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Double Jeopardy – Multiplicity: Judicial Estoppel Bar to Arguing

State v. Michael Johnson, 2001 WI App 105
For Johnson: David R. Karpe

Issue: Whether defendant’s partially successful trial strategy of defending against two counts of possession of intent to deliver of claiming personal use on one count and denial of any knowledge of the substance in the second count judicially estopped him from arguing on appeal that the two counts are multiplicitous.


¶10. Although judicial estoppel is not easily reduced to a pat formula, there are identifiable boundaries. Petty, 201 Wis. 2d at 348. First, the defendant’s later position must be “clearly inconsistent” with the earlier position. Id. Second, the facts at issue should be the same in both cases. Id. Finally, the party to be estopped must have convinced the first court to adopt its position. Id. Thus, although we permit a party to argue inconsistent positions in the alternative, “once it has sold one to the court it cannot turn around and repudiate it in order to have a second victory.” Id. at 350 n.6. Instances in which a defendant in a criminal case reverses positions on appeal most often fit these parameters since the facts are the same and it is easier to discern whether the positions are clearly inconsistent. Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994).


¶18. In Johnson’s case, it was the State’s decision to proceed with two separate charges. However, Johnson could have moved to dismiss one of the charges as multiplicitous. Instead he chose to take advantage of the separate charges in an attempt to limit his total criminal exposure. He requested that the lesser-included offense of possession be submitted to the jury for the cocaine in his pocket.

¶19. Johnson was victorious to the extent that he convinced the jury that he possessed the cocaine in his pocket without intent to deliver it. Unfortunately for Johnson and his trial strategy, it appears that the jury did not also believe that he knew nothing about the cocaine in the bathroom. But because the jury was partially convinced of Johnson’s position on the facts, he cannot now enjoy a ‘second victory’ by reversing that position on appeal in order to assert a double jeopardy violation.

During a search of Johnson’s residence, the police found five rocks of cocaine on him, and 25 additional rocks in the bathroom. He was charged with two counts of possession with intent to deliver, representing the bathroom and on-person seizures. As the passages above indicate, his partially successful trial strategy (admit personal use on one, deny possession on other) estops him from arguing that the two offenses were multiplicitous (i.e., the “same” for double jeopardy purposes).As the court of appeals suggests, the problem begins and ends with failure to challenge the multiple charges on the trial level. This could have been strategic, but it’s hard to see how anything would have been lost by a motion. There’s not much Wisconsin case law, but the general rule is that separate charges must involve substances that are “either separated in time or are significantly different in nature.” State v. Stevens, 123 Wis.2d 303, 322, 367 N.W.2d 788, cert. denied, 474 U.S. 852 (1985) (two counts permissible where substances found on different days). But here, the substances were found at the same time and, for practical purposes, the same place (within feet of each other). It’s hard to imagine that a multiplicity claim would not have been at least arguable, if not compelling. See, e.g., Young v. State, 564 N.E.2d 968 (Ind. App. 1991):

at the time Young was stopped, he had 1.3529 grams of cocaine on his person and 8.1005 grams of cocaine in a spray can found in his car. Although the cocaine found in the spray can was not discovered until several hours after Young was arrested, Young’s original possession of both packages of cocaine was simultaneous. We therefore conclude that Young was charged and convicted, in effect, of two violations which arose from his single act of simultaneous possession of two packages of cocaine.

Note, too, that a pretrial motion would have raised the specter of governmental estoppel. It doesn’t matter that Johnson may have intended ultimately to admit possession of one cache and deny the other; the state was alleging that he actually possessed one and constructively possessed the other, and the question therefore would simply be whether the two caches were so removed in time and space from each other as to amount to two separate possessions. The answer clearly should have been, No. Estoppel, as just suggested, is a double-edged sword. E.g., Whaley v. Belleque, 9th Cir No. 06-35759, 3/24/08 (“under the doctrine of judicial estoppel, the state cannot now reverse its position in order to suit its current objectives”). The problem becomes especially acute when the state uses inconsistent theories to obtain conviction; an increasing number of cases indicates that the state’s use of factually contradictory theories violates due process. E.g., Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000). The matter almost came to a head in Mitchell v. Stumpf, 04-637, which raised a Question, “Does the Due Process Clause require that a defendant’s guilty plea be vacated when the State subsequently prosecutes another person in connection with the crime and allegedly presents evidence at the second defendant’s trial that is inconsistent with the first defendant’s guilt?” In the event, however, the Court did not reach this issue, Bradshaw v. Stumpf, 545 U.S. 175, 187 (2005). Notwithstanding the observation by the Stumpf concurrence — “This Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories.” — the issue remains potentially viable. Granted that the result was vacated on a different ground, the lower court holding is worth keeping in mind, Stumpf v. Mitchell, 367 F.3d 594 (6th Cir. 2004):

