Ashe v. Swenson, No. 57

CourtUnited States Supreme Court
Writing for the CourtSTEWART
Citation90 S.Ct. 1189,397 U.S. 436,25 L.Ed.2d 469
Decision Date06 April 1970
Docket NumberNo. 57
PartiesBob Fred ASHE, Petitioner, v. Harold R. SWENSON, Warden

397 U.S. 436
90 S.Ct. 1189
25 L.Ed.2d 469
Bob Fred ASHE, Petitioner,

v.

Harold R. SWENSON, Warden.

No. 57.
Argued Nov. 13, 1969.
Decided April 6, 1970.

Page 437

Clark M. Clifford, Washington, D.C., for petitioner.

Gene E. Voigts, Jefferson City, Mo., for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, the Court held that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. The question in this case is whether the State of Missouri violated that guarantee when it prosecuted the petitioner a second time for armed robbery in the circumstances here presented. 1

Sometime in the early hours of the morning of January 10, 1960, six men were engaged in a poker game in the basement of the home of John Gladson at Lee's Summit, Missouri. Suddenly three or four masked men, armed with a shotgun and pistols, broke into the basement and robbed each of the poker players of money and various articles of personal property. The robbers—and it has never been clear whether there were three or four of them—then fled in a car belonging to one of the victims of the robbery. Shortly thereafter the stolen car was discovered in a field, and later that morning three men were arrested by a state trooper while they were walking on a highway not far from where the abandoned car had been found. The petitioner was arrested by another officer some distance away.

Page 438

The four were subsequently charged with seven separate offenses—the armed robbery of each of the six poker players and the theft of the car. In May 1960 the petitioner went to trial on the charge of robbing Donald Knight, one of the participants in the poker game. At the trial the State called Knight and three circumstances of the holdup and itemized witnesses. Each of them described the circumstances f the holdup and itemized his own individual losses. The proof that an armed robbery had occurred and that personal property had been taken from Knight as well as from each of the others was unassailable. The testimony of the four victims in this regard was consistent both internally and with that of the others. But the State's evidence that the petitioner had been one of the robbers was weak. Two of the witnesses thought that there had been only three robbers altogether, and could not identify the petitioner as one of them. Another of the victims, who was the petitioner's uncle by marriage, said that at the 'patrol station' he had positively identified each of the other three men accused of the holdup, but could say only that the petitioner's voice 'sounded very much like' that of one of the robbers. The fourth participant in the poker game did identify the petitioner, but only by his 'size and height, and his actions.'

The cross-examination of these witnesses was brief, and it was aimed primarily at exposing the weakness of their identification testimony. Defense counsel made no attempt to question their testimony regarding the holdup itself or their claims as to their losses. Knight testified without contradiction that the robbers had stolen from him his watch, $250 in cash, and about $500 in checks. His billfold, which had been found by the police in the possession of one of the three other men accused of the robbery, was admitted in evidence. The defense offered no testimony and waived final argument.

Page 439

The trial judge instructed the jury that if it found that the petitioner was one of the participants in the armed robbery, the theft of 'any money' from Knight would sustain a conviction.2 He also instructed the jury that if the petitioner was one of the robbers, he was guilty under the law even if he had not personally robbed Knight.3 The jury—though not instructed to elaborate upon its verdict—found the petitioner 'not guilty due to insufficient evidence.'

Six weeks later the petitioner was brought to trial again, this time for the robbery of another participant in the poker game, a man named Roberts. The petitioner filed a motion to dismiss, based on his previous acquittal. The motion was overruled, and the second trial began. The witnesses were for the most part the

Page 440

same, though this time their testimony was substantially stronger on the issue of the petitioner's identity. For example, two witnesses who at the first trial had been wholly unable to identify the petitioner as one of the robbers, now testified that his features, size, and mannerisms matched those of one of their assailants. Another witness who before had identified the petitioner only by his size and actions now also remembered him by the unusual sound of his voice. The State further refined its case at the second trial by declining to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative. The case went to the jury on instructions virtually identical to those given at the first trial. This time the jury found the petitioner guilty, and he was sentenced to a 35-year term in the state penitentiary.

