Argument Preview: Whether issue preclusion requires dismissal with prejudice (or even applies at a rehearing) in United States v. Hutchins
CAAF will hear oral argument in the Marine Corps case of United States v. Hutchins, No. 18-0234/MC (CAAFlog case page), on Wednesday, January 23, 2019, at 9:30 a.m. This is CAAF’s third review of the long-running prosecution of Sergeant (E-5) Hutchins for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident.
Hutchins was first convicted in 2007 of conspiracy, false official statement, unpremeditated murder, and larceny. He was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge. The convening authority disapproved the reprimand and all confinement in excess of 11 years.
The Navy-Marine Corps CCA reversed Hutchins’ convictions in 2010 (decision analyzed here), but CAAF reversed the CCA’s decision in 2011 (noted here). On remand in 2012, the CCA affirmed the findings and the sentence (noted here). But CAAF reversed that decision too, and then it set aside Hutchins’ convictions and authorized a rehearing in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).
The rehearing occurred in 2015, and Hutchins was again convicted of conspiracy, murder, and larceny. The conspiracy conviction, however, implicated conduct of which Hutchins was acquitted at the first trial. Specifically, Hutchins was originally charged with a conspiracy to commit six offenses (larceny, housebreaking, kidnapping, false official statements, murder, and obstructing justice), and the charge alleged 21 overt acts in furtherance of that conspiracy. The members of the first court-martial found Hutchins not guilty of two of the six alleged offenses (housebreaking and kidnapping) and two of the alleged 21 overt acts, and was also acquitted of other charged offenses (including premeditated murder and obstruction of justice). Nevertheless, at the 2015 rehearing the prosecution introduced evidence of all six possible objects of the conspiracy, and it also introduced evidence of the other offenses of which Hutchins was acquitted. The prosecution was allowed to do that because the military judge found that evidence admissible for the limited purpose of proving that Hutchins had a plan to commit the charged offenses (that he had been convicted of committing at the first trial).
Hutchins claims that violated the constitutional prohibition against double jeopardy on the basis of collateral estoppel or issue preclusion (different names for the same thing). The Supreme Court recently explained that:
In criminal prosecutions, as in civil litigation, the issue-preclusion principle means 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.” Ashe v. Swenson, 397 U. S. 436, 443 (1970).
Bravo-Fernandez v. United States, 137 S. Ct. 352, 356 (2016). The NMCCA rejected Hutchins’ claim of error, and CAAF granted review of a single issue:
Whether the military judge erred when he denied the defense motion to suppress evidence of conduct for which Appellant had been acquitted at his first trial.
Hutchins argues that the military judge did err, and that the error affected all of the charges and so they should all be dismissed with prejudice and he should be freed from any criminal consequences for his involvement in the killing.
The Navy-Marine Corps Appellate Government Division argues that issue preclusion doesn’t apply to the facts of this case, and also that it doesn’t apply to any rehearing.
Hutchins’ brief explains the prosecution’s theory of the case as involving a plan to murder a specific Iraqi insurgent or, failing that, a random Iraqi male (as a warning to insurgents):
According to the prosecution, Sgt Hutchins’ plan required four squad members, Magincalda, Thomas, Bacos and Pennington (the “snatch team”), to leave the ambush position, steal an AK-47 and shovel, patrol to insurgent leader Saleh Gowad’s house, and then unlawfully enter the house and kidnap a victim—either Saleh Gowad himself (“Plan A”), a relative of Gowad (“Plan B”), or any random Iraqi military aged male from any nearby house (“Plan C”).
App. Br. at 6. The brief then explains that at the first trial the defense disputed only the alternative plan of killing a random Iraqi:
In effect, the defense closing argument conceded that the killing had happened, and that the individual killed was not digging a hole when he was shot, but had instead been brought to the IED hole by the snatch team, and the scene staged.