Drawing on the principle that the Constitution’s “overriding concern [is] with the justice of the finding of guilt,” United States v. Agurs, 427 U.S. 97, 112 (1976), several of our sister circuits have found, or implied, that the use of inconsistent, irreconcilable theories to secure convictions against more than one defendant in prosecutions for the same crime violates the due process clause. See, e.g., Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000); Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc); Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985) (en banc) (Clark, J., specially concurring); cf. Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995) (involving a situation where both defendants had shot at the victim and it was unclear whose bullet had actually hit and killed the victim; the court found that the two theories advanced by the prosecution were not inconsistent because both defendants could have been convicted under the law of parties). On this issue of first impression in this court, we now join our sister circuits in finding that the use of inconsistent, irreconcilable theories to convict two defendants for the same crime is a due process violation.

See also the analysis by the California supreme court, in   In re Sakarias, Cal SCt No. S082299, 3/3/05:

… we conclude that fundamental fairness does not permit the People, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed. By doing so, the state necessarily urges conviction or an increase in culpability in one of the cases on a false factual basis, a result inconsistent with the goal of the criminal trial as a search for truth. At least where, as in Sakarias’s case, the change in theories between the two trials is achieved partly through deliberate manipulation of the evidence put before the jury, the use of such inconsistent and irreconcilable theories impermissibly undermines the reliability of the convictions or sentences thereby obtained.We also conclude, however, that where, as here, the available evidence points clearly to the truth of one theory and the falsity of the other, only the defendant against whom the false theory was used can show constitutionally significant prejudice….

See also People v. Caballero, 794 N.E.2d 251 (2002):

These cases stand for the proposition that a party is not as bound by his prior arguments as he is by prior assertions of fact. We conclude that no due process violation has occurred in the present case when the State’s shifting positions involved matters of opinion, not of underlying fact. We, therefore, decline to hold the State to the argument it made to the LaBoy jury that he is the most culpable of the four killers. That argument was permissible in the context of the LaBoy trial and supported by the evidence presented to that jury. In this proceeding, however, the purpose is the direct comparison of the relative culpability of defendant and LaBoy. We do not find it necessary to constrain the State’s argument on this issue.

And, State v. Watkins, 659 N.W.2d 526 (2003) (“(A) selective use of evidence by the prosecution in order to establish inconsistent factual contentions in separate criminal prosecutions for the same crime may be so egregious and lacking in good faith as to constitute a denial of due process. We view those situations as a narrow exception to the right of the prosecution to rely on alternative theories in criminal prosecutions albeit that they may be inconsistent. “); Shaw v. Terhune, 9th Cir. No. 02-16829, 12/22/03 (dissent) (“The state’s decision to prosecute both Shaw and Watts separately under inconsistent factual theories for acts that only one could commit displayed shocking indifference toward ‘the fundamental conceptions of justice which lie at the base of our civil and political institutions,’ Herbert v. Louisiana, 272 U.S. 312, 316 (1926), and thus violated the core interests protected by the Fourteenth Amendment, Mooney v. Holohan, 294 U.S. 103, 112-13 (1935).”). The language used by Johnson — “The doctrine of judicial estoppel is not directed at the relationship between the parties, but is intended to protect the judiciary as an institution from the perversion of its machinery,” ¶9 — might well be put to use in this other but related context.For a US Supreme Court case discussing judicial estoppel, see New Hampshire v. Maine, 532 U.S. 742 (2001). However, authority should be noted to the effect that judicial estoppel, a common-law doctrine not constitutionally mandated, “is not applicable in criminal cases,” Roberts v. State, GA SCt No. S04G0219, 11/8/04 (further noting split nationally on this principle and citing 121 ALR5th 551). While that holding might (or might not) be correct at a sufficient level of generality, it seems that a) Wisconsin falls on the other side; and b) the specific question of inconsistent prosecutorial theories of guilt raises problems distinct from the typical instance of merely shifting positions.


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