criminal

Investigative Service, on 8 May 2006 regarding the facts and

circumstances of the unknown Iraqi man’s death.

43a

Charge IV: Larceny - Guilty of one specification

of larceny;

Charges V, VI, and VII - Not guilty of assault

consummated by battery, housebreaking, kidnapping,

and obstruction of justice.14

The appellant contends, “[t]he removal of

housebreaking and kidnapping as predicate offenses

to the conspiracy charge indicate that the members

found, as ultimate facts, that the conspiracy was only

to kill [S.G.], and did not include any plans for

alternate victims.”15

c. Examination of the record of the prior

proceeding

Our review of the record of the appellant’s first

court-martial

aligns

substantially

with

the

appellant’s account and conclusions regarding the

meaning of the appellant’s prior acquittal of

housebreaking and kidnapping.

From their opening statements, trial counsel

(TC) and TDC at the first court-martial presented

conflicting theories of whom the appellant and his

squad members conspired to kill on 25 and 26 April

2006. The government previewed their three-pronged

conspiracy theory—“plan ‘A’, get [S.G.], plan ‘B’, get a

brother, or plan ‘C’, get somebody[.]”16 According to

the government, the evidence would show that the

appellant, Cpls Magincalda and Thomas, and LCpl

14 First trial record, charge sheet and findings worksheet (AE

CXXIV).

15 Appellant’s Brief at 27.

16 First trial record at 1015.

44a

Pennington spent an hour and a half deliberating and

developing a plan for four squad members to walk to

the home of S.G., seize him, bring him about a

kilometer to a crater formed by an IED, disturb the

dirt with a stolen shovel so it appeared S.G. was trying

to plant a new IED, stage a firefight with a stolen AK47, and kill S.G. That was Plan A.

Plan “B” is, Hey, if we can’t get [S.G.],

let’s get one of his brothers, grab

somebody from his house because we

want to send a message. And as they talk

about plan “B”, then they say, What if we

can’t get into the house?

Sergeant Hutchins tells them, Get

someone else. Bring somebody back here

tonight. We need to send a message. So

they move from plan “B” to plan “C” to

get somebody. Get somebody.17

In response to the government’s opening

statement, the appellant’s TDC focused the members

on command pressure to eliminate S.G., a “high value

target,”18 and challenged the existence of a threeprong conspiracy. TDC asserted that the appellant

believed the man he shot at the IED crater was S.G.

Five members of the appellant’s squad testified

at his first court-martial. The refrain of a single plan

repeated throughout their testimony—“To get [S.G.],

bring him down to the IED hole, and shoot and kill

him, sir.”19 According to LCpl Pennington and HM3

17 Id. at 1014.

18 Id. at 1031.

19 Id. at 1127.

45a

Bacos, the only two of the original planners to testify,

they originally discussed storming S.G.’s house and

killing him there, in what would look like a

mujahedeen

attack.

Then

they

considered

commandeering a car and using that to drive S.G.

from his home to the IED crater. But they discarded

these ideas in favor of a four-man “snatch team”

seizing S.G. from his home and bringing him, on foot,

to the IED crater.

Testimony about a substitute for S.G. was not

consistent. When TC asked LCpl Jackson what would

happen if the snatch team could not seize S.G., he

responded, “[t]hey would get a relative of his or any

other male in the house, sir.”20 TC did not pose the

question to PFC Jodka, but in response to a question

from a member, PFC Jodka specifically refuted any

suggestion that the appellant planned to seize one of

S.G.’s family members. PFC Jodka testified, “The plan

was to get [S.G.] personally because he was the

insurgent, and that he was the one that we were going

to put in this IED hole, that it wasn’t just anybody,

sir.”21 On cross-examination, TDC asked LCpl

Shumate if the plan involved killing anyone other

than S.G., and LCpl Shumate replied, “Not that I can

think of, sir.”22

LCpl Pennington and HM3 Bacos testified

differently. According to LCpl Pennington, “[i]f we

were compromised at the [S.G.] house and couldn’t go

20 Id. at 1125.

21 Id. at 1203.

22 Id. at 1265.

46a

inside without everyone knowing we were there, we

would move on to another house where we would get

another military age male.”23 LCpl Pennington

conceded to TDC that “it would have been a significant

departure . . . to grab somebody else” and “[i]t would

have defeated the whole purpose not to grab [S.G.].”24

HM3 Bacos also testified to Plans B and C:

[W]e were tasked out to go retrieve an

AK-47 and shovel from a nearby house,

stash it somewhere, go patrol to [S.G.]’s

house.

