Ashe v. Swenson


No. 57 Argued: November 13, 1969 --- Decided: April 6, 1970
MR. JUSTICE STEWART delivered the opinion of the Court.

In Benton v. Maryland, 395 U.S. 784, the Court held that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. The question in this case is whether the State of Missouri violated that guarantee when it prosecuted the petitioner a second time for armed robbery in the circumstances here presented. [n1]

Sometime in the early hours of the morning of January 10, 1960, six men were engaged in a poker game in the basement of the home of John Gladson at Lee's Summit, Missouri. Suddenly three or four masked men, armed with a shotgun and pistols, broke into the basement and robbed each of the poker players of money and various articles of personal property. The robbers -- and it has never been clear whether there were three or four of them -- then fled in a car belonging to one of the victims of the robbery. Shortly thereafter, the stolen car was discovered in a field, and, later that morning, three men were arrested by a state trooper while they were walking on a highway not far from where the abandoned car had been found. The petitioner was arrested by another officer some distance away. [p438]

The four were subsequently charged with seven separate offenses -- the armed robbery of each of the six poker players and the theft of the car. In May, 1960, the petitioner went to trial on the charge of robbing Donald Knight, one of the participants in the poker game. At the trial, the State called Knight and three of his fellow poker players as prosecution witnesses. Each of them described the circumstances of the holdup and itemized his own individual losses. The proof that an armed robbery had occurred and that personal property had been taken from Knight as well as from each of the others was unassailable. The testimony of the four victims in this regard was consistent both internally and with that of the others. But the State's evidence that the petitioner had been one of the robbers was weak. Two of the witnesses thought that there had been only three robbers altogether, and could not identify the petitioner as one of them. Another of the victims, who was the petitioner's uncle by marriage, said that, at the "patrol station," he had positively identified each of the other three men accused of the holdup, but could say only that the petitioner's voice "sounded very much like" that of one of the robbers. The fourth participant in the poker game did identify the petitioner, but only by his "size and height, and his actions."

The cross-examination of these witnesses was brief, and it was aimed primarily at exposing the weakness of their identification testimony. Defense counsel made no attempt to question their testimony regarding the holdup itself or their claims as to their losses. Knight testified without contradiction that the robbers had stolen from him his watch, $250 in cash, and about $500 in checks. His billfold, which had been found by the police in the possession of one of the three other men accused of the robbery, was admitted in evidence. The defense offered no testimony, and waived final argument. [p439]

The trial judge instructed the jury that, if it found that the petitioner was one of the participants in the armed robbery, the theft of "any money" from Knight would sustain a conviction. [n2] He also instructed the jury that, if the petitioner was one of the robbers, he was guilty under the law even if he had not personally robbed Knight. [n3] The jury -- though not instructed to elaborate upon its verdict -- found the petitioner "not guilty due to insufficient evidence."

Six weeks later, the petitioner was brought to trial again, this time for the robbery of another participant in the poker game, a man named Roberts. The petitioner filed a motion to dismiss, based on his previous acquittal. The motion was overruled, and the second trial began. The witnesses were for the most part the [p440] same, though this time their testimony was substantially stronger on the issue of the petitioner's identity. For example, two witnesses who at the first. trial had been wholly unable to identify the petitioner as one of the robbers now testified that his features, size, and mannerisms matched those of one of their assailants. All other witness who before had identified the petitioner only by his size and actions now also remembered him by the unusual sound of his voice. The State further refined its case at the second trial by declining to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative. The case went to the jury on instructions virtually identical to those given at the first trial. This time, the jury found the petitioner guilty, and he was sentenced to a 36-year term in the state penitentiary.

The Supreme Court of Missouri affirmed the conviction, holding that the "plea of former jeopardy must be denied." State v. Ashe, 350 S.W.2d 768-771. A collateral attack upon the conviction in the state courts five years later was also unsuccessful. State v. Ashe, 403 S.W.2d 589. The petitioner then brought the present habeas corpus proceeding in the United States District Court for the Western District of Missouri, claiming that the second prosecution had violated his right not to be twice put in jeopardy. Considering itself bound by this court's decision in Hoffa v. New Jersey, 356 U.S. 464, the District Court denied the writ, although apparently finding merit in the petitioner's claim. [n4] The Court [p441] of Appeals for the Eighth Circuit affirmed, also upon the authority of Hoag v. New Jersey, supra. [n5] We granted certiorari to consider the important constitutional question this case presents. 393 U.S. 1115.

As the District Court and the Court of Appeals correctly noted, the operative facts here are virtually identical to those of Hoag v. view Jersey, supra. In that case, the defendant was tried for the armed robbery of three men who, along with others, had been held up in a tavern. The proof of the robbery was clear, but the evidence identifying the defendant as one of the robbers was weak, and the defendant interposed an alibi defense. The jury brought in a verdict of not guilty. The defendant was then brought to trial again, on an indictment charging the robbery of a fourth victim of the tavern holdup. This time, the jury found him guilty. After appeals in the state courts proved unsuccessful, Hoag brought his case here.

