Amicus Curiae Brief — Currier v. Virginia, 138 S. Ct. 355 (2017) (No. 16-1348)

No. 16-1348

In the Supreme Court of the United States

MICHAEL NELSON CURRIER, PETITIONER

Vv.

COMMONWEALTH OF VIRGINIA

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN P. CRONAN

Acting Assistant Attorney

General

MICHAEL R. DREEBFN

Deputy Solicitor General

ErRIc J. FEIGIN

ERICA L. Ross

Assistants to the Solicitor

General

ALEXANDER P. ROBBINS

Department of Justice

Washington, D.C. 20530-0001

Su riefs@usdoj.gov

(202) 514-2817

QUESTION PRESENTED

Whether petitioner, who expressly consented to two

separate trials on distinct charges arising from the

same set of facts, may invoke the issue-preclusion com-

ponent of the Double Jeopardy Clause to bar or limit

the second trial.

(I)

TABLE OF CONTENTS

Page

Rentawent of Gem Ueriind Bit cccccccecccscccsccsesscesecssncsensessansesseonneesee 1

Constitutional provision involved 1

ID cc crnssernesnenntnsscsmascsssscsssenscenssensescomammssenenncsmsanennte 2

IT GS CINE ccncannessncsresemeccqssemasternessmmumemmnenapenenrens 6

Argument:

A defendant who consents to two trials cannot invoke

the Double Jeopardy Clause to bar or limit the second

trial 9

A. The Double Jeopardy Clause does not relieve

a defendant of the consequences of his own

choices i)

B. A defendant who has consented to two trials

cannot rely on the outcome of the first trial

a right distinct from the right against

multiple trials for the same offense............... 17

3. Waiver doctrine does not control the

double-jeopardy implications of a

defendant’s consent to multiple

RD cern cectensncnsassresenitinnesescemnanceesceemeee 23

C. Petitioner’s double-jeopardy claim is

foreclosed by his consent to severance of

a ID cerenetccsemcenesesneeee 25

COSIIGERD ccscnecsemeesemsnceness sxasneqepemeenapmnsnenteastieniamdasene 29

(IID

IV

TABLE OF AUTHORITIES

Cases: Page

Abney v. United States, 431 U.S. 651 (1977) ........c.cccccceeeee 18

Ashe v. Swenson, 397 U.S. 436 (1970)........ 5, 6, 15, 16, 17, 19

Blockburger v. United States, 284 U.S. 299 (1982) ............ 15

Bobby v. Bies, 556 U.S. 825 (2009) .. 16

Boone v. Commonwealth, 740 8.E.2d 11 (Va. 2013)........... 28

Bravo-F ernandez v. United States, 137 S. Ct. 352

(2016) 15, 19, 22

Brown v. Ohio, 482 U.S. 161 (1977) ........ccccccee00ee 9, 15, 16, 18

Brown v. United States, 356 U.S. 148 (1958) ...............000000 27

Burks v. United States, 437 U.S. 1 (1978)............... 10, 14, 15

Butler v. Pollarc , 800 F 2d (10th Cir. 1986) ................ 23

Clements v. Airport Auth. of Washoe Cnty.,

Fa Ee Gees Gy Fa cc crccenmnsnsscssemennscesressersessseseesesese 23

Commonwealth v. Smith, 556 S.E..2d (Va. 2002).....3, 28

Dowling v. United States, 493 U.S. 342 (1990)......... 7, 20, 21

Evans v. Michigan, 568 U.S. 313 (2018) ........cccceeeeveereees 10

Frazier v. State, 569 A.2d 684 (Md. 1990) .00..0.........cccccc0e 28

Goldstein v. Cogswell, No. 85 Civ. 9256,

1991 WL 60420 (S.D.N.Y. Apr. 11, 1991) .........cccccccccceees 23

Goodall v. United States, 686 A.2d 178 (D.C. 1996)........... 28

Green v. Ohio, 455 U.S. 976 (1982) .. 18, 20

Green v. United States, 355 U.S. 184 (1957) ..............000000 24

Hackney v. Commonwealth, 504 S.E..2d 385

(Va. Ct. App. 1998) 3, 28

Harris v. Washington, 404 U.S. 55 (1971) .. 18

[llinois v. Somerville, 410 U.S. 458 (1978) ..........ccccccceeeeeeeee 11

Jackson v. State, 183 So. 3d 1211 (Fla. Dist. Ct. App.

En 22

Jeffers v. United States, 432 U.S. 137 (1977)............. passim

Cases—Continued: Page

Joya v. United States, 53 A.3d 309 (D.C. 2012)... 22

McGautha v. California, 402 U.S. 183 (1971),

vacated judgment on other grounds in No. 204

sub nom. Crampton v. Ohio, 408 U.S. 941 (1972)............ 26

McMann v. Richardson, 397 U.S. 759 (1970)............... 26, 27

Ohio v. Johnson, 467 U.S. 493 (1984) .. passim

Ohler v. United States, U.S. 758 (2000) .0.......ccccccceceneeee 27

Old Chief v. United States, 519 U.S. 172 (1997) .........00000 28

People v. Turner, No. 241591, 2003 WL, 22849822

(Mich. Ct. App. Dec. 2, 2008) ........csesserseeseseerseesensnesensnese 28

Purvis v. Commonwealth, S.E.2d 898

CU, CR, Bara, BD ccscncccsssvsnssnssnvsscmernsssnsnmnesssssseensscensenee 3, 28

Sanabria v. United States, 437 U.S. 54 (1978) ........cc00000 24

Simon v. Commonwealth, 258 8.E.2d 567 (Va. 1979)........ 22

South Dakota vy. Neville, 459 U.S. 553 (1983) .........c.cccc0e 27

Standefer v. United States, 447 U.S 10 (1980).............. 22, 23

State v. Evans, 456 N.W.2d 739 (Neb. 1990) ...........ccc00000 28

State v. Taylor, 729 A.2d 226 (Conn. App. Ct. 1999).......... 28

Texas v. McCullough, 475 U.S. 134 (1986) ........ccccccceccerceees 27

Turner v. Arkansas, 407 U.S. 366 (1972) 2........ccccccccceceeeeeeee 17

United States v. Dinitz, 424 U.S. 600 (1976) ............. passim

United States v. Dizon, 509 U.S. 688 (1993)........... 15, 18, 19

United States v. Feliz, (0B U.S. 378 (1992) .........cccccccceceeees 21

United States v. Jorn, 400 U.S. 470 (1971) ......2.cccccccceceeeeeee 15

United States v. Martinez-Salazar, 528 U.S. 304

(2000) eisdinepinusenmnen 27

United States v. Moore, 104 ¥ .3d 377 (D.C. Cir. 1997)...... 28

United States v. Powell, 469 U.S. 57 (1984) ..0.......c0cccccceeeeee 25

United States v. Scott, 437 U.S. 82 (1978) ..............0 passim

Wade v. Hunter, 336 U.S. 6B4 (1949) .0........ccccccccceceeeneeeeee 5, 10

Yates v. United States, 354 U.S. 298 (1957) .........cccecereeres 19

VI

Case—Continued:

Page

Yeager v. United States, 557 U.S. 110 (2009).... 15, 16, 17, 19

Constitution, statutes, and rules:

U.S. Const.:

SEAL

§ 18.2-B08.2 (Supp. 2012)...cccccccccccccccceveeceesseeee

Fred. RR. Cota. P. 1460) cocescccsccccccccccsoscssscssosssssosesess

Miscellaneous:

Black’s Law Dictionary (10th ed. 2014) .............

