*1 DOWLING UNITED STATES Arguеd No. 88-6025. January October 1989 Decided *2 Rehnquist, Court, in which opinion White, J., of delivered Kennedy, JJ., joined. O’Connor, Scalia, Blackmun, and J., and C. and Ste- Marshall opinion, in which dissenting Brennan, J., filed JJ., p. 354. vens, joined, post, briefs for argued filed cause and Tucker L.

Robert petitioner. argued the United for Nightingale the cause

Stephen L. Starr, General were Solicitor the brief him on With States. Deputy Gen Solicitor Attorney Dennis, General Assistant Wyderko.* Joseph Bryson, C. and eral opinion Court. delivered White Justice arising out of various offenses petitioner’s for trial At 404(b) testimony Rule robbery, under was admitted bank alleged crime relating to an Evidence, Rules Federal * of Crimi- Association a brief National Hartz filed E. M. Steven urging reversal. Lawyers amicus curiae nal previously the defendant had been of commit- ting. We conclude that neither the Double nor the Due Process testimony. Clause barred the use of this

I July On the afternoon of wearing 8, 1985, man a ski mask pistol with a Pennsylvania armed small robbed the First Bank in Virgin Frederiksted, taking St. Croix, Islands, over $7,000 in cash from a approximately bank teller, $5,000 in cash personal from a customer, and various and travelers’ culprit checks. The ran from the bank, scurried around in momentarily, the street and then passing commandeered driving away taxi van. While from the scene, the robber *3 pulled eyewitness, off his ski mask. An slipped who had out of the taking place, bank while the was saw the maskless man and petitioner, trial him identified as Dowling. Reuben they Other witnesses testified that had Dowling driving seen hijacked the taxi van outside of shortly robbery. Frederiksted after the bank Following Dowling charged arrest, his was with the federal robbеry, §2113(a), crimes of bank 18U. S. C. and armed rob- bery, §2113(d),and Virgin with various crimes under Islands Dowling pleaded guilty law. charges. Dowling’s to all hung first jury. trial ended with again a He was tried and convicted, but the Third Circuit this reversed conviction on appeal. Virgin Dowling, Islands v. 814 F. 2d Dowling After a third trial, was convicted on most of judge the counts; the years’ trial him sentenced to 70 imprisonment.

During petitioner’s third peti- trial, the over Government, objection, tioner’s Henry a called woman named Vena to the Henry stand. Ms. testified wearing that a man a knitted eyes mask with carrying cutout handgun and a small had, together with a man Delroy named Christian, entered her approximately home in Frederiksted two after weeks Pennsylvania robbery. First Henry Bank Ms. testified that whom intruder, struggle unmasked and that she ensued a Dowling Dowling. incident, this on as Based she identified burglary, Virgin charged law with Islands under had been weapons robbery, but had offenses, attempted and assault, in the his third trial before after trial held been robbery case. bank testimony Henry’s assertedly for elicited

The Government Henry’s description of purposes. First, it believed two carrying gun to the wearing Dowling similar a mask and First gun of the robber carried mask worn and strengthened identifi- Pennsylvania the Government’s Bank Dowling Second, the Govern- robber. as the bank cation Delroy Dowling other Christian, the sought link with ment day bank before the The home. entered man who Volkswagen from a robbery, a white had borrowed Pennsylvania Dowling’s Bank for the First trial At friend. robbery, shortly police before that, testified officer upon partner robbery, Christian had come and her she bank Volkswagen parked in front of man a white and another open street; Christian intо the car door the bank with men to close the two The officers told in the backseat. police away fol- The to the north. the men drove door, and shortly Volkswagen and, there- mile about a lowed message bank had been radio after, received theory was that Christian Government’s robbed. *4 getaway car after to drive the his friend were robbed bank. its disclosed opening statements, the Government

Before explained Henry for its rationale Ms. and to call intention 404(b) of Evi- relying doing of the Federal Rules Rule on so, wrongs, provides crimes, of other evidence that dence, which purposes against may for a defendant admissible be or acts hearing, the District After evidence. than other character probative testimony highly cir- characterized Court under admissible that it wаs and ruled evidence cumstantial 404(b). Henry App. stand, left the 24-25. When Rule jury District Court instructed the had been Henry, robbing emphasized pur- the limited pose Henry’s testimony being Id., which offered. at charge 28. The court reiterated admonition its final jury. Id., to the 29. at appeal,

