On petition for writ of certiorari to the Court of Appeals of
Ohio, Butler County.
The petition for a writ of certiorari is denied.
Justice WHITE, with whom Justice BLACKMUN and Justice POWELL,
join, dissenting.
Because there is no jurisdictional bar to considering this case,
and because the decision below fails to give due regard to our
cases, I dissent from the denial of certiorari.
I
Petitioner, an attorney, was indicted in 1978 on two counts of
grand theft. The first count charged him with obtaining or exerting
control over a bank account by deception in that he led the
executrix of an estate to believe that the account was a probate
asset of the estate rather than a survivorship account. The second
count of the indictment charged petitioner with obtaining or
exerting control over the account be-
Page 455 U.S.
976 , 977
yond the scope of the owner's consent by writing $9,000 in
checks payable to himself on the account. The trial court sustained
petitioner's pretrial motion to dismiss the first count of the
indictment on the ground that it failed to state an offense under
the Ohio statute. He was acquitted following a bench trial on the
second count, the trial judge finding that the State had "failed to
establish all of [the] elements" of the crime charged in the second
count. App. to Pet. for Cert. 13a. The State appealed the pretrial
dismissal of the first count and on January 30, 1980, the Court of
Appeals for the First Appellate District of Ohio reversed the
dismissal of the first count and remanded to the trial court for
further proceedings. Petitioner then filed a motion to dismiss on
the ground that a trial on the first count would violate the Double
Jeopardy Clause of the Fifth Amendment, made applicable to the
States by the Fourteenth Amendment. Citing Ashe v. Swenson,
397 U.S. 436
(1970), petitioner argued that the principle of collateral estoppel
is part of the Fifth Amendment guarantee against double jeopardies
and that his acquittal on the second count prevented the State from
again attempting to prove one or more of the elements of the crime
charged in the first count. The trial court denied the motion and
petitioner appealed.
The Court of Appeals for the Twelfth Appellate District of Ohio
affirmed the denial of the motion. Relying principally on
Blockburger v. United States,
284 U.S. 299 (1932), the
court said that the test for determining whether the trial on the
second count bars a subsequent trial on the first count is whether
each count requires proof of an additional fact which the other
does not. The court observed that in order to obtain a conviction
on the second count, the State was required to prove that
petitioner knowingly obtained or exerted control over the property
of another, with purpose to deprive the owner of that property, and
that he acted beyond the scope of the owner's express or implied
consent. To success-
Page 455 U.S.
976 , 978
fully prosecute on the first count, the State must prove that
petitioner obtained or exerted control over the property of another
by deception with the purpose of depriving the owner of the
property. The court held that the evidence necessary to sustain the
conviction on the first count was not sufficient to sustain a
conviction on the second count and therefore acquittal of the
charges contained in the second count is not a bar to prosecution
of the charges contained in the first count. The court went on to
state that even if petitioner were correct that the two counts set
forth allied offenses with a common animus, he could not avoid a
trial on the first count because he filed a motion to dismiss the
first count. Therefore, as in Jeffers v. United States,
432 U.S.
137, 154, 2218 (1977), where the defendant had been granted
separate trials on separate counts of the indictment at his own
request, petitioner's own actions "deprived him of any right he
might have had against consecutive trials." The Supreme Court of
Ohio denied petitioner's motion for leave to appeal, and he sought
a writ of certiorari from this Court.
II
Petitioner has not yet been tried on the first count of the
indictment, and therefore this case lacks the finality ordinarily
necessary for our consideration of cases arising from state courts.
See 28 U.S.C. 1257. However, in Abney v. United States,
431 U.S. 651, 97 S. Ct.
2034 (1977), in a case coming to us from a federal court, the Court
held that double jeopardy claims are immediately appealable. "[T]he
rights conferred on a criminal accused by the Double Jeopardy
Clause would be significantly undermined if appellate review of
double jeopardy claims were postponed until after conviction and
sentence ." Id., at 660. It was emphasized that the Double Jeopardy
Clause protects against more than being twice convicted and
punished for the same crime: "It is a guarantee against being twice
put to trial for the same offense." Id., at 661 (footnote omitted).
See also United States v. Jorn, 400
Page 455 U.S.