Notes & Comments, Twice in Jeopardy,

75 Yale LJ. 262 (1965) ........ccecesserserersreeeseneeseres

—

In the Supreme Court of the United States

No. 16-1348

MICHAEL NELSON CURRIER, PETITIONER

Vv.

COMMONWEALTH OF VIRGINIA

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether a defendant

who expressly consents to severance of multiple charges

into sequential trials may later invoke the issue-

preclusion componeat of the Fifth Amendment’s Double

Jeopardy Clause to bar or limit the second trial. The

resolution of that question will affect federal criminal

cases because the Double Jeopardy Clause applies to

the federal government and Federal! Rule of Criminal

Procedure 14(a) permits a federal judge to order sepa-

rate trials of counts against a single defendant when

joinder of the offenses would be prejudicial to either the

defendant or the government.

CONSTITUTIONAL PROVISION INVOLVED

The Double Jeopardy Clause of the Fifth Amend-

ment of the United States Constitution provides that no

person “shall *** be subject for the same offence to

be twice put in jeopardy of life or limb.”

(1)

2

STATEMENT

Following a jury trial in the Circuit Court for the

County of Albemarle, petitioner was convicted on one

count of possession of a firearm by a felon, in violation

of Va. Code Ann. § 18.2-10 (2009); id. § 18.2-308.2 (Supp.

2012). J.A. 6, 99. He was sentenced to five years of im-

prisonment. Pet. App. 5a. The Court of Appeals of Vir-

ginia and the Supreme Court of Virginia affirmed. /d.

at la, 2a-13a.

1. On March 7, 2012, a break-in occurred at the home

of Paul and Brenda Garrison in Albemarle County, Vir-

ginia. A large gun safe containing approximately $70,000

in cash, personal papers, and 20 guns was stolen from

the home. The safe was later located in the Rockfish

River in Nelson County, Virginia. When police recov-

ered the safe, the lock mechanism had been destroyed

and removed. The safe still contained the 20 firearms,

but the cash was gone. Pet. App. 3a; see Pet. 3; Br. in

Opp. 1.

A police investigation identified Bradley Wood, the

Garrisons’ nephew, as a suspect. Wood implicated peti-

tioner as an accomplice in the crime. Pet. App. 3a. In

addition, a neighbor who had been at home on the day

of the break-in identified petitioner as one of the pas-

sengers in a pickup truck she had seen exiting the Gar-

risons’ driveway after hearing “a lot of ‘loud banging’

and ‘loud noises’ coming from the Garrison residence.”

Ibid. A cigarette butt recovered from the truck con-

tained petitioner’s DNA. /d. at 4a.

A state grand jury indicted petitioner for breaking

and entering the Garrisons’ home, grand larceny, and

possession of a firearm by a convicted felon. Pet. App.

4a; see J.A. 48-49. The firearm charge was based on the

allegation that petitioner and Wood had opened the safe

3

at the river and that petitioner handled the guns while

removing the cash. Pet. 4; Br. in Opp. 3-4, 11.

2. Before trial, petitioner and the prosecution agreed

to sever the felon-in-possession charge from the other

two charges. Pet. App. 4a. Virginia courts have inter-

preted state-court rules to require that “unless the

Commonwealth and defendant agree to joinder, a trial

court must sever a charge of possession of a firearm by

a convicted felon from other charges that do not require

proof of a prior conviction.” Hackney v. Commonwealth,

504 S.E.2d 385, 389 (Va. Ct. App. 1998) (en banc); see

Va. Sup. Ct. R. 3A:6(b), 3A:10. They have recognized,

however, that the procedure is not based in either the

state or federal constitutions. See Commonwealth v.

Smith, 556 S.E.2d 223, 225-227 & n.2 (Va. 2002) (treating

due process challenge as distinct from any argument

concerning Rule 3A:10(c)); Purvis v. Commonwealth,

522 S.E.2d 898, 902 (Va. Ct. App. 2000) (“Because ap-

pellant alleges only a violation of Rule 3A:10, we apply

the standard for determining whether non-constitutional

error is harmless.”).

Petitioner was tried first on the breaking-and-entering

and larceny charges. Br. in Opp. 3; see J.A. 47 (joint

motion of the Commonwealth and petitioner “to con-

tinue the Felon in Possession of a Firearm trial” until

after completion of the first trial). A jury acquitted pe-

titioner of those counts. Pet. App. 4a.

3. Petitioner subsequently claimed that the Double

Jeopardy Clause imposed a barrier to the second of the

two trials. Pet. App. 5a; see J.A. 47. In his view, the

jury at the first trial had necessarily concluded that he

was not present at the Garrisons’ home. Va. Sup. Ct.

4

App. 291.' He contended that the second trial, which

necessarily involved the same set of facts, should there-

fore not be allowed to proceed, or, in the alternative,

that the prosecution should be precluded from introduc-

ing “any evidence of [his] alleged involvement in the

theft and burglary at the Garrisons’ home.” /bid.; see

id. at 286-293.

The trial court denied petitioner’s motions. Pet.

App. 5a. It reasoned that while the Double Jeopardy

Clause “prevents the Commonwealth * * * from using

the prosecution of a minor offense as * * * a dress re-

hearsal for a more serious later prosecution” or “sub-

jecting the accused to the hazards of vexatious multiple

prosecutions,” such “concerns are not applicable in this

ease.” J.A. 50-51. The court observed that petitioner's

charges had been tried separately not because of pros-

ecutorial overreaching but because, under state rules,

his consent to severance meant that they could not be

tried simultaneously. J.A. 51.

A jury found petitioner guilty of unlawful possession

of a firearm by a felon, and he was sentenced to five

years of imprisonment. Pet. App. 5a.

4. The Court of Appeals of Virginia affirmed. Pet.

App. 2a-13a.

The state court of appeals noted that because “the

crime of possessing a firearm as a convicted felon is not

the ‘same offense’ as burglary or larceny/[,] * * * a plain

language reading of the [Double Jeopardy Clause]

would lead to the conclusion that [petitioner] could be

tried on the firearm charge after acquittal on the other

charges.” Pet. App. 6a. It recognized, however, that

this Court has interpreted the Double Jeopardy Clause

' Va. Sup. Ct. App. refers to the Appendix filed in the Supreme

Court of Virginia in No. 160102.

