Supreme Court Update: Bravo-Fernandez v. United States (15-537) and Order List

December 2, 2016 Supreme Court Update

Greetings Court Fans!

The Court issued its first signed opinion of the term this week, a unanimous decision in Bravo-Fernandez v. United States (15-537) holding that the Double Jeopardy Clause does not bar the Government from retrying a defendant after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal, and the convictions are later vacated for legal error unrelated to the inconsistency. Scratching your heads? We'll break it down for you.

The Double Jeopardy Clause translates claim preclusion (known to you old timers as res judicata) and issue preclusion (f/k/a collateral estoppel) into the criminal context. The claim-preclusion component of the Double Jeopardy Clause is familiar. It protects defendants against a second prosecution for the same offense, regardless of whether they were convicted or acquitted in the first prosecution. The issue preclusion component 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 (1970). In criminal cases, a defendant seeking to benefit from the issue-preclusion component must show that the particular matter at issue was necessarily resolved in his favor at the first trial. The question in Bravo-Fernandez was whether a defendant could make that showing when the jury decided the same issue in different ways by rendering inconsistent verdicts of acquittal and conviction on counts raising the same issue, but where the count of conviction had been vacated on appeal.

Bravo-Fernandez was convicted of bribery in violation of 18 U.S.C. § 666, but acquitted of conspiracy to violate § 666 and traveling interstate in furtherance of a violation of § 666. Though the jury convicted him of the substantive bribery count, it acquitted on the counts of conspiracy and interstate travel even though the only disputed element in those counts was the substantive bribery element, not whether he conspired or traveled interstate. On appeal, the First Circuit vacated Bravo-Fernandez's conviction based on an erroneous jury instruction that had nothing to do with the inconsistent verdicts. After the case was remanded for a new trial, Bravo-Fernandez argued that the issue-preclusion component of the Double Jeopardy Clause barred retrial on the § 666 count because the jury had necessarily found that he hadn't committed bribery. Even though it had convicted him on the bribery count, that verdict had been vacated on appeal, leaving only the verdicts acquitting him of conspiracy and traveling interstate, where the only dispute was over whether he was guilty of bribery.

This argument stretched the issue-preclusion doctrine a bit too far for the Court, which (affirming the First Circuit) held that the issue-preclusion component of the Double Jeopardy Clause does not bar the Government from retrying defendants, like Bravo-Fernandez, after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal, even when the conviction is later vacated for unrelated legal error. Writing for a unanimous Court, Justice Ginsburg noted that because of the inconsistent verdicts, Bravo-Fernandez could not establish that the jury necessarily resolved the bribery issue in his favor. Though Bravo-Fernandez argued that his vacated conviction should be treated as a nullity and ignored (similar to how the courts treat hung verdicts in Double Jeopardy cases), Justice Ginsburg responded that issue-preclusion analysis is based in "realism and rationality" and "depends on the jury's' assessment of the facts in light of the charges presented at trial," so a conviction overturned on appeal should be considered in the assessment of an acquittal verdict's preclusive effect. Especially in view of the fact that the Government cannot obtain review of acquittals, courts should hesitate to give issue-preclusive effect to inconsistent verdicts in criminal cases.

Justice Thomas joined Ginsburg's opinion but filed a brief concurrence stating his view that the Double Jeopardy Clause has no issue-preclusion prong. He would like to revisit the Court's earlier decisions on issue-preclusion in an appropriate case, but because the correct result was reached here, and the doctrine as not expanded, he joined the decision in full.

Bravo-Fernandez was the only decision this week, but the Court did grant cert in seven new cases (three of which are consolidated) for the weeks to come.

Howell v. Sandra (No. 15-1031) asks whether the Uniformed Services Former Spouses' Protection Act preempts a state court's order directing a veteran to indemnify a former spouse for a reduction in the former spouse's portion of the veteran's military retirement pay, where that reduction results from the veteran's post-divorce waiver of retirement pay in order to receive compensation for a service-connected disability.

Impression Products, Inc. v. Lexmark Int'l, Inc. (No. 15-1189) asks (1) whether a "conditional sale" that transfers title to a patented item while specifying post-sale restrictions on the article's use or resale avoids application of the "patent exhaustion doctrine" and therefore permits the enforcement of post-sale restrictions through the patent law's infringement remedy; and (2) whether, in light of Kirtsaeng v. John Wiley & Sons (2013), a sale of a patented article that takes place outside of the United States exhausts the U.S. patent rights in the article.

Water Splash v. Menon (No. 16-254) asks whether the Hague Service Convention authorizes service of process by mail.

Los Angeles County v. Mendez (No. 16-369) asks (1) whether the Ninth Circuit's "provocation rule"—which allows police officers to be held liable for use of excessive force even if they reasonably feared for their safety if the officers themselves provoked the altercation giving rise to the need for deadly force—should be barred as conflicting with Graham v. Connor and the decisions of other lower courts; and (2) whether, in an action brought under 42 U.S.C. § 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment.

Finally, Advocate Health Care v. Stapleton (No. 16-74), St. Peter's Healthcare v. Kaplan (No. 16-86), and Dignity Health v. Rollins (No. 16-258) (consolidated), each ask whether ERISA's exemption of church plans from its coverage applies as long as a pension plan is maintained by an otherwise qualifying church-affiliated organization, or whether the exemption only applies if, in addition, a church initially established the plan.

That's all for this week. Enjoy the weekend!