On the Third Circuit determined that the District Henry’s testimony, Court should not have admitted but nev- Dowling’s ertheless ‍‌​‌​‌‌‌‌​‌‌​​​​​‌​‌​‌‌​‌‌​‌‌‌​‌​​​‌​​‌​‌​‌‌‌‌‌‌​‍affirmed conviction. 855 F. 2d (1988). Relying on its decision United Keller, States v. (1980), petitioner’s acquit- 624 F. 2d 1154 the court held that charges arising tal of the out of the incident at home collaterally estopped offering the Government from petitioner’s Pennsylvania of that incident at trial for the First robbery. Bank

Alternatively, Appeals the Court of ruled that the evidence was inadmissible under Federal Rules of Evidence. The recently court noted that we had held in Huddleston v. 404(b) (1988), “[i]n 485 U. S. thе Rule only context, similar act evidence is if relevant can reasonably conclude that the act occurred and that the de- Id., fendant was the actor.” at 689. The Third Circuit 404(b) Henry’s testimony found inadmissible under Rule be- sought cause “when the act to be introduced was the subject acquittal by jury, of an a second should not be permitted to conclude ‘that the act occurred and that the de- fendant was the actor.’” 855 F. 2d, at 122. The court also relied on Rule 403 of the Federal Rules of Evidence because, opinion, danger prejudice in the Third Circuit’s of unfair outweighed probative Henry’s testimony. value F. 2d, at 122.

The Third Circuit, however, held that the admission of Henry’s testimony highly proba- was harmless because it was prejudice petitioner. ble that the Id., error did not Appeals explicitly apply 122-124. Thе Court of declined to stringent Chapman the more standard, see v. California, (1967),applicable to constitutional errors be- *5 according to the mistake court, the District Court’s cause, evidentiary merely dimension. was constitutional petitioner’s Having rejected 122-123. other 2d, 855 F. at objections, Id., at 124. the court affirmed the conviction. wrong Third was it claims that the Circuit when Henry’s testimony the admission of offend found that did not apply Chap- and therefore declined to the Constitution supra, California, man v. harmless-error standard.1 We granted Dowling’s contention that Hen- certiorari consider ry’s testimony Jeop- under the Double inadmissible both ardy Due of the Fifth Amendment. and the Process Clauses 489 U. S. 1051

II A acquittal in in- no claim here that the the case There is Henry prosecution present volving Ms. barred further inadmissibility Henry’s testimony. is the of (1970), case. The issue recognized Swenson, In Ashe 397 U. S. 436 we incorporates the doctrine of that the Double estoppel. group In men had case, of masked collateral playing poker in the basement of a home. robbed six men robbing unsuccessfully prosecuted Ashe for one of The State however, the defendant was con- later, the men. weeks Six players. Applying of one of the other victed for the implicit we found of collateral which doctrine Jeopardy Clause, conviction, we reversed Ashe’s the Double precluded holding first trial that his State charging Id., 445-446. him for the second offense. at providing collateral-estoppel doctrine We defined ultimate fact has once been determined “when an issue of again judgment, liti- that issue cannot bе a valid and final parties any gated Id., lawsuit.” the same future between acquittal in trial foreclosed the Ashe’s the first 443. was harmless challenge holding that the error 1 Dowlingdoes not Appeals. applied by the strict standard Court under the less *6 in the circumstances of that because, case, second trial the jury acquittal only the verdict could have meant that was un- beyond a reasonable doubt that the able to conclude defend- prosecution A im- ant was one of the bandits. second permissible the because, to have convicted defendant directly trial, second the second had to have reached a contrary id., conclusion. See at 445.

Dowling principle, that, contends the same his precluded introducing acquittal the Government from into Henry’s testimony at the third triаl in the bank robbery disagree because, case. We unlike situation prior acquittal Swenson, Ashe v. did not determine an present Dowling ultimate issue in the case. This much con- cedes, and we decline to extend Ashe v. Swenson component Jeopardy collateral-estoppel of the Double Dowling circumstances, it, to exclude all would have probative relevant and evidence that is otherwise admis- simply sible under the Evidence Rules of because it relates alleged criminal conduct for which a defendant has been acquitted. present purposes, argument

