Certiorari To The United States Court Of Appeals For The First Circuit

No. 15-537. Argued October 4, 2016-Decided November 29, 2016

The issue-preclusion component of the Double Jeopardy Clause bars a second contest of an issue of fact or law raised and necessarily resolved by a prior judgment. Ashe v. Swenson, 397 U. S. 436. The burden is on the defendant to demonstrate that the issue he seeks to shield from reconsideration was actually decided by a prior jury’s verdict of acquittal. Schiro v. Farley, 510 U. S. 222. When the same jury returns irreconcilably inconsistent verdicts on the issue in question, a defendant cannot meet that burden. The acquittal, therefore, gains no preclusive effect regarding the count of conviction. United States v. Powell, 469 U. S. 57–69. Issue preclusion does, however, attend a jury’s verdict of acquittal if the same jury in the same proceeding fails to reach a verdict on a different count turning on the same issue of ultimate fact. Yeager v. United States, 557 U. S. 110–122.

In this case, a jury convicted petitioners Juan Bravo-Fernandez (Bravo) and Hector Martínez-Maldonado (Martínez) of bribery in violation of 18 U. S. C. §666. Simultaneously, the jury acquitted them of conspiring to violate §666 and traveling in interstate commerce to violate §666. Because the only contested issue at trial was whether Bravo and Martínez had violated §666 (the other elements of the acquitted charges—agreement and travel—were undisputed), the jury’s verdicts were irreconcilably inconsistent. Unlike the guilty verdicts in Powell, however, petitioners’ convictions were later vacated on appeal because of error in the judge’s instructions unrelated to the verdicts’ inconsistency. In the First Circuit’s view, §666 proscribes only quid pro quo bribery, yet the charge had permitted the jury to find petitioners guilty on a gratuity theory. On remand, Bravo and Martínez moved for judgments of acquittal on the standalone §666 charges. They argued that the issue-preclusion component of the Double Jeopardy Clause barred the Government from retrying them on those charges because the jury necessarily determined that they were not guilty of violating §666 when it acquitted them of the related conspiracy and Travel Act offenses. The District Court denied the motions, and the First Circuit affirmed, holding that the eventual invalidation of petitioners’ §666 convictions did not undermine Powell’s instruction that issue preclusion does not apply when the same jury returns logically inconsistent verdicts.

Held: The issue-preclusion component of the Double Jeopardy Clause does not bar the Government from retrying defendants, like petitioners, 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. Pp. 12–19.

(a) Because petitioners’ trial yielded incompatible jury verdicts, petitioners cannot establish that the jury necessarily resolved in their favor the question whether they violated §666. In view of the Government’s inability to obtain review of the acquittals, Powell, 469 U. S., at 68, the inconsistent jury findings weigh heavily against according those acquittals issue-preclusive effect. The subsequent vacatur of petitioners’ bribery convictions does not alter this analysis. The critical inquiry is whether the jury actually decided that petitioners did not violate §666. Ashe instructs courts to approach that task with “realism and rationality,” 397 U. S., at 444, in particular, to examine the trial record “with an eye to all the circumstances of the proceedings,” ibid. The jury’s verdicts convicting petitioners of violating §666 remain relevant to this practical inquiry, even if the convictions are later vacated on appeal for unrelated trial error.

Petitioners could not be retried if the Court of Appeals had vacated their §666 bribery convictions because of insufficient evidence, see Burks v. United States, 437 U. S. 1–11, or if the trial error could resolve the apparent inconsistency in the jury’s verdicts. But the evidence here was sufficient to convict petitioners on the quid pro quo bribery theory the First Circuit approved. And the instructional error cannot account for the jury’s inconsistent determinations, for the error applied equally to every §666-related count. Pp. 12–16.

(b) Petitioners argue that vacated judgments should be excluded from the Ashe inquiry because vacated convictions, like the hung counts in Yeager, are legal nullities that “have never been accorded respect as a matter of law or history.” Yeager, 557 U. S., at 124. That argument misapprehends the Ashe inquiry. Bravo and Martínez bear the burden of showing that the issue whether they violated §666 has been “determined by a valid and final judgment of acquittal.” 557 U. S., at 119 (internal quotation marks omitted). To judge whether they carried that burden, a court must realistically examine the record to identify the ground for the §666-based acquittals. Ashe, 397 U. S., at 444. A conviction that contradicts those acquittals is plainly relevant to that determination, no less so simply because it is later overturned on appeal for unrelated legal error. See Powell, 469 U. S., at 65.

Petitioners further contend that, under Yeager, the §666 convictions are meaningless because the jury was allowed to convict on the basis of conduct not criminal in the First Circuit—payment of a gratuity. But Yeager did not rest on a court’s inability to detect the basis for a decision the jury in fact rendered. Rather, when a jury hangs, there is no decision, hence no inconsistency. 557 U. S., at 124–125. By contrast, a verdict of guilt is a jury decision, even if subsequently vacated, and therefore can evince jury inconsistency. That is the case here. Petitioners gained a second trial on the standalone bribery charges, but they are not entitled to more. Issue preclusion is not a doctrine they can commandeer when inconsistent verdicts shroud in mystery what the jury necessarily decided. Pp. 16–19.

790 F. 3d 41, affirmed.

Ginsburg, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.