The Supreme Court of Missouri affirmed the conviction, holding that the 'plea of former jeopardy must be denied.' State v. Ashe, 350 S.W.2d 768, 771. A collateral attack upon the conviction in the state courts five years later was also unsuccessful. State v. Ashe, 403 S.W.2d 589. The petitioner then brought the present habeas corpus proceeding in the United States District Court for the Western District of Missouri, claiming that the second prosecution had violated his right not to be twice put in jeopardy. Considering itself bound by this court's decision in Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913, the District Court denied the writ, although apparently finding merit in the petitioner's claim.4 The Court

Page 441

of Appeals for the Eighth Circuit affirmed, also upon the authority of Hoag v. New Jersey, supra.5 We granted certiorari to consider the important constitutional question this case presents. 393 U.S. 1115, 89 S.Ct. 995, 22 L.Ed.2d 121.

As the District Court and the Court of Appeals correctly noted, the operative facts here are virtually identical to those of Hoag v. New Jersey, supra. In that case the defendant was tried for the armed robbery of three men who, along with others, had been held up in a tavern. The proof of the robbery was clear, but the evidence identifying the defendant as one of the robbers was weak, and the defendant interposed an alibi defense. The jury brought in a verdict of not guilty. The defendant was then brought to trial again, on an indictment charging the robbery of a fourth victim of the tavern holdup. This time the jury found him guilty. After appeals in the state courts proved unsuccessful, Hoag brought his case here.

Viewing the question presented solely in terms of Fourteenth Amendment due process—whether the course that New Jersey had pursued had 'led to fundamental unfairness,' 356 U.S., at 467, 78 S.Ct. at 832—this Court declined to reverse the judgment of conviction, because 'in the circumstances shown by this record, we cannot say that

Page 442

petitioner's later prosecution and conviction violated due process.'6 356 U.S., at 466, 78 S.Ct., at 832. The Court found it unnecessary to decide whether 'collateral estoppel'—the principle that bars relitigation between the same parties of issues actually determined at a previous trial—is a due process requirement in a state criminal trial, since it accepted New Jersey's determination that the petitioner's previous acquittal did not in any event give rise to such an estoppel. 356 U.S., at 471, 78 S.Ct. 829. And in the view the Court took of the issues presented, it did not, of course, even approach consideration of whether collateral estoppel is an ingredient of the Fifth Amendment guarantee against double jeopardy.

The doctrine of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, puts the issues in the present case in a perspective quite different from that in which the issues were perceived in Hoag v. New Jersey, Supra. The question is no longer whether collateral estoppel is a requirement of due process, but whether it is a part of the Fifth Amendment's guarantee against double jeopardy. And if collateral estoppel is embodied in that guarantee, then its applicability in a particular case is no longer a matter to be left for state court determination within the broad

Page 443

bounds of 'fundamental fairness,' but a matter of constitutional fact we must decide through an examination of the entire record. Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728—729, 11 L.Ed.2d 686; Niemotko v. Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 95 L.Ed. 267; Watts v. Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801; Chambers v. Florida, 309 U.S. 227, 229, 60 S.Ct. 472, 473—474, 84 L.Ed. 716; Norris v. Alabama, 294 U.S. 587, 590, 55 S.Ct. 579, 79 L.Ed. 1074.

'Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. As Mr. Justice Holmes put the matter in that case, 'It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.' 242 U.S., at 87, 37 S.Ct. at 69.7 As a rule of federal law, therefore, '(i)t is much too late to suggest that this principle is not fully applicable...

