Amicus Curiae Brief — Bravo-Fernandez v. United States, 137 S. Ct. 352 (2016) (No. 15-537)

| Sispreme Coun US. —]

FILED

JUN 17 206

OFFICE OF THE CLERK

No. 15-637

IN THE

Supreme Court of the United States

JUAN BRAVO-FERNANDEZ AND

HECTOR MARTINEZ-MALDONADO,

Petitioners,

Vv.

UNITED STATES,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

DAVID PORTER JEFFREY T. GREEN *

Co-CHAIR NACDL CORMAC A. EARLY

AMICUS COMMITTEE SIDLEY AUSTIN LLP

1660 L Street, N.W. 1501 K Street, N.W

Washington, D.C. 20005 Washington, D.C. 20005

(202) 872-8600 (202) 736-8000

jgreen@sidley.com

Counsel for Amicus Curiae

June 17, 2016 * Counsel of Record

A a aa

WiLsOn-EPES PRINTING Co., INC. — (202) 788-0086 -— WasnincTon, D. C. 20002

IT.

III.

TABLE OF CONTENTS

RELYING ON A VACATED CONVIC-

TION TO DEPRIVE AN ACQUITTAL OF

ITS COLLATERAL ESTOPPEL EFFECT

IS INCONSISTENT WITH YEAGER AND

FUNDAMENTALLY UNFAIR......................

THE FIRST CIRCUITS DECISION

MAKES COLLATERAL ESTOPPEL

EFFECTIVELY UNAVAILABLE

IN MULTI-COUNT PROSECUTIONS

RESULTING IN A VACATED CONVIC-

EE erestuivectentnaseinanionnnantctqnatbeinentiimennntidamiaete

THE FIRST CIRCUITS DECISION EN-

COURAGES OVERCHARGING AND

SUCCESSIVE PROSECUTIONG..................

NII Sesciiniecinciasintuntinmmnsincniansvnstisininennliciipanineedin

(1)

11

ul

TABLE OF AUTHORITIES

CASES Page

Ashe v. Swenson, 397 U.S 436

EERE EC EEE eT Ds eS 3, 4, 9, 14

McDonald v. Pless, 238 U.S. 264 (1915)...... 12

People v. Wilson, 852 N.W.2d_ 134

et SRE NE SAC 7

Poland v. Arizona, 476 U.S. 147 (1986)....... 7

Schiro v. Farley, 510 U.S. 222 (1994).......... 3

Tibbs v. Florida, 457 U.S. 31 (1980)............ 13

United States v. DiFrancesco, 449 U.S. 117

II dich cntessiguincgeeiaiemddiniiatidae tide tht atest eas 12, 14

United States v. Powell, 469 U.S. 57

a REO sp A> SNe ete nTe ee 6

Warger v. Shauers, 135 S.Ct. 521 (2014)..... 12

Yates v. United States, 135 S.Ct. 1074

(2015) (Kagan, J. dissenting).................... 14

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

SE ininccatdiiaidlaisibininidilumintibiccimiccseméccnbetnnes passim

CONSTITUTION

iii ca icctiaipentcincones 3

RULE

nn cs cdsosecnesvedncvuccssetses 12

OTHER AUTHORITIES

Nicole L. Waters et al, U.S. Dep't of

Justice, Bureau of Justice Statistics,

Criminal Appeals in State Courts (2015),

http://www.bjs.Gov/content/pub/pdf/casc.

iii

TABLE OF AUTHORITIES—continued

Page

U.S. Dep’t of Justice, Executive Office for

United States Attorneys, United States

Attorneys’ Annual Statistical Report Fis-

cal Year 2013(2013), https://www.justice.

gov/sites/default/files/usao/legacy/2014/09

ic ipsrictsiscsunciscousassosiennsscesiincss 10

INTEREST OF THE AMICUS CURIAE'

The National Association of Criminal Defense

Lawyers (“NACDL”) is a nonprofit, voluntary bar

association that works on behalf of criminal defense

attorneys to ensure justice and due process for those

accused of a crime or misconduct.

NACDL was founded in 41958 and _é has

approximately 9,000 direct members in 28

countries—and 90 state, provincial, and local affiliate

organizations totaling up to 40,000 attorneys—

including private criminal defense lawyers, public

defenders, military defense counsel, law professors,

and judges committed to preserving fairness and

promoting a rational and humane criminal justice

system. The American Bar Association recognizes

NACDL as an affiliated organization and awards it

full representation in its House of Delegates.

