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Double Jeopardy – Remedy: Partial Acquittal on Multi-Count Trial

State v. Daniel Wyatt Henning, 2004 WI 89, reversing 2003 WI App 54, 261 Wis. 2d. 664, 660 N.W.2d 698
For Henning: Steven D. Phillips, SPD, Madison Appellate

Issue: “¶41. Thus, the critical question is this: When a jury, in a multicount trial, both convicts and acquits, and an appellate court then overturns the conviction or convictions, do the acquitted charges pose any direct bar to retrial of the reversed convictions?” (In this case, more particularly, it is whether acquittal on charges of possession of a controlled substance with intent to deliver bars retrial on charges of bail jumping based on simple possession – “¶29. The issue to be decided is whether the defendant could be retried for bail jumping on a different theory, that is, bail jumping predicated on the commission of the crime of simple possession of THC or LSD.”)


¶60. In a multi-count trial, if the defendant is convicted of one or more counts and acquitted of one or more counts, and the defendant successfully appeals the conviction or convictions, the acquittals pose no direct bar to retrying the defendant. Rather, acquittal may indirectly impact the state’s ability to retry the defendant under Ashe’s collateral estoppel principles. In this case, the court of appeals erroneously conducted its double jeopardy analysis as one of successive prosecution. We reverse the court of appeals decision with respect to double jeopardy and remand the matter to the circuit court.

Easy enough for the court to say, but what does it mean, other than that the State gets another kick at the Henning cat? The court isolates several double jeopardy principles, ¶¶16-24 – “same offense” (second prosecution following acquittal or conviction and multiple punishment all barred for “same” offenses under Blockburger test); continuing jeopardy (subject to very limited exceptions, such as insufficient evidence, no bar to retrial after conviction reversed); collateral estoppel (“extra” protection, beyond double jeopardy, precludes litigation of issue already determined by “full and valid judgment”). The fault line for determining which principle applies is, in the first instance, whether the circumstance involves retrial or successive prosecution. If retrial, then the “continuing jeopardy” doctrine applies, and double jeopardy protection via the Blockburger test is inapplicable, ¶47-56; if successive prosecution, then the test does apply, ¶¶34-36. Because this case involved simultaneous charges in a single prosecution, it falls on the continuing jeopardy side of this fault line, ¶37. The upshot, stated baldly, is “that an acquittal in these circumstances is not equivalent to a first prosecution in a successive prosecution scenario: an acquittal poses no direct bar to retrial on the reversed charges. … In other words, when jeopardy on one count of a multi-count complaint terminates, this does not mean that other counts brought simultaneously become subject to successive prosecution analysis.” ¶¶41, 44. This is where estoppel, an “extra” double jeopardy principle, kicks in though not, on the facts, to Henning’s benefit:

¶57. However, it is important to note the protections defendants enjoy through issue preclusion. As the Seventh Circuit made clear, collateral estoppel applies where double jeopardy does not foreclose a second trial entirely, see Bailin, 977 F.2d at 275, and therefore “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.” Ashe, 397 U.S. at 443. According to Bailin, direct estoppel, like collateral estoppel, “bar[s] the government from relitigating issues that were necessarily and finally decided in the defendant’s favor by reason of the jury’s partial acquittal on other counts.”Bailin, 977 F.2d at 276.¶58 … Where there are multiple charges proceeding simultaneously, Ashe’s estoppel principles provide a substantial bulwark that mitigates any harsh effects that the continuing jeopardy principle might work against a defendant.

¶59. Because the State already tried Henning unsuccessfully for possession with intent to deliver, the State cannot retry him on that issue. Therefore, the State cannot base a retrial for bail jumping on possession with intent to deliver. However, whether Henning is guilty of committing the crime of simple possession is not an issue that has been litigated in his favor. The State would not violate double jeopardy if it retried Henning for the bail jumping predicated upon simple possession.

Detailed discussion of Ashe collateral estoppel doctrine, in U.S. v. Ohayon, 11th Cir No. 05-17045, 4/12/07 (acquittal on attempted possession with intent barred retrial on conspiracy count involving those drugs).


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