Opinion Analysis: The doctrine of issue preclusion does not apply to the facts presented in United States v. Hutchins
CAAF decided the Marine Corps case of United States v. Hutchins, __ M.J. __, No. 18-0234/MC (CAAFlog case page) (link to slip op.), on Wednesday, May 29, 2019. In its third review of this long-running prosecution, CAAF finds that no issue of ultimate fact was determined by Hutchins’ acquittal of certain offenses in his first trial and also that the prosecution could prove all the elements of the offenses at his second trial without invoking the elements of the acquitted offenses. Accordingly, the doctrine of issue preclusion – as embodied by the Double Jeopardy Clause of the Fifth Amendment and codified in Rule for Courts-Martial 905(g) – does not apply, and CAAF affirms the decision of the NMCCA that affirmed the findings and sentence.
Judge Ohlson writes for a unanimous court.
Sergeant (E-5) Hutchins was tried twice by general court-martial for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident. His first court-martial was in 2007 and resulted in convictions of conspiracy, false official statement, unpremeditated murder, and larceny, but acquittals of other related offenses. Hutchins was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge, however the convening authority disapproved the reprimand and all confinement in excess of 11 years.
A roller-coaster of appellate litigation followed. The Navy-Marine Corps CCA initially reversed Hutchins’ convictions in 2010 (decision analyzed here), but CAAF reversed the CCA’s decision in 2011 (noted here). On remand in 2012, the NMCCA 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. Those convictions, however, implicated conduct that that was also implicated by the offenses that Hutchins’ was acquitted of at the first trial. Specifically, the prosecution was allowed to introduce evidence implicating the acquitted offenses in order to prove that Hutchins had a plan to commit the charged offenses (that he had been convicted of committing at the first trial). Hutchins claimed that violated the constitutional prohibition against double jeopardy on the basis of collateral estoppel or issue preclusion (different names for the same thing), and CAAF granted review to determine:
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.
Judge Ohlson’s opinion for the unanimous CAAF holds that issue preclusion does not apply to the facts of Hutchins’ case and so the military judge could properly apply Mil. R. Evid. 403 and 404(b) to the prosecution’s evidence that implicated the acquitted offenses. Furthermore, because Hutchins “does not meaningfully contest the military judge’s application of those rules on their own terms,” CAAF does not review the military judge’s underlying ruling admitting the evidence.
The evidence at issue went to the prosecution’s theory of the case:
the Government relied on the same theory at the rehearing that it had used at the first trial, and it also relied on similar evidence. Specifically, trial counsel asserted that Appellant was the “mastermind” of “a perfect plan to commit a murder and send a message,” which “his squad executed.” Trial counsel went on to describe the “three-tiered plan”: (1) plan A—capture and kill the Iraqi HVI; (2) plan B—capture and kill the HVI’s brother; or (3) plan C—kill any Iraqi male they could find. Trial counsel explained that the squad abandoned plans A and B and instead executed plan C by grabbing an unknown Iraqi man who was sleeping in his house, dragging him to a nearby IED crater, and murdering him.
Slip op. at 5-6. Hutchins asserted “that issue preclusion barred the Government at the rehearing from presenting the ‘narrative’ that he conspired to murder a random Iraqi male at the rehearing.” Slip op. at 10. That assertion proves immediately problematic, as Judge Ohlson explains in a footnote that:
issue preclusion is concerned with issues of ultimate fact, not impressions, generalizations or, as Appellant characterizes it in his brief, a “narrative” of the underlying crime which is drawn from those facts. Brief for Appellant at 25, United States v. Hutchins, No. 18-0234 (C.A.A.F. Oct. 10, 2018); see Cessa, 861 F.3d at 140 (“The doctrine of [issue preclusion] as delineated in Ashe … deals with facts not theories.” (alteration in original) (internal quotation marks omitted) (citation omitted)).