NACDL filed an amicus brief in support of the peti-

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

(2009), and files here because it has grave concerns

that the First Circuit’s rationale in this case under-

mines the protections afforded defendants by the

Double Jeopardy Clause, particularly in light of the

proliferation of vague and expansive criminal stat-

utes and the accompanying rise of indictments bloat-

ed with duplicitous and overlapping charges.

1 In accordance with Supreme Court Rule 37, amicus curiae

states that no counsel for a party authored this brief in whole or

part, and no counsel or party made a monetary contribution to

fund the preparation or submission of this brief. No person other

than the amicus curiae, its members, and its counsel made any

monetary contribution to its preparation and submission. Peti-

tioners and Respondent have consented to the filing of this brief.

Letters reflecting such consent have been filed with Clerk.

2

SUMMARY OF THE ARGUMENT

When a jury acquits on one count of a multi-count

prosecution but hangs on another count relying on

the same facts, the collateral estoppel prong of the

Fifth Amendment's guarantee against double

jeopardy prevents a retrial on the hung counts. But

when a jury acquits on one count and convicts on

another with the same facts, each verdict stands and

the defendant may not overturn the conviction, even

though it may be utterly irreconcilable with the

acquittal as a matter of fact, law, and logic. The

question in this case is simple, but essential to the

continued vitality of the Double Jeopardy Clause’s

collateral estoppel effect: Whether a _ vacated

conviction based on an incorrect jury instruction

should be treated like a valid conviction or like a

hung count.

Treating a vacated conviction the same as a valid

conviction for collateral estoppel purposes, as the

First Circuit did in this case, unjustly revives a

conviction that should never have been possible, and

gives it continuing legal effect where it should have

none. It produces a windfall for the prosecution,

effectively nullifying the oftentimes-Herculean efforts

of defense counsel to vacate an illegal conviction in

the first place. It stacks the deck against collateral

estoppel in multi-count cases, and directs courts into

the kind of searching and hyper-technical analysis of

jury proceedings that this Court has long cautioned

against. And it emboldens the worst impulses of

prosecutors in a world where a single act can be

subject to penalty under a dizzying and constantly

expanding array of criminal statutes.

3

ARGUMENT

I. RELYING ON A VACATED CONVICTION

TO DEPRIVE AN ACQUITTAL OF ITS

COLLATERAL ESTOPPEL EFFECT IS IN-

CONSISTENT WITH YEAGER AND FUN-

DAMENTALLY UNFAIR.

The Double Jeopardy Clause of the Fifth

Amendment provides that “No person shall be

subject for the same offense to be twice put in

jeopardy of life or limb.” U.S. Const. amend. V As

part of that guarantee, the Clause includes a

collateral estoppel prong. An “awkward phrase” that

“stands for an extremely important principle in our

adversary system of justice,” collateral estoppel

“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.”

Ashe v. Swenson, 397 U.S. 436, 443 (1970).

To apply the collateral estoppel bar, a court must

engage in “an examination of the entire record,”

approaching the inquiry with “realism and

rationality” rather than “the hypertechnical and

archaic approach of a 19th century pleading book.”

Id. at 444. The court must thus “examine the record

of a prior proceeding, taking into account the

pleadings, evidence, charge, and other relevant

matter,” to decide “whether a rational jury could have

grounded its verdict upon an issue other than that

which the defendant seeks to foreclose from

consideration.” Jd. (citing Mayers & Yarbrough, Bis

Vexart: New Trials and Successive Prosecutions, 74

Harv. L. Rev. 1, 38-39). If the court concludes that

the fact at issue was “actually and necessarily

decided” in favor of the defendant in a previous

acquittal, Schiro v. Farley, 510 U.S. 222, 236 (1994),

4

then the government may not seek to persuade any

future jury to come down the other way on the same

factual issue in any subsequent prosecution. The

inquiry is a pragmatic one that “must be set in a

practical frame” of mind; any “more technically

restrictive alternative would, of course, simply

amount to a rejection of the rule of collateral estoppel

in criminal proceedings, at least in every case where

the first judgment was based upon a general verdict

of acquittal.” Ashe, 397 U.S. at 444.