Viewing the question presented solely in terms of Fourteenth Amendment due process -- whether the course that New Jersey had pursued had "led to fundamental unfairness," 356 U.S. at 467 -- this Court declined to reverse the judgment of conviction, because,

in the circumstances shown by this record, we cannot say that [p442] petitioner's later prosecution and conviction violated due process. [n6]

356 U.S. at 466. The Court found it unnecessary to decide whether "collateral estoppel" -- the principle that bars relitigation between the same parties of issues actually determined at a previous trial -- is a due process requirement in a state criminal trial, since it accepted New Jersey's determination that the petitioner's previous acquittal did not, in any event, give rise to such an estoppel. 356 U.S. at 471. And in the view the Court took of the issues presented, it did not, of course, even approach consideration of whether collateral estoppel is an ingredient of the Fifth Amendment guarantee against double jeopardy.

The doctrine of Benton v. Maryland, 395 U.S. 784, puts the issues in the present case in a perspective quite different from that, in which the issues were perceived in Hoffa v. New Jersey, supra. The question is no longer whether collateral estoppel is a requirement of due process, but whether it is a part of the Fifth Amendment's guarantee against double jeopardy. And if collateral estoppel is embodied in that guarantee, then its applicability in a particular case is no longer a matter to be left for state court determination within the broad [p443] bounds of "fundamental fairness," but a matter of constitutional fact we must decide through an examination of the entire record. Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 285; Niemotko v. Maryland, 3401 U.S. 268, 271; Watts v. Indiana, 338 U.S. 49, 51; Chambers v. Florida, 309 U.S. 227, 229; Norris v. Alabama, 294 U.S. 587, 590.

"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It 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. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85. As Mr. Justice Holmes put the matter in that case,

It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.

242 U.S. at 87. [n7] As a rule of federal law, therefore,

[i]t is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of "mutuality" or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government's evidence as a whole, although not necessarily as to every link in the chain.

United States v. Kramer, 289 F.2d 909, 913. [p444]

The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to

examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. [n8]

The inquiry "must be set in a practical frame, and viewed with an eye to all the circumstances of the proceedings." Sealfon v. United States, 332 U.S. 575, 570. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal. [n9] [p445]

Straightforward application of the federal rule to the present case can lead to but one conclusion. For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury, by its verdict, found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impermissible.

The ultimate question to be determined, then, in the light of Benton v. Maryland, supra, is whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is. [n10] For whatever else that [p446] constitutional guarantee may embrace, North Carolina v. Pearce, 395 U.S. 711, 717, it surely protects a man who has been acquitted from having to "run the gauntlet" a second time. Green v. United States, 355 U.S. 184, 190.

The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.

After the first jury had acquitted the petitioner of robbing Knight, Missouri could certainly not have brought him to trial again upon that charge. Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of Knight in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery. For the name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers. [p447]

In this case, the State, in its brief, has frankly conceded that, following the petitioner's acquittal, it treated the first trial as no more than a dry run for the second prosecution:

No doubt the prosecutor felt the state had a provable case on the first charge and, when he lost, he did what every good attorney would do -- he refined his presentation in light of the turn of events at the first trial.

But this is precisely what the constitutional guarantee forbids.

The judgment is reversed, and the case is remanded to the Court of Appeals for the Eighth Circuit for further proceedings consistent with this opinion.

It is so ordered.

1. There can be no doubt of the "retroactivity" of the Court's decision in Benton v. Maryland. In North. Carolina v. Pearce, 395 U.S. 711, decided the same day as Benton, the Court unanimously accorded fully "retroactive" effect to the Benton doctrine.


The Court instructs the jury that, if you believe and find from the evidence in this case, beyond a reasonable doubt, that, at the County of Jackson and State of Missouri, on the 10th day of January, 1960, the defendant herein, BOB FRED ASHE, alias BOBBY FRED ASHE, either alone or knowingly acting in concert with others, did then and there with force and arms in and upon one Don Knight, unlawfully and feloniously make an assault and took and carried away any money from his person or in his presence and against his will, by force and violence to his person, or by putting him in fear of some immediate injury to his person, with felonious intent to convert the same to his own use, without any honest claim to said money on the part of the defendant and with intent to permanently deprive the said Don Knight of his ownership and without the consent of the said Don Knight, if such be your finding, then you will find the defendant guilty of Robbery, First Degree, and so find in your verdict.


The Court instructs the jury that all persons are equally guilty who act together with a common intent in the commission of a crime, and a crime so committed by two or more persons jointly is the act of all and of each one so acting.

