(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BRAVO-FERNANDEZ ET AL. v. UNITED STATES
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 re
solved by a prior judgment. Ashe v. Swenson, 397 U. S. 436, 443.
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, 233. When
the same jury returns irreconcilably inconsistent verdicts on the is
sue 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, 68–69. 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, 121–122.
In this case, a jury convicted petitioners Juan Bravo-Fernandez
(Bravo) and Hector Martínez-Maldonado (Martínez) of bribery in vio
lation of 18 U. S. C. §666. Simultaneously, the jury acquitted them of
conspiring to violate §666 and traveling in interstate commerce to vi
olate §666. Because the only contested issue at trial was whether
Bravo and Martínez had violated §666 (the other elements of the ac
quitted 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 ap
peal because of error in the judge’s instructions unrelated to the ver
dicts’ 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 Mar
tínez moved for judgments of acquittal on the standalone §666 charg
2 BRAVO-FERNANDEZ v. UNITED STATES
Syllabus
es. 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 con
spiracy and Travel Act offenses. The District Court denied the mo
tions, and the First Circuit affirmed, holding that the eventual inval
idation 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 petition
ers, after a jury has returned irreconcilably inconsistent verdicts of
conviction and acquittal and the convictions are later vacated for le
gal error unrelated to the inconsistency. Pp. 12–19.
(a) Because petitioners’ trial yielded incompatible jury verdicts, pe
titioners cannot establish that the jury necessarily resolved in their
favor the question whether they violated §666. In view of the Gov
ernment’s inability to obtain review of the acquittals, Powell, 469
U. S., at 68, the inconsistent jury findings weigh heavily against ac
cording those acquittals issue-preclusive effect. The subsequent va
catur of petitioners’ bribery convictions does not alter this analysis.
The critical inquiry is whether the jury actually decided that peti
tioners 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 violat
ing §666 remain relevant to this practical inquiry, even if the convic
tions 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, 10–11, or if the trial error could
resolve the apparent inconsistency in the jury’s verdicts. But the ev
idence here was sufficient to convict petitioners on the quid pro quo
bribery theory the First Circuit approved. And the instructional er
ror 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 Mar
tínez bear the burden of showing that the issue whether they violated
§666 has been “determined by a valid and final judgment of acquit
tal.” 557 U. S., at 119 (internal quotation marks omitted). To judge
Cite as: 580 U. S. ____ (2016) 3
Syllabus
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 convic
tions are meaningless because the jury was allowed to convict on the
basis of conduct not criminal in the First Circuit—payment of a gra
tuity. 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.
Cite as: 580 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
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SUPREME COURT OF THE UNITED STATES
_________________
No. 15–537
_________________
JUAN BRAVO-FERNANDEZ AND HECTOR MARTINEZ
MALDONADO, PETITIONERS v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[November 29, 2016]
JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns the issue-preclusion component of
the Double Jeopardy Clause.1 In criminal prosecutions, as
in civil litigation, the issue-preclusion principle means
that “when an issue of ultimate fact has once been deter
mined by a valid and final judgment, that issue cannot
again be litigated between the same parties in any future
lawsuit.” Ashe v. Swenson, 397 U. S. 436, 443 (1970).
Does issue preclusion apply when a jury returns incon
sistent verdicts, convicting on one count and acquitting on
another count, where both counts turn on the very same
issue of ultimate fact? In such a case, this Court has held,
both verdicts stand. The Government is barred by the
Double Jeopardy Clause from challenging the acquittal,
——————
1 The parties use the expression “collateral estoppel component,” but
as this Court has observed, “issue preclusion” is the more descriptive
term. Yeager v. United States, 557 U. S. 110, 120, n. 4 (2009); see
Restatement (Second) of Judgments §27, Comment b, pp. 251–252
(1980).
2 BRAVO-FERNANDEZ v. UNITED STATES
Opinion of the Court
see Green v. United States, 355 U. S. 184, 188 (1957), but
because the verdicts are rationally irreconcilable, the
acquittal gains no preclusive effect, United States v. Pow-
ell, 469 U. S. 57, 68 (1984).
Does issue preclusion attend a jury’s acquittal verdict if
the same jury in the same proceeding fails to reach a
verdict on a different count turning on the same critical
issue? This Court has answered yes, in those circum
stances, the acquittal has preclusive force. Yeager v.
United States, 557 U. S. 110, 121–122 (2009). As “there is
no way to decipher what a hung count represents,” we
reasoned, a jury’s failure to decide “has no place in the
issue-preclusion analysis.” Ibid.; see id., at 125 (“[T]he
fact that a jury hangs is evidence of nothing—other than,
of course, that it has failed to decide anything.”).
In the case before us, the jury returned irreconcilably
inconsistent verdicts of conviction and acquittal. Without
more, Powell would control. There could be no retrial of
charges that yielded acquittals but, in view of the incon
sistent verdicts, the acquittals would have no issue
preclusive effect on charges that yielded convictions. In
this case, however, unlike Powell, the guilty verdicts were
vacated on appeal because of error in the judge’s instruc
tions unrelated to the verdicts’ inconsistency. Petitioners
urge that, just as a jury’s failure to decide has no place in
issue-preclusion analysis, so vacated guilty verdicts should
not figure in that analysis.