Thus, in Ashe itself, this Court confronted a case in

which a defendant was alleged to have robbed six

victims at a home poker game. Id. at 437—38. The

jury acquitted the defendant on charges of robbing

one of the victims, and this Court held that collateral

estoppel barred the prosecution from trying again

with another one of the victims. Id. at 445. In light

of the particular facts and record of that case, this

Court held that “[t]he single rationally conceivable

issue before the jury [in the first trial] was whether

the petitioner had been one of the robbers. And the

jury by its verdict found that he had not.” Jd. The

prosecution therefore could not argue to a subsequent

jury that the defendant was in fact one of the robbers,

contrary to the previous jury’s conclusion.

The Ashe inquiry requires courts to undertake a

thorough and pragmatic review of the record from the

initial trial to determine what the jury necessarily

decided. But there are limits on that inquiry. As this

Court explained in Yeager v. United States, 557 U.S.

110 (2009), a court cannot rely on implications from a

jury’s failure to reach agreement on one count to

assess what it must have decided in acquitting on

another count. For purposes of the collateral estoppel

inquiry, “[a] hung count is not a ‘relevant’ part of the

‘record of [the] prior proceeding.” Jd. at 121-22.

5

That is so even though the acquittal may be logically

irreconcilable with a failure to reach agreement on

the other count. “A host of reasons—sharp

disagreement, confusion about the issues, exhaustion

after a long trial, to name but a few—could work

alone or in tandem to cause a jury to hang.” Id. For

a court applying the Ashe inquiry to attempt “[t]o

ascribe meaning to a hung count” would require

“guesswork” and “speculation into what transpired in

the jury room,” factors which “should play no part in

assessing the legal consequences of a unanimous

verdict that the jurors did return.” Id. at 122.

That is not to say that the logical implications of a

hung count shed no light at all on what a jury may

have decided in acquitting on another count. The

facts of Yeager illustrate the point. There, a jury

acquitted the defendant on several fraud counts, and

hung on several insider trading counts. Id. at 115.

Both the fraud counts and the insider trading counts

relied on the same allegation that the defendant

possessed material non-public information about his

company; if the jury believed that the defendant did

not have such information, which it must have done

to acquit on the fraud counts, then it logically should

have acquitted on the insider trading counts as well.

Id. To reach the outcome it did, the jury must have

either misunderstood or failed to apply the court's

instructions—perhaps due to “confusion about the

issues [or] exhaustion after a long trial.” Jd. at 121.

Given that confusion, it was not possible in Yeager to

be certain that the jury had necessarily decided the

factual issue in favor of the defendant on the

acquitted counts.

But this Court held that such reasoning is simply,

and categorically, irrelevant to the Ashe inquiry. “[A]

jury speaks only through its verdict,” so any insight

6

that can be gleaned from sifting the tea leaves of

counts that did not produce a valid final jury verdict

has no power to strip the jury’s actual verdict of its

collateral estoppel force. Jd.

Inconsistent final verdicts in the same trial are a

different matter, however. As this Court held in

United States v. Powell, 469 U.S. 57 (1984), a

defendant may not leverage an acquittal on one count

to overturn a valid and final, though logically

inconsistent, conviction on another. Such cases

“present a situation where ‘error,’ in the sense that

the jury has not followed the court’s instructions,

most certainly has occurred, but it is unclear whose

ox has been gored.” Id. at 65. When two verdicts in

the same trial are irreconcilable, it is impossible to

know which one “the jury ‘really meant.” Id. at 68.

The First Circuit relied on Powell to conclude that

“a true inconsistency in what the jury has done in

acquitting on one offense while convicting on another

can make unanswerable Ashe’s question about what

the jury necessarily decided in rendering the

acquittal.” Pet. App. lla. That reasoning was wrong

when the Fifth Circuit applied it in Yeager, and it is

wrong here.

Yeager distinguished Powell on two grounds, each

of which is equally applicable to this case. First, this

Court observed that it is inappropriate to “take[]

Powells treatment of inconsistent verdicts and

import[] it into an entirely different context involving

both verdicts and seemingly inconsistent hung

counts.” 557 U.S. at 124. Hung counts are different

from valid final verdicts, this Court reasoned,

because “hung counts have never been accorded

respect as a matter of law or history, and are not

similar to jury verdicts in any relevant sense.” Id.

7

Just so with vacated convictions. Once a conviction

is vacated for trial error, “the slate [is] wiped clean.”

