# Opposition Brief — Plummer v. Pettaway

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0617%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 904

## Text

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QUESTION PRESENTED

Whether the collateral estoppel doctrine, a component of the Double Jeopardy
Clause, hitherto applied in criminal cases (as in civil cases) in retrials following a
successful appeal as well as in successive trials, should now be limited in criminal cases

only to successive tnals?

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ill
OPINIONS BELOW 1
JURISDICTION 2
CONSTITUTIONAL PROVISION INVOLVED 2
STATEMENT OF THE CASE 2

A. The Offenses 2

B. The Trial 3

a The First State Appeal 4

D. The Hearing after Remand 5

E. The Second State Appeal. 6

A The District Court Proceedings 6

G. The Appeal to the Ninth Circuit 6
REASONS FOR DENYING THE WRIT 7
[. PETITIONER HAS WAIVED ANY CLAIM THAT ASHE V. SWENSON

DOES NOT APPLY TO RETRIALS BY BELATEDLY RAISING IT

FOR THE FIRST TIME IN HIS PETITION FOR REHEARING

BEFORE THE CIRCUIT COURT WHEN THE APPLICATION OF

ASHE HAS BEEN CENTRAL TO THIS LITIGATION SINCE ITS

INCEPTION 7
Lf. NO CONFLICT BETWEEN FEDERAL CIRCUIT COURTS EXISTS

ON THIS QUESTION ON THE QUESTION PRESENTED IN THE

PETITION i)

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ITT.

A

B The Circuit Court's Rationale Correctly Applies This Court's Precedent 14

ON THE FACTS OF THIS CASE THE CIRCUIT COURT

CORRECTLY DECIDED THAT THE JURY’S UNANIMOUS

DECISION THAT PETTAWAY DID NOT PERSONALLY USE A

FIREARM OR INFLICT GREAT BODILY INJURY ON TAYLOR
CONSTITUTIONALLY ESTOPS THE PROSECTION FROM

RETRYING PETTAWAY AS THE GUNMAN BUT NOT AS AN

AIDER AND ABETTOR. 12

Petitioner has Misstated the Circuit Court’s Holding 12

CONCLUSION

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iil

TABLE OF AUTHORITIES

FEDERAL CASES

Adickes v. Kress & Co.

aye US. 440197) ........

Aiello v. City of Wilmington
470 FSupp. 414 (D. Del. 1979)

Arizona v. Rumsey

yy eh Re a}

Ashe v. Swenson

397 U.S. 436 (1970) ........

Bivens v. Six Unknown Named Agents

403 US. 368 (1971) ...... ..

Pettaway v. Plummer

943 F.2d 1041 (9th Cir. 1991)

Berkemer v. McCarty

468 U.S. 420 (1984) ........
Bullington v. Missoun
451 U.S. 430 (1981) ........

Delap v. Dugger
890 F.2d 285 (11th Cir. 1989)

cert. denied, 496 U.S. 929 ngs?

Dowling v. United States

493 US. 342 (1990) ........

In re Falstaff Brewing Corporation AntiTrust

Litigation
441 FSupp. 62 (E.D. Mo. 1977)

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(920708 18:

8,
10,
12,
16,
18,

14,

01)

14

18

10

Grady v. Corbin
495 U.S. 508

(1990)

Lockhart v. Nelson
488 U.S. 33 (1988)

North Carolina v. Pearce
395 U.S. 711 (1969)

Ohi Johnson

467 U.S. 493 (1984)

Pugliese v. Perrin

731 F.2d 85 (1st Cir. 1984)
Marshall
816 F.2d 1126 (6th Cir

Rice v
198 7

Segal
606 F.2d 842 (9th Cir. 1979)

Span-Deck, Inc. v. Fabcon,In«

570 FSupp. 81 (D. Minn. 1983

Swentek v. USAIR, In

830 F.2d 552 (4th Cir. 1987)
Tibbs v. Florida

457 U.S. 31 (1982)
United States V Citron

853 F.2d 1055 (2nd Cir. 1988)
United States Vv. Crooks

804 F.2d 1441 (9th Cir. 1986)

United States v. De La Torre

639 F.2d 245 (Sth Cir. 1981)

rt c:\pleas\00000701.pl

a)

American Telephone & Telegraph, Co., I:

