Fifth Amendment — Double Jeopardy Clause

Amdt5.3.1 Overview of Double Jeopardy Clause

The Clause speaks of being put in “jeopardy of life or limb,” which as derived from the common law, generally referred to the possibility of capital punishment upon conviction, but it is now settled that the Clause protects with regard “to every indictment or information charging a party with a known and defined crime or misdemeanor, whether at the common law or by statute.”¹ Despite the Clause’s literal language, it can apply as well to sanctions that are civil in form if they clearly are applied in a manner that constitutes “punishment.”² Ordinarily, however, civil in rem forfeiture proceedings may not be considered punitive for purposes of double jeopardy analysis,³ and the same is true of civil commitment following expiration of a prison term.⁴

Amdt5.3.2 Historical Background on Double Jeopardy Clause

The concept of double jeopardy has a long history, but its development was uneven and its meaning has varied. The English view of double jeopardy, under the influence of Sir Edward Coke and William Blackstone, came gradually to mean that a defendant at trial could plead former conviction or former acquittal as a special plea in bar to defeat the prosecution.¹ In this country, the common-law rule was in some cases limited to this rule and in other cases extended to bar a new trial even though the former trial had not concluded in either an acquittal or a conviction.

The rule’s elevation to fundamental status by its inclusion in several state bills of rights following the Revolution continued the differing approaches.² James Madison’s version of the guarantee as introduced in the House of Representatives read: “No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense.”³ Some Members of the House opposed this proposal on the grounds that it could be construed to prohibit a second trial after a successful appeal by a defendant. They viewed this as problematic for two reasons. First, they argued that such a rule could constitute a hazard to the public by freeing the guilty. Second, they reasoned that prohibiting re-trials after successful appeals might make appellate courts less likely to reverse improper convictions.⁴ Ultimately, the language barring a second trial was dropped in response to these concerns.⁵

Amdt5.3.3 Dual Sovereignty Doctrine

Throughout most of its history, the Double Jeopardy Clause was only binding on the Federal Government. In Palko v. Connecticut,¹ the Supreme Court rejected an argument that the Fourteenth Amendment incorporated all provisions of the first eight Amendments as limitations on the states. The Court, however, enunciated a due process theory under which some Bill of Rights guarantees are considered so “fundamental” that they are “of the very essence of the scheme of ordered liberty” and “neither liberty nor justice would exist if they were sacrificed.”² The Double Jeopardy Clause, like many other procedural rights of defendants, was not considered “fundamental” in Palko; it could be absent and fair trials could still be had. Still, a defendant’s due process rights, absent double jeopardy, might be violated in the Court’s view if the state “creat[ed] a hardship so acute and shocking as to be unendurable,” but that was not the situation in Palko.³

In Benton v. Maryland, however, the Supreme Court concluded “that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage.”⁴ And, the Court noted, “[o]nce it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ the same constitutional standards apply against both the State and Federal Governments.” Accordingly, after Benton, the double jeopardy limitation applies to both federal and state governments. State rules on double jeopardy, with regard to matters such as when jeopardy attaches, must be considered in light of federal standards.⁵

In a federal system, different governmental bodies⁶ may have different interests to serve when defining crimes and enforcing their laws. Where different bodies have overlapping jurisdiction, a person may engage in conduct that will violate the laws of more than one body.⁷ Although the Court had long accepted in dictum the principle that prosecution by two governments of the same defendant for the same conduct would not constitute double jeopardy, it was not until United States v. Lanza⁸ that the conviction in federal court of a person previously convicted in a state court for performing the same acts was sustained. The Lanza Court stated: “We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.”⁹ The Court’s reasoning came to be known as the “dual sovereignty” doctrine.