Poland v. Arizona, 476 U.S. 147, 152 (1986) (quoting

Bullington v. Missouri, 451 U.S. 430, 442 (1981)).

And not always to the defendant’s ultimate benefit—

unless collateral estoppel applies, a defendant who

succeeds in vacating a conviction (except by

persuading the reviewing court that the prosecution

failed to prove its case) faces the full range of

punishment available under the law in a subsequent

prosecution. A vacated conviction provides no basis

for recidivist sentencing enhancements, or felon-in-

possession charges, or a change in immigration

status; on the other hand, a defendant who succeeds

in vacating a conviction with a lenient sentence risks

a harsher sentence on the second go around unless

the defendant can show vindictiveness. And all for

the same reason: A conviction, once vacated, ceases

to have any legal effect whatsoever—except, under

the First Circuit’s rule, to deprive a valid and final

acquittal of its collateral estoppel effect. See, e.g.,

People v. Wilson, 852 N.W.2d 134, 141 n.5 (Mich.

2014). Carving out one solitary patch of doctrine in

which to give vacated convictions continued legal

consequence makes no sense—any more than

affording the same ramifications to hung counts did

in Yeager.

Yeager’s second basis for distinguishing Powell is

equally apropos in the context of a vacated conviction.

The government in Yeager argued that “a mistried

count can, in context, be evidence of irrationality,”

thus stripping the acquittal of collateral estoppel

effect under Powell. 557 U.S. at 124-25. But “the

fact that a jury hangs is evidence of nothing.” /d. at

125. At best, “there is merely a suggestion that the

jury may have acted irrationally.” Id.

8

That logic applies a fortiori to vacated convictions.

When a jury receives valid instructions and produces

logically inconsistent results, it is possible to make at

least some inferences about the rationality of its

deliberative process. But that is not the case when

the jury is misdirected. Some or all of the jurors may

have voted to convict on the bribery count in this case

because they believed that the defendants engaged in

conduct that all now agree is legal. The faulty

instruction in this case adds another layer of

confusion to any attempt to figure out what the jury

may have believed, and makes any assessment of the

jury's rationality still more speculative than in

Yeager.

Beyond the clear doctrinal resonances between this

case and Yeager, though, lies a more fundamental

concern: Allowing a second prosecution in this case

would be profoundly unfair. The erroneous jury

instruction in this case dramatically and illegally

lowered the bar for the prosecution, subjecting a huge

range of innocent conduct to criminal sanction. And

allowing the prosecution to try again now that the

conviction has been vacated amounts to an

unjustifiable windfall.

Had the jury been correctly instructed, there is

every reason to believe that Petitioners would not

have been convicted, particularly in light of the

acquittals on the conspiracy and Travel Act counts. If

even a single juror voted to convict for bribery based

only the gratuity theory, and would have voted to

acquit if properly instructed on quid pro quo bribery,

then re-prosecution would be out of the question. The

jury would either have hung, in which case Yeager

would preclude another prosecution, or acquitted

altogether.

9

The First Circuit's rule gives the prosecution

another shot, even after it faced an artificially low

burden on its first attempt. The prosecution may

thus treat its first attempt as a test run, and “refine[]

[its] presentation in light of the turn of events at the

first trial”’—in other words, “precisely what the

constitutional guarantee forbids.” Ashe, 397 U.S. at

447. With the benefit of a full-scale dress-rehearsal

at the first trial, the prosecution can hone its

presentation, better prepare its witnesses, and

anticipate defense strategy. Conversely, petitioners

will be forced to “run the gantlet” again, id. at 445-46,

contrary to the “deeply ingrained’ principle that ‘the

State with all its resources and power should not be

allowed to make repeated attempts to convict an

individual for an alleged offense, thereby subjecting

him to embarrassment, expense and ordeal and

compelling him to live in a continuing state of anxiety

and insecurity, as well as enhancing the possibility

that even though innocent he may be found guilty.”

Yeager, 557 U.S. at 117—18 (quoting Green v. United

States, 355 U.S. 184, 187-88 (1957)).