We hold otherwise. One cannot know from the jury’s
report why it returned no verdict. “A host of reasons”
could account for a jury’s failure to decide—“sharp dis
agreement, confusion about the issues, exhaustion after a
long trial, to name but a few.” Yeager, 557 U. S., at 121.
But actual inconsistency in a jury’s verdicts is a reality;
vacatur of a conviction for unrelated legal error does not
reconcile the jury’s inconsistent returns. We therefore
bracket this case with Powell, not Yeager, and affirm the
Cite as: 580 U. S. ____ (2016) 3
Opinion of the Court
judgment of the Court of Appeals, which held that issue
preclusion does not apply when verdict inconsistency
renders unanswerable “what the jury necessarily decided.”
790 F. 3d 41, 47 (CA1 2015).
I
A
The doctrine of claim preclusion instructs that a final
judgment on the merits “foreclos[es] successive litigation
of the very same claim.” New Hampshire v. Maine, 532
U. S. 742, 748 (2001); see Restatement (Second) of Judg
ments §19, p. 161 (1980) (hereinafter Restatement). So
instructing, the doctrine serves to “avoid multiple suits on
identical entitlements or obligations between the same
parties.” 18 C. Wright, A. Miller, & E. Cooper, Federal
Practice and Procedure §4402, p. 9 (2d ed. 2002) (herein
after Wright & Miller). Long operative in civil litigation,
Restatement, at 2, claim preclusion is also essential to the
Constitution’s prohibition against successive criminal
prosecutions. No person, the Double Jeopardy Clause
states, shall be “subject for the same offense to be twice
put in jeopardy of life or limb.” Amdt. 5. The Clause
“protects against a second prosecution for the same offense
after conviction”; as well, “[i]t protects against a second
prosecution for the same offense after acquittal.” North
Carolina v. Pearce, 395 U. S. 711, 717 (1969). “[A] verdict
of acquittal [in our justice system] is final,” the last word
on a criminal charge, and therefore operates as “a bar to a
subsequent prosecution for the same offense.” Green v.
United States, 355 U. S. 184, 188 (1957).
The allied doctrine of issue preclusion ordinarily bars
relitigation of an issue of fact or law raised and necessarily
resolved by a prior judgment. See Restatement §§17, 27,
at 148, 250; Wright & Miller §4416, at 386. It applies in
both civil and criminal proceedings, with an important
distinction. In civil litigation, where issue preclusion and
4 BRAVO-FERNANDEZ v. UNITED STATES
Opinion of the Court
its ramifications first developed, the availability of appel
late review is a key factor. Restatement §28, Comment a,
at 274; see id., §28, Reporter’s Note, at 284 (noting “the
pervasive importance of reviewability in the application of
preclusion doctrine”). In significant part, preclusion doc
trine is premised on “an underlying confidence that the
result achieved in the initial litigation was substantially
correct.” Standefer v. United States, 447 U. S. 10, 23, n. 18
(1980); see Restatement §29, Comment f, at 295. “In the
absence of appellate review,” we have observed, “such
confidence is often unwarranted.” Standefer, 447 U. S., at
23, n. 18.
In civil suits, inability to obtain review is exceptional; it
occurs typically when the controversy has become moot.
In criminal cases, however, only one side (the defendant)
has recourse to an appeal from an adverse judgment on
the merits. The Government “cannot secure appellate
review” of an acquittal, id., at 22, even one “based upon an
egregiously erroneous foundation,” Arizona v. Washington,
434 U. S. 497, 503 (1978). Juries enjoy an “unreviewable
power . . . to return a verdict of not guilty for impermissi
ble reasons,” for “the Government is precluded from ap
pealing or otherwise upsetting such an acquittal by the
Constitution’s Double Jeopardy Clause.” United States v.
Powell, 469 U. S. 57, 63, 65 (1984). The absence of appel
late review of acquittals, we have cautioned, calls for
guarded application of preclusion doctrine in criminal
cases. See Standefer, 447 U. S., at 22–23, and n. 18.
Particularly where it appears that a jury’s verdict is the
result of compromise, compassion, lenity, or misunder
standing of the governing law, the Government’s inability
to gain review “strongly militates against giving an ac
quittal [issue] preclusive effect.” Id., at 23. See also Re
statement §29, Comment g, at 295 (Where circumstances
suggest that an issue was resolved on erroneous consider
ations, “taking the prior determination at face value for
Cite as: 580 U. S. ____ (2016) 5
Opinion of the Court
purposes of the second action would [impermissibly] ex
tend the . . . imperfections in the adjudicative process.”);
id., §28, Comment j, at 283 (Issue preclusion may be de
nied where it is “evident from the jury’s verdict that the
verdict was the result of compromise.”); Wright & Miller
§4423, at 617 (same).
B
This case requires us to determine whether an appellate
court’s vacatur of a conviction alters issue-preclusion
analysis under the Double Jeopardy Clause. Three prior
decisions guide our disposition.