5

to incorporate a “collateral estoppel doctrine” under

which a later prosecution for a separate offense may be

barred by an earlier jury determination of an “‘ultimate

fact’” in the defendant’s favor. Jd. at 7a (quoting Ashe

v. Swenson, 397 U.S. 436, 443 (1970)). But it explained

that the Double Jeopardy Clause “is not ‘simply res ju-

dicata dressed in prison grey.’” /bid. (quoting Notes &

Comments, Twice in Jeopardy, 75 Yale L.J. 262, 277

(1965)). “Its aim,” the court reasoned, “is to prevent

‘oppressive practices’ by the prosecution.” /bid. (quot-

ing Wade v. Hunter, 336 U.S. 684, 689 (1949)).

The state court of appeals determined that this case

involved none of the “prosecutorial overreaching” with

which the Double Jeopardy Clause is concerned. Pet.

App. 9a (citation omitted). The charges were “brought

on the same date by the same grand jury,” and one was

“severed for the benefit of the defendant and with his

consent.” Jd. at 8a. Petitioner thus could not rely on

the issue-preclusion aspect of the Double Jeopardy

Clause “as a sword to prevent the State from complet-

ing its prosecution on the remaining charge[].” /d. at 9a

(quoting Ohio v. Johnson, 467 U.S. 493, 502 (1984)); see

id. at 10a.”

5. The Supreme Court of Virginia summarily af-

firmed “for the reasons stated in the opinion of the

Court of Appeals.” Pet. App. la.

* In light of its holding, the state court of appeals declined to ad-

dress the Commonwealth's alternative argument that the two sets of

charges were factually distinct, such that even if issue preclusion

were applicable, petitioner’s acquittal on the breaking-and-entering

and larceny charges did not necessarily preclude a finding of guilt on

the felon-in-possession charge. See Pet. App. 10a n.1; Resp. Br. 14.

6

SUMMARY OF ARGUMENT

A defendant who voluntarily agrees to sever multiple

charges arising from a common set of facts into sepa-

rate trials cannot invoke the issue-preclusion compo-

nent of the Double Jeopardy Clause to bar the prosecu-

tion or limit the evidence introduced at his second trial.

A. The Double Jeopardy Clause’s protection against

being “twice put in jeopardy” for the “same offence,”

U.S. Const. Amend. V, guards against government op-

pression in the form of multiple trials designed to give

the government repeated opportunities to convict a de-

fendant of the same crime. It does not relieve a defend-

ant of the foreseeable consequences of his own volun-

tary litigation choices. For example, the Court has held

that if a defendant asks for and obtains severance of two

charges into separate trials and is convicted at the first,

he has no right under the Double Jeopardy Clause to

bar the second trial on the ground that the charges are

for the “same offence” because one is a lesser-included

offense of the other. Jeffers v. United States, 432 U.S.

137, 150-152 (1977) (plurality opinion); see Ohio v. John-

son, 467 U.S. 493, 502 (1984).

B. A defendant who has consented to two trials and

is acquitted, rather than convicted, at the first trial does

not acquire any double-jeopardy right to bar or limit the

second trial. The issue-preclusion component of the

Double Jeopardy Clause protects acquittals by treating

even legally distinct charges as the “same offence”

where the defendant’s acquittal on the first charge nec-

essarily reflects the prosecution’s failure to prove an

“ultimate fact” required for conviction on the second

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

that doctrine modifies only the meaning of “same of-

7

fence” following an acquittal. It does not free a defend-

ant from his own litigation choices or create a freestand-

ing right to avoid the consequences of those decisions.

As this Court has held, a defendant who has agreed

to multiple trials on related charges cannot invoke

the Double Jeopardy Clause to assert that he is being

impermissibly subjected to multiple trials for the “same

offence.”

Petitioner suggests that the issue-preclusion compo-

nent of the Double Jeopardy Clause is distinct from the

protection against multiple trials. That is incorrect. Be-

cause issue preclusion’s sole double-jeopardy function is

to modify the definition of the “same offence” in multiple-

trials analysis, it is part of the multiple-trials protection,

not distinct from it. Indeed, this Court’s decisions have

treated it as such. The only remedy that this Court has

ever provided or suggested would be appropriate for

a claim invoking issue preclusion is a prohibition of

the second trial. And in the federal system, an issue-

preclusion claim, like any other double-jeopardy claim, is

subject to interlocutory appeal because it raises the

right not to be tried twice for the “same offence,” a right

that is best vindicated before the second trial occurs.

This Court also has specifically rejected the argument,

made by petitioner here, that the Double Jeopardy

Clause’s issue-preclusion component might simply limit

the evidence presented at a second trial, rather than

prohibit the proceeding altogether. Dowling v. United

States, 493 U.S. 342, 347-350 (1990).

The Court’s decisions holding that the Double Jeop-

ardy Clause is not violated when a defendant faces a

second trial due to his own litigation decisions do not

depend on the concept of “waiver.” Instead, the Court

has held that the Double Jeopardy Clause confers no

8

protection when a defendant’s voluntary choice logically

entails a second trial. Even if waiver analysis applied,

however, the result would be the same. A defendant

who elects two trials arising from the same set of facts,

and is then subject to two trials arising from the same

set of facts, receives exactly what he agreed to.

C. The foregoing principles prevent petitioner from

invoking the Double Jeopardy Clause’s issue-preclusion

component to bar or limit the second trial to which he

consented in this case. Petitioner’s charges arose from

a series of events that took place on a single day. When

he consented to sever the charges for his own benefit,

he necessarily agreed to a full second proceeding that

might include similar evidence as, but yield a different

outcome from, the first.

Petitioner’s contention that he faced a difficult

choice—between a single trial in which some infor-

mation about his criminal record would reach the jury

and two trials in which one jury might acquit while the

other found him guilty—does not entitle him to a differ-

ent result. In the double-jeopardy context, as in other

criminal-procedure contexts, this Court has rejected

the argument that simply because a defendant faces a

difficult choice, he should be relieved of the consequences

of his decision. And petitioner did not face an unresolv-

able dilemma here. Although Virginia case law gave

him the option of separate trials, that option was not

constitutionally compelled, and it is not the norm in

many jurisdictions, including the federal system. Peti-

tioner might have elected a single trial while requesting

any one of a number of procedures to limit any prejudice

from his prior convictions. Petitioner’s decision to in-

stead seek separate trials does not relieve him of the

consequences of that voluntary choice.

9

ARGUMENT

A DEFENDANT WHO CONSENTS TO TWO TRIALS CANNOT

INVOKE THE DOUBLE JEOPARDY CLAUSE TO BAR OR

LIMIT THE SECOND TRIAL

Petitioner was not entitled to invoke the Double

Jeopardy Clause to prohibit or constrain a second trial

to which he had voluntarily consented. Petitioner had

the option to try his factually related counts in one pro-

ceeding, but he chose instead to stand trial on them sep-

arately. The inevitable and foreseeable consequence of

that choice was two factually overlapping trials at which

the juries might reach different outcomes. Although

Virginia’s state-law rule permitted petitioner to request

a severance, the Constitution did not guarantee him the

right to obtain separate trials on separate offenses, yet

claim that the issue-preclusion component of the Double

Jeopardy Clause rendered those offenses the “same”

and thereby precluded or limited the second trial. U.S.