Although the Supreme Court has been asked to overrule the dual sovereignty doctrine in a number of cases, it has repeatedly declined to do so.¹⁰ In 2019, in Gamble v. United States, the Court clarified that “where there are two sovereigns, there are two laws, and two ‘offences.’”¹¹ The Court asserted that this dual sovereignty doctrine was justified by historical understandings of the Double Jeopardy Clause.¹² Observing that the Clause prohibits dual prosecution for the same “offence,” the Court explained that at the time the Constitution was written, an “offence” was defined as a violation of a particular law.¹³ In the Court’s view, two sovereigns will have two different laws, meaning that violations of those laws will be two different offenses.¹⁴ In Gamble, the Court emphasized that by 2019, the doctrine had been applied in “a chain of precedent linking dozens of cases over 170 years.”¹⁵

In prior cases, the Supreme Court also recognized practical considerations justifying the dual sovereignty doctrine, noting that without this principle, states could “hinder[ ]” federal law enforcement by imposing more lenient sentences on defendants under state law, thereby barring federal prosecution even if the “defendants’ acts impinge more seriously on a federal interest than on a state interest.”¹⁶ In Gamble, the Court also noted the international consequences of the doctrine, stating that if “only one sovereign may prosecute for a single act, no American court—state or federal—could prosecute conduct already tried in a foreign court.”¹⁷ If the Double Jeopardy Clause barred such U.S. prosecutions, the Court noted this could raise prudential concerns about the U.S. Government’s ability to vindicate its interests in enforcing its own criminal laws, particularly if the foreign government’s legal system is seen as somehow inadequate.¹⁸

The dual sovereignty doctrine has also been applied to permit successive prosecutions by two different states for the same conduct,¹⁹ and to permit a federal prosecution after a conviction in an Indian tribal court for an offense stemming from the same conduct.²⁰ When two different governmental bodies are subject to the same sovereign, however, the Double Jeopardy Clause bars separate prosecutions by those bodies for the same offense.²¹

In Puerto Rico v. Sanchez Valle,²² the Supreme Court held that the separate prosecutions of an individual by the United States and Puerto Rico for the same underlying conduct violated the Double Jeopardy Clause because the two governments are not “separate sovereigns.” Even though Puerto Rico has exercised self-rule through a popularly ratified constitution since the mid-twentieth century, the Court concluded that the “original source” of Puerto Rico’s authority to prosecute crimes was Congress—specifically a federal statute authorizing the people of Puerto Rico to draft their own constitution.²³ As a result, both the United States and Puerto Rico were exercising prosecutorial authority that stemmed from the same source.

More recently, the Supreme Court has emphasized the source of the authority defining the offense, as opposed to the body carrying out the prosecution, when determining the dual sovereignty doctrine’s applicability. In Denezpi v. United States,²⁴ the Court upheld a federal prosecution that followed a Court of Indian Offenses prosecution. According to the Court, even assuming that prosecution in the Court of Indian Offenses—which was created by the federal Executive Branch and operates pursuant to the Code of Federal Regulations²⁵—is a form of prosecution by the United States, double jeopardy does not attach so long as the United States is prosecuting an offense defined by a separate sovereign, such as a federally recognized tribe. Because the defendant in Denezpi was convicted of violating a tribal ordinance in the first prosecution, the Double Jeopardy Clause did not prohibit a subsequent prosecution in federal court for a federal statutory offense arising from the same conduct.²⁶

Amdt5.3.4 Re-Prosecution After Mistrial

The common law generally provided that jeopardy attached only after a judgment of conviction or acquittal. But the constitutional rule is that jeopardy attaches much earlier, in jury trials when the jury is sworn, and in trials before a judge without a jury, when the first evidence is presented.¹ Therefore, if after jeopardy attaches the trial is terminated for some reason, it may be that a second trial, even if the termination was erroneous, is barred.²

The Supreme Court has justified this rule on the grounds that a defendant has a “valued right to have his trial completed by a particular tribunal.”³ According to the Court, this right is rooted in a defendant’s interest in completing the trial “once and for all” and “conclud[ing] his confrontation with society,”⁴ so as to be spared the expense and ordeal of repeated trials, the anxiety and insecurity of having to live with the possibility of conviction, and the possibility that the prosecution may strengthen its case with each try as it learns more of the evidence and of the nature of the defense.⁵ These reasons both inform the determination of when jeopardy attaches and the evaluation of the permissibility of retrial depending upon the reason for a trial’s premature termination.

