Currier v. Virginia

• Decision Date: 22 June 2018
• Docket Number: No. 16–1348.,16–1348.
• Citation: 201 L.Ed.2d 650,138 S.Ct. 2144
• Parties: Michael Nelson CURRIER, Petitioner v. VIRGINIA.
• Court: U.S. Supreme Court

138 S.Ct. 2144

201 L.Ed.2d 650

Michael Nelson CURRIER, Petitioner

v.VIRGINIA.

No. 16–1348.

Supreme Court of the United States

Argued Feb. 20, 2018.

Decided June 22, 2018.

J. Addison Barnhardt, Grisham & Barnhardt, PLLC, Charlottesville, VA, Jeffrey L. Fisher, David T. Goldberg, Pamela S. Karlan, Stanford Law School Supreme Court Litigation Clinic, Stanford, CA, for Petitioner.

Mark R. Herring, Attorney General of Virginia, Trevor S. Cox, Acting Solicitor General, Virginia B. Theisen, Senior Assistant, Attorney General, Matthew R. McGuire, Acting Deputy, Solicitor General, Office of the Virginia Attorney General, Richmond, VA, for Respondent.

Justice GORSUCH announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Part III, in which THE CHIEF JUSTICE, Justice THOMAS, and Justice ALITO join.

About to face trial, Michael Currier worried the prosecution would introduce prejudicial but probative evidence against him on one count that could infect the jury's deliberations on others. To address the problem, he agreed to sever the charges and hold two trials instead of one. But after the first trial finished, Mr. Currier turned around and argued that proceeding with the second would violate his right against double jeopardy. All of which raises the question: can a defendant who agrees to have the charges against him considered in two trials later successfully argue that the second trial offends the Fifth Amendment's Double Jeopardy Clause?

I

This case began when police dredged up a safe full of guns from a Virginia river. Paul Garrison, the safe's owner, had reported it stolen from his home. Before the theft, Mr. Garrison said, it contained not just the guns but also $71,000 in cash. Now, most of the money was missing. As the investigation unfolded, the police eventually found their way to Mr. Garrison's nephew. Once confronted, the nephew quickly confessed. Along the way, he pointed to Michael Currier as his accomplice. A neighbor also reported that she saw Mr. Currier leave the Garrison home around the time of the crime. On the strength of this evidence, a grand jury indicted Mr. Currier for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon. The last charge followed in light of Mr. Currier's previous convictions for (as it happens) burglary and larceny.

Because the prosecution could introduce evidence of his prior convictions to prove the felon-in-possession charge, and worried that the evidence might prejudice the jury's consideration of the other charges, Mr. Currier and the government agreed to a severance. They asked the court to try the burglary and larceny charges first. Then, they said, the felon-in-possession charge could follow in a second trial. Some jurisdictions routinely refuse requests like this. Instead, they seek to address the risk of prejudice with an instruction directing the jury to consider the defendant's prior convictions only when assessing the felon-in-possession charge. See Brief for Indiana et al. as Amici Curiae 10. Other jurisdictions allow parties to stipulate to the defendant's past convictions so the particulars of those crimes don't reach the jury's ears. Ibid . Others take a more protective approach yet and view severance requests with favor. Id., at 11–12; see, e.g., Hackney v. Commonwealth, 28 Va.App. 288, 294–296, 504 S.E.2d 385, 389 (1998) (en banc). Because Virginia falls into this last group, the trial court granted the parties' joint request in this case.

The promised two trials followed. At the first, the prosecution produced the nephew and the neighbor who testified to Mr. Currier's involvement in the burglary and larceny. But Mr. Currier argued that the nephew lied and the neighbor was unreliable and, in the end, the jury acquitted. Then, before the second trial on the firearm charge could follow, Mr. Currier sought to stop it. Now, he argued, holding a second trial would amount to double jeopardy. Alternatively and at the least, he asked the court to forbid the government from relitigating in the second trial any issue resolved in his favor at the first. So, for example, he said the court should exclude from the new proceeding any evidence about the burglary and larceny. The court replied that it could find nothing in the Double Jeopardy Clause requiring either result so it allowed the second trial to proceed unfettered. In the end, the jury convicted Mr. Currier on the felon-in-possession charge.