Const. Amend. V.

A. The Double Jeopardy Clause Does Not Relieve A

Defendant Of The Consequences Of His Own Litigation

Choices

The Double Jeopardy Clause provides 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. The

Clause affords a defendant three basic protections: it

“protects against a second prosecution for the same of-

fense after acquittal”; it “protects against a second

prosecution for the same offense after conviction”; and

it “protects against multiple punishments for the same

offense.” Ohio v. Johnson, 467 U.S. 493, 498 (1984)

(quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)) (cita-

10

tion omitted). The Clause does not, however, bar a sec-

ond trial when “the defendant consents to a disposition

that contemplates reprosecution.” Evans v. Michigan,

568 U.S. 313, 326 (2013).

1. The Double Jeopardy Clause “guards against Gov-

ernment oppression.” United States v. Scott, 437 U.S.

82, 99 (1978). It “forbids a second trial for the purpose

of affording the prosecution another opportunity to sup-

ply evidence which it failed to muster in the first pro-

ceeding.” Burks v. United States, 437 U.S. 1, 11 (1978)

(emphasis added). At the same time, the Double Jeop-

ardy Clause does not create “an insuperable obstacle to

the administration of justice *** in *** cases in

which there is no semblance of the type of oppressive

practices at which the double-jeopardy prohibition is

aimed.” Wade v. Hunter, 336 U.S. 684, 688-689 (1949).

The Court has repeatedly applied that principle to

hold that the Double Jeopardy Clause does not relieve

a defendant of the consequences of his own voluntary

litigation choices. In United States v. Dinitz, 424 U.S.

600 (1976), for example, the defendant sought to pro-

hibit a second trial after the trial judge excluded his

lead counsel, and the defendant sought and obtained a

mistrial. Jd. at 601-605. The Court held that the de-

fendant could be retried. /d. at 611-612. “[W]hen a de-

fendant persuades the court to declare a mistrial,” the

Court recognized, “jeopardy continues and retrial is

generally allowed.” Evans, 568 U.S. at 326. The Court

observed that “the question whether under the Double

Jeopardy Clause there can be a new trial after a mistrial

has been declared without the defendant’s request or

consent depends on whether ‘there is a manifest neces-

sity for the mistrial, or the ends of public justice would

otherwise be defeated.’” Dinitz, 424 U.S. at 606-607

11

(quoting Jllinois v. Somerville, 410 U.S. 458, 461 (1973))

(emphasis added; brackets and citations omitted). But

“(djifferent considerations obtain * * * when the mis-

trial has been declared at the defendant’s request.” /d.

at 607. The Court reasoned that “the defendant has a

significant interest in the decision whether or not to

take the case from the jury when circumstances occur

which might be thought to warrant a declaration of mis-

trial,” and “where circumstances develop not attributa-

ble to prosecutorial or judicial overreaching, a motion

by the defendant for mistrial is ordinarily assumed to

remove any barrier to reprosecution, even if the defend-

ant’s motion is necessitated by prosecutorial or judicial

error.” Ibid. (citation omitted).

The plurality opinion in Jeffers v. United States,

432 U.S. 137 (1977), which this Court has recognized to

reflect the holding in that case, see Johnson, 467 U.S.

at 502, similarly concluded that the Double Jeopardy

Clause poses no bar to successive prosecutions if it is

the defendant who “elects to have the two offenses tried

separately and persuades the trial court to honor his

election,” 432 U.S. at 152; see Pet. Br. 25 n.2 (acknow!l-

edging that “subsequent cases treat Jeffers as having

established th{e] general principle” that “a defendant

who is solely responsible for causing multiple trials on

greater and lesser-included offenses waives his right to

have those offenses tried together”) (emphasis omit-

ted). The defendant in Jeffers was charged in separate

indictments with offenses that the Court later recog-

nized to be the “same” for double-jeopardy purposes

(because one was a lesser-included offense of the other,

see 432 U.S. at 147-151 (plurality opinion)), but he suc-

cessfully opposed the government’s motion to try the of-

fenses together. /d. at 142-143. The plurality in Jeffers

12

found “no violation of the Double Jeopardy Clause”

when a “defendant expressly asks for separate trials,”

is convicted of a lesser-included offense in the first trial,

and is then tried on a greater offense in the second pro-

ceeding. Jd. at 152.

In United States v. Scott, supra, the Court similarly

held that a defendant “suffers no injury cognizable un-

der the Double Jeopardy Clause” when he “deliberately

choos[es] to seek termination of the proceedings against

him” on the basis of pre-indictment delay and then

is retried following a successful government appeal.

437 U.S. at 98-99. And in Ohio v. Johnson, supra, the

Court held that a defendant may not plead guilty to a

lesser-included offense and then assert that the Double

Jeopardy Clause should bar trial on a greater offense.

467 U.S. at 494. The Court reasoned that the defendant

“should not be entitled to use the Double Jeopardy

Clause as a sword to prevent the State from completing

its prosecution on the remaining charges.” Jd. at 502.

2. The Court’s holdings in Dinitz, Jeffers, Scott, and

Johnson are grounded in the principle that a defendant

“suffers no injury cognizable under the Double Jeop-

ardy Clause” when he is faced only with the “conse-

quences of his voluntary choice.” Scott, 437 U.S. at 99.

Where a defendant is “solely responsible for the succes-

sive prosecutions,” nothing has “deprived him of any

right that he might have had against consecutive trials.”

Jeffers, 432 U.S. at 154 (plurality opinion). The Double

Jeopardy Clause “guards against Government oppres-

sion,” Scott, 437 U.S. at 99, not a defendant’s voluntary

choices. Because no oppressive practices exist when a

defendant himself can choose whether he will face one

trial or two, see Dinitz, 424 U.S. at 607-609, such a cir-

13

cumstance presents “none of the governmental over-

reaching that double jeopardy is supposed to prevent,”

Johnson, 467 U.S. at 502.

Even when a trial has been “tainted by prejudicial

judicial or prosecutorial error,” the “important consid-

eration, for purposes of the Double Jeopardy Clause, is

that the defendant retain primary control over the course

to be followed in the event of such error.” Dinitz, 424 U.S.

at 609. The defendant himself is in the best position to

decide whether “the interests served by the Double

Jeopardy Clause,” namely, “the avoidance of the anxiety,

expense, and delay occasioned by multiple prosecutions,”

id. at 608, are outweighed by other considerations.

Thus, even where a defendant is otherwise “entitled to

have [his] charges *** resolved in one proceeding,

there is no violation of the Double Jeopardy Clause

when he elects to have the two offenses tried separately

and persuades the trial court to honor his election.” Jef-

fers, 432 U.S. at 152 (plurality opinion).