A second trial may be permitted where a mistrial is the result of “manifest necessity”⁶—for example, when the jury cannot reach a verdict⁷ or circumstances plainly prevent the continuation of the trial.⁸ The question of whether there is double jeopardy becomes more difficult, however, with mistrials triggered by events within the prosecutor’s control, prosecutorial misconduct, or judicial error. In such cases, courts ordinarily balance the defendant’s right in having the trial completed against the public interest in fair trials.⁹

Thus, when a lower court granted a mistrial because of a defective indictment, the Supreme Court held that retrial was not barred. Instead, the Court explained in Illinois v. Somerville that a trial judge “properly exercises his discretion” in cases in which an impartial verdict cannot be reached or in which a verdict on conviction would have to be reversed on appeal because of an obvious error.¹⁰ The Court stated: “If an error could make reversal on appeal a certainty, it would not serve ‘the ends of public justice’ to require that the government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court.”¹¹

On the other hand, in Downum v. United States, the Court held that a re-trial was not permissible when a prosecutor knew prior to jury selection that a key witness would be unavailable but later moved for a mistrial on the basis of that unavailability.¹² Although Downum appeared to establish the principle that a prosecutorial or judicial error could never constitute a “manifest necessity” for terminating a trial, Illinois v. Somerville distinguished and limited Downum to situations in which the error lends itself to prosecutorial manipulation.¹³

Another kind of case arises when the prosecutor moves for mistrial because of prejudicial misconduct by the defense. In Arizona v. Washington,¹⁴ defense counsel made prejudicial comments about the prosecutor’s past conduct, and the prosecutor’s motion for a mistrial was granted over defendant’s objections. The Court ruled that retrial was not barred by double jeopardy. While the Court acknowledged that mistrial was not literally “necessary” because the trial judge could have given limiting instructions to the jury, it deferred to the trial judge’s determination that defense counsel’s comments had likely impaired the jury’s impartiality.¹⁵

The Supreme Court has considered the trial judge’s motivation when the trial judge has erred in exercising discretion to declare a mistrial sua sponte or a prosecutor’s motion. In Gori v. United States,¹⁶ the Court permitted a defendant’s retrial when the trial judge had, on his own motion and with no indication of the wishes of defense counsel, declared a mistrial because he thought the prosecutor’s line of questioning was intended to expose the defendant’s criminal record, which would have constituted prejudicial error. Although the Court thought that the judge’s action was an abuse of discretion, the Court approved retrial on the grounds that the judge had intended to benefit the defendant by his decision to declare a mistrial.¹⁷

The Court, however, reached the opposite conclusion in other cases. For example, in United States v. Jorn, the Court refused to permit retrial where the trial judge discharged the jury erroneously because he disbelieved the prosecutor’s assurance that certain witnesses had been properly apprised of their constitutional rights.¹⁸ The Court observed that the “doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option [to go to the first jury and perhaps obtain an acquittal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.”¹⁹

Later cases appear to accept Jorn as an example of a case where the trial judge “acts irrationally or irresponsibly.”²⁰ But if the trial judge acts deliberately, giving prosecution and defense the opportunity to explain their positions, and according respect to defendant’s interest in concluding the matter before the one jury, then he is entitled to deference. This approach perhaps rehabilitates the result if not the reasoning in Gori and maintains the result and much of the reasoning of Jorn.²¹

In Jorn, the Supreme Court recognized that “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by a prosecutorial or judicial error.”²² Similarly, in United States v. Scott, the Supreme Court noted that “Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.”²³ In United States v. Dinitz,²⁴ the trial judge had excluded defendant’s principal attorney for misbehavior and had then given defendant the option of recess while he appealed the exclusion, a mistrial, or continuation with an assistant defense counsel.