Before the Virginia Court of Appeals, Mr. Currier repeated his double jeopardy arguments without success. The court held that the "concern that lies at the core" of the Double Jeopardy Clause—namely, "the avoidance of prosecutorial oppression and overreaching through successive trials"—had no application here because the charges were severed for Mr. Currier's benefit and at his behest. Currier v. Commonwealth, 65 Va.App. 605, 609–613, 779 S.E.2d 834, 836–837 (2015). The Virginia Supreme Court summarily affirmed. Because courts have reached conflicting results on the double jeopardy arguments Mr. Currier pressed in this case, we granted certiorari to resolve them. 583 U.S. ––––, 138 S.Ct. 355, 199 L.Ed.2d 261 (2017).

II

The Double Jeopardy Clause, applied to the States through the Fourteenth Amendment, provides that no person may be tried more than once "for the same offence." This guarantee recognizes the vast power of the sovereign, the ordeal of a criminal trial, and the injustice our criminal justice system would invite if prosecutors could treat trials as dress rehearsals until they secure the convictions they seek. See Green v. United States, 355 U.S. 871, 78 S.Ct. 122, 2 L.Ed.2d 76 (1957). At the same time, this Court has said, the Clause was not written or originally understood to pose "an insuperable obstacle to the administration of justice" in cases where "there is no semblance of [these] type[s] of oppressive practices." Wade v. Hunter, 336 U.S. 684, 688–689, 69 S.Ct. 834, 93 L.Ed. 974 (1949).

On which side of the line does our case fall? Mr. Currier suggests this Court's decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), requires a ruling for him. There, the government accused a defendant of robbing six poker players in a game at a private home. At the first trial, the jury acquitted the defendant of robbing one victim. Then the State sought to try the defendant for robbing a second victim. This Court held the second prosecution violated the Double Jeopardy Clause. Id., at 446, 90 S.Ct. 1189. To be sure, the Clause speaks of barring successive trials for the same offense. And, to be sure, the State sought to try the defendant for a different robbery. But, the Court reasoned, because the first jury necessarily found that the defendant "was not one of the robbers," a second jury could not "rationally" convict the defendant of robbing the second victim without calling into question the earlier acquittal. Id., at 445–446, 90 S.Ct. 1189. In these circumstances, the Court indicated, any relitigation of the issue whether the defendant participated as "one of the robbers" would be tantamount to the forbidden relitigation of the same offense resolved at the first trial. Id., at 445, 90 S.Ct. 1189 ; see Yeager v. United States, 557 U.S. 110, 119–120, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009).

Ashe 's suggestion that the relitigation of an issue can sometimes amount to the impermissible relitigation of an offense represented a significant innovation in our jurisprudence. Some have argued that it sits uneasily with this Court's double jeopardy precedent and the Constitution's original meaning. See, e.g., Ashe, supra, at 460–461, 90 S.Ct. 1189 (Burger, C.J., dissenting); Yeager, supra, at 127–128, 129 S.Ct. 2360 (Scalia, J., dissenting). But whatever else may be said about Ashe, we have emphasized that its test is a demanding one. Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant's favor in the first trial. See Yeager, supra, at 119–120, 129 S.Ct. 2360 ; id., at 127, 129 S.Ct. 2360 (Kennedy, J., concurring in part and concurring in judgment); id., at 133–134, 129 S.Ct. 2360 (Alito, J., dissenting). A second trial "is not precluded simply because it is unlikely—or even very unlikely—that the original jury acquitted without finding the fact in question." Ibid . To say that the second trial is tantamount to a trial of the same offense as the first and thus forbidden by the Double Jeopardy Clause, we must be able to say that "it would have been irrational for the jury" in the first trial to acquit without finding in the defendant's favor on a fact essential to a conviction in the second. Id., at 127, 129 S.Ct. 2360 (opinion of Kennedy, J.) (internal quotation marks omitted).

Bearing all that in mind, a critical difference immediately emerges between our case and Ashe . Even assuming without deciding that Mr. Currier's second trial qualified as the retrial of the same offense under Ashe, he consented to it. Nor does anyone doubt that trying all three charges in one trial would have prevented any possible Ashe complaint Mr. Currier might have had.

How do these features affect the double jeopardy calculus? A precedent points the way. In Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), the defendant sought separate trials on each of the counts against him to reduce the possibility of prejudice. The court granted his request. After the jury convicted the defendant in the first trial of a lesser-included offense, he argued that the prosecution could not later try him for a greater offense. In any other circumstance the defendant likely would have had a good argument. Historically, courts have treated greater and lesser-included offenses as the same offense for double jeopardy purposes, so a conviction on one normally precludes a later...