Og
Oo CO

United States v. De Vincent

632 F.2d 155 (1st Cir. 1980) cert. denied, 450 U.S. 984

United States v. Dray

901 F.2d 1132, (1st Cir. 1990) cert. denied, 111 S.Ct. 245

United States v. Farmer

923 F2d 1557 (11th Cir. 1991)

United States v. Head

697 F.2d 1200, (4th Cir. 1982) cert. denied, 462 US. i

United States v. Larkin

605 F.2d 1360 (Sth Cir. 1979) modified, 611 F.2d 585 cert. den.

sub. nom, Larkin v. United States, 446 U.S. 939

United States v. Martin Linen Supply Co.

430 US. 564 (1977)

United States v. Mespoulede

597 F.2d 329 (2nd Cir. 1979)

United States v. Powell

632 F.2d 754 (9th Cir. 1980)

United States v. Price

750 F.2d 363, (Sth Cir.) cert. denied, 473 U.S. 904 (1985)

Weinberger v. Rossi

456 US. 25 (1982)

Youakim v. Mille

r
Cho G15. Oot CIOTO) we ice cn cwunws

Zdanok v. Glidden Co.

327 F.2d 944, (2nd Cir. 1964) tert. denied, 397 U.S. 934

t c:\p!eas\00000701. pile]

[920708 18:01]

vi

STATE CASES

People v. Pettaway
rr CSRs COPED Fi cds tk oko Ce bes eke 2, 11

People v. White
ee Me LOG OLS CAIGO) oc ccd wie ownewnee cas Contrary to petitioner's assertion, Price did not establish a hard and fast rule that collateral estoppel
principles never bar introduction of evidence on retrial. On the contrary, the Court preliminarily observed:
“{e]ven though the doctrine affects the introduction of evidentiary facts necessarily determined in a prior
lawsuit, United States v. De La Torre, 639 F.2d 245 (Sth Cir. 1981), it does not prevent re-examination of an
issue that is not necessarily determined in the former trial.” Id., at 365. In De La Torre, supra and Larkin,
supra, the Fifth Circuit had performed collateral estoppel analyses under the aegis of Ashe v. Swenson in
retrials and had accepted as a matter of course that application of the doctrine in a particular case might
limit pleading, evidence or argument. See De La Torre, supra, 639 F.2d at 248; Larkin, supra, 605 F.2d at
1371. Manifestly, there is no conflict between the Ninth and Fifth Circuits on the question whether Ashe v.
Swenson can limit prosecution theories on retrial.

6 It is true that the Circuit's opinion is at odds with the opinion of two justices of Division Two of the
California Court of Appeal for the First Appellate District. See People v. Pettaway, supra [maj.opn.]. That
opinion, in turn, refused to follow the earlier unanimous opinion of Division Five of the same court, on
identical facts, in People v. White, 185 Cal App.3d 822, 231 Cal.Rptr. 569 (1985). More importantly, the
same “conflict” can be shown in every case where the federal court, on habeas corpus review, differs in
outcome from the state court. Respondent submits that this Court's power to grant certiorari to settle
important disputes between state and federal courts should not be engaged when even the state court has not

; (continued...)

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12

No conflict exists on the question presented between the Federal Courts or the

State and Federal Courts. Certiorari should be denied for this reason alone.
III.

ON THE FACTS OF THIS CASE THE CIRCUIT COURT CORRECTLY ‘
DECIDED THAT THE JURY’S UNANIMOUS DECISION THAT PETTAWAY

DID NOT PERSONALLY USE A FIREARM OR INFLICT GREAT BODILY
INJURY ON TAYLOR CONSTITUTIONALLY ESTOPS THE PROSECTION
FROM RETRYING PETTAWAY AS THE GUNMAN BUT NOT AS AN AIDER
AND ABETTOR.

