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.