When does collateral estoppel bar the government from introducing evidence at a retrial?

Thomas v. United States, No. 11-CF-412 (decided October 24, 2013)

Players:  Washington, Glickman, Pryor.  Opinion by Chief Judge Washington.  Alice Wang, Monica Douglas, and James Klein for Mr. Thomas.  Trial judges:  Ronna L. Beck and Anthony C. Epstein.

Facts:  The government alleged that Mr. Thomas assaulted Chauncey Thomas by grabbing him and pulling out a gun, which he raised over his head.  A struggle over the gun followed, and Mr. Thomas was shot in the hand.  Mr. Thomas was charged with ADW, PFCV, felon in possession, CPWL, and UA.  The judge agreed to bifurcate the trial on the FIP count, and the jury went on to acquit Mr. Thomas of ADW and PFCV.  It hung on CPWL and UA, however, and the trial judge granted a mistrial on those counts, as well as on FIP.  The government later dismissed the CPWL count. 

Before his second trial on FIP and UA, Mr. Thomas argued that because he had been acquitted of ADW, the government was collaterally estopped from retrying him on FIP at all, or, in the alternative, from introducing evidence of assault at an FIP trial.  According to Mr. Thomas, the jury’s verdict at the first trial showed that it had found either that he did not have a gun at all, or that he did not pull out a gun during the confrontation.  The trial court rejected the argument and Mr. Thomas was convicted of FIP and UA.

Issue 1:  Was the government collaterally estopped from retrying Mr. Thomas for FIP, where a previous jury had acquitted him of an ADW charge arising from the same facts?

Issue 2:  Was the government collaterally estopped from introducing evidence of an assault in an FIP trial, given the previous acquittal for ADW? 

Held:  It was improper for the government to use evidence at the FIP trial that Mr. Thomas pulled out a gun, because the first jury’s verdict necessarily indicated that the jury had found that he did not pull out a gun.  The court did not explicitly address the argument that the government was estopped from retrying the FIP count.  The case was remanded for a new trial on FIP. 

Of Note:  The question whether an issue of ultimate fact has already “been determined by a valid and final judgment,” such that collateral estoppel prevents its relitigation in a subsequent trial, is a case-specific inquiry that takes into account the evidence, argument, and jury instructions at the first proceeding.  The court noted, for instance, that the government had argued at the first trial that an assault occurs “[i]f someone grabs your jacket and pulls out a gun.” 

How To Use:  Although the opinion lacks an extensive explanation of its reasoning, Thomas may be helpful in cases where evidence relating to acquitted conduct would be central to the government’s case at a subsequent trial on related charges.  MW.