A. Petitioner bas Misstated the Circuit Court’s Holding.

Before turning to the ments, it is necessary to dispel certain inaccuracies in
petitioner's characterizations of the Circuit's opinion. For example, petitioner asserts
that the Circuit "has ordered a murder charge against respondent dismissed. . . .”
(emphasis added) The Circuit has done no such thing. In fact, the Court's very narrowly
drafted opinion makes it clear that if there is to be no retrial at all, that result is product
of prosecutorial choice, not collateral estoppel principles. "[W]e hold only that it would
violate double jeopardy principles if, on retrial of the second offense, the prosecution

attempted to prove that Pettaway did personally use the gun. . . . Of course, the

prosecution could still seek to prove Pettaway guilty of first degree murder under an

any intention to do so. Thus, because this prosecution must be based upon personal use

6(__ continued)
settled its internecine differences. This seems especially true when none of the opinions involved turned on
the question presented in this petition --ewhether -she v. Swenson applies only when distinct prosecutions

aiding and abetting theory, but as we have pointed out, the prosecutor expressly eschews
|
are involved -- because petitioner never raised it.
|
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ee

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of a firearm or nothing we are constrained to hold that it cannot proceed at all.” App. A.
at 19 (emphasis added).

The aiding and abetting theory which the prosecution professes to eschew is
precisely the theory on which it won conviction at the first trial, albeit on defective jury
instructions. Nothing in the Circuit's opinion prevents the prosecution even now from
changing its mind, once this case is finally remanded to the trial court for further
proceedings not inconsistent with the Circuit Court's opinion. In short, the silsiain does
not by any means bar retrial of respondent for Taylor's murder. It only precludes the
state from retrying him on the personal gun use theory of which the jury acquitted him.

Petitioner also alleges that the Circuit has “created an exclusionary rule barring
relevant evidence on retrial” (Pet. at 7, 9, 12) that will result in “evidence remaining
[which] is insufficient to warrant conviction.” Pet. at 14. Again, this is not true. The
Circuit Court’s opinion did not rule any evidence inadmissible. Indeed, it expressly
declined to rule on the correctness of any evidentiary rulings. App. A. at 16, fn. 5. And,

in fact, the state trial court's pretrial ruling did not exclude any evidence introduced by

the prosecution at the first trial. The only evidence which the trial court provision< lly
barred was the testimony of Walker who, by prosecutorial choice, had not testified at the
first trial. Whether the evidence which persuaded a first jury to convict under defective

instructions will prove "insufficient to warrant conviction” under proper ones, remains to

be seen.

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B. The Circuit Court’s Rationale Correctly Applies This Court’s Precedents.

Petitioner argues that neither Double Jeopardy nor its incorporated doctrine of

collateral estoppel protect a defendant from having to relitigate an ultimate fact found in
his favor by a first jury if the prosecution seeks to reprove that fact to the new jury sworn
to retry the defendant for the original offense. Such protection only applies where the
prosecution seeks to try the defendant for a different offense. For this proposition
petitioner cites the well-established rule that "the Double Jeopardy Clause’s general
prohibition against successive prosecutions does not prevent the government from
retrying a defendant who succeeds in getting his first conviction set aside, through direct

appeal or collateral attack, because of some error in the proceedings leading to the

conviction.” Lockhart v. Nelson 488 U.S. 33, 38 (1988). See Pet. at 8-9. The rationale
for that rule, of course, is that "the original conviction has, at the defendant's behest,

been wholly nullified and the slate wiped clean.” North Carolina v. Pearce, 395 U.S. 711,

721 (1969). But as the Eleventh Circuit cogently observed in Delap.v Dugger, 890 F.2d
285, 312-313 (1989):

Firmly established double jeopardy principles hold that a finding of
insufficiency of the evidence renders the "clean slate” argument
inapplicable. As the Court emphasized in Bullington v. Missouri, 451
US. 430 (1981)], “the ‘clean slate’ rationale recognized in Pearce is
inapplicable whenever a jury agrees or an appellate court decides that
the prosecution has not proved its case.” 451 U.S. at 443 [parallel
citation omit.].

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Thus, it is clear that Double Jeopardy’s bar against "successive prosecutions” has
always applied to retrials of cases where the trier of fact or appellate court has
determined that some critical evidence is insufficient.’

Petitioner acknowledges this point in a footnote, but asserts that "[nJeither exception
applies here.” Pet. at 8, fn. 1. Despite his protestations, insufficiency of the evidence is
exactly what is at issue in this case. The jury, by returning unanimous findings that the
personal gun use and great bodily injury allegations vis a vis Karen Taylor were not true,
unequivocally declared that the prosecution had not proved beyond a reasonable doubt
that Pettaway had personally fired the fatal shots. These “separate verdicts” (Cal. Pen.
Code, §1158a, subd.(b)) "actually represent{ed] a resolution, correct or not, of some of
the factual elements of the offense charged.” United States v. Martin Linen Su Q.,
430 U.S. 564, 571 (1977) quoted in Delap, supra, 890 F.2d at 312.