For we assume for the sake of Dowling’s acquittal established that there was a rea Dowling sonable doubt as to whether was the man masked Henry’s Delroy who entered Vena home with Christian two Pennsylvania robbery.2 weeks after the First Bank But point to introduce trial, evidence on this the bank Dowling the Government did not have to demonstrate that beyond was the man who entered the home a reasonable sought Henry’s doubt: the to introduce testi mony 404(b), and, under Rule as mentioned in Hud earlier, supra, “[i]n dleston at we held that 404(b) only context, Rule similar act evidence is relevant reasonably if the can conclude that the act occurred and jury might that the defendant was the actor.” Because a 2It finding is not clear from record that this the basis for the formed jury’s infra, verdict. See the discussion at Part II-B. reasonably Dowling conclude that was the masked man who beyond if a rea- home, entered even it did not believe charged at sonable committed the crimes doubt component collateral-estoppel of the Dou- trial, first inapposite. ble Clause is we have Our decision is consistent with other cases where preclude held that an in a criminal case does relitigating presented in Government from an issue when it is *7 proof. subsequent governed a of action a lower standard Firearms, In Assortment United States v. One (1984), unanimously agreed example, U. S. 354 we gun charge dealing acquittal firearms without owner’s on subsequent pro- preclude in rem a license did not forfeiture ceeding though against firearms, those even forfeiture was only appropriate jury proceeding if in the forfeiture con- underlying cluded that the defendant had committed the of- proceeding, Because the fense. forfeiture action was a civil rejected we the defendant’s contention the Government estopped relitigating was from the issue of the defendant’s alleged wrongdoing: acquittal prove did]

“[The that the defendant is inno- merely proves it the existence of a reasonable cent; guilt. [T]he . . verdict in the crimi- doubt as to his . negate possibility prepon- that a nal action did not [the defendant] derance of the evidence ‍‌​‌​‌‌‌‌​‌‌​​​​​‌​‌​‌‌​‌‌​‌‌‌​‌​​​‌​​‌​‌​‌‌‌‌‌‌​‍could show that engaged in It an unlicensed firearms business. ... in is clear that the difference the relative burdens of appli- proof precludes criminal and civil actions estoppel.” Id., cation of the doctrine of collateral at 361-362.

In 409 U. One Lot Emerald Cut Stones v. United S. (1972), 232, it was also held that the Double subsequent acquittal Clause did not bar a forfeiture action underlying in the on the offense because “the difference bur precludes application proof den in criminal and civil cases Helvering estoppel.” v. Mitch of the doctrine of collateral (1938), ell, “[t]he 303 U. S. likewise observed that degree proof difference in the burden of criminal and precludes application civil cases doctrine of res of the judicata.” agree

We thus cannot was constitu- Government tionally using Henry’s testimony the bank barred trial, and for the same reasons we find no merit holding the Third Circuit’s that the common-law doctrine of collateral in all circumstances bars the later use relating of evidence conduct which Government prove failed to violated a criminal law.

B agreed Even if with we that the lower burden of proceeding at the second does not serve to avoid the collateral-estoppel component Jeopardy Clause, of the Double agree challenged we with the was nevertheless admissible because did not dem represented onstrate that his in his first trial *8 determination that he was not one of the men who en Henry’s Swenson, tered Ms. home. In Ashe v. we stated previous judgment that where a was based on a general [the] courts verdict, must “‘examine the record of prior proceeding, taking pleadings, into account charge, evidence, matter, and other relevant and conclude grounded whether a rational could have its verdict on an issue other than that which the defendant seeks to fore (citation 444 S., close from consideration.’” 397 U. at omit ted). Appeals unanimously placed The Courts of have burden on the defendant to demonstrate rеlitigation issue whose actually he seeks to foreclose was decided in the proceeding. Citron, 1055, first United States v. 853 F. 2d (CA2 1988); Ragins, 1184, 1194 1058 States v. 840F. United 2d (CA4 1988); Gentile, v. 816 1157, United States F. 2d 1162 (CA7 (CA8 1987); Baugus, 506, States v. 761 F. 2d 508 (CA5 1985); Mock, 640 F. n. 1 629, 631, United States v. 2d (CA11 Hewitt, United States 1981); 663 F. 2d (CA9), cert. 1981); United States v. Lasky, 600 F. 2d reason to depart We see no denied, U. S. 979 from the rule this case.3 majority a discus- the issues the earlier case was only The clue to and the attorney, prosecutor, Dowling’s sion between the the District Court’s during District that took Judge place Rule under testimony on the admission of hearing 404(b). Hen- the admission against 18-25. App. Arguing Dowling out lawyer pointed ry’s testimony, Dowling’s home. into Ms. Henry’s had of breaking been acquitted re- trial, at first Dowling’s also presided trial who had judge, the issue of identi- not on called that “was Dowling Id., then contended 21. The prosecutor fication.” had claimed but rather identity, had not Dowling disputed taken because he and Christian place that a had not , indi- retrieve . . money came to allegedly “merely state- Ibid. The court then made the in the house.” vidual not seri- the house Dowling’s presence ment that “Mr. defense. but he stated the general contested the case ously Ibid. I think took the stand.” Mr. don’t Dowling, introducing carries the burden Dowling party notes that the duty, in argues He that this demonstrating relevance. the evidence’s collateral-estoppel component of the Double the context of the acquittal did Clause, previous to establish that a requires the Government Relevancy disagree. in a second trial. We question resolve a at issue introducing party to es inquiry. That the burden is on the is a threshold party anticipate require introducing relevanсy not also tablish does evidence. possible objections to the offered and rebut place on the Govern- we should the burden suggests also because, in Ashe v. Swen- opposed to the situation in this instance ment son, (1970), to terminate the example, he does not seek 397 U. S. 436 *9 This is a distinction merely hopes exclude evidence. prosecution but to equities weigh in the other direc- anything, If without a difference. prejudi- case, the introduction of Dowling only faces the risk of tion: in this Swenson, evidence, whereas, was threatened in Ashe v. defendant cial illegitimate conviction. with an explanations possible any for the of number