B. A Defendant Who Has Consented To Two Trials Cannot

Rely On The Outcome Of The First Trial To Prohibit Or

Limit The Second Proceeding

Petitioner contends (Br. 13-17, 26-28), that a differ-

ent rule applies when a defendant is acquitted, rather

than convicted, at his first trial. But the principle that

the Double Jeopardy Clause “does not relieve a defend-

ant from the consequences of his voluntary choice,”

Scott, 437 U.S. at 99, governs irrespective of the first

trial’s outcome. A defendant who consents to severance

of a factually related charge into a second trial does not

thereby force the prosecution to prevail twice in order

to convict him of the severed offense.

14

1. The double-jeopardy implications of a defendant's

consent to two trials do not depend upon conviction

at the first trial

The Court’s holding in Jeffers forecloses “a defend-

ant’s claim of double jeopardy based upon a guilty ver-

dict in the first of two successive prosecutions, when the

defendant [was] responsible for insisting that there be

separate rather than consolidated trials.” Johnson,

467 U.S. at 502. A claim of double jeopardy based on an

acquittal is similarly foreclosed in that circumstance.

As the Court has recognized, the Double Jeopardy

Clause’s general bar on “‘repeated attempts to convict

an individual for an alleged offense’” “is not a principle

which can be expanded to include situations in which the

defendant is responsible for the second prosecution.”

Scott, 437 U.S. at 95-96 (citations omitted).

Although the Double Jeopardy Clause “attaches par-

ticular significance to an acquittal,” Scott, 437 U.S. at

91; see Pet. Br. 13, it does so in two specific ways. First,

while a defendant who successfully challenges his con-

viction on appeal generally may be tried a second time,

an acquittal—no matter how “mistaken”—bars retrial

completely on the same charge. Scott, 437 U.S. at 91;

see id. at 91-92.° That principle is not relevant to a case

* The Court recognized an exception to the general rule that a de-

fendant’s successful appeal permits retrial in Burks v. United

States, supra, which held that the Double Jeopardy Clause pre-

cludes a second trial when a defendant obtains a reversal of his con-

vietion for evidentiary insufficiency. 437 U.S. at 18. Petitioner errs

in citing (Br. 24) Burks for the proposition that “even if a defendant

waives the right against multiple trials by requesting a retrial, he

does not also waive the right to the finality of an acquittal.” Burks

addressed the proper scope of appellate relief, not the effect of af-

firmatively consenting to multiple trials. The Court reasoned that

following a successful appeal on evidentiary insufficiency, “the only

15

like this, in which a defendant was tried separately on

legally distinct charges. See United States v. Dixon,

509 U.S. 688, 696-697 (1993) (treating charges as legally

distinct for double-jeopardy purposes where each in-

cludes an element distinct from the other) (citing Block-

burger v. United States, 284 U.S. 299, 304 (1932)); Pet.

App. 6a (noting that charges in this case are legally

distinct).

Second, while a prior conviction bars only reprosecu-

tion for an offense that is legally the same, “‘a constitu-

tional policy of finality for the defendant’s benefit’ * * *

protects the accused from attempts to relitigate” the ul-

timate facts determined by a prior acquittal. Brown,

432 U.S. at 165 (quoting United States v. Jorn, 400 U.S.

470, 479 (1971) (plurality opinion)); see Ashe v. Swen-

son, 397 U.S. 436, 443 (1970). The Double Jeopardy

Clause accomplishes this result by borrowing from civil

law certain aspects of “collateral estoppel” or “issue pre-

clusion.” Bravo-Fernandez v. United States, 137 S. Ct.

352, 356-358 & n.1 (2016). Under the incorporated issue-

preclusion principles, “it is appropriate to treat [sepa-

rate] charges as the ‘same offence’” when a prior acquit-

tal on one charge necessarily reflects the failure to

prove an “ultimate fact” that would also be necessary

to prove the other charge. Yeager v. United States,

557 U.S. 110, 119 (2009); see Black’s Law Dictionary

711 (10th ed. 2014) (defining an “ultimate fact” as “[a]

‘just’ remedy * * * is the direction of a judgment of acquittal,” even

if the defendant “sought a new trial as one of his remedies, or even

as the sole remedy.” 437 U.S. at 17-18. Burks thus declined to in-

terpret the defendant’s request for a lesser form of appellate relief

(a new trial) as foreclosing a grant of greater appellate relief (a di-

rected judgment of acquittal). It did not address whether a defend-

ant may agree to two trials and then seek to rely on a jury acquittal

in the first trial to preclude the second.

16

fact essential to the claim or the defense”); see also

Bobby v. Bies, 556 U.S. 825, 835-836 (2009) (similar).

This Court first held that the Double Jeopardy Clause

includes an issue-preclusion component in Ashe v. Swen-

son, supra, in which it concluded that the State could

not bring sequential prosecutions for the legally distinct

armed robberies of different victims at the same poker

game, where the jury at the first trial had “determined

by its verdict” of acquittal the “ultimate fact” “that the

[defendant] was not one of the robbers.” 397 U.S. at

443, 446.

The issue-preclusion component of the Double Jeop-

ardy Clause has no application to a second trial that a

defendant has voluntarily chosen. Issue preclusion acts

to “prevent” “unfair and abusive reprosecutions.” Ashe,

397 U.S. at 445 n.10; see Johnson, 467 U.S. at 500 n.9

(“[W]here the State has made no effort to prosecute the

charges seriatim, the considerations of double jeopardy

protection implicit in the application of collateral estop-

pel are inapplicable.”). It does so by modifying the cir-

cumstances in which a second prosecution is considered

a prosecution for the “same offence.” Yeager, 557 U.S.

at 119; see Brown, 432 U.S. at 166 n.6. But Jeffers

makes clear that the Double Jeopardy Clause allows a

second trial for the “same offence” when that second

trial is the result of the defendant’s own voluntary elec-

tion. The offenses in the two trials in Jeffers were found

to be the “same” for double-jeopardy purposes, but the

plurality recognized that even though “the heart of the

Double Jeopardy Clause is the prohibition against mul-

tiple prosecutions for ‘the same offense,’” a defendant

cannot object to such prosecutions “[i]f the defendant

expressly asks for separate trials.” 432 U.S. at 150, 152.

17

2. The issue-preclusion component of the Double

Jeopardy Clause does not create a right distinct from

the right against multiple trials for the same offense

Petitioner acknowledges (Br. 10) that this Court has

“held that a defendant who requests separate trials nec-

essarily waives the protection against multiple trials be-

cause the former and the latter are mutually exclusive.”

He contends (Br. 11, 15, 27), however, that the voluntary-

choice doctrine does not foreclose a claim of issue pre-

clusion, on the theory that the “issue-preclusive effect

of an acquittal” is “distinct” from the “right against mul-

tiple trials.” That contention is incorrect.

a. As the foregoing discussion illustrates, issue pre-

clusion under the Double Jeopardy Clause is a strand

of the Clause’s protection against multiple trials for the

same offense, not an independent constitutional right.