If not—if we couldn’t get [S.G.] because

someone saw us in the family, we would

go try getting someone else, anyone, and

then walk that military-aged male—it

was going to be a male—down to the IED

hole with the AK-47 and shovel, disturb

the dirt, make it look like he was digging

and make it look like he is doing a

terrorist act.25

HM3 Bacos remembered hearing the appellant say,

“someone was going to die tonight[.]”26

The appellant did not testify on the merits at

his first court-martial, but the statement he gave to

Naval Criminal Investigative Service (NCIS) on 19

May 2006 went to the members as Prosecution

23 Id. at 1337.

24 Id. at 1379.

25 Id. at 1406.

26 Id. at 1410.

47a

Exhibit (PE) 1.27 In his statement, the appellant

acknowledged a back-up plan to seize and kill one of

S.G.’s brothers if S.G. were not home. Amidst all the

discussion, he remembered Cpl Thomas singing lyrics

from a rap song “Somebody’s gonna die tonight.”

According to the plan, the snatch team would bind

S.G.’s hands with flexible handcuffs, gag him, and

walk him to the IED crater. When Cpl Thomas and

Cpl Magincalda called the appellant on his personal

radio receiver and told him they had “him,” the

appellant thought they were referring to S.G.28 Not

until after the shooting, when he approached the

body, did the appellant realize they had killed another

Iraqi man, not S.G. HM3 Bacos’s testimony

corroborated a radio exchange between the snatch

team and the appellant as the snatch team

approached the IED crater. “I remember Corporal

Thomas saying that Sergeant Hutchins wanted to see

the man, to bring the man to the tree. But Corporal

Magincalda disagreed and said, ‘No, we’re not going to

do that, let’s just stick with the plan.’”29 On crossexamination, TDC confirmed with HM3 Bacos that

the appellant wanted to see the man with them, but

Cpl Magincalda objected.30

In his closing argument, TC acknowledged the

discrepancies in the testimony about plans A, B, and

The CAAF subsequently held that NCIS obtained this

statement from the appellant in violation of his Fifth

Amendment rights against self-incrimination and, accordingly,

set aside his convictions. Hutchins IV, 72 M.J. at 299-300.

28 First trial record, PE 1 at 7.

29 Id. at 1422.

30 Id. at 1449.

48a

C but argued that the appellant planned to kidnap

and kill not S.G., but somebody. “They couldn’t get

[S.G.] or one of his brothers, so they got somebody.

They got somebody, because somebody was going to

die tonight.”31 TDC closed by inviting the members’

attention to what HM3 Bacos overheard on the radio

between the appellant and the two corporals to

dispute the government’s assertion that he planned to

kidnap and kill anyone other than S.G. Throughout

the trial, the government and TDC advocated

conflicting positions about whom the appellant

conspired to kill by the IED crater on 26 April 2006.

As the appellant was not a member of the

snatch team, the government relied on both principal

and co-conspirator liability32 to prosecute him for

many

the

offenses

charged—larceny,

housebreaking,

kidnapping,

and

assault

consummated by battery actually carried out by the

snatch team members. TC ended his closing argument

with a preview of the legal concept for members. The

military judge instructed the members on principal

liability of those who aid, abet, command, counsel, or

procure an offense, and co-conspirator liability, when

the offense is committed in furtherance of the

conspiracy.

Prompted by evidence presented during the

court-martial, the military judge also instructed the

members about a possible mistake of fact defense with

31 Id. at 1726.

32 See MANUAL FOR COURTS-MARTIAL, UNITED STATES (2005 ed.),

Part IV, ¶¶ 77b(2)(b) and 81c(5).