There are Dowling’s trial. jury’s acquittal first As verdict persuasively nothing indi- is at all there stands, record identity question and was deter- at issue of was cates that argument, Dowling’s at oral trial; in favor at the mined Arg. As a re- 16. Tr. of Oral as much. conceded apply to the Double if we were to sult, even petitioner to sat- has failed case, this we would conclude demonstrating isfy the first concluded his burden of in home. Ms. that he was not one of the intruders l—i I—I l—i Henry testimony arguing s introduction of that the Besides Jeopardy Clause, also con- the Double violated this evidence was unconstitu- that the introduction tends process of “fundamental test the due because it failed tional recognize introduction of evidence fairness.” We potential to here has the involved like those circumstances spend unfairly prejudice the defendant or force money relitigating considered at first matters time and acceptable question, is whether it however, is trial. The through pоtential nonconstitutional for abuse deal with the Evidence,4 or whether the Rules of sources like the Federal extremely type unfair is so this of evidence introduction of conceptions jus- “fundamental admission violates that its (1977). Lovasco, 783, tice.” United States guarantees Beyond specific in the Bill of enumerated operation. Rights, We, limited has the Due Process Clause category of infractions that vio- have defined therefore, narrowly. very As we observed fairness” late “fundamental supra, Lovasco, at 790: Henry’s testimony Circuit, above, inadmissi noted found Third The 404(b) 114, 122 F. 2d and Rule 403. 855 both Rule ble under error, pass affirming we need not but urges that this United States respect. Appeals’ judgment this validity the Court of on *10 impose defining process,’

“Judges to in ‘due free, are not ‘personal private [their] and officials on law enforcеment ‘disregard limits that bind and fairness to notions’ of judicial judges California, Rochin v. in their function.’ (1952). [They] . . . are to determine 165, 342 U. S. complained only of. . those the action . violates whether justice conceptions base which lie at the of ‘fundamental Mooney political v. Holo institutions,’ our civil and of (1935), define ‘the and which han, 294 U. S. decency,’ play community’s Rochin v. of fair and sense supra, at 173.” California, provided limiting

Especially light instructions of Henry’s judge, that the introduction of we cannot hold trial testimony Plainly Hen- kind of condemnation. merits this circumstantially prov- testimony ry’s valuable was at least guilt. ing petitioner’s why, according admis- him, four reasons