Petitioner is just as wrong in his assertion that collateral estoppel principles do no
apply in retrials of the same case. As noted earlier, in Ashe this Court applied a concept
it had borrowed from civil litigation. It would be nonsense to say that collateral estoppel
principles do not apply in subsequent civil trials of the same case. “Issue preclusion,
unlike bar, hse litigation only of those issues of fact or law that were actually

litigated and necessarily decided by a valid and final judgement between the parties,

whether on the same or a different claim.” Segal v. American Telephone & Telegraph,

7 In Bullington v. Missouri, supra, for example, the state sought the death penalty anew after the trial
court granted the defendant a retrial, even though the jury at the first trial had fixed the penalty at life
imprisonment. Similarly, in Arizona v. Rumsey 467 US. 203 (1984), the state soughi the death penalty after
the state supreme court set aside the previously imposed life sentence and remanded the case for a new
sentencing hearing. In both instances, double jeopardy principles were applied to retrials of the same case.

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Co., Inc., 606 F.2d 842, 845 (9th Cir. 1979) (emphasis added.); see also cases ante. Nor

has petitioner demonstrated any compelling reason for following a different rule in
criminal cases.

Nothing in Ashe, supra or Ohio v. Johnson, 467 U.S. 493, 500, fn. 9 (1984) suggests
that issue preclusion in the criminal law has a different meaning from issue preclusion in
the civil law. In fact in Ashe, supra, the Court took great pains to show that applying the
doctrine of collateral estoppel to a different second prosecution was analytically the same
as applying it to the attempted retrial of the same case:

After the first jury had acquitted the petitioner of robbing Knight, Missouri

could certainly not have brought him to trial again upon that charge. Once a

jury had determined upon conflicting testimony that there was at least a

reasonable doubt that the petitioner was one of the robbers, the State could not

present the same or different identification evidence in a second prosecution

for the robbery of Knight in the hope that a different jury might find that

evidence more convincing. The situation is constitutionally no different here,
even though the second trial related to another victim in the same robbery.”

(Id., at 446)

Indeed, as the foregoing analogy makes clear, the application of issue preclusion in
this case not an “extension” of Ashe at all. It is, rather, a more conservative application
of Double Jeopardy principles than Ashe itself. If application of Double Jeopardy in its
purest form prevents a new prosecution of the same charge on which there has been a
previous acquittal, then Ashe is at the opposite end of the spectrum, for it prevents a
new prosecution of an entirely different charge, because of a previous acquittal on a
related charge. This case presents only an intermediate step between “pure” Double
Jeopardy and Ashe: here the previous acquittal by special verdict on a discrete factual

element of a charge prevents relitigation of that fact in a renewed prosecution of the

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same charge. This case does not take Double Jeopardy protection half as far as Ashe

did.

The dictum in Qhio v. Johnson, supra on which petitioner relies (Pet. at 10) also
does not support his claim that collateral estoppel is inapplicable on retrial after reversal
on appeal. In Johnson, the defendant was charged in a single indictment with murder,
involuntary manslaughter, aggravated robbery and grand theft. At his arraignment, over
the State's objection, the trial court accepted his guilty pleas to involuntary manslaughter
and grand theft, and then dismissed the murder and robbery charges on the ground that
his + secution for those counts would subject him to double jeopardy. It was in this
factual context that the Supreme Court observed:

[Defendant] also argues that prosecution on the remaining charges is barred by

the principles of collateral estoppel enunciated by this Court in Ashe v.

Swenson, 397 U.S. 436 [par. cit. omit.] (1970). ... [T]he taking of a guilty plea

is not the same as an adjudication on the merits after a full trial, such as took

place in Ashe v. Swenson. Moreover, in a case such as this, where the State

has made no effort to prosecute the charges seriatim, the considerations of a

double jeopardy protection implicit in the application of collateral estoppel are
inapplicable.

Qhio v. Johnson, supra 467 U.S. at 500, n. 9.