See Yeager, 557 U.S. at 119. It defines the circum-

stances in which a defendant is considered to be on trial

for the “same offence,” ibid., but does not confer any

distinct extra-textual rights, see U.S. Const. Amend. V

(providing that no person “shall *** be subject for

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

limb”).

This Court’s treatment of issue-preclusion claims un-

der the Double Jeopardy Clause confirms the point.

The only relief the Court has ever provided, or sug-

gested would be appropriate, for such a claim is the pro-

hibition of a successive trial. In Ashe itself, the Court

held that “a second prosecution for the robbery” of a

different victim was “wholly impermissible.” 397 U.S.

at 445; see id. at 446. And other decisions of this Court

are to the same effect. See, e.g., Turner v. Arkansas,

407 U.S. 366, 369 (1972) (per curiam) (acquittal on mur-

18

der charge “negate[d] the possibility of a constitution-

ally valid conviction” on subsequent indictment “for [a

related] robbery”); Harris v. Washington, 404 U.S. 55,

55-57 (1971) (per curiam) (acquittal on murder charge

with respect to one victim barred subsequent trial for

murder and assault of different victims); cf. Dixon,

509 U.S. at 705 (“The collateral-estoppel effect attributed

to the Double Jeopardy Clause * ** may bar a later

prosecution for a separate offense where the Govern-

ment has lost an earlier prosecution involving the same

facts.”) (emphasis omitted); Brown, 432 U.S. at 166-167

n.6 (collateral-estoppel doctrine holds that “[e]ven if

two offenses are sufficiently different to permit the im-

position of consecutive sentences, successive prosecu-

tions will be barred”). Even the dissent from the denial

of a petition for a writ of certiorari in Green v. Ohio,

455 U.S. 976 (1982) (White, J., dissenting), on which pe-

titioner relies (Br. 24), states that where collateral estop-

pel applies, it “bar[s] a [second] trial.” 455 U.S. at 981.

This Court’s assertion of appellate jurisdiction over

cases involving “the double jeopardy right to issue pre-

clusion” (Pet. Br. 13) reflects its status as a component

of the protection against multiple trials for the same of-

fense. The Court has held that an order denying a de-

fendant’s double-jeopardy claim is an immediately ap-

pealable “final decision{}” under 28 U.S.C. 1291 because

the Double Jeopardy Clause protects a defendant

“against being twice put to trial for the same offense.”

Abney v. United States, 431 U.S. 651, 661 (1977) (em-

phasis omitted). A defendant’s “double jeopardy chal-

lenge to the indictment” therefore “must be reviewable

before that subsequent exposure occurs.” Jd. at 662.

The Court has never suggested that claims invoking the

issue-preclusion component of the Double Jeopardy

19

Clause are distinct from claims invoking a right to be

free of multiple trials, such that they should be treated

differently for purposes of appeal. To the contrary, the

Court has repeatedly and recently considered pretrial

appeals of such claims. See Bravo-Fernandez, 137 S. Ct.

at 362-363; Yeager, 557 U.S. at 115-117.

b. Petitioner thus errs in suggesting (Br. 15-17, 27)

that issue preclusion can be distinguished from the

right against multipie trials on the ground that issue

preclusion “does not necessarily prevent a second trial”

and leaves the prosecution “free to press forward on any

factual theory that the first jury did not reject.”

As a general matter, when a defendant faces legally

distinct charges arising out of the same set of facts, the

prosecution “is entirely free to bring them separately.”

Dizon, 509 U.S. at 705. A defendant may bar a suc-

cessive trial on issue-preclusion grounds only if a later

prosecution would require proof of an “ultimate fact”

that was necessarily within the scope of a prior acquittal.

Ashe, 397 U.S. at 443. If such proof would not be

required, then the issue-preclusion strand of double-

jeopardy law does not apply at all. See Yates v. United

States, 354 U.S. 298, 338 (1957) (“So far as merely

evidentiary or ‘mediate’ facts are concerned, the doctrine

of collateral estoppel is inoperative.”) (citations omitted).

But when a defendant does raise a valid constitutional

issue-preclusion objection, the nature of the objection is

necessarily that he is being tried twice for the “same

offence” such that the second trial cannot proceed. That

objection is “logically inconsistent,” Pet. Br. 27 (citation

omitted), with a defendant’s voluntary consent to sev-

erance. And, for that reason, it is the same objection

20

that Jeffers holds cannot be raised by a defendant who

has agreed to successive trials. ‘

c. Petitioner’s argument that the issue-preclusion

component of the Double Jeopardy Clause is “distinct”

from the right against multiple trials rests primarily on

his assertion (Br. 15-17, 27-28) that the Clause’s issue-

preclusion prong functions as an exclusionary rule with

respect to particular evidence, rather than a bar on

a successive trial. This Court’s decision in Dowling

v. United States, 493 U.S. 342 (1990), forecloses that

argument.

In Dowling, the Court rejected a bank-robbery

defendant’s contention that his double-jeopardy rights

had been violated by the introduction of evidence, of-

fered to bolster the identification of him as the bank

robber, relating to his commission of a home invasion of

which he had previously been acquitted. 493 U.S. at

344-349. Like petitioner here, the defendant in Dowling

did not “claim *** that the acquittal in the [home-

invasion case] barred” his prosecution for bank robbery

altogether; he contended instead that “by the same

principle” applied in Ashe, the acquittal in the home-

* Petitioner attempts to cast doubt on Jeffers’ applicability to this

case by noting (Br. 24) that “two of the Justices in the Jeffers plu-

rality” later joined a dissent from the denial of certiorari suggesting

that Jeffers would have come out differently had the defendant been

acquitted rather than convicted in his first trial. See Green, 455 U.S.

at 980 (White, J., dissenting). That non-precedential statement, in

a case in which the arguments were not fully developed, cannot bear

the weight petitioner places on it. That is particularly so because

Green concerned the dismissal of a charge before trial on a ground

unrelated to guilt or innocence, see id. at 977, but the dissenting

statement fails to address this Court’s holding in United States v.

Scott, supra, that a defendant may be retried following the govern-

ment’s successful appeal of such a dismissal, see 437 U.S. at 98-99.

21

invasion case “precluded the Government from intro-

ducing into evidence” the testimony of the home-invasion

victim. Jd. at 347-348. The Court, however, found that

“the collateral-estoppel component of the Double Jeo-

pardy Clause [wa]s inapposite” because “the prior ac-

quittal did not determine an ultimate issue in the [bank-

robbery]” proceeding. Jd. at 348-349. The bank-robbery

jury “might reasonably conclude” that the defendant

committed the home invasion, “even if it did not believe

beyond a reasonable doubt that [he] committed the

crimes charged at the first trial.” J/bid. The Court

“decline[d] to extend Ashe *** and the collateral-

estoppel component of the Double Jeopardy Clause to

exclude in all circumstances *** relevant and pro-

bative evidence that is otherwise admissible under the

Rules of Evidence simply because it relates to alleged

criminal conduct for which a defendant has been ac-

quitted.” Jd. at 348; see United States v. Felix, 503 U.S.