Petitioner lists fundamentally Henry’s testimony First, unfair. sion of relating acquitted suggests petitioner con- evidence jury disagree: inherently this We duct is unreliable. example, assess the truthfulness remained free to case, for testimony, petitioner Henry’s significance had of and the opportunity contends that Second, to refute it. constitutionally type un- evidence creates the use of this acceptable convict the defendant on risk that the will acquitted we be- conduct; drawn from the inferences basis of authority potentially trial court’s to exclude lieve that the possibility. adequately prejudicial this addresses petitioner con- claims that the exclusion Third, goal the desirable of consistent duct evidence furthers inconsistency any be- find We, however, do not verdicts. Pennsylvania Dowling’s Bank for the First tween conviction Henry robbing charge Ms. on the and his jury’s in his second verdict for the obvious reason any judgment respect to the offenses with trial did nоt entail any charged are In inconsistent verdicts event, first. his constitutionally See tolerable. Standefer argues that the introduction of Fourth, *11 gov- testimony a tradition that the in case contravenes this may person in one trial to de- ernment not force subsequent proceeding. against in a fend the same accusation acknowledge amply protected tradition, but find it We Jeopardy We decline to use the Due the Double Clause. extending jeopardy Process Clause as a device for protection the double extend. to cases where it otherwise would not IV Because we conclude admission of Ms. testimony Appeals and the Court of was constitutional there- applied harmless-error we affirm standard, fore the correct judgment Appeals. of thе Court of

It is so ordered. Brennan, Justice with whom Justice Marshall and Justice ‍‌​‌​‌‌‌‌​‌‌​​​​​‌​‌​‌‌​‌‌​‌‌‌​‌​​​‌​​‌​‌​‌‌‌‌‌‌​‍join, dissenting. Stevens petitioner’s robbery, prosecutor intro-

At trial for bank testimony Henry petitioner had at- duced of Vena approximately tempted to home two weeks rob her her robbery. already Petitioner, however, after the bank had been tried connection with that incident and had been ac- quitted burglary, attempted robbery, weap- assault, and testimony ef- ons offenses. Because the introduction of this fectively charges against to defend for forced already acquitted, which he had been the doctrine of criminal estoppel grounded Jeopardy collateral Clause Double prohibited introducing should have testimony. judgment I would reverse the of the Court Appeals for the Third Circuit and remand for consideration testimony of this was harmless error whether the admission Chapman California, under the standard enunciated v. (1967). respectfully 24 I dissent. 18, Therefore, 386 U. S.

355 I acquittal. significance particular an “The law ‘attaches (1980) 117, 449 U. S. DiFrancesco, v. States United (1978)). 82, S. (quoting 437 U. Scott, United States attaches protection of the Double The core acquittal prohibits “same offense” retrial for the an Supply Linen acquittal. v. Martin States after (1977). considered are Two offenses Co., purposes jeopardy each unless for double the “same offense” not. other does requires of a fact offense (1932). An Blockburger 299, 304 U. S. States, 284 v. United example, greater offense, included or lesser on a Ohio, Brown v. prosecution other offense. on the bars applies protectiоn if ac- This even U. S. *12 “egregiously quittal erroneous foundation.” an is on based (1962) (per Fong U. S. Foo United v. curiam); 68-69 States, 437 U. S. v. United Sanabria acquittal an

According significance reflects both an such finality judgments preserving in interest institutional against protecting strong public in individuals interest and a supra, overreaching. at Ohio, governmental Brown v. See [Dou- (“Where prosecutions stake, are successive finality policy Clause] Jeopardy ‘a serves constitutional ble ”) (quoting Jom, States v. benefit’ the defendant’s (1971) opinion)). (plurality The overrid- 470, 479 acquit- permit “[t]o an ing a trial after second concern is may acquittal would been, have mistaken tal, however high with unacceptably Government, present risk an might vastly superior down defend- resources, wear its guilty.’” may though he be found ‘even innocent ant, so thаt (quoting States, 355 U. S. supra, v. Green United at 91 Scott, (1957)). against protects a defendant The rule also 184, 188 anxiety and compelled state of being in a “to live continuous from the insecurity” retried and he will be whether about reprosecu- expense actual of an and ordeal” “embarrassment, supra, at 187. Green, tion. clearly implicated the de- when most

These concerns are acquittal. an after “same offense” for the fendant is retried (1970), however, the S. Swenson, In 397 U. Ashe expanded protection a de- significantly to which Court by constitutionally hold- an entitled after is fendant ing incorporates doc- Double estoppel. The at 445-446. Id., trine of criminal collateral simply estoppel that when “means of collateral doctrine by determined a valid been ultimate fact hаs once issue of again litigated judgment, be between cannot that issue final parties any In Id., at 443. in future lawsuit.” the same estoppel prohibits the Government case, collateral criminal relitigating any in the defend- resolved ultimate facts acquittal. Thus, 445-446. in Id., at favor ant’s against of- being protected for the “same retrial addition prosecution against protected for an the defendant is fense,” requires proof his favor of a fact found offense prior proceeding. question criminal collateral- is whether the this case apply seeks when doctrine should relating subsequent to an- trial evidence

