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.