The First Circuit’s rule also turns this Court's

historic concern for “the finality of judgments”—one

of the “vitally important interests” protected by the

Double Jeopardy Clause—on its head. Id. at 117, 118

(quoting Crist v. Bretz, 437 U.S. 28, 33 (1978)). The

jury finally and conclusively found the Petitioners not

guilty of the conspiracy and Travel Act counts. But

under the First Circuit’s approach, another jury will

be asked to resolve the same underlying factual

dispute. That approach flies directly in the face of

this Court’s longstanding special solicitude for the

finality of acquittals: “the fact that petitioner has

already survived one trial should be a factor cutting

10

in favor of, rather than against, applying a double

jeopardy bar.” Id. at 122.

On top of depriving Petitioners of the ordinary

benefit of an acquittal, the First Circuit also

effectively nullified their efforts to vacate the illegal

conviction. The kind of victory Petitioners achieved

on appeal in this case is rare and difficult to

achieve—in 2010, for example, less than one in eight

criminal appeals in state court resulted in any

modification or reversal of a conviction, including

remands for new trials. See, Nicole L. Waters et al.,

U.S. Dep’t of Justice, Bureau of Justice Statistics,

Criminal Appeals in State Courts 1 (2015), http://

www.bjs.Gov/content/pub/pdf/casc.pdf. The odds are

even more daunting for appellants raising challenges

to jury instructions: only 8.5% of such challenges, or

around one in twelve, succeeded in state courts in

2010. Jd. at 6. The picture in federal court is

grimmer still for criminal appellants, with only 423 of

the 8,342 criminal appeals in fiscal year 2013, or just

over 5%, resulting in any decision against the

government. fee U.S. Dep’t of Justice, Executive

Office for United States Attorneys, United States

Attorneys’ Annual Statistical Report Fiscal Year 2013

72 (2013), https://www.justice.gov/sites/default/files/

usao/legacy/2014/09/22/13statrpt.pdf.

Having overcome the many obstacles to relief and

secured the vacatur of their illegal convictions,

Petitioners have since faced literally years of

additional “embarrassment, expense and ordeal” to

fight off the government’s efforts to re-prosecute on

factual claims that have already been rejected by one

jury. This Court should not tolerate such a dramatic

erosion of the Double Jeopardy Clause’s collateral

estoppel protections.

11

Il. THE FIRST CIRCUIT’S DECISION MAKES

COLLATERAL ESTOPPEL EFFECTIVELY

UNAVAILABLE IN MULTI-COUNT PROS-

ECUTIONS RESULTING IN A VACATED

CONVICTION.

The First Circuit’s logic in this case sets up the

same trap for criminal appellants as the Fifth Circuit

created in Yeager. By weighing the implications of a

legal non-event, whether a vacated conviction or a

hung count, each court effectively rendered collateral

estoppel a dead letter in multi-count prosecutions.

That is because the criminal defendant, as the party

seeking to invoke collateral estoppel, bears the

burden of showing that an issue of ultimate fact was

actually and necessarily decided in her favor by the

original jury. Considering the jury's decision in a

vacated conviction alongside a factually overlapping

acquittal necessarily introduces uncertainty as to

what the jury may have been thinking. And that

uncertainty alone is enough, given the defendant's

burden, to make collateral estoppel effectively

unavailable. A tie goes to the government, and when

the same factual considerations underpin multiple

counts, a defendant will practically never be able to

show better than a tie.

Of course, as Yeager recognized, the possible

explanations for seemingly inconsistent verdicts are

many and varied; all the more so when the jury gets

the wrong instruction on a_ crucial count.

“[C]onfusion about the issues” and “exhaustion” will

always remain as possible explanations, and so will

the jury’s possible good-faith belief that innocent

conduct was actually criminal. The defendant will

never be able to know, or show, for sure.

Even if she could rustle up proof of what the jury

actually and necessarily decided, it would be of no

12

use. The federal rules generally forbid the

introduction of evidence about what transpired in the

jury room in any proceeding affecting the validity of

the jury’s verdict. See Fed. R. Evid. 606(b); see also,

e.g., Warger v. Shauers, 135 S.Ct. 521, 524 (2014).

Courts have consistently been wary of allowing such

evidence, fearing that it “would open the door to the

most pernicious arts and tampering with jurors” and

“lead to the grossest fraud and abuse,” leaving “no

verdict .. . safe.” McDonald v. Pless, 238 U.S. 264,

268 (1915) (internal citations and quotation marks

omitted). But with no way to discover what a jury

actually decided, or to introduce such evidence even if

it were available, a defendant is left powerless to

balance the scales when a reviewing court weighs

vacated convictions in the Ashe inquiry.