378, 387 (1992) (explaining that Dowling “endorse[s]

*** the basic, yet important, principle that the intro-

duction of relevant evidence of particular misconduct in

a case is not the same thing as prosecution for that

conduct”).

Dowling makes clear that prior acquitted conduct

raises double-jeopardy concerns only if the acquittal

“determine[s] an ultimate issue” in a successive case.

493 U.S. at 348. If it does, then the “second prosecution

wiould be] impermissible” under Ashe. Jbid. If it does

not, then normal evidentiary rules govern its admission.

Ibid. In other words, the double-jeopardy right where

a defendant was acquitted on a fact necessary to a suc-

cessful second prosecution would be a right not to be

tried twice for the same offense—but that is the very

22

right a defendant does not have if he voluntarily con-

sented to the second trial. See Jeffers, 432 U.S. at 150-

152 (plurality opinion). And when the defendant seeks

only to rely on a prior adjudication to preclude the ad-

mission of evidence in a later trial, he does not have a

valid double-jeopardy claim at all.

Petitioner does not discuss Dowling; he identifies no

decision of this Court interpreting the Double Jeopardy

Clause to bar the admission of evidence; and the gov-

ernment is aware of none. Petitioner instead cites two

lower-court decisions for the proposition that the Double

Jeopardy Clause imposes its own evidentiary limitations.

See Pet. Br. 16 (citing Joya v. United States, 53 A.3d

309, (D.C. 2012); Jackson v. State, 183 So. 3d 1211,

1215 (Fla. Dist. Ct. App. 2016)). Neither of those cases,

however, squares its analysis with Dowling.”

d. Petitioner separately cites (Br. 28) civil cases for

the proposition that “mere agreement to bifurcation does

not waive the right to issue preclusion.” If that were true,

it would be irrelevant. The governing double-jeopardy

precedents do not rely on waiver, see pp. 23-24, infra,

and in any event, given the differences between criminal

and civil proceedings, this Court has cautioned that ap-

plication of issue prelusion must be more “guarded” in

criminal cases. Bravo-Fernandez, 137 S. Ct. at 358; see

also, e.g., Standefer v. United States, 447 U.S. 10, 21-25

(1980). Indeed, each of the decisions petitioner cites

(Br. 28) rests on concerns particular to the civil context

® Before this Court’s decision in Dowling, the Supreme Court of

Virginia held “that collateral estoppel is [not] limited to barring

prosecutions” and could instead be used to suppress evidence. Simon

v. Commonwealth, 258 8.E.2d 567, 570 (1979). The Supreme Court

of Virginia has not addressed the continued vitality of that holding

after Dowling.

23

in which it arose, and which do not apply here. See But-

ler v. Pollard, 800 F.2d 223, 224-225 (10th Cir. 1986) (af-

fording issue-preclusive effect to jury factfinding in light

of Seventh Amendment concerns); Goldstein v. Cog-

swell, No. 85 Civ. 9256, 1991 WL 60420, at *15(S.D.N.Y.

Apr. 11, 1991) (affording issue-preclusive effect due to

concerns regarding double recovery); compare Clem-

ents v. Airport Auth. of Washoe Cnty., 69 F.3d 321, 330

(9th Cir. 1995) (applying issue preclusion to “conservie}

* ** judicial resources”), with Standefer, 447 U.S. at 25

(holding that “competing policy considerations” in crim-

inal case “outweigh/ed] the [ judicial] economy concerns

that undergird the estoppel doctrine” in civil cases).

3. Waiver doctrine does not control the double-jeopardy

implications of a defendant's consent to multiple

proceedings

Petitioner further errs in addressing (Br. 24) the is-

sue in this case through the lens of traditional “[w)jaiver

analysis.”

a. As discussed above, pp. 10-13, supra, the Court

held in Dinitz, Jeffers, Scott, and Johnson that the Dou-

ble Jeopardy Clause is not violated when a defendant

faces a second trial due to his own litigation decisions.

Those holdings are not grounded in findings of knowing

and intelligent waiver, but instead in the principle that

“the Double Jeopardy Clause, which guards against

Government oppression, does not relieve a defendant

from the consequences of his voluntary choice.” Scott,

437 U.S. at 99.

The defendant in Dinitz, for example, contended

that his mistrial motion was not inconsistent with his

later assertion of a double-jeopardy claim because it

was not a “knowing, intelligent, and voluntary” waiver

of his double-jeopardy rights. 424 U.S. at 609 n.11. The

24

Court rejected that contention, ibid., explaining that

“traditional waiver concepts have little relevance where

the defendant must determine whether or not to re-

quest or consent to a mistrial in response to judicial or

prosecutorial error,” id. at 609. It accordingly held not

that the defendant had waived a double-jeopardy right,

but that the court of appeals had “erred in finding that

the retrial” following the defendant’s mistrial motion

“violated [his] constitutional right not to be twice put in

jeopardy.” Jd. at 611-612; see Scott, 437 U.S. at 99 (ex-

plaining that in concluding the defendant there “suf-

fer{ed] no injury cognizable under the Double Jeopardy

Clause,” the Court did not “thereby adopt the doctrine

of ‘waiver’ of double jeopardy”).

Although the Court has sometimes “refused to infer

waiver” (Pet. Br. 29) in the double-jeopardy context

when the government’s argument was framed in those

terms, the cases petitioner cites are ones in which the

defendants did not “elect{] to have [multiple) offenses

tried separately,” Jeffers, 432 U.S. at 152—that is, they

failed to take any action that envisioned multiple prose-

cutions. In Sanabria v. United States, 437 U.S. 54

(1978), the Court reasoned that a defendant’s request

for an evidentiary ruling that the district court errone-

ously granted was not an action that “contemplated a

second trial” on the single offense with which he had

been charged. /d. at 75; see id. at 76-77. And in Green

v. United States, 355 U.S. 184 (1957), the Court held

that a defendant charged with first- and second-degree

murder who was convicted of the lesser charge at an in-

itial trial could not be deemed to have acquiesced in a

retrial on the greater charge by appealing his convic-

tion. See id. at 185-186, 190-191.

25

b. Even if waiver doctrine provided the right frame-

work for the question presented here, it would not sug-

gest that a defendant who consents to two trials in-

volving the same set of facts may invoke the issue-

preclusion component of the Double Jeopardy Clause to

bar or limit the second trial.

A defendant who consents to multiple trials on dif-

ferent charges arising from the same set of facts, and is

then subject to multiple trials on different charges aris-

ing from the same set of facts, receives precisely what

he consented to. He cannot reasonably have been una-

ware that the evidence at the second trial would overlap

with the evidence at the first. Nor could he reasonably

have been unaware of the possibility that he would be

found guilty in one trial but not the other—indeed, sev-

erance is generally predicated on a desire to ensure dis-

tinct consideration of multiple charges, see, e.g., Fed. R.

Crim. P. 14(a).