49a

regard to the appellant’s authority to detain S.G., a

high value target. “If the accused at the time of the

offense was under the mistaken belief that he was

authorized to detain [S.G.] at any time, then he cannot

be found guilty of the offense of housebreaking.”33

“Now, the accused is not guilty of the offense of

kidnapping if: First, he mistakenly believed he had

the authority to detain [S.G.] at any time, and;

Second, if such belief on his part was reasonable.”34

In light of these instructions, the evidence, and

counsel’s arguments, the findings of not guilty of

housebreaking, kidnapping, and conspiracy to commit

them along with the exception of the overt acts of

walking to an unknown Iraqi man’s house, entering

the house, and taking the man from his home against

his will, support the appellant’s proffered acquittal.

We are not persuaded by the government’s argument

that the appellant could have reasonably expected an

Iraqi to open his home to a knock in the middle of the

night and voluntarily accompany American troops.

But for the squad’s legal authority to arrest and

detain high value targets such as S.G., the plan

required housebreaking and kidnapping.35 The

33 First trial record at 1789.

34 Id.

The elements of housebreaking are: “(1) That the accused

unlawfully entered a certain building or structure of a certain

other person; and (2) That the unlawful entry was made with the

intent to commit a criminal offense therein.” MANUAL FOR

COURTS-MARTIAL, UNITED STATES (2005 ed.), Part IV, ¶ 56.b. The

elements of kidnapping are: (1) That the accused seized,

confined, inveigled, decoyed, or carried away a certain person; (2)

That the accused then held such person against that person’s

50a

mistake of fact defense regarding the authority to

detain applied only to S.G.; no one else was identified

as a high value target. To borrow language from Ashe,

“the record is utterly devoid of any indication that the

first jury could rationally have found that”

housebreaking and kidnapping of an unknown Iraqi

man “had not occurred, or that” the unknown Iraqi

man “had not been a victim of” housebreaking and

kidnapping. 397 U.S. at 445.

With regard to the appellant’s liability for

committing housebreaking and kidnapping, “[t]he

single rationally conceivable issue in dispute before

the jury was whether” the appellant had conspired to

enter the home of S.G. and seize him or to break into

the home of someone else to kidnap someone other

than S.G. Id. “And the jury by its verdict found” that

the appellant had not conspired to break into the

home of anyone other than S.G. or kidnap anyone

other than S.G. Id. The members demonstrated they

understood both theories of liability by convicting the

appellant of stealing an AK-47 and shovel he never

touched. Their decision to acquit the appellant of

housebreaking and kidnapping demonstrates that the

members believed the mistake of fact defense applied,

and the conspiracy was to get and kill S.G.

Again, we find no abuse of discretion in the

military judge’s failure to conclude that the appellant

was acquitted of conspiring to kill anyone but S.G.,

will; (3) That the accused did so willfully and wrongfully; and (4)

That, under the circumstances, the conduct of the accused was to

the prejudice of good order and discipline in the armed forces or

was of a nature to bring discredit upon the armed forces. Id., Part

IV, ¶ 92.b.

51a

but we will include this among the acquitted acts of

misconduct as we proceed with analysis of the ruling

on admission of evidence.

5. Military judge’s ruling on motion to suppress

evidence

In advance of his second trial, the appellant

moved “to exclude evidence and testimony regarding

conduct that was the subject of the members’ ‘not

guilty’ findings” at his first trial.36 Specifically, the

appellant sought to exclude evidence of premeditated

murder, housebreaking, kidnapping, and a false

official statement to NCIS agents regarding the

placement of a shovel or AK-47 near the deceased.37

The evidence to be suppressed was presented

categorically and not delineated as physical exhibits,

statements, or excerpts of statements. At the time of

the motion, both parties anticipated that the

appellant’s former squad mates might testify to much

of this evidence. Ultimately and unexpectedly, the

government relied on transcripts of the prior courtmartial testimony of four of the squad members, and

the appellant objected to numerous excerpts of that

prior testimony relating to acquitted offenses.

In a ruling from the bench, the military judge

denied the appellant’s motion to suppress evidence.

The motion to suppress is denied. There

is no requirement to speculate on the

rationale of the last panel of members. In

fact, it’s folly to try to do that. The real

36 AE XCVIII at 1.

37 Id. at 5-7.

52a

risk of confusing them is if we try to

parse the facts as proposed by the

defense counsel. Misconduct can violate