SCOTUS Double Jeopardy Case Could Impact Prosecutor Discretion

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By Jessica DaSilva

Oct. 4 — U.S. Supreme Court justices focused their questions during oral argument Oct. 4 on the historical treatment of vacated convictions versus hung verdicts in a double jeopardy case that could affect prosecutorial decision making, according to a criminal law professor ( Bravo-Fernandez v. United States, U.S., No. 15-537, argued 10/4/16 ).

At issue is whether the government may bring new charges after a jury convicted on one charge and acquitted on another when both rely on the same basic offense.

The determination of that question could affect the number of similar charges prosecutors are able to bring against defendants and could have a limiting effect on their charging decisions, said Jocelyn Simonson, a criminal law professor at Brooklyn Law School.

‘A Venn Diagram.’

The jury in this case convicted on a bribery charge, but acquitted on a conspiracy to travel and commit bribery charge. The U.S. Court of Appeals for the First Circuit vacated the bribery charge based on an improper jury instruction that allowed for conviction based on gratuity theory rather than quid-pro-quo; in other words, whether the gift was given as a reward for official actions or in direct exchange for those actions.

When the government tried to bring basic bribery charges again, the defendants moved to stop the charges based on double jeopardy because they had been acquitted of bribery under the other charge, which was a necessary element of the crime of conspiracy to travel and commit bribery.

The court’s ultimate decision will affect how prosecutors bring crimes with overlapping elements, Simonson explained.

“So with higher and lower [charges], it’s clearer on double jeopardy,” Simonson said. “This is more of a Venn diagram of overlapping facts—a very close Venn diagram—which is when double jeopardy gets tricky.”

If the court finds that the overturned verdict bars the government from bringing new charges, Simonson said prosecutors will need to more carefully select the charges they bring against defendants for fear that acquittal of one could invalidate other charges with similar elements. Yet ruling in favor of the government would mean prosecutors don’t need to worry about their charging decisions, she added.

“On the margins, it gives them a little more leeway to overcharge or include more counts,” Simonson said.


The defendants faced a hot bench that asked why two inconsistent verdicts that found defendants both guilty and innocent of bribery barred an appellate court from granting a new trial.

Lisa S. Blatt, a partner at Arnold & Porter LLP in Washington and head of the firm's appellate and Supreme Court practice, argued that when the Second Circuit overturned the bribery charge, it was void ab initio—meaning completely null and void from the beginning to the end. That legal nullity barred the government from bringing another bribery charge, Blatt explained.

Justice Elena Kagan pushed back, asking whether the rationale was really based in double jeopardy precedent at all. Blatt referred to the 2009 case of Yeager v. United States (2009 BL 130710, U.S., No. 08-67, 6/18/09), as a comparison (85 CrL 409, 6/24/09).

In that case, the court overturned the defendant’s charges after a jury acquitted him on fraud but could not reach a decision on the other charges that included fraud as an element.

Yeager ruled that “acquittals can’t be undermined by hung counts,” Blatt said. “Well, they shouldn’t be able to be undermined by invalid verdicts either.”

In response, Justice Ruth Bader Ginsburg argued that the present case was distinguishable because the jury actually did reach a decision and the reversible error—the improper instruction—had nothing to do with the inconsistent verdicts.

But basing a new trial ruling on a vacated verdict is worse than basing it on a jury’s inability to reach a verdict, Blatt said. That kind of ruling could undermine trust and fairness in the criminal justice system, she argued.


The government faced a less aggressive bench that asked questions reflecting points in the defendants’ argument. The bench inquired about the historical treatment of vacated convictions—which justices said received no respect in the court’s history, similar to the hung jury in Yeager.

That should mean that vacated convictions can offer little to no guidance in rebutting the presumption that jurors properly follow instructions, several justices noted.

In response, Elizabeth B. Prelogar, of the Solicitor General’s Office, said it is just as likely that the jury decided the issue on the instructional error, which should warrant a retrial to ensure the government has the opportunity to enforce the criminal code.

Justices also peppered Prelogar with hypothetical legal scenarios involving overturned verdicts.

“A lot of this was the court trying to analogize to different types of overturned jury verdicts to figure out whether we treat all overturned convictions differently or—for all of them—we say, ‘It’s not a final jury verdict so you can use it for anything,’” Simonson said.

To contact the reporter on this story: Jessica DaSilva in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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