Holding that the defendant could be retried after he sought a mistrial, the Court reasoned that, although the exclusion might have been in error, it was not done in bad faith to goad the defendant into requesting a mistrial or to prejudice his prospects for acquittal.²⁵ The Court explained that the defendant’s choice to terminate the trial and go on to a new trial should be respected. To hold otherwise would require defendants to shoulder the burden and anxiety of proceeding to a probable conviction followed by an appeal and possible re-trial.²⁶

But the Court has also reserved the possibility that the defendant’s motion might be necessitated by prosecutorial or judicial overreaching motivated by bad faith or undertaken to harass or prejudice, and in those cases retrial would be barred.²⁷ It is unclear what types of prosecutorial or judicial misconduct would constitute such overreaching.²⁸ But in Oregon v. Kennedy,²⁹ the Court adopted a narrow “intent” test, so that “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Therefore, ordinarily, a defendant who moves for or acquiesces in a mistrial is bound by his decision and may be required to stand for retrial.

Amdt5.3.5 Re-Prosecution After Conviction

A basic purpose of the Double Jeopardy Clause is to protect a defendant “against a second prosecution for the same offense after conviction.”¹ It is “settled” that “no man can be twice lawfully punished for the same offense.”² The defendant’s interest in finality, which informs much of double jeopardy jurisprudence, is quite attenuated following conviction, and he will most likely appeal, whereas the prosecution will ordinarily be content with its judgment.³ Double jeopardy issues involving re-prosecution ordinarily arise, therefore, only in the context of successful defense appeals and controversies over punishment.

Generally, a defendant who is successful in having his conviction set aside on appeal may be tried again for the same offense, on the grounds that defendants “waived” objections to further prosecution by appealing.⁴ An exception to this rule exists, however, when a defendant tried for one offense is convicted of a lesser offense and succeeds in having that conviction set aside. In Green v. United States,⁵ the defendant had been tried for first-degree murder but convicted of second-degree murder. The Court held that, following reversal of that conviction, the defendant could not be tried again for first-degree murder, on the theory that the first verdict was an implicit acquittal of the first-degree murder charge.⁶ The defendant could, however, be re-tried for second-degree murder.⁷

Another exception to the “waiver” theory involves appellate reversals grounded on evidentiary insufficiency. Thus, in Burks v. United States,⁸ the appellate court set aside the defendant’s conviction on the basis that the prosecution had failed to rebut defendant’s proof of insanity. The Court explained that the Double Jeopardy Clause foreclosed the prosecution from having another opportunity to supply evidence which it failed to muster in the first proceeding. On the other hand, if a reviewing court reverses a jury conviction because of its disagreement on the weight—as opposed to the sufficiency of the evidence—retrial is permitted.⁹ Also, the Burks rule does not bar re-prosecution following a reversal based on erroneous admission of evidence, even if the remaining properly admitted evidence would be insufficient to convict.¹⁰

Amdt5.3.6.1 Overview of Re-Prosecution After Acquittal

That a defendant may not be retried following an acquittal is “the most fundamental rule in the history of double jeopardy jurisprudence.”¹ “[T]he law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty.’”² Although, in other areas of double jeopardy doctrine, consideration is given to the public-safety interest in having a criminal trial proceed to an error-free conclusion, no such balancing of interests is permitted with respect to acquittals, “no matter how erroneous,” no matter even if they were “egregiously erroneous.”³ Thus, an acquittal resting on the trial judge’s misreading of the elements of an offense precludes further prosecution.⁴

