dissenting:
I respectfully dissent.
I believe that double jeopardy attaches in this case. It is true that a bail proceeding is primarily administrative, not punitive, in nature, and thus may not necessarily require double jeopardy to attach, see United States v. Whitney, 649 F.2d 296 (5th Cir. Unit B 1981); cf. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). But the revocation of bail hearing held here provided the government with identical prosecutorial motivations regarding public safety as would a criminal trial, and the defendant with identical liberty concerns. The government attempted to incarcerate Showery for the commission of a crime, and had they succeeded, Showery would have gone to jail. I thus see no persuasive distinction between this situation and that in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). Simply put, the bail hearing though administrative in form was punitive in substance.
Even were double jeopardy not to attach, collateral estoppel could be raised as a successful constitutional defense to prosecution. As the Supreme Court recognized in Ashe v. Swenson, 397 U.S. 436, 441-42, 90 S.Ct. 1189, 1193, 25 L.Ed.2d 469 (1970), Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), reh. denied, 357 U.S. 933, 78 S.Ct. 1366, 2 L.Ed.2d 1375 (1958), did not determine whether collateral estoppel was constitutionally required under the Fifth and Fourteenth Amendment Due Process Clauses. In deciding that collateral estoppel was constitutionally required under the Double Jeopardy Clause, however, the Supreme Court did not foreclose the possibility that collateral estoppel might also be constitutionally required in a criminal context as a “fundamental principle of ordered liberty” or as a principle of “fundamental fairness.” Ashe, 397 U.S. at 442, 90 S.Ct. at 1193 (“The doctrine of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, [23 L.Ed.2d 707 (1969),] puts the issues in the present case in a perspective quite different from that in which the issues were perceived in Hoag v. New Jersey, supra.”) (emphasis added). To the contrary, the existence of this independent, constitutional requirement of collateral estoppel is strongly suggested by Ashe’s explicit recognition that criminal collateral estoppel evolved from its civil analogue, in a context where double jeopardy does not exist. Id. at 443, 90 S.Ct. at 1194 (citing United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916)); see id. at 447, 90 S.Ct. at 1196 (Black, J., concurring) (criticizing the majority for implying that fundamental fairness may be applicable to collateral estoppel); cf. Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886) distinguished on burden of proof grounds and limited, 89 Fire*205arms, 465 U.S. at 358-61, 104 S.Ct. at 1103-04.
Collateral estoppel should bar the subsequent prosecution here. The precise issue that was decided in the bail revocation hearing is now being tried: whether Showery had committed the involuntary manslaughter. The government failed to prove this under a substantially lower burden of proof requirement. Thus, “when a[n] 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.” Ashe, 397 U.S. at 443, 90 S.Ct. at 1194.
Assuming that double jeopardy should not attach, no irreparable injury would occur were Showery required to raise his collateral estoppel defense in the state court in the first instance. I would therefore abstain from enjoining the state trial court. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Kolski v. Watkins, 544 F.2d 762 (5th Cir.1977). Because I believe double jeopardy should attach, however, I must dissent from the judgment of the majority.