The main exception to this concession was to maintain that the plan was only to kill Saleh Gowad, not any random Iraqi, and that Sgt Hutchins never intended or planned for any random Iraqi to be killed, nor would he have allowed any random Iraqi to be killed.
App. Br. at 12-13. Hutchins was then convicted of aspects of the conspiracy charge that involved the plan to kill Saleh Gowad, but acquitted of aspects that implicated a plan to kill a random Iraqi male. Analyzing those findings, his brief asserts that:
The members determined that the conspiracy was only to kill Saleh Gowad, did not include any plans for alternate victims, and to the extent anyone else may have been seized, such actions were not the object of the conspiracy, were not in furtherance of the conspiracy, nor were they proven beyond a reasonable doubt.
App. Br. at 14. Nevertheless, at the rehearing the prosecution was allowed to present evidence implicating a plan to kill a random Iraqi male. Hutchins’s brief claims that as a violation of the prohibition against double jeopardy on the basis that his acquittal on the related conspiracy allegations was a final determination that there was no plan to kill a random Iraqi:
The Government’s narrative, and the cornerstone of its prosecutions at both trials, was that Sgt Hutchins conspired to kill a random Iraqi. However, Sgt Hutchins was acquitted of this narrative at his first trial, and instead convicted of conspiring to kill insurgent leader Saleh Gowad. Accordingly, at the retrial the government was collaterally estopped from presenting the random Iraqi conspiracy to the members as an ultimate fact or essential element of any charge. The Government nevertheless did so, and the impermissible random Iraqi conspiracy was the essential element of Sgt Hutchins’ conspiracy conviction, and the co-conspirator liability underlying his murder and larceny convictions.
App. Br. at 25.
The Government Division’s brief rejects Hutchins’ basic premise that the partial acquittal at his first trial was a determination that there was no conspiracy to kill a random Iraqi male:
[T]he 2007 Members convicted Appellant of unpremeditated murder of an “unknown Iraqi man” as well as conspiracy to commit unpremeditated murder with several acts in furtherance of the conspiracy involving an “unknown Iraqi man.” (J.A. 571, 583.) The 2007 Members did not except the language of “unknown Iraqi man” in the murder charge or the multiple underlying overt acts related to the conspiracy to murder an “unknown Iraqi man” — “that [the snatch team] did take an unknown Iraqi man to a hole,” forced him to the “ground and bind his hands and feet,”; and, that Appellant and his squad fired their weapons toward the unknown Iraqi man who died as a result. (J.A. 221, 582-83.)
According to Appellant’s argument, the 2007 Members acquitted Appellant “of all crimes related to an alleged conspiracy agreement to kill any random Iraqi male,” but they simultaneously believed—as demonstrated by their convictions—that Appellant conspired to commit murder; that Appellant’s co-conspirators took an unknown Iraqi man to a hole, forced him to the ground, and bound his hands and feet; and murdered the “unknown Iraqi man.” (Appellant Br. at 32; J.A. 23.) Appellant’s argument fails to meet his burden that the prior Findings are not irreconcilably inconsistent with his argument. After all, the 2007 Members convicted Appellant of conspiracy to commit murder and murder of an “unknown Iraqi man.” That verdict alone is inconsistent with his argument.
Gov’t Div. Br. at 23-24 (emphasis in original).
The Government Division’s argument is bolstered by two recent CAAF decisions. Two years ago, in United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (CAAFlog case page), CAAF explained that “defendants are generally acquitted of offenses, not of specific facts,” and two weeks ago, in United States v. Nicola, __ M.J. __, (C.A.A.F. Jan. 9, 2019) (CAAFlog case page), CAAF re-emphasized that observation by using the factual basis of an offense of which the accused was acquitted as a basis to sustain a conviction of a different offense. But the Government Division’s argument also requires that the results of the first trial be rationally irreconcilable – meaning that there is no rational explanation for why the members acquitted Hutchins of certain aspects of the conspiracy charge while convicting him of related aspects of the murder charge. This is so because:
Where members convict on one charge and acquit on another, and both charges turn on the same issue of ultimate fact, the “established principles of collateral estoppel—which are predicated on the assumption that the jury acted rationally and found certain facts in reaching its verdict—are no longer useful.” United States v. Powell, 469 U.S. 57, 68 (1984). “[B]oth verdicts stand” and the “Government is barred by the Double Jeopardy Clause from challenging the acquittal (citation omitted), but because the verdicts are rationally irreconcilable, the acquittal gains no preclusive effect.” Bravo-Fernandez, 137 S. Ct. at 357 (citing Green v. United States, 355 U.S. 184, 188 (1957)).