This Court first interpreted the Double Jeopardy Clause
to incorporate the principle of issue preclusion in Ashe v.
Swenson, 397 U. S. 436 (1970).2 Ashe involved a robbery
of six poker players by a group of masked men. Ashe was
charged with robbing one of the players, but a jury acquit
ted him “due to insufficient evidence.” Id., at 439. The
State then tried Ashe again, this time for robbing another
of the poker players. Aided by “substantially stronger”
testimony from “witnesses [who] were for the most part
the same,” id., at 439–440, the State secured a conviction.
We held that the second prosecution violated the Double
Jeopardy Clause. Because the sole issue in dispute in the
first trial was whether Ashe had been one of the robbers,
the jury’s acquittal verdict precluded the State from trying
to convince a different jury of that very same fact in a
second trial. Id., at 445.
——————
2 Though we earlier recognized that res judicata (which embraces
both claim and issue preclusion) applies in criminal as well as civil
proceedings, we did not link the issue-preclusion inquiry to the Double
Jeopardy Clause. See Sealfon v. United States, 332 U. S. 575, 578
(1948); Frank v. Mangum, 237 U. S. 309, 334 (1915) (The principle that
“a question of fact or of law distinctly put in issue and directly deter
mined by a court of competent jurisdiction cannot afterwards be dis
puted between the same parties” applies to “the decisions of criminal
courts.”).
6 BRAVO-FERNANDEZ v. UNITED STATES
Opinion of the Court
Our decision in Ashe explained that issue preclusion in
criminal cases must be applied with “realism and rational
ity.” Id., at 444. To identify what a jury in a previous trial
necessarily decided, we instructed, a court must “examine
the record of a prior proceeding, taking into account the
pleadings, evidence, charge, and other relevant matter.”
Ibid. (quoting Mayers & Yarbrough, Bis Vexari: New
Trials and Successive Prosecutions, 74 Harv. L. Rev. 1, 38
(1960)). This inquiry, we explained, “must be set in a
practical frame and viewed with an eye to all the circum
stances of the proceedings.” 397 U. S., at 444 (quoting
Sealfon v. United States, 332 U. S. 575, 579 (1948)). We
have also made clear that “[t]he burden is on the defend
ant to demonstrate that the issue whose relitigation he
seeks to foreclose was actually decided” by a prior jury’s
verdict of acquittal. Schiro v. Farley, 510 U. S. 222, 233
(1994) (internal quotation marks omitted); accord Dowling
v. United States, 493 U. S. 342, 350 (1990).
In United States v. Powell, 469 U. S. 57, we held that a
defendant cannot meet this burden when the same jury
returns irreconcilably inconsistent verdicts on the ques
tion she seeks to shield from reconsideration. Powell’s
starting point was our holding in Dunn v. United States,
284 U. S. 390 (1932), that a criminal defendant may not
attack a jury’s finding of guilt on one count as inconsistent
with the jury’s verdict of acquittal on another count.
Powell, 469 U. S., at 58–59. The Court’s opinion in Dunn
stated no exceptions to this rule, and after Dunn the Court
had several times “alluded to [the] rule as an established
principle,” 469 U. S., at 63. Nevertheless, several Courts
of Appeals had “recogniz[ed] exceptions to the rule,” id., at
62, and Powell sought an exception for the verdicts of guilt
she faced.
At trial, a jury had acquitted Powell of various substan
tive drug charges but convicted her of using a telephone in
“causing and facilitating” those same offenses. Id., at 59–
Cite as: 580 U. S. ____ (2016) 7
Opinion of the Court
60. She appealed, arguing that “the verdicts were incon
sistent, and that she therefore was entitled to reversal of
the telephone facilitation convictions.” Id., at 60. Issue
preclusion, she maintained, barred “acceptance of [the]
guilty verdict[s]” on the auxiliary offenses because the
same jury had acquitted her of the predicate felonies. Id.,
at 64.
Rejecting Powell’s argument, we noted that issue pre
clusion is “predicated on the assumption that the jury
acted rationally.” Id., at 68. When a jury returns irrecon
cilably inconsistent verdicts, we said, one can glean no
more than that “either in the acquittal or the conviction
the jury did not speak their real conclusions.” Id., at 64
(quoting Dunn, 284 U. S., at 393). Although it is impos
sible to discern which verdict the jurors arrived at ration
ally, we observed, “that does not show that they were not
convinced of the defendant’s guilt.” Powell, 469 U. S., at
64–65 (quoting Dunn, 284 U. S., at 393). In the event of
inconsistent verdicts, we pointed out, it is just as likely
that “the jury, convinced of guilt, properly reached its
conclusion on [one count], and then through mistake,
compromise, or lenity, arrived at an inconsistent conclu
sion on the [related] offense.” Powell, 469 U. S., at 65.