to introduce ac- has been which the defendant offense for other criminal quitted. relating to another can consider facts Before presently element of the of an criminal offense *13 by preponderance charged conclude must offense, the and that the defendant the act occurred of the evidence “that 485 U. S. v. United was the actor.” Huddleston prior acquittal of the the extent that To the in the those factual issues either of determined other offense imposes of this evidence introduction favor, defendant’s the relitigating facts and those burden of the defendant the on thereby convictionon of an erroneous increases likelihood the charged the collateral- I would extend Thus, the offense. preclude from introduc- the to doctrine previously determined ing on relies facts evidence which by acquittal.1 favor the defendant’s collateral-estoppel apply doctrine the to The Cоurt refuses petitioner it asserts First, two reasons. in this case for proving on which carry the issue of his burden failed to by relitigation favor in his sought decided was he foreclose importantly, refuses to acquittal. the Court More first the underlying a collateral-estoppel facts apply doctrine when the Both prior acquittal another offense. of are used purposes the with are inconsistent of the conclusions Court’s collateral-estoppel rule. of the

A prove did not asserts that The first Court relitigation sought “was ac- to foreclose he the issue on which proceeding.” 350. tually Ante, at first decided summary bear should that the defendant conclusion Court’s collateral-estoppel invoking of when the burden purposes of the doctrine fails to serve doctrine general. doctrine Since Double against governmental over- protect defendants serves to proving reaching, the burden bear should the Government relitigate in the de- not decided it seeks to that the issue prior acquittal. Ashe, As we noted favor fendant’s usually general is verdicts, it verdicts are criminal because reasoning jury’s precise of the route difficultto determine at S., 397 U. rests. See the verdict on which and the basis re estoppel with collateral to this situation as refer 1 The eases often the situation it distinguish “evidentiary fact” in order spect to an (1970). See, g., e. Swenson, present in Ashe v. 1980). (CA3 Ashe, ac In Keller, 1154, 1159 F. 2d States of the second necessary element of facts which were a quittal determined (since in trial for identity S., determined at 445-446 issue fense. 397 U. for rob prosecution victim, estoppel precluded collateral of one victim). contrast, previously liti situation, by In this bery of second another an element only as evidence of are introduced gated facts offense. *14 By 444. putting the burden on the prove defendant to what

issues “actually were decided,” the Court essentially denies protection estoppel collateral to those defendants who affirmatively contest more than one put or issue who Government to its burden of respect with to all ele- ments the offense. This result is inconsistent with our ad- monition in Ashe that excessively approach technical estoppel collateral “would, of simply course, amount to a re- jection of the rule of collateral in proceed- criminal ings, at every in least case where judgment the first was upon general based acquittal.” verdict of Ibid. Indeed, forcing defendants to choose between forgoing protec- tions of the Double Jeopardy Clause and abandoning the de- general fense of a grave denial raises process due concerns. assuming Even petitioner properly was required to bear the proof, burden of I petitioner conclude that carried it in this case. Henry Vena petitioner testified that had en- tered her wearing home a mask carrying gun but that, after struggle pulled which she off the mask, he ran away. every There is reason to believe that the rested its verdict on the belief present was Henry home. Petitioner charged with such a wide array relating offenses Henry to the incident that no other conclusion is “rationаlly conceivable.” Id., at 445. example, For if the had petitioner of at- tempted robbery because he requisite lacked the intent, it would still have guilty found him weapons of a offense. Nei- ther the comments of the judge trial peti- this trial tioner had not “seriously contested” identity issue of Henry trial but had general stated App. defense, prosecutor’s nor statement in this petitioner’s case that codefendant Henry in the trial had being admitted in the house, provides ibid., a sufficient basis on which to conclude identity issue of was not petitioner’s resolved in

359 favor the if by acquittal.2 Thus, collateral estoppel applies facts, to the ‍‌​‌​‌‌‌‌​‌‌​​​​​‌​‌​‌‌​‌‌​‌‌‌​‌​​​‌​​‌​‌​‌‌‌‌‌‌​‍use of should not evidentiary have been allowed to introduce Henry’s testimony.