The Court instructs the jury that, when two or more persons knowingly act together in the commission of an unlawful act or purpose, then whatever either does in furtherance of such unlawful act or purpose is in law the act and deed of each of such persons.


However persuasive the dissenting opinions in the Hoag case may be, it is the duty of this Court to follow the law as stated by the Supreme Court of the United States until it expresses a contrary view. Certainly the factual circumstances of this case provide an excellent opportunity for reexamination of the questions presented. An examination of the transcript of both trials shows that, in both, the single issue in real contest, as distinguished from the issues that may be said to have been in technical dispute, was the question of whether petitioner was or was not present at the time the money was taken from the poker table and the other property taken from persons of the respective poker players.

Ashe v. Swenson, 289 F. Supp. 871, 873.


It usually is difficult for a lower federal court to forecast with assurance a Supreme Court decision as to the continuing validity of a holding of a decade ago by a Court then divided as closely as possible. This is particularly so when the decision is in the rapidly developing and sensitive area of the criminal law and the Fourteenth Amendment Bill of Rights relationship. We feel, however, that our task is not to forecast, but to follow, those dictates, despite their closeness of decision, which at this moment in time are on the books and for us to read. . . .

Ashe v. Swenson, 399 F.2d 40, 46.

6. The particular "circumstance" most relied upon by the Court was

the unexpected failure of four of the State's witnesses at the earlier trial to identify petitioner, after two of these witnesses had previously identified him in the course of the police investigation. Indeed, after the second of the two witnesses failed to identify petitioner, the State pleaded surprise and attempted to impeach his testimony. We cannot say that, after such an unexpected turn of events, the State's decision to try petitioner for the Yager robbery was so arbitrary or lacking in justification that it amounted to a denial of those concepts constituting "the very essence of a scheme of ordered justice, which is due process."

356 U.S. at 469-470.

In the case now before us, by contrast, there is no claim of any "unexpected turn of events" at the first trial, unless the jury verdict of acquittal be so characterized.

7. See also Coffey v. United States, 116 U.S. 436, 442-443; Frank v. Mangum, 237 U.S. 309, 333-334; Sealfon v. United States, 332 U.S. 575; United States v. De Angelo, 138 F.2d 466; United States v Curzio, 170 F.2d 354; Yawn v. United States, 244 F.2d 235; United States v. Cowart, 118 F.Supp. 903.

8. Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 38-39. See Yawn v. United States, supra; United States v. De Angelo, supra.


If a later court is permitted to state that the jury may have disbelieved substantial and uncontradicted evidence of the prosecution on a point the defendant did not contest, the possible multiplicity of prosecutions is staggering. . . . In fact, such a restrictive definition of "determined" amounts simply to a rejection of collateral estoppel, since it is impossible to imagine a statutory offense in which the government has to prove only one element or issue to sustain a conviction.

Mayers & Yarbrough, supra, at, 38. See generally Lugar, Criminal Law, Double Jeopardy and Res Judicata: 139 Iowa L.Rev. 317. See also Comment, Twice in Jeopardy, 75 Yale L.J. 262; Hunvald, Criminal Law in Missouri, 25 Mo.L.Rev. 369, 369-375; Comment, Double Jeopardy and Collateral Estoppel in Crimes Arising From the Same Transaction, 24 Mo.L.Rev. 513; McLaren, The Doctrine of Res Judicata as Applied to the Trial of Criminal Cases, 10 Wash.L.Rev. 198.

10. It is true, as this Court said in Hoag v. New Jersey, supra, that we have never squarely held collateral estoppel to be a constitutional requirement. Until perhaps a century ago, few situations arose calling for its application. For at common law, and under early federal criminal statutes, offense categories were relatively few and distinct. A single course of criminal conduct was likely to yield but a single offense. See Comment, Statutory Implementation of Double Jeopardy Clauses: New Life for a Moribund Constitutional Guarantee, 65 Yale L.J. 339, 342. In more recent times, with the advent of specificity in draftsmanship and the extraordinary proliferation of overlapping and related statutory offenses, it became possible for prosecutors to spin out a startlingly numerous series of offenses from a single alleged criminal transaction. See Note, Double Jeopardy and the Multiple-Count Indictment, 57 Yale L..J. 132, 133. As the number of statutory offenses multiplied, the potential for unfair and abusive reprosecutions became far more pronounced. Comment, Twice in Jeopardy, 75 Yale L.J. 262, 279-280; Note, Double Jeopardy and the Concept of Identity of Offenses, 7 Brooklyn L.Rev. 79, 82. The federal courts soon recognized the need to prevent such abuses through the doctrine of collateral estoppel, and it became a safeguard firmly embedded in federal law. See n. 7, supra. Whether its basis was a constitutional one was a question of no more than academic concern until this Court's decision in Benton v. Maryland, supra.