Gov’t Div. Br. at 21-22 (emphasis omitted). In other words, the Government Division accepts that Hutchins was acquitted of certain aspects of the conspiracy charge but it disagrees with Hutchins’ argument that partial acquittal was a final determination of facts.
Yet the Government Division also makes an even broader argument:
“Any matter put in issue and finally determined by a court-martial, reviewing authority, or appellate court which had jurisdiction to determine the matter may not be disputed by the United States in any other court-martial of the same accused.” R.C.M. 905(g) (emphasis added). “[A] rehearing is a continuation of the former proceeding.” United States v. Beatty, 25 M.J. 311, 314 (C.A.A.F. 1987) (quotations omitted). “When a conviction is overturned on appeal, the general rule is that the Double Jeopardy Clause does not bar reprosecution.” Bravo-Fernandez, 137 S. Ct. at 363; see also Article 67(d), UCMJ. “This continuing jeopardy rule . . . reflects the reality that the criminal proceedings against an accused have not run their full course.” Bravo-Fernandez, 137 S. Ct. at 363. . . .
. . .this Court should rule that issue preclusion is inapplicable to admission of evidence related to acquitted crimes at a prior trial where the United States does not add and amend the prior charges, and the legal error for setting aside the findings on appeal is unrelated to the verdict inconsistency.
Gov’t Div. Br. at 29-31 (emphasis in original). Rehearings are uniquely-military proceedings that involve a second trial on the merits – before new members, if members are elected – but under the authority and jurisdiction of the original court-martial. Accordingly, argues the Government Division, it’s still the same court-martial and issue preclusion doesn’t apply.
Hutchins’ reply brief characterizes the Government Division’s argument as a “gross misreading of the holdings of the referenced cases.” Reply Br. at 4. But it also argues that “the elimination of Constitutional issue preclusion would have no impact on R.C.M. 905(g), which firmly embeds issue preclusion in military justice as a procedural rule.” Reply Br. at 5. The problem with that argument, however, is that R.C.M. 905(g) prohibits reprosecution in any other court-martial, and a rehearing is not another court-martial but rather is a continuation of the original court-martial.
Hutchins’ brief ends with a claim that dismissal with prejudice is the appropriate remedy because of the way the second trial tarnished Hutchins’ reputation:
Dismissal with prejudice is warranted “where the error cannot be rendered harmless,” as the Government has already accomplished its objective, and “no useful purpose would be served by continuing the proceedings.” Here, the Government’s objective has been the public advancement of its narrative that Sgt Hutchins planned to kill a random Iraqi, and the disregard of the acquittals. That objective was accomplished throughout the retrial, and as a result Sgt Hutchins will forever have his name associated with guilt for crimes of which he was acquitted.
App. Br. at 49-50. The brief also makes a clemency argument, asserting that “the ordeal Sgt Hutchins and his family have endured over 12 years greatly exceeds any punishment the Government could ever have lawfully achieved,” and that “the Sgt Hutchins of 2006 no longer exists.” App. Br. at 50.
The Government Division’s response outlines the practical consequences of Hutchins’ proposed remedy:
Setting aside Appellant’s convictions and dismissing all charges with prejudice due to an error in the admissibility of evidence would allow Appellant to receive no convictions in a case where the evidence overwhelmingly demonstrated he plotted and engaged in murder.
Gov’t Div. Br. at 43.