The decision below makes a mockery of the

constitutional promise of collateral estoppel

protection from double jeopardy when a conviction is

vacated. This Court should reaffirm that acquittals

are due “special weight” under the Double Jeopardy

Clause, and that a legal non-event like a vacated

conviction cannot strip a conclusive judgment of

acquittal of its finality. United States v. DiFrancesco,

449 U.S. 117, 129 (1980).

Ill. THE FIRST CIRCUITS DECISION EN-

COURAGES OVERCHARGING AND SUC-

CESSIVE PROSECUTIONS.

Allowing vacated convictions to strip otherwise

final acquittals of their collateral estoppel effect

inevitably makes it more appealing for prosecutors to

bloat indictments with overlapping charges on

factually related crimes stemming from the same

conduct. And it encourages prosecutors to push the

envelope with aggressive theories of liability, secure

in the knowledge that any vacated conviction can be

13

recharged, whether or not the jury acquitted on a

factually overlapping count. lLarding indictments

with overlapping charges acts as an insurance policy

against both the collateral estoppel consequences of

an acquittal on any one charge and the possibility

that an appellate court will overturn an erroneous

jury instruction. When a jury convicts on one count

and acquits on another with the same underlying

facts, the acquittal will pose no barrier to re-

prosecuting in case the conviction is vacated. Piling

on related charges costs the prosecutors nothing, and

the First Circuit’s approach sharply curtails the risks

from pushing for aggressive readings of already broad

criminal statutes.

This case illustrates the point. Bringing conspiracy

and Travel Act charges as well as the underlying

bribery charge gave the prosecutors three shots on

goal for the same underlying conduct. If only the

Travel Act count or only the conspiracy count had

been tried, Ashe would prevent a subsequent trial on

the bribery charge. And if the jury had been

instructed that bribery requires quid pro quo

corruption, rather than a mere gratuity, the

prosecution would have had a tougher hill to climb to

secure a conviction. But when the jury rejected the

conspiracy and Travel Act counts, and the appellate

court threw out the gratuity theory of bribery, the

First Circuit’s pinched interpretation of collateral

estoppel allows the prosecution a fourth attempt to

make the same factual charges stick.

Constricting collateral estoppel in this manner

rewards “[rjepeated prosecutorial sallies [that]

unfairly burden the defendant and create[s] a risk of

conviction through sheer governmental

perseverance.” Tibbs v. Florida, 457 U.S. 31, 41

(1982). It allows prosecutors to hone their trial

14

strategies and evidence in successive efforts at

conviction, and it keeps defendants trapped in a

“continuing state of anxiety and _ insecurity.”

DiFrancesco, 448 U.S. at 128.

The First Circuit’s erosion of the Double Jeopardy

Clause’s collateral estoppel element contributes to

the “deeper pathologfies]” of the criminal justice

system, including excessively “broad and

undifferentiated” criminal statutes, “too-high

maximum penalties,” and “prosecutors [with] too

much leverage.” Yates v. United States, 135 S.Ct.

1074, 1101 (2015) (Kagan, J., dissenting). It

exacerbates the problems created by _ the

“extraordinary proliferation of overlapping and

related statutory offenses” that allow “prosecutors to

spin out a startlingly numerous series of offenses

from a single alleged criminal transaction,” and it

adds to “the potential for unfair and abusive

reprosecutions.” Ashe, 397 U.S. at 445 n.10.

The decision below lets the most aggressive

prosecutorial tactics off the leash, protecting

prosecutions from the downsides of acquittals and

leaving defendants vulnerable to multiple trials on

the same factual issues. A robust collateral estoppel

doctrine is essential to the real-world vitality of the

Double Jeopardy Clause, and this Court should step

in to defend that indispensible constitutional

protection.

15

CONCLUSION

For the foregoing reasons, the judgment below

should be reversed.

Respectfully submitted,

DAVID PORTER JEFFREY T. GREEN *

Co-CHAIR NACDL CORMAC A. EARLY

AMICUS COMMITTEE SIDLEY AUSTIN LLP

1660 L Street, N.W. 1501 K Street, N.W.

Washington, D.C. 20005 Washington, D.C. 20005

(202) 872-8600 (202) 736-8000

jgreen@sidley.com

Counsel for Amicus Curiae

June 17, 2016 * Counsel of Record