Because a court would be at a loss to know which verdict
the jury “really meant,” we reasoned, principles of issue
preclusion are not useful, for they are “predicated on the
assumption that the jury acted rationally and found cer
tain facts in reaching its verdict.” Id., at 68. Holding that
the acquittals had no preclusive effect on the counts of
conviction, we reaffirmed Dunn’s rule, under which both
Powell’s convictions and her acquittals, albeit inconsistent,
remained undisturbed. 469 U. S., at 69.
Finally, in Yeager v. United States, 557 U. S. 110 (2009),
we clarified that Powell’s holding on inconsistent verdicts
does not extend to an apparent inconsistency between a
jury’s verdict of acquittal on one count and its inability to
8 BRAVO-FERNANDEZ v. UNITED STATES
Opinion of the Court
reach a verdict on another count. See 557 U. S., at 124
(“[I]nconsistent verdicts” present an “entirely different
context” than one involving “both verdicts and seemingly
inconsistent hung counts.”). Yeager was tried on charges
of fraud and insider trading. Id., at 114. The jury acquit
ted him of the fraud offenses, which the Court of Appeals
concluded must have reflected a finding that he “did not
have any insider information that contradicted what was
presented to the public.” Id., at 116. Yet the jury failed to
reach a verdict on the insider-trading charges, as to which
“the possession of insider information was [likewise] a
critical issue of ultimate fact.” Id., at 123. Arguing that
the jury had therefore acted inconsistently, the Govern
ment sought to retry Yeager on the hung counts. We ruled
that retrial was barred by the Double Jeopardy Clause.
A jury “speaks only through its verdict,” we noted. Id.,
at 121. Any number of reasons—including confusion
about the issues and sheer exhaustion, we observed—
could cause a jury to hang. Ibid. Accordingly, we said,
only “a jury’s decisions, not its failures to decide,” identify
“what a jury necessarily determined at trial.” Id., at 122.
Because a hung count reveals nothing more than a jury’s
failure to reach a decision, we further reasoned, it supplies
no evidence of the jury’s irrationality. Id., at 124–125.
Hung counts, we therefore held, “ha[ve] no place in the
issue-preclusion analysis,” id., at 122: When a jury acquits
on one count while failing to reach a verdict on another
count concerning the same issue of ultimate fact, the
acquittal, and only the acquittal, counts for preclusion
purposes. Given the preclusive effect of the acquittal, the
Court concluded, Yeager could not be retried on the hung
count. Id., at 122–125.
C
With our controlling precedent in view, we turn to the
inconsistent verdicts rendered in this case. The prosecu
Cite as: 580 U. S. ____ (2016) 9
Opinion of the Court
tion stemmed from an alleged bribe paid by petitioner
Juan Bravo-Fernandez (Bravo), an entrepreneur, to peti
tioner Hector Martínez-Maldonado (Martínez), then a
senator serving the Commonwealth of Puerto Rico. The
alleged bribe took the form of an all-expenses-paid trip to
Las Vegas, including a $1,000 seat at a professional box
ing match featuring a popular Puerto Rican contender.
United States v. Fernandez, 722 F. 3d 1, 6 (CA1 2013).
According to the Government, Bravo intended the bribe to
secure Martínez’ help in shepherding legislation through
the Puerto Rico Senate that, if enacted, would “provid[e]
substantial financial benefits” to Bravo’s enterprise. Ibid.
In the leadup to the Las Vegas trip, Martínez submitted
the legislation for the Senate’s consideration and issued a
committee report supporting it; within a week of returning
from Las Vegas, Martínez issued another favorable report
and voted to enact the legislation. Id., at 6–7.
Based on these events, a federal grand jury in Puerto
Rico indicted petitioners for, inter alia, federal-program
bribery, in violation of 18 U. S. C. §666; conspiracy to
violate §666, in violation of §371; and traveling in inter
state commerce to further violations of §666, in violation of
the Travel Act, §1952(a)(3)(A).3 Following a three-week
trial, a jury convicted Bravo and Martínez of the
standalone §666 bribery offense, but acquitted them of the
related conspiracy and Travel Act charges. Fernandez,
722 F. 3d, at 7. Each received a sentence of 48 months in
prison. Id., at 8.
The Court of Appeals for the First Circuit vacated the
§666 convictions for instructional error. Id., at 27. In the
First Circuit’s view, the jury had been erroneously charged
on what constitutes criminal conduct under that statute.
Id., at 22–27. The charge permitted the jury to find Bravo
——————
3 Petitioners were indicted on several other charges not relevant here.
See United States v. Fernandez, 722 F. 3d 1, 7 (CA1 2013).
10 BRAVO-FERNANDEZ v. UNITED STATES
Opinion of the Court
and Martínez “guilty of offering and receiving a gratuity,”
id., at 16, but, the appeals court held, §666 proscribes only
quid pro quo bribes, and not gratuities, id., at 6, 22.4
True, the court acknowledged, the jury was instructed on
both theories of bribery, and the evidence at trial sufficed
to support a guilty verdict on either theory. Id., at 19–20.
But the Court of Appeals could not say with confidence
that the erroneous charge was harmless, so it vacated the
§666 convictions and remanded for further proceedings.
Id., at 27, 39.
On remand, relying on the issue-preclusion component
of the Double Jeopardy Clause, Bravo and Martínez
moved for judgments of acquittal on the standalone §666
charges. 988 F. Supp. 2d 191 (PR 2013). They could not
be retried on the bribery offense, they insisted, because
the jury necessarily determined that they were not guilty
of violating §666 when it acquitted them of conspiring to
violate §666 and traveling in interstate commerce to fur
ther violations of §666. Id., at 193. That was so, petition
ers maintained, because the only contested issue at trial
was whether Bravo had offered, and Martínez had accepted,
a bribe within the meaning of §666. Id., at 196; see Tr.
of Oral Arg. 4 (“There was no dispute that they agreed to
go to a boxing match together”; nor was there any dispute
“that to get to Las Vegas from Puerto Rico, you have to
travel” across state lines.). The District Court denied the
motions for acquittal. 988 F. Supp. 2d, at 196–198. If the
sole issue disputed at trial was whether Bravo and Mar
tínez had violated §666, the court explained, then “the jury
——————
4 As the First Circuit acknowledged, this holding is contrary to the
rulings of “most circuits to have addressed th[e] issue.” Id., at 6. Three
other Federal Courts of Appeals have considered the question; each has
held that §666 prohibits gratuities as well as quid pro quo bribes. See
United States v. Bahel, 662 F. 3d 610, 636 (CA2 2011); United States v.
Hawkins, 777 F. 3d 880, 881 (CA7 2015); United States v. Zimmerman,
509 F. 3d 920, 927 (CA8 2007).
Cite as: 580 U. S. ____ (2016) 11
Opinion of the Court
[had] acted irrationally.” Id., at 196. Because the same
jury had simultaneously convicted Bravo and Martínez on
the standalone §666 charges, “the verdict simply was
inconsistent.” Ibid.
The First Circuit affirmed the denial of petitioners’
motions for acquittal, agreeing that the jury’s inconsistent
returns were fatal to petitioners’ issue-preclusion plea.
790 F. 3d 41. The jury received the same bribery instruc
tions for each count involving §666, the court noted, so the
§666-based verdicts—convicting on the standalone bribery
charges but acquitting on the related Travel Act and
conspiracy counts—could not be reconciled. Id., at 54–55.5
The Court of Appeals rejected petitioners’ argument
that the eventual invalidation of the bribery convictions
rendered Powell’s inconsistent-verdicts rule inapplicable.
Ashe, the court reminded, calls for a practical appraisal
based on the complete record of the prior proceeding; the
§666 bribery convictions, like the §666-based acquittals,
were part of that record. See 790 F. 3d, at 50. Nor are
vacated convictions like hung counts for issue-preclusion
purposes, the court continued. Informed by our decision in
Yeager, the First Circuit recognized that a hung count
reveals only a jury’s failure to decide, and therefore cannot
evidence actual inconsistency with a jury’s decision. 790
F. 3d, at 50–51. In contrast, the court said, vacated con
victions “are jury decisions, through which the jury has
spoken.” Id., at 51. The later upset of a conviction on an
unrelated ground, the court reasoned, does not undermine
Powell’s recognition that “inconsistent verdicts make it
——————
5 As just observed, see supra, at 10, petitioners urge that §666 bribery
was the sole issue in controversy, and that there was no dispute on
other elements of the Travel Act and conspiracy counts. See Tr. of Oral
Arg. 4. See also Brief for United States 13 (accepting that the jury
“returned irreconcilably inconsistent verdicts”). If another element
could explain the acquittals, then there would be no inconsistency and
no argument against a new trial on bribery. See infra, at 12–13.
12 BRAVO-FERNANDEZ v. UNITED STATES
Opinion of the Court
impossible to determine what a jury necessarily decided.”
790 F. 3d, at 51. The First Circuit therefore concluded
that “vacated convictions, unlike hung counts, are relevant
to the Ashe [issue-preclusion] inquiry.” Ibid.
We granted certiorari to resolve a conflict among courts
on this question: Does the issue-preclusion component of
the Double Jeopardy Clause bar the Government from
retrying defendants, like Bravo and Martínez, after a jury
has returned irreconcilably inconsistent verdicts of convic
tion and acquittal, and the convictions are later vacated
for legal error unrelated to the inconsistency?6 557 U. S.
___ (2016). Holding that the Double Jeopardy Clause does
not bar retrial in these circumstances, we affirm the First
Circuit’s judgment.
II
When a conviction is overturned on appeal, “[t]he gen
eral rule is that the [Double Jeopardy] Clause does not bar
reprosecution.” Justices of Boston Municipal Court v.
Lydon, 466 U. S. 294, 308 (1984). The ordinary conse
quence of vacatur, if the Government so elects, is a new
trial shorn of the error that infected the first trial. This
——————
6 Compare United States v. Citron, 853 F. 2d 1055, 1058–1061 (CA2
1988) (holding that retrial does not violate Double Jeopardy Clause
under these circumstances); United States v. Price, 750 F. 2d 363, 366
(CA5 1985) (same); Evans v. United States, 987 A. 2d 1138, 1141–1142
(D. C. 2010) (same); and State v. Kelly, 201 N. J. 471, 493–494, 992 A.
2d 776, 789 (2010) (same), with People v. Wilson, 496 Mich. 91, 105–
107, 852 N. W. 2d 134, 141–142 (2014) (holding that Double Jeopardy
Clause bars retrial in this situation). As the First Circuit explained,
“[a]lthough Citron and Price predate Yeager, both the Second and Fifth
Circuits decided that vacated counts are relevant to the Ashe analysis
at a time when those circuits had already ruled that hung counts
should be disregarded for purposes of the Ashe inquiry.” 790 F. 3d 41,
51, n. 7 (2015) (citing United States v. Mespoulede, 597 F. 2d 329, 332,
335–336 (CA2 1979); United States v. Nelson, 599 F. 2d 714, 716–717
(CA5 1979)). The Second Circuit, moreover, has adhered to Citron since
Yeager. See United States v. Bruno, 531 Fed. Appx. 47, 49 (2013).
Cite as: 580 U. S. ____ (2016) 13
Opinion of the Court
“continuing jeopardy” rule neither gives effect to the va
cated judgment nor offends double jeopardy principles.
Rather, it reflects the reality that the “criminal proceed
ings against an accused have not run their full course.”
Ibid. And by permitting a new trial post vacatur, the
continuing-jeopardy rule serves both society’s and criminal
defendants’ interests in the fair administration of justice.
“It would be a high price indeed for society to pay,” we
have recognized, “were every accused granted immunity
from punishment because of any defect sufficient to consti
tute reversible error in the proceedings leading to convic
tion.” United States v. Tateo, 377 U. S. 463, 466 (1964).
And the rights of criminal defendants would suffer too, for
“it is at least doubtful that appellate courts would be as
zealous as they now are in protecting against the effects of
improprieties at the trial or pretrial stage if they knew
that reversal of a conviction would put the accused irrevo
cably beyond the reach of further prosecution.” Ibid.
Bravo and Martínez ask us to deviate from the general
rule that, post vacatur of a conviction, a new trial is in
order. When a conviction is vacated on appeal, they main
tain, an acquittal verdict simultaneously returned should
preclude the Government from retrying the defendant on
the vacated count. Our precedent, harmonious with issue-
preclusion doctrine, opposes the foreclosure petitioners
seek.
A
Bravo and Martínez bear the burden of demonstrating
that the jury necessarily resolved in their favor the ques
tion whether they violated §666. Schiro, 510 U. S., at 233.
But, as we have explained, see supra, at 7, a defendant
cannot meet that burden where the trial yielded incompat
ible jury verdicts on the issue the defendant seeks to
insulate from relitigation. Here, the jury convicted Bravo
and Martínez of violating §666 but acquitted them of
14 BRAVO-FERNANDEZ v. UNITED STATES
Opinion of the Court
conspiring, and traveling with the intent, to violate §666.
The convictions and acquittals are irreconcilable because
other elements of the Travel Act and conspiracy counts
were not disputed. See supra, at 10–11, and n. 5. It is
unknowable “which of the inconsistent verdicts—the
acquittal[s] or the conviction[s]—‘the jury really meant.’ ”
790 F. 3d, at 47 (quoting Powell, 469 U. S., at 68); see
Restatement §29, Comment f, at 295 (“Where a determi
nation relied on as preclusive is itself inconsistent with
some other adjudication of the same issue, . . . confidence
[in that determination] is generally unwarranted.”). 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. See Standefer, 447 U. S., at 23,
n. 17.
That petitioners’ bribery convictions were later vacated
for trial error does not alter our analysis. The critical
inquiry is whether the jury actually decided that Bravo
and Martínez did not violate §666. Ashe counsels us 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. As the Court of Appeals explained, “the fact [that]
the jury . . . convicted [Bravo and Martínez] of violating
§666 would seem to be of quite obvious relevance” to this
practical inquiry, “even though the convictions were later
vacated.” 790 F. 3d, at 50. Because issue preclusion
“depends on the jury’s assessment of the facts in light of
the charges as presented at trial,” a conviction overturned
on appeal is “appropriately considered in our assessment
of [an acquittal] verdict’s preclusive effect.” United States
v. Citron, 853 F. 2d 1055, 1061 (CA2 1988). Indeed, the
jurors in this case might not have acquitted on the Travel
Act and conspiracy counts absent their belief that the §666
bribery convictions would stand. See ibid.
Cite as: 580 U. S. ____ (2016) 15
Opinion of the Court
Bravo and Martínez could not be retried on the bribery
counts, of course, if the Court of Appeals had vacated their
§666 convictions because there was insufficient evidence to
support those convictions. For double jeopardy purposes,
a court’s evaluation of the evidence as insufficient to con
vict is equivalent to an acquittal and therefore bars a
second prosecution for the same offense. See Burks v.
United States, 437 U. S. 1, 10–11 (1978); cf. Powell, 469
U. S., at 67 (noting that defendants are “afforded protec
tion against jury irrationality or error by [courts’] inde
pendent review of the sufficiency of the evidence”). But
this is scarcely a case in which the prosecution “failed to
muster” sufficient evidence in the first proceeding. Burks,
437 U. S., at 11. Quite the opposite. The evidence pre
sented at petitioners’ trial, the Court of Appeals deter
mined, supported a guilty verdict on the gratuity theory
(which the First Circuit ruled impermissible) as well as
the quid pro quo theory (which the First Circuit ap
proved). 790 F. 3d, at 44. Vacatur was compelled for the
sole reason that the First Circuit found the jury charge
erroneous to the extent that it encompassed gratuities.
See supra, at 9–10, and n. 4. Therefore, the general rule
of “allowing a new trial to rectify trial error” applied.
Burks, 437 U. S., at 14 (emphasis deleted).
Nor, as the Government acknowledges, would retrial be
tolerable if the trial error could resolve the apparent in
consistency in the jury’s verdicts. See Brief for United
States 30 (If, for example, “a jury receives an erroneous
instruction on the count of conviction but the correct in
struction on the charge on which it acquits, the instruc
tional error may reconcile the verdicts.”). But the instruc
tional error here cannot account for the jury’s
contradictory determinations because the error applied
equally to every §666-related count. See supra, at 11.
As in Powell, so in this case, “[t]he problem is that the
same jury reached inconsistent results.” 469 U. S., at 68.
16 BRAVO-FERNANDEZ v. UNITED STATES
Opinion of the Court
The convictions’ later invalidation on an unrelated ground
does not erase or reconcile that inconsistency: It does not
bear on “the factual determinations actually and neces
sarily made by the jury,” nor does it “serv[e] to turn the
jury’s otherwise inconsistent and irrational verdict into a
consistent and rational verdict.” People v. Wilson, 496
Mich. 91, 125, 852 N. W. 2d 134, 151 (2014) (Markman, J.,
dissenting). Bravo and Martínez, therefore, cannot estab
lish the factual predicate necessary to preclude the Gov
ernment from retrying them on the standalone §666
charges—namely, that the jury in the first proceeding
actually decided that they did not violate the federal brib
ery statute.
B
To support their argument for issue preclusion, Bravo
and Martínez highlight our decision in Yeager. In Yeager,
they point out, we recognized that hung counts “have
never been accorded respect as a matter of law or history.”
557 U. S., at 124. That is also true of vacated convictions,
they urge, so vacated convictions, like hung counts, should
be excluded from the Ashe inquiry into what the jury
necessarily determined. Brief for Petitioners 20–24.
Asserting that we have “never held an invalid conviction
. . . relevant to or evidence of anything,” Tr. of Oral Arg. 5,
Bravo and Martínez argue that taking account of a vacated
conviction in our issue-preclusion analysis would im
permissibly give effect to “a legal nullity,” Brief for Peti
tioners 39; see Wilson, 496 Mich., at 107, 852 N. W. 2d, at
142 (majority opinion) (considering a vacated count would
impermissibly “bring that legally vacated conviction back
to life”).
This argument misapprehends the Ashe inquiry. It is
undisputed that petitioners’ convictions are invalid judg
ments that may not be used to establish their guilt. The
question is whether issue preclusion stops the Govern
Cite as: 580 U. S. ____ (2016) 17
Opinion of the Court
ment from prosecuting them anew. On that question,
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.” Yeager, 557 U. S.,
at 119 (internal quotation marks omitted). To judge
whether they carried that burden, a court must realisti
cally 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 over
turned on appeal for unrelated legal error: The split ver
dict—finding §666 violated on the standalone counts, but
not violated on the related Travel Act and conspiracy
counts—tells us that, on one count or the other, “the jury
[did] not follo[w] the court’s instructions,” whether because
of “mistake, compromise, or lenity.” Powell, 469 U. S., at
65; see supra, at 7. Petitioners’ acquittals therefore do not
support the application of issue preclusion here.7
Further relying on Yeager, Bravo and Martínez contend
that their vacated convictions should be ignored because,
as with hung counts, “there is no way to decipher” what
they represent. Brief for Petitioners 28 (quoting Yeager,
557 U. S., at 121). The §666 convictions are meaningless,
they maintain, because the jury was allowed to convict on
the basis of conduct not criminal in the First Circuit—
payment of a gratuity. Brief for Petitioners 24.
This argument trips on Yeager’s reasoning. Yeager did
——————
7 Nor is this the first time we have looked to a vacated conviction to
ascertain what a jury decided in a prior proceeding. Our holding in
Morris v. Mathews, 475 U. S. 237 (1986), that a conviction vacated on
double jeopardy grounds may be “reduced to a conviction for a lesser
included offense which is not jeopardy barred,” id., at 246–247, rested
on exactly that rationale. See id., at 247 (relying on a jeopardy-barred
vacated conviction for aggravated murder to conclude that the jury
“necessarily found that the defendant’s conduct satisfie[d] the elements
of the lesser included offense” of simple murder).