B holds, however, The Court that collateral does not estoppel facts in previously when found a favor are apply defendant’s later introduced as evidence of a second offense. The Court from the normal rule of criminal collateral excepts estoppel those under situations when the can consider facts jury a in lower in than proof standard of the second proceeding the first The Court endorses this without exception trial. any consideration of the the collateral- purposes underlying doctrine; it is not that the Court’s surprising holding reflects an unrealistic view of the risks and burdens imposed on the defendant when facts to a offense for relating which he has been are introduced in a subsequent criminal proceeding. notes,

As the Court we have held that an acquittal criminal case does not bar civil forfeiture actions subsequent for the same transaction because the acquittal “merely

2 case, fact, In acquittal in this alone should have been sufficient to estop Henry introducing Henry’s the Government from evidence. tes timony was introduced not as direct but as circumstantial evidence petitioner robber, also the masked bank because the mask worn by the intruder home was not the same as the mask worn App. Thus, jury bank robber. 27. was invited to infer from the fact petitioner allegedly had once before worn a different mask and carried gun jury that he was the masked bank robber. The was instructed that testimony only it helps you was to consider the “to the extent that it determining identity person robbery], of the who [bank committed the . guilty . . Mr. was found not of the crime of in connec- Id,., tion with that.” at 29. Nothing the instructions ensurеd that the petitioner the fact did consider had worn a mask and carried gun during prior attempted robbery as evidence that was the acquittal masked bank robber. Since the peti- least determined that attempted not committed robbery, tioner had should have enough preclude asking been the Government from to draw that inference.

360

proves [the the existence of a reasonable doubt as to defend guilt.” ant’s] United States v. One Assortment 89 Fire (1984); arms, 465 354, U. S. see also One Lot Emerald (1972); Cut Stones v. United U. S. Helvering Mitchell, U. S. However, those forfeiture cases involved civil remedial measures rather punishment. supra, than criminal 89 Firearms, at 362-366; Helvering, supra, applied at 397-398. We have never before *16 reasoning prosecution such to a successive criminal in which punish hinges the Government seeks to the defendant and punishment part that at least in on a criminal act for which acquitted.3 the defendant has been in Ashe Indeed, we indi contrary: suggest cated to the “‘It is much too late to estoppel] fully [collateral applicable judg is not to a former judgment may ment in a criminal case, . . . because the re only flect a belief that the Government had not met the higher burden of exacted in such cases for the Govern (quot ment’s evidence as a whole . . . .’” 397 S.,U. at 443 (CA2 ing 1961)). United States v. Kramer, 289 F. 2d 913 909, always recognized govern We have a distinction between punish mental action intended to not, and that which is see, (1989) g., Halper, e. United States v. 490 435, U. S. 446-448 (Double implicated puni when civil fine is (1987) tive); United States v. Salerno, 481 U. 746-747 S. (upholding regulatory Bail Reform Act of 1984as rather than measure). punitive Thus, it would be cоnsistent to hold that The Government (1980), cites v. United U. S. Standefer support argument for its estoppel that the doctrine of collateral should apply evidentiary Standefer, to the In use of facts. the Court held that a defendant could principal not invoke the of the as a bar to Id., prosecution his accomplice. as an at Although 24. the Court noted applied collateral should be sparingly against the Govern ment, id, 22-24, yet defendant had not been tried. Standefer Thus, protect the concerns against relitigation which a defendant were not implicated. implicated, they outweigh any When those concerns are need apply estoppel cautiously against collateral the Government. (or collateral-estoppel applies doctrine in the criminal quasi-criminal) civil; context and not when Govern- punish ment seeks to the concern for fairness is defendant, much more acute.4 relitigate

