455 U.S. 976 | SCOTUS | 1982
Dissenting Opinion
dissenting.
Because there is no jurisdictional bar to considering this case, and because the decision below fails to give due regard to our cases, I dissent from the denial of certiorari.
HH
Petitioner, an attorney, was indicted m 1978 on two counts of grand theft. The first count charged him with obtaining or exerting control over a bank account by deception in that he led the executrix of an estate to believe that the account was a probate asset of the estate rather than a survivorship account. The second count of the indictment charged petitioner with obtaining or exerting control over the account be
The Court of Appeals for the Twelfth Appellate District of Ohio affirmed the denial of the motion. Relying principally on Blockburger v. United States, 284 U. S. 299 (1932), the court said that the test for determining whether the trial on the second count bars a subsequent trial on the first count is whether each count requires proof of an additional fact which the other does not. The court observed that in order to obtain a conviction on the second count, the State was required to prove that petitioner knowingly obtained or exerted control over the property of another, with purpose to deprive the owner of that property, and that he acted beyond the scope of the owner’s express or implied consent. To success
HH HH
Petitioner has not yet been tried on the first count of the indictment, and therefore this case lacks the finality ordinarily necessary for our consideration of cases arising from state courts. See 28 U. S. C. § 1257. However, in Abney v. United States, 431 U. S. 651 (1977), in a case coming to us from a federal court, the Court held that double jeopardy claims are immediately appealable. “[T]he rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence.” Id., at 660. It was emphasized that the Double Jeopardy Clause protects against more than being twice convicted and punished for the same crime: “It is a guarantee against being twice put to trial for the same offense.” Id., at 661 (footnote omitted). See also United States v. Jorn, 400
Nor did petitioner waive his Fifth Amendment right to double jeopardy protection by moving to dismiss the first count of the indictment. In Green v. United States, supra, it was held that a defendant does not forfeit a double jeopardy defense by appealing a conviction, and under the logic of that case, petitioner did not forfeit a constitutional protection by invoking his right to seek dismissal of a count of the indictment. See also Burks v. United States, 437 U. S. 1 (1978). Jeffers v. United States, supra, relied upon by the lower court, is inapplicable. There the defendant was charged under two separate indictments. The first indictment charged a crime which was a lesser-included offense to the crime charged in the second indictment. The defendant was granted separate trials and convicted on the lesser-included offense. We held that petitioner’s opposition to consolidat
Ill
The Court of Appeals apparently thought that since Blockburger would not bar successive convictions on counts one and two, a trial on count one after acquittal on count two is permissible. It did not respond to, or make any mention of, petitioner’s argument that collateral estoppel precludes a second trial. However, our cases plainly establish that a second trial may sometimes be allowed under Blockburger but barred by the application of collateral estoppel, which constitutes an independent safeguard protecting one “who has been acquitted from having to ‘run the gauntlet’ a second time.” Ashe v. Swenson, 397 U. S., at 446. The doctrine of collateral estoppel “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.” Id., at 443. Ashe held that the doctrine of collateral estoppel “is embodied in the Fifth Amendment guarantee against double jeopardy.” Id., at 445. Thus, as we observed in Brown v. Ohio, 432 U. S. 161, 166-167, n. 6 (1977):
“The Blockburger test is not the only standard for determining whether successive prosecutions impermis-sibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first.”
In any event, the collateral-estoppel submission was not adequately disposed of by the Blockburger analysis, and I would grant certiorari, vacate the judgment, and remand the case for further consideration. The case does not warrant plenary consideration, however.
Lead Opinion
Ct. App. Ohio, Butler County. Certiorari denied.