The acquittal being final, there is no governmental appeal constitutionally possible from such a judgment. This was firmly established in Kepner v. United States,⁵ which arose under a Philippines appeals system in which the appellate court could make an independent review of the record, set aside the trial judge’s decision, and enter a judgment of conviction.⁶ Previously, under the Due Process Clause, there was no barrier to state provision for prosecutorial appeals from acquittals.⁷ But there are instances in which the trial judge will dismiss the indictment or information without intending to acquit or in circumstances in which retrial would not be barred, and the prosecution, of course, has an interest in seeking on appeal to have errors corrected. Until 1971, however, the law providing for federal appeals was extremely difficult to apply and insulated from review many purportedly erroneous legal rulings,⁸ but in that year Congress enacted a new statute permitting appeals in all criminal cases in which indictments are dismissed, except in those cases in which the Double Jeopardy Clause prohibits further prosecution.⁹ In part because of the new law, the Court has dealt in recent years with a large number of problems in this area.

Amdt5.3.6.2 Acquittal by Jury and Re-Prosecution

Little or no controversy accompanies the rule that once a jury has acquitted a defendant, government may not, through appeal of the verdict or institution of a new prosecution, place the defendant on trial again.¹ Thus, the Court early held that, when the results of a trial are set aside because the first indictment was invalid or for some reason the trial’s results were voidable, a judgment of acquittal must nevertheless remain undisturbed.²

Amdt5.3.6.3 Acquittal by Trial Judge and Re-Prosecution

When a trial judge acquits a defendant, that action concludes the matter to the same extent that acquittal by jury verdict does.¹ There is no possibility of retrial for the same offense.² But it may be difficult at times to determine whether the trial judge’s action was in fact an acquittal or whether it was a dismissal or some other action, which the prosecution may be able to appeal or the judge may be able to reconsider.³ The question is “whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.”⁴ Thus, an appeal by the government was held barred in a case in which the deadlocked jury had been discharged, and the trial judge had granted the defendant’s motion for a judgment of acquittal under the appropriate federal rule, explicitly based on the judgment that the government had not proved facts constituting the offense.⁵ Even if, as happened in Sanabria v. United States,⁶ the trial judge erroneously excludes evidence and then acquits on the basis that the remaining evidence is insufficient to convict, the judgment of acquittal produced thereby is final and unreviewable.⁷

Some limited exceptions exist with respect to the finality of trial judge acquittal. First, because a primary purpose of the Due Process Clause is the prevention of successive trials and not of prosecution appeals per se, it is apparently the case that, if the trial judge permits the case to go to the jury, which convicts, and the judge thereafter enters a judgment of acquittal, even one founded upon his belief that the evidence does not establish guilt, the prosecution may appeal, because the effect of a reversal would be not a new trial but reinstatement of the jury’s verdict and the judgment thereon.⁸ Second, if the trial judge enters or grants a motion of acquittal, even one based on the conclusion that the evidence is insufficient to convict, then the prosecution may appeal if jeopardy had not yet attached in accordance with the federal standard.⁹

Amdt5.3.6.4 Trial Court Rulings Terminating Trial Before Verdict and Re-Prosecution