Whenever a defendant is forced to the facts un- derlying prior acquitted, offense for which he has been jury erroneously there is a that the he is risk will decide that guilty heightened of that That offense. risk is because required is committed the to conclude defendant prior only by preponderance of the evidence. Cf. offense (reasonable-doubt (1970) Winship, In re reducing prime the risk of con- standard “is a instrument for error”). resting fact that the victions on factual presently charged of the offense offense is used as evidence reliability jury’s of the ultimate raises concerns about the presently the defendant committed the cоnclusion large part charged offense. These concerns stem in danger relating criminal inherent to an extrinsic dangers “[o]ne of the inherent the admis- First, offense. may offense evidence is that the convict sion of extrinsic charged for the extrin- not for the offense but defendant *17 4 employed in the standard is criminal con higher The reasonable-doubt defendants, thereby accuracy protect and text to ensure the of convictions which the permit of evidence of crimes for defendant not to introduction 358, By Winship, 363 defini acquitted. has been In re 397 U. S. beyond tion, prove guilty a a rea when the Government fails to defendant doubt, legally innocent. Unlike the the defendant is considered sonable Court, respect subsequent to majority I believe that at least with is to be treated аs innocent prosecutions, criminal “the defendant finality more to answer for his in the of fairness and made no interests 1979). (Minn. 307, Wakefield, 308 alleged v. 278 N. W. 2d crime.” State trial, off, if in his second petitioner would have been better It is ironic that trial and had been con represented counsel at the first he had not been any capacity in may used in convictions not be victed because uncounseled (1972) Beto, 473, (impeach 483 subsequent Loper v. 405 U. S. trials. See (1972) Tucker, 443, ment); (sentencing 447 v. U. S. United States (1967) (substantive Texas, enhancement); Burgett v. evidence). danger particularly great sic offense. This is where . . . the activity subject extrinsic was not the a conviction; may punished activity feel the defendant for that should be guilty charged.” even if he is not of the offense (CA5 1978)(en banc) States Beeckum, 582 F. 2d (citations omittеd). Alternatively, danger there is the “may jury] having [the the evidence lead that, to conclude type charged, [the defendant] a committed crime of the is likely repeat it.” Ibid. fact that Thus, the the defendant relitigate participation prior is forced to his criminal of- proof fense under a low standard of combined with the inher- ently prejudicial nature of such evidence increases the risk jury erroneously will convict the defendant of the charged presently offense. only response is that the defendant Court’s is free to

introduce evidence to rebut the contention that he committed prior response, course, offense. This underscores the reasoning: type flaw in the Court’s introduction of this of evi requires dence the defendant to mount second defense to an аcquitted. offense for which he has been That the facts re lating prior only to the offense are used as evidence of an other crime does not reduce the burden on the he defendant; required against prior charges. is still to defend More significance jury may place over, because of the on evidence prior presenting against of a criminal offense, defense may defending against pres offense asbe burdensome as ently charged Finally, offense. since the lower standard of makes it easier for the to concludethat the defend essentially ant offense, committed the the defendant is present forced affirmative evidence to rebut the contention that he committed that offense.5 *18 judge may jury The fact that the trial instruct the that the defеndant acquitted sufficiently protect was does the defendant from the need to present guarantee give any There is evidence. no the will weight acquittal; jury may disregard to the the it or even conclude that the first amade mistake. weapon the Gov- to powerful new today a adds Court The relating facts relitigate ability the to arsenal. ernment’s been has defendant the which for offense to an many situations are there because the

benefits second present a to be able will not defendant the in which expense, or some the time, passage of the of because defense the to limit discernible is no there Indeed factor. other relitigate these to forced be could defendant the rule; Court’s ap- reasoning Court’s Moreover, the trial. after trial fаcts case of this facts the than further pears even to extend offense prior criminal rely aon to prosecutor a allow seems to offense an for trial in a acquittal) as evidence (despite an prior offense. the as transaction part the same is which relating to a facts introduce could prosecutor example, a For conspiracy, even for in trial a offense substantive though substantive the acquitted of been had defendant (the question 445, n. S., at 397 U. Ashe, Cf. offense. requirement a constitutional collateral whether prosecutors gave statutes modern until concern little ofwas of- series startingly numerous “spin a ability out transaction”). Indeed, alleged single criminal fenses jus- broadly to more apply even reasoning could the Court’s which for offense of a of evidence tify introduction de- to enhance acquitted in order been had defendant requires sentencing scheme under sentence fendant’s g., McMillan e. See, doubt. reasonable than less con- (1986) (upholding 91-93 S. Pennsylvania, 477 U. proof of addi- requiring sentencing scheme stitutionality evidence). by ignoring Only by preponderance of tional facts is collateral-estoppel doctrine upon which principles far this tip scales the Court possible it is based prosecution’s favor. II acquitted defendant deprives today an holding The Court’s which suspicious aura “blight and rightful end to of his specific crime.” guilty aof ishe accusation surround *19 1972). (CA5 Be- Wainwright, 2d Wingate 464 F. hypertechnical holding view on a is based cause the ‍‌​‌​‌‌‌‌​‌‌​​​​​‌​‌​‌‌​‌‌​‌‌‌​‌​​​‌​​‌​‌​‌‌‌‌‌‌​‍Court’s bur- defendant’s view the naive and reflects respectfully dissent. I trial, den a criminal