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3593 practice notes
  • Trujillo v. Rio Arriba Cnty. ex rel. Rio Arriba Cnty. Sheriff's Dep't, No. CIV 15-0901 JB/WPL
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 19, 2016
    ...between the same parties in any future lawsuit.'" Villareal v. Patton, 608 F. App'x 591, 594 (10th Cir. 2015)(quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). As with res judicata, collateral estoppel's requirement that the prior action was "finally adjudicated on the merits," Matosantos......
  • Grady v. Corbin, No. 89-474
    • United States
    • United States Supreme Court
    • May 29, 1990
    ...the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction"); Ashe v. Swenson, 397 U.S. 436, 447, 90 S.Ct. 1189, 1196, 25 L.Ed.2d 469 (1970) (the State conceded that, after the defendant was acquitted in one trial, the prosecutor did, at......
  • Mancuso v. Taft, Civ. A. No. 4751.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • April 17, 1972
    ...precedent, for deference to the wisdom of a superior tribunal is commanding. See Ashe v. Swenson, 399 F.2d 40, 45 (8th Cir. 1968), rev'd 397 U.S. 436, 90 S.Ct. 1189, 25 L. Ed.2d 469 quoted in Northern Virginia Regional Park Authority, supra, 437 F. 2d at 1350. Yet Mitchell does not stand al......
  • Whalen v. United States, No. 78-5471
    • United States
    • United States Supreme Court
    • April 16, 1980
    ...States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); and Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874). See also Ashe v. Swenson, 397 U.S. 436, 460, n. 14, 90 S.Ct. 1189, 1202, 25 L.Ed.2d 469 (1970) (BRENNAN, J., concurring); M. Friedland, Double Jeopardy 205, 212 (1969); Westen & Dr......
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3588 cases
  • Trujillo v. Rio Arriba Cnty. ex rel. Rio Arriba Cnty. Sheriff's Dep't, No. CIV 15-0901 JB/WPL
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 19, 2016
    ...between the same parties in any future lawsuit.'" Villareal v. Patton, 608 F. App'x 591, 594 (10th Cir. 2015)(quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). As with res judicata, collateral estoppel's requirement that the prior action was "finally adjudicated on the merits," Matosantos......
  • Grady v. Corbin, No. 89-474
    • United States
    • United States Supreme Court
    • May 29, 1990
    ...the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction"); Ashe v. Swenson, 397 U.S. 436, 447, 90 S.Ct. 1189, 1196, 25 L.Ed.2d 469 (1970) (the State conceded that, after the defendant was acquitted in one trial, the prosecutor did, at......
  • Mancuso v. Taft, Civ. A. No. 4751.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • April 17, 1972
    ...precedent, for deference to the wisdom of a superior tribunal is commanding. See Ashe v. Swenson, 399 F.2d 40, 45 (8th Cir. 1968), rev'd 397 U.S. 436, 90 S.Ct. 1189, 25 L. Ed.2d 469 quoted in Northern Virginia Regional Park Authority, supra, 437 F. 2d at 1350. Yet Mitchell does not stand al......
  • Whalen v. United States, No. 78-5471
    • United States
    • United States Supreme Court
    • April 16, 1980
    ...States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); and Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874). See also Ashe v. Swenson, 397 U.S. 436, 460, n. 14, 90 S.Ct. 1189, 1202, 25 L.Ed.2d 469 (1970) (BRENNAN, J., concurring); M. Friedland, Double Jeopardy 205, 212 (1969); Westen & Dr......
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5 books & journal articles
  • PERJURY
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...fail if the f‌irst jury’s verdict is based on an issue that is not an essential element in the second trial). 158. See Ashe v. Swenson, 397 U.S. 436, 445 (1970) (holding that the doctrine of collateral estoppel applies to the Double Jeopardy Clause, expanding the protection for criminal def......
  • ONCE BITTEN, TWICE SHY: THE SUPREME COURT'S MISGUIDED DOUBLING DOWN ON THE DUAL SOVEREIGNS EXCEPTION TO THE FIFTH AMENDMENT'S DOUBLE JEOPARDY CLAUSE.
    • United States
    • Suffolk Journal of Trial & Appellate Advocacy Vol. 26 Nbr. 1, January 2021
    • January 1, 2021
    ...1, 9-10 (1995) (praising Justice Black's Bartkus and Abbate dissents for refusing to allow such situations); see also Ashe v. Swenson, 397 U.S. 436, 447 (1970) (averring that Double Jeopardy Clause theoretically protects against government "treat[ing] the first trial as no more than a dry r......
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    • June 1, 2018
    ...support for the research, authorship, and/or publication of thisarticle.Cases CitedAke v. Oklahoma, 470 U.S. 68 (1985).Ashe v. Swenson, 397 U.S. 436 (1970).Beckles v. United States, 580 U.S. --- (2016).Brady v. Maryland, 373 U.S. 83 (1963).Bravo-Fernandez v. United States, 580 U.S. --- (201......
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    ...authors received no financial support for the research, authorship, and/or publication of thisarticle.Cases CitedAshe v. Swenson, 397 U.S. 436 (1970).Ayestas v. Davis, 584 U.S. ___ (2018, March 21).Byrd v. United States, 584 U.S. ___ (2018, May 14).Carpenter v. United States, 585 U.S. ___ (......
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