976 , 979
U.S. 470, 479, 554 (1971); Price v. Georgia,
398 U.S.
323, 326, 1759 (1970); Green v. United States,
355 U.S. 184, 187-188,
223 ( 1957); United States v. Ball,
163 U.S.
662, 669, 1194 (1896); Ex parte Lange, 18 Wall. 163, 169
(1874). Abney was not, by its terms, limited to federal cases, and
we have recognized a "core principle that statutorily created
finality requirements should, if possible, be construed so as not
to cause crucial collateral claims to be lost and potentially
irreparable injuries to be suffered. . . ." Mathews v. Eldridge,
424 U.S. 319,
331, n. 11, 901, n. 11 (1976). If the finality requirement of 1257,
which serves to avoid piecemeal review of state-court decisions and
to minimize federal intrusion into state affairs, North Dakota
Pharmacy Board v. Snyder's Drug Stores, Inc.,
414 U.S.
156, 159, 410 (1973), barred our review of this case,
petitioner would, in my view, be "forced to endure a trial that the
Double Jeopardy Clause was designed to prohibit." Abney v. United
States, supra, 431 U.S., at 662 (footnote omitted). The interests
served by the finality requirement, though important, do not
outweigh petitioner's interest in receiving the full protection
afforded by the Double Jeopardy Clause and avoiding the irreparable
injury of a second trial.
Nor did petitioner waive his Fifth Amendment right to double
jeopardy protection by moving to dismiss the first count of the
indictment. In Green v. United States, supra, it was held that a
defendant does not forfeit a double jeopardy defense by appealing a
conviction, and under the logic of that case, petitioner did not
forfeit a constitutional protection by invoking his right to seek
dismissal of a count of the indictment. See also Burks v. United
States,
437 U.S. 1
(1978 ). Jeffers v. United States, supra, relied upon by the lower
court, is inapplicable. There the defendant was charged under two
separate indictments. The first indictment charged a crime which
was a lesser- included offense to the crime charged in the second
indictment. The defendant was granted separate trials and convicted
on the lesser-included offense. We held that petitioner's
opposition to consolidat-
Page 455 U.S.
976 , 980
ing the indictments for trial deprived him of his right against
successive trials. Id., 432 U.S., at 152. There is no doubt that
had the defendant in Jeffers been acquitted at the first trial, the
collateral-estoppel provisions embodied in the Double Jeopardy
Clause would have barred a second trial on the greater offense.
III
The Court of Appeals apparently thought that since Blockburger
would not bar successive convictions on counts one and two, a trial
on count one after acquittal on count two is permissible. It did
not respond to, or make any mention of, petitioner's argument that
collateral estoppel precludes a second trial. However, our cases
plainly establish that a second trial may sometimes be allowed
under Blockburger but barred by the application of collateral
estoppel, which constitutes an independent safeguard protecting one
"who has been acquitted from having to 'run the gauntlet' a second
time." Ashe v. Swenson, 397 U.S., at 446. The doctrine of
collateral estoppel "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." Id., at 443. Ashe held that the doctrine of
collateral estoppel "is embodied in the Fifth Amendment guarantee
against double jeopardy." Id., at 445. Thus, as we observed in
Brown v. Ohio,
432
U.S. 161, 166-167, n. 6 (1977):
"The Blockburger test is not the only standard for determining
whether successive prosecutions impermissibly involve the same
offense. Even if two offenses are sufficiently different to permit
the imposition of consecutive sentences, successive prosecutions
will be barred in some circumstances where the second prosecution
requires the relitigation of factual issues already resolved by the
first."
Page 455 U.S.
976 , 981
The Court of Appeals thus erred in assuming that its Blockburger
analysis sufficiently addressed the collateral-estoppel issues
petitioner submitted. Two of the three elements in each of the
counts were identical . If the acquittal on the second count was
based on the failure of the State to prove either of the two
identical elements, it is clear that collateral estoppel would bar
a trial on the first count. Yet neither the trial court nor the
appellate court indicated which elements of the crime charged in
count two the State had failed to prove, and surely the trial court
entering the acquittal would have been well aware of that fact. It
may be that the State's proof fell short on each of the three
elements required to prove the charge in count two. Petitioner also
argues that if his acquittal on the second count was based on the
failure of proof that petitioner acted beyond the scope of the
owner's consent, then he cannot be found to have acted by deception
as required for conviction on the first count.
In any event, the collateral-estoppel submission was not
adequately disposed of by the Blockburger analysis and I would
grant certiorari, vacate the judgment, and remand the case for
further consideration. The case does not warrant plenary
consideration, however.
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