If, after jeopardy attaches, a trial judge grants a motion for mistrial, ordinarily the defendant is subject to retrial;¹ if, after jeopardy attaches, but before a jury conviction occurs, the trial judge acquits, perhaps on the basis that the prosecution has presented insufficient evidence or that the defendant has proved a requisite defense such as “insanity” or entrapment, the defendant is not subject to retrial.² This is so even where the trial court’s ruling on the sufficiency of the evidence is based on an erroneous interpretation of the statute defining the elements of the offense.³ However, it may be that the trial judge will grant a motion to dismiss that is neither a mistrial nor an acquittal, but is instead a termination of the trial in defendant’s favor based on some decision not relating to his factual guilt or innocence, such as prejudicial preindictment delay.⁴ The prosecution may not simply begin a new trial but must seek first to appeal and overturn the dismissal, a course that was not open to federal prosecutors until enactment of the Omnibus Crime Control Act in 1971.⁵ That law has resulted in tentative and uncertain rulings with respect to when such dismissals may be appealed and further proceedings directed. In the first place, it is unclear in many instances whether a judge’s ruling is a mistrial, a dismissal, or an acquittal.⁶ In the second place, because the Justices have such differing views about the policies underlying the Double Jeopardy Clause, determinations of which dismissals preclude appeals and further proceedings may result from shifting coalitions and from revised perspectives. Thus, the Court first fixed the line between permissible and impermissible appeals at the point at which further proceedings would have had to take place in the trial court if the dismissal were reversed. If the only thing that had to be done was to enter a judgment on a guilty verdict after reversal, appeal was constitutional and permitted under the statute;⁷ if further proceedings, such as continuation of the trial or some further factfinding was necessary, appeal was not permitted.⁸ Now, but by a close division of the Court, the determining factor is not whether further proceedings must be had but whether the action of the trial judge, whatever its label, correct or not, resolved some or all of the factual elements of the offense charged in defendant’s favor, whether, that is, the court made some determination related to the defendant’s factual guilt or innocence.⁹ Such dismissals relating to guilt or innocence are functional equivalents of acquittals, whereas all other dismissals are functional equivalents of mistrials.

Amdt5.3.7.1 Legislative Discretion as to Multiple Sentences

A single criminal action may violate multiple laws resulting in multiple sentences.¹ The Double Jeopardy Clause does not appear to bar legislatures from splitting criminal actions that occur in a single transaction into separate crimes thereby allowing prosecutors a choice of charges to try and making multiple punishments possible.² In Missouri v. Hunter, the Supreme Court stated: “Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct . . . a court’s task of statutory construction is at an end and . . . the trial court or jury may impose cumulative punishment under such statutes in a single trial.”³

The Court has held that the Double Jeopardy Clause establishes a presumption against multiple punishments for the same criminal transaction unless Congress has “spoken in language that is clear and definite”⁴ that multiple punishments are to be imposed. Absent clearly expressed congressional intent, courts use the “same evidence” rule to determine whether Congress intended to punish conduct occurring in the same criminal transaction as separate offenses. Explaining the “same evidence” rule in Blockburger v. United States, the Supreme Court stated: “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”⁵ For example, in Gore v. United States,⁶ the Court held that because the defendant’s act of selling narcotics violated three distinct criminal statutes, each of which required proof of a fact not required by the others, the government could prosecute the defendant on all three counts in the same proceeding.⁷

The Court has also held that the “same evidence” rule does not upset “established doctrine” that, for double jeopardy purposes, “a conspiracy to commit a crime is a separate offense from the crime itself,”⁸ or the related principle that Congress may provide that predicate offenses and “continuing criminal enterprise” are separate offenses.⁹ On the other hand, in Whalen v. United States,¹⁰ the Court determined that a defendant could not be punished separately for the crimes of rape and killing in the course of rape when the offenses concerned a single criminal transaction and victim, the statutes required proof of the same facts, and the statutes and legislative history did not indicate that Congress wanted the offenses punished separately.¹¹ A guilty plea ordinarily precludes collateral attack.¹²

Amdt5.3.7.2 Successive Prosecutions for Same Offense and Double Jeopardy

Successive prosecutions raise double jeopardy concerns. It is more burdensome for a defendant to face charges in separate proceedings, and if those proceedings occur over a lengthy period, the defendant must live in a continuing state of uncertainty. At the same time, multiple prosecutions allow the state to hone its trial strategies.¹