A defendant who elects two trials on the same set of

facts has no legal right to object to the second trial on

the ground that it might result in an inconsistent verdict

from the first. Had the defendant proceeded with a sin-

gle trial on multiple charges, he could not invoke the

Double Jeopardy Clause to object to inconsistent ver-

dicts. See United States v. Powell, 469 U.S. 57, 64-65

(1984). A defendant’s intentional pursuit of two trials to

maximize his chances of prevailing in at least one should

not give him the additional benefit of automatically pre-

vailing in both if the first one goes his way.

C. Petitioner's Double-Jeopardy Claim Is Foreclosed By

His Consent To Severance Of The Charges

These principles make clear that petitioner cannot

rely on the Double Jeopardy Clause to bar the second

trial to which he consented. Petitioner had every reason

26

to expect that his second trial would involve similar tes-

timony and evidence as the first. He was charged with

breaking and entering, larceny, and unlawful posses-

sion of firearms following a felony conviction based on

events alleged to have taken place in a single day. Thus,

when he agreed, for his own benefit, to sever the trials—

thereby excluding from the first trial evidence of his

prior felony convictions—he necessarily agreed to a full

second proceeding on the felon-in-possession charge

that might include testimony and evidence about his

presence at the Garrisons’ home.

Petitioner contends (Br. 28) that even if his consent

to severance would otherwise foreclose his constitutional

issue-preclusion claim, “equitable considerations” spe-

cific to his case dictate a different result. In particular,

petitioner maintains (Br. 29-31) that he had “no mear-

ingful choice” but to consent to severance in order to

avoid “undue prejudice” from the first jury learning of

his prior felony convictions. The Court rejected a simi-

lar argument in Dinitz. In that case, the defendant ar-

gued that he “face[d] a ‘Hobson’s choice’” after the trial

judge excluded his lead counsel from the courtroom: if

he did not seek a mistrial, he would be forced to undergo

“a trial tainted by prejudicie}” not of his own creation.

Dinitz, 424 U.S. at 609. This Court held, however, that

so long as the defendant himself elects the route that

leads to a second trial, his double-jeopardy rights have

not been infringed. See id. at 611-612.

“The criminal process * * * is replete with situations

requiring ‘the making of difficult judgments’ as to which

course to follow,” and “the Constitution does not * * *

forbid requiring [a defendant] to choose.” McGautha v.

California, 402 U.S. 183, 213 (1971) (quoting McMann

27

v. Richardson, 397 U.S. 759, 769 (1970)), vacated judg-

ment on other grounds in No. 204 sub nom. Crampton

v. Ohio, 408 U.S. 941 (1972). As the Court has ex-

plained, “[a] hard choice is not the same as no choice.”

United States v. Martinez-Salazar, 528 U.S. 304, 315

(2000); see also, e.g., Ohler v. United States, 529 U.S.

753, 754-760 (2000) (defendant who preemptively intro-

duces evidence of prior conviction on direct examination

may not claim on appeal that admission of evidence was

error); Texas v. McCullough, 475 U.S. 134, 135-144

(1986) (defendant who successfully appeals from his

first conviction may receive a greater sentence follow-

ing retrial so long as the increase is not based on vindic-

tiveness); South Dakota v. Neville, 459 U.S. 553, 563-

564 (1983) (upholding a state law requiring a suspect to

submit to a blood-alcohol test or have his refusal used

against him); Brown v. United States, 356 U.S. 148,

154-157 (1958) (defendant who takes the stand in his

own defense cannot claim the privilege against self-

incrimination during cross-examination); cf. Richard-

son, 397 U.S. at 769 (noting that “the decision to plead

guilty before the evidence is in frequently involves the

making of difficult judgments”).

In any event, petitioner faced no unsolvable dilemma

here. Although asserting his right to a single trial on all

of the charged offenses would have necessitated inform-

ing the jury of at least some aspect of his criminal record,

the decision was no more difficult than, for example, a

defendant’s decision whether to assert his right to testify

in his own defense and allow the admission of past crimes

as impeachment evidence, or, if he does testify, whether

to introduce his criminal record on direct examination

in order to blunt its effect. See Ohler, 529 U.S. at 754-

760. Virginia case law allows a defendant to request

28

severance of a felon-in-possession charge in a case like

this, see Hackney v. Commonwealth, 504 S.E.2d 385, 388-

389 (Va. Ct. App. 1998) (en banc), but Virginia cases

have not treated that right as constitutionally compelled,

and petitioner identifies no decision holding that it is,

see Commonwealth v. Smith, 556 S.E.2d 223, 225-227 &

n.2 (Va. 2002); Purvis v. Commonwealth, 522 S.E.2d

898, 902 (Va. Ct. App. 2000).

Numerous jurisdictions do not view severance as

necessary when a defendant faces a felon-in-possession

charge in combination with other charges that do not

have a prior conviction as an element. See, e.g., State v.

Taylor, 729 A.2d 226, 227-229 (Conn. App. Ct. 1999);

Goodall v. United States, 686 A.2d 178, 181-184 (D.C.

1996); Frazier v. State, 569 A.2d 684, 687-691 (Md.

1990); People v. Turner, No. 241591, 2003 WL 22849822,

at *1 (Mich. Ct. App. Dec. 2, 2003) (per curiam); State v.

Evans, 456 N.W.2d 739, 744-747 (Neb. 1990) (per curiam).

Federal courts, for example, have identified “several

safeguards short of severance that a district court may

employ to avoid ‘undue prejudice,’ including a stipula-

tion as to the existence of the prior felony conviction, a

bench trial on the [felon-in-possession] charge, or a

cautionary jury instruction.” United States v. Moore,

104 F.3d 377, 382 (D.C. Cir. 1997) (citation omitted).

The stipulation option reflects this Court’s holding in

Old Chief v. United States, 519 U.S. 172 (1997), that a

defendant facing felon-in-possession and other charges

was entitled under Federal Rule of Evidence 403 to seek

exclusion of the record of a prior conviction if he stipu-

lated to the existence of the prior felony conviction. See

519 U.S. at 190-192.

The trial court might have allowed a similar proce-

dure in petitioner’s case. See Boone v. Commonwealth,

29

740 S.E.2d 11, 14 & n.* (Va. 2013) (leaving open whether

to follow Old Chief as a matter of Virginia law). But pe-

titioner did not request it, or any other potential safe-

guard against any prejudicial effec: of his prior convic-

tions. He instead selected a co :rse—severance—that

expressly contemplated two trials. That he did so be-

cause he believed it would increase his chances of ac-

quittal on at least one of the charges “does not relieve

[him of] the consequences of his voluntary choice,”

Scott, 437 U.S. at 99—namely, two trials.

CONCLUSION

The decision of the Supreme Court of Virginia should

be affirmed.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOHN P. CRONAN

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

ERIC J. FEIGIN

ERICA L. Ross

Assistants to the Solicitor

General

ALEXANDER P. ROBBINS

, Attorney

JANUARY 2018