In speaking of seriatim prosecution in Johnson, supra, this Court was clearly
differentiating the practice of filing successive indictments charging different offenses
with the single indictment before the Court in Johnson. That factual distinction hardly
supports the massive change in the doctrine of collateral estoppel that petitioner would
have this Court adopt.

The Circuit's opinion properly placed primary reliance on this Court's opinion in
Ashe which, since it factually involved successive prosecutions, did not discuss its

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.

application in situations involving retrnals. It also properly relied on this Court's opinion
in Dowling v. United States, 493 U.S. 342 (1990), which explicated Ashe, for the
proposition that the Double Jeopardy Clause will not tolerate reprosecution when, in
order to convict, a second jury will have to reach a conclusion directly contrary to that of
the first jury. The Circuit Court's opinion is a sound application of this Court's
controlling precedents.

‘

The Circuit's supplementary discussion of this Court's then most recent opinion on

Double Jeopardy jurisprudence in Grady v. Corbin, supra, does not change that fact.

The Circuit Court's observations about Grady were not only proper but hardly unique.

As both the Ninth Circu:t and the Eleventh Circuit in United States v. Farmer, supra

have recogmized, Grady does have soivie illustrative value for collateral estoppel cases.
For as the Farmer Court observed, “the Grady rationale applies with equal force to the
instant case because collateral estoppel, like the type of ‘same offense’ test outlined in

jrady, focuses on the issues actually litigated.” Farmer, supra, 923 F.2d at 1564, fn. 16.
\ £

As the Circuit Court opinion recognized, Grady is also relevant to collateral
estoppel cases because it illustrates that the policies served by the Double Jeopardy
Clause in general and the collateral estoppel doctrine in particular are much broader
than petitioner admits in his petition at page 11. The evil of successive prosecutions,
“whether following acquittals or convictions,” is not only that they subject the defendant
“to embarrassment, expense and ordeal and compel[] him to live in a continuous state of

anxiety and insecurity.” Grady, supra, 495 U.S. at 518. "Multiple prosecutions also give

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the State an opportunity to rehearse its presentation of proof, thus increasing the risk of
an erroneous conviction for one or more the offenses charged.” Id., at 518.)

Grady also demonstrates that this latter concern is implicated even when the first is
not, fully. Grady held that "the Double Jeopardy Clause bars any subsequent
prosecution in which the government, to establish an essential element of an offense
charged in that prosecution, will prove conduct that constitutes an offense for which the
defendant has already been prosecuted.” Grady, supra, 495 U.S. at 521. On the facts
before it, that meant that the State could not seek to "prove the entirety of the conduct
for which Corbin was convicted --driving while intoxicated and failing to keep right of the
median -- to establish essential elements of the homicide and assault offenses.”
However, this Court frankly acknowledged that its holding did not bar prosecution for
homicide and assault if the State could prove those charges without relying on the
conduct to which Corbin had pleaded guilty, but instead relied on other conduct, such
driving too fast for the weather conditions. Thus, even if the Double Jeopardy Clause
did not completely protect Corbin from reprosecution, it still “prevent[ed] the State from

honing its trial strategies and perfecting its evidence through successive attempts at

conviction.” Tibbs v. Florida 457 U.S. 31, 41 (1982) quoted in Grady, supra, 495 U'S. at
518.

The Circuit Court correctly saw a parallel between this case and Grady. Grady

reiterated that the Double Jeopardy Clause will not permit the prosecutor to "refine[] his
presentation in light of the turn of events at the first trial." Grady, supra, 495 US. at

518 quoting Ashe v. Swenson, supra, 397 US. at 447. Thus, while Grady is not about

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“collateral estoppel,” it nevertheless provides a compelling analogue because it is
animated by the same concerns, and much of the same analysis, as a collateral estoppel

case. The Circuit Court's observations were not misplaced

CONCLUSION
For the foregoing reasons, respondent Pettaway respectfully submits that the
Petition for Writ of Certiorari to the Court of Appeals for the Ninth Circuit should be
Dated: July 7, 1992 Respectfully submitted
DAVID Y. STANLEY

Executive Director
First District Appellate Project

; f yY } ; 7
x

RENEE E. TORRES

Counsel of Record for Respondent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0617%3A4. Public record. Not legal advice.