In Brown v. Ohio,² the Court applied the “same evidence test” to bar successive prosecutions for different statutory offenses involving the same conduct. The defendant had been convicted of “joyriding”—defined as operating a motor vehicle without the owner’s consent—and was then prosecuted and convicted of stealing the same automobile. Because the state courts had conceded that joyriding was a lesser included offense of auto theft, the Court overturned the second conviction,³ observing that each offense required the same proof and for double jeopardy purposes met the “same evidence” test in Blockburger v. United States.⁴ The Court later applied the same principles to hold that a conviction for failing to reduce speed to avoid an accident did not preclude a second trial for involuntary manslaughter. In reaching this conclusion, the Court reasoned that failing to reduce speed was not a necessary element of the manslaughter offense.⁵

The Brown Court noted some limitations to its holding⁶ and more have emerged subsequently. Principles appropriate in the “classically simple” lesser-included-offense and related situations are not readily transposable to “multilayered conduct” governed by the law of conspiracy and continuing criminal enterprise, and it remains the law that “a substantive crime and a conspiracy to commit that crime are not the ‘same offense’ for double jeopardy purposes.”⁷ For double jeopardy purposes, a defendant is “punished . . . only for the offense of which [he] is convicted”; a later prosecution or later punishment is not barred simply because the underlying criminal activity has been considered at sentencing for a different offense.⁸ Similarly, recidivism-based sentence enhancement does not constitute multiple punishment for the “same” prior offense, but instead is a stiffened penalty for the later crime.⁹

Amdt5.3.7.3 Collateral Estoppel (Issue Preclusion) and Double Jeopardy

The Supreme Court has also interpreted the Double Jeopardy Clause to incorporate the doctrine of “collateral estoppel” or “issue preclusion”¹ which prohibits re-litigating an issue of fact or law raised and necessarily resolved by a prior judgment.² The Court first recognized the Double Jeopardy Clause’s issue-preclusion component in Ashe v. Swenson,³ which involved a robbery of six poker players.⁴ After being acquitted of robbing one of the players because of insufficient evidence, the Ashe defendant was tried and convicted of robbing another player.⁵ Because the sole issue in dispute in the first trial was whether the defendant was one of the robbers, the Court held that the defendant’s acquittal for robbing one player in the first trial precluded the government from subsequently charging him with robbing another player.⁶ Explaining that courts must apply issue preclusion in criminal cases with “realism and rationality,” the Ashe Court reasoned that the underlying record ust be closely examined to determine what the first jury’s verdict of acquittal “actually decided.”⁷ If a criminal judgment does not depend on a jury’s determination of a particular factual issue, re-litigation of that issue can occur.⁸

In United States v. Powell, the Court rejected an argument that issue preclusion barred an “inconsistent” jury verdict that included an acquittal on a drug charge but guilty verdicts on using a telephone to “caus[e] and faciliat[e]” that same drug offense.⁹ Reaffirming a precedent from more than a half a century before,¹⁰ the Powell Court held that the “Government’s inability to invoke review, the general reluctance to inquire into the workings of the jury, and the possible exercise of lenity” by the jury cautioned against allowing defendants to challenge inconsistent verdicts on issue preclusion grounds.¹¹

In 2016, the Court extended the logic of Powell in Bravo-Fernandez v. United States.¹² In Bravo-Fernandez, a jury returned inconsistent verdicts of conviction and acquittal with respect to two criminal defendants, but the convictions were later vacated for legal errors unrelated to the inconsistency.¹³ Recognizing Powell’s conclusion that inconsistent verdicts do not indicate whether an acquittal resulted from “mistake, compromise, or lenity,”¹⁴ the Court held that the government could re-prosecute on the counts on which a conviction had been initially obtained. According to the Court, because of the “irrationality” of the earlier inconsistent verdicts,¹⁵ the criminal defendants could not demonstrate that the first jury had “actually decided” that they did not commit the crime underlying the second trial.¹⁶ As a result, while the government could not re-prosecute the defendants in Bravo-Fernandez on the charges that had resulted in acquittal,¹⁷ the government could re-prosecute on charges that had previously resulted in guilty verdicts.