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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0746%3A10. Public record. Not legal advice.