Slip op. at 10 n.7. Put differently, Hutchins’ complaint about the prosecution’s narrative is a non-starter for issue preclusion, because:
Issue preclusion “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.” [Ashe v. Swenson, 397 U.S. 436, 443 (1970)]. An issue of ultimate fact is an issue that was “necessary to the [initial] judgment.” Bobby v. Bies, 556 U.S. 825, 835 (2009) (internal quotation marks omitted) (citation omitted). A “determination ranks as necessary … only when the final outcome hinge[d] on it.” Id.
. . .
In Currier v. Virginia, the Supreme Court stated: “Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial.” 138 S. Ct. 2144, 2150 (2018). Thus, an appellant can prevail under the doctrine of issue preclusion only if he can satisfy both prongs of the following test:
(1) the appellant first must demonstrate from evidence in the record that the panel’s acquittal at the first court-martial necessarily determined an issue of ultimate fact in his favor; and
(2) the appellant then must demonstrate that in order to obtain a conviction at the second court-martial, the government was required to prove beyond a reasonable doubt the existence of that same issue of ultimate fact.
See id.; Yeager v. United States, 557 U.S. 110, 123 (2009).
Slip op. at 8-9 (paragraphing added). Hutchins’ argument fails both prongs of that test.
For the first prong, Judge Ohlson explains that Hutchins’ acquittals did not determine any issues of ultimate fact:
First, Appellant’s acquittals regarding the obstruction of justice specifications did not determine any issue of ultimate fact. The military judge instructed the members that they were required to acquit Appellant of these offenses if they convicted him of the conspiracy involving obstruction of justice. Thus, no issue of ultimate fact can be deduced from these acquittals because the panel members were compelled to comply with the military judge’s legal instructions.
Second, in regard to Appellant’s acquittal for assault, there is an inconsistency between the members’ not guilty finding for this substantive offense and the members’ guilty finding for the conspiracy offense that involved overt acts that formed the basis for this same substantive offense. Given this inconsistency, no issue of ultimate fact can be identified. Bravo-Fernandez, 137 S. Ct. at 356–57 (explaining that where “verdicts are rationally irreconcilable, the acquittal gains no preclusive effect” (citing United States v. Powell, 469 U.S. 57, 68 (1984))).
Slip op. at 10-11 (emphases in original).
For the second prong, Judge Ohlson explains that even if CAAF were to assume that Hutchins satisfies the first prong:
the issue of ultimate fact that Appellant asserts was resolved in his favor at the first trial—that he was not involved in a conspiracy to murder a random Iraqi man—did not preclude the Government from proving at the rehearing the conspiracy, unpremeditated murder, and larceny offenses. It is important to note that Appellant was convicted of these three offenses at the first trial, thereby demonstrating that the Government’s success at the rehearing did not hinge on the purported ultimate fact now cited by Appellant. Moreover, this purported ultimate fact did not prevent the Government from obtaining convictions on the conspiracy, unpremeditated murder, and larceny offenses at the rehearing because no element of the offenses of conviction at the rehearing hinged on Appellant’s involvement in a conspiracy to kill a random Iraqi male.
. . . Stated differently, at the rehearing the Government could prove all of the elements of the offenses of which Appellant was convicted without having to prove beyond a
reasonable doubt that Appellant committed any of the conduct related to these offenses of which Appellant was acquitted at the first trial.
Slip op. at 11-12 (citations omitted). A footnote adds:
The conspiracy to commit murder charge did not specify the identity of the victim. Therefore, Appellant was not necessarily charged with a conspiracy to murder any random Iraqi male at the first trial. No issue of ultimate fact can be discerned under these circumstances.
Slip op. at 12 n.8.
Judge Ohlson therefore concludes:
the evidence offered by the Government at the rehearing in the instant case was not barred as a matter of issue preclusion under Ashe. Accordingly, the military judge was correct when he determined that the admissibility of the Government’s evidence should be decided using the framework of M.R.E. 404(b) and M.R.E. 403. Because Appellant does not meaningfully contest the military judge’s application of those rules on their own terms, we need not address the military judge’s specific analysis of those rules.
We affirm the judgment of the United States Navy-Marine Corps Court of Criminal Appeals.
Slip op. at 13-14 (heading omitted).
• NMCCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appelllee’s (N-M App. Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis