I would reverse the judgment of the district court.
The fifth amendment guards against second prosecutions for the same offense after an acquittal or a conviction, and protects against multiple punishments for the ' same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The amendment’s protection against double jeopardy includes the rule of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970).
The majority concludes that the collateral estoppel rule is only applicable as to ultimate issues determined at the first trial in the defendant’s favor. The cases which appear to support this position do so without explanation, see, e.g., Moton v. Swenson, 488 F.2d 1060, 1062 (8th Cir.1973), cert. denied, 417 U.S. 957, 94 S.Ct. 3086, 41 L.Ed.2d 675 (1974) (“prior acquittal was * * the linchpin of the Ashe decision”); Percy v. South Dakota, 443 F.2d 1232, 1235 (8th Cir.), cert. denied, 404 U.S. 886, 92 S.Ct. 223, 30 L.Ed.2d 169 (1971) (“even if we were to assume that the essential elements of kidnapping were incidentally determined at the first trial, Ashe would not control because here, as distinguished from Ashe, the jury found appellant guilty.”); United States v. DeMarrias, 441 F.2d 1304, 1307 (8th Cir.1971) (“Here the Tribal Court convicted. In Ashe, the jury acquitted.”) In my view, they misconstrue Ashe and defeat the purpose of the double jeopardy clause.
Ashe did not hold that collateral estoppel only applies when the defendant was acquitted in the first litigation. Rather, it held that Ashe could not be reprosecuted for robbery after the jury in the first trial acquitted him of robbing a different victim, based upon the determination that Ashe had not been present at the robbery. Ashe v. Swenson, 397 U.S. at 446, 90 S.Ct. at 1195. Thus, the state was prevented from presenting the same or different identification evidence in a second prosecution by the collateral estoppel rule. Id. The Court *976defined collateral estoppel as meaning 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, 90 S.Ct. at 1194.
The only reference to a prior acquittal occurs in the Court’s emphasis that the rule of collateral estoppel must be applied with “realism and rationality.” The Court stated as an example that where a previous judgment of acquittal was based upon a general verdict, the court must inquire into the record carefully and decide whether a “rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id. at 444, 90 S.Ct. at 1194 (citation omitted). The concern of the Court was that
[a]ny 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.
Id. (footnote omitted).
This reference can hardly be considered a holding that collateral estoppel is available only when the defendant has been acquitted in the first casé. A further indication that the Court intended no such rule is its reliance upon Justice Holmes’s opinion in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916), which states:
Where a criminal charge has been adjudicated upon by a court having jurisdiction to hear and determine it, the adjudication, whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offense. * * * ln this respect the criminal law is in unison with that which prevails in civil proceedings.
Id. at 88, 37 S.Ct. at 69, quoting Hawkins, J., in Reg. v. Miles, L.R. 24 Q.B.Div. 423, 431 (emphasis added).
There is no requirement in civil cases that the party raising collateral estoppel as a defense must be successful in the prior litigation. I find no reason why such a rule should exist in criminal cases, especially in light of the Supreme Court’s repeated emphasis that collateral estoppel is available in criminal cases because a criminal defendant deserves the same protection which the law affords a civil party. Ashe, 397 U.S. at 443, 90 S.Ct. at 1194; Oppenheimer, 242 U.S. at 87, 37 S.Ct. at 69. The finality of a determination of an ultimate factual issue applies with equal force to civil and criminal proceedings; it is completely irrelevant whether a defendant was convicted or acquitted in the first proceeding where this determination was made.
A careful analysis of the issues decided by the jury in Flittie’s first trial reveals that his conviction in the second trial for accessory after the fact to murder results in double jeopardy. In his first trial, Flittie was charged with murder (aiding and abetting) and conspiracy to murder. The jury acquitted Flittie of the murder charge and convicted him of conspiracy. The record establishes that the jury convicted him of conspiracy based upon his post-murder conduct in concealing or aiding Downs by sending him money and arranging for him to go to Tucson after the murder. The information charging Flittie with conspiracy cited his conduct dating seven months after the date of the murder. At closing argument in the first trial, Flittie’s attorney all but conceded that Flittie was involved after the fact, but hotly disputed that Flittie was guilty of conspiracy and murder. The jury instructions concerning the conspiracy charge allowed the jury to convict Flittie based upon his conduct after the fact. The South Dakota Supreme Court reviewed the pleadings, evidence, closing arguments, and jury instructions, and concluded that “[i]t is evident that the jury in the first trial convicted defendant on the conspiracy charge based upon his post-murder conduct.” State v. Flittie, 318 N.W.2d 346, 349 (S.D.1982). The majority opinion does not dispute this conclusion.
*977To allow the accessory conviction to stand allows the state a second chance to prosecute Flittie for assisting Downs after the murder. Once a jury convicted Flittie of a crime based upon his post-murder conduct, the state cannot present this same conduct as evidence of a different crime in a second prosecution without violating the fifth amendment. Presumably, the prosecution was disappointed by the jury’s verdict in the first trial, acquitting Flittie of aiding and abetting murder but convicting him of conspiracy. But, as the Supreme Court stressed in Ashe:
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.
Ashe, 397 U.S. at 447, 90 S.Ct. at 1196 (emphasis added).
In order to give meaning to the double jeopardy clause and Ashe, the judgment of the district court must be reversed.