18 BRAVO-FERNANDEZ v. UNITED STATES
Opinion of the Court
not rest on a court’s inability to detect the basis for a jury’s
decision. Rather, this Court reasoned that, when a jury
hangs, there is no decision, hence no evidence of irration
ality. 557 U. S., at 124–125. A verdict of guilt, by con
trast, is a jury decision, even if subsequently vacated on
appeal. It therefore can evince irrationality.
That is the case here. Petitioners do not dispute that
the Government’s evidence at trial supported a guilty
verdict on the quid pro quo theory, or that the gratuity
instruction held erroneous by the Court of Appeals applied
to every §666-based offense. Because no rational jury
could have reached conflicting verdicts on those counts,
petitioners’ §666 convictions “reveal the jury’s inconsis
tency—which is the relevant issue here—even if they do not
reveal which theory of liability jurors relied upon in reach
ing those inconsistent verdicts.” Brief for United States
31. In other words, because we do not know what the jury
would have concluded had there been no instructional
error, Brief for Petitioners 28–29, a new trial on the counts
of conviction is in order. Bravo and Martínez have suc
ceeded on appeal to that extent, but they are entitled to no
more. The split verdict does not impede the Government
from renewing the prosecution.8
——————
8 A number of lower courts have reached the same conclusion. See
Citron, 853 F. 2d, at 1059 (If the defendant “was convicted of the
offense that is the subject of the retrial,” the case is materially different
from one with “an acquittal accompanied by a failure to reach a ver
dict.”); Price, 750 F. 2d, at 366 (a case in which “the jury returned no
verdict of conviction” on the compound count, “but only a verdict of
acquittal on the substantive count,” is not instructive on whether the
Government may retry a defendant after an inconsistent verdict has
been vacated); Evans, 987 A. 2d, at 1142 (“Yeager does nothing to
undermine” the conclusion that a defendant may be retried after an
inconsistent verdict is overturned.); Kelly, 201 N. J., at 494, 992 A. 2d,
at 789 (explaining in the context of retrial following vacatur that
“Yeager has no application to a case . . . involving an inconsistent
verdict of acquittals and convictions returned by the same jury”).
Cite as: 580 U. S. ____ (2016) 19
Opinion of the Court
The Double Jeopardy Clause, as the First Circuit ex
plained, forever bars the Government from again prosecut
ing Bravo and Martínez on the §666-based conspiracy and
Travel Act offenses; “the acquittals themselves remain
inviolate.” 790 F. 3d, at 51, n. 6. Bravo and Martínez
have also gained “the benefit of their appellate victory,”
ibid.: a second trial on the standalone bribery charges, in
which the Government may not invoke a gratuity theory.
But issue preclusion is not a doctrine they can comman
deer when inconsistent verdicts shroud in mystery what
the jury necessarily decided.
* * *
For the reasons stated, the judgment of the Court of
Appeals for the First Circuit is
Affirmed.
Cite as: 580 U. S. ____ (2016) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–537
_________________
JUAN BRAVO-FERNANDEZ AND HECTOR MARTINEZ-
MALDONADO, PETITIONERS v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[November 29, 2016]
JUSTICE THOMAS, concurring.
The question presented in this case is whether, under
Ashe v. Swenson, 397 U. S. 436 (1970), and Yeager v.
United States, 557 U. S. 110 (2009), a vacated conviction
can nullify the preclusive effect of an acquittal under the
issue-preclusion prong of the Double Jeopardy Clause.
As originally understood, the Double Jeopardy Clause
does not have an issue-preclusion prong. “The English
common-law pleas of auterfoits acquit and auterfoits con-
vict, on which the Clause was based, barred only repeated
‘prosecution for the same identical act and crime.’ ” Id., at
128 (Scalia, J., dissenting) (quoting 4 W. Blackstone,
Commentaries on the Laws of England 330 (1769); em-
phasis added by dissent); see also Grady v. Corbin, 495
U. S. 508, 530–535 (1990) (Scalia, J., dissenting). But “[i]n
Ashe the Court departed from the original meaning of the
Double Jeopardy Clause, holding that it precludes suc-
cessive prosecutions on distinct crimes when facts essen-
tial to conviction of the second crime have necessarily
been resolved in the defendant’s favor by a verdict of ac-
quittal of the first crime.” Yeager, supra, at 128 (Scalia, J.,
dissenting).
In Yeager, this Court erroneously and illogically extended
Ashe. See 557 U. S., at 128–131. “Ashe held only that
2 BRAVO-FERNANDEZ v. UNITED STATES
THOMAS, J., concurring
the Clause sometimes bars successive prosecution of facts
found during ‘a prior proceeding.’ ” Id., at 129 (quoting
Ashe, supra, at 444). Yeager, however, “bar[red] retrial on
hung counts after what was not . . . a prior proceeding but
simply an earlier stage of the same proceeding.” 557 U. S.,
at 129 (Scalia, J., dissenting).
In an appropriate case, we should reconsider the hold-
ings of Ashe and Yeager. Because the Court today prop-
erly declines to extend those cases, and indeed reaches the
correct result under the Clause’s original meaning, I join
its opinion.