When the Bar Does Not Apply

When the Bar Does Not Apply

The sections above point in one direction. When two charges are the same offense under the Blockburger comparison of elements, and jeopardy attached in the first case, the Clause bars the second prosecution without regard to which charge came first.¹ Two situations remove that protection even though the offenses overlap completely. In the first, the defendant, rather than the government, is responsible for the charges being tried separately. In the second, the government could not have joined the charges because an element of the later offense did not yet exist, or could not have been known, when the first charge was resolved.² Both situations arise after the same-offense question has already been answered yes, so they limit the protection and leave the definition of the same offense where Blockburger put it.

The reason for each limit comes from what the bar assumes about the government. The Clause protects against a second chance at the same wrong, and that protection presupposes that the government had a full first chance and chose to divide its case. When the defendant causes the division, the assumption fails, and the incentive problem is easy to see. A defendant who could oppose joinder, obtain separate trials, finish the first trial on the lesser charge, and then invoke the bar against the greater charge would convert a tactical choice into immunity. Forfeiture removes that advantage at the source, and the leading authority is Jeffers, in which the defense successfully opposed the government's motion to consolidate.³ The second limit rests on a functional point. A prosecutor cannot try an offense whose elements have not yet occurred, so a government that waits for them has not split anything. That is the situation in Diaz, and the same logic appears in the rule that a conviction for assault does not bar a murder charge once the victim dies.⁴

Because these limits answer a claim the defendant has already made, they come last in the order of analysis for successive prosecutions. The defendant must first show that jeopardy attached, that the two provisions are the same offense, and that both charges rest on the same conduct. Only then does the government's response matter, and the response asks who is responsible for the separation and whether the second offense could have been charged earlier. Students lose this issue when they treat a finding of same offense as the end of the inquiry and skip who caused the split and whether the later elements existed. The next two sections take the limits in turn, beginning with the defendant who separates the trials.

Defense-Requested Separate Trials

The first limit on the same-offense bar depends on who caused the split. In Jeffers v. United States the government moved to try the two charges together, the defense successfully opposed the motion, and the Double Jeopardy Clause was not available to resist the later prosecution that followed.⁶ A defendant is normally entitled to have charges on a greater and a lesser offense resolved in one proceeding, but in the Court's words, "there is no violation of the Double Jeopardy Clause when he elects to have the two offenses tried separately and persuades the trial court to honor his election."⁷ That result is a forfeiture: the entitlement to a single proceeding exists, and the defendant surrenders it by choosing the alternative and winning.

The exception reaches two kinds of defense conduct. One is an express request for separate trials. The other is opposition to a joint trial that never raises the point that one offense is included in the other.⁸ The second form follows the same logic as the first, because a defendant who resists joinder without mentioning the inclusion has let the court separate the cases without ever signalling that the Clause might require them to be heard together. The consolidation motion is the fact that makes the doctrine fair to the government. A prosecutor who asks to try both charges in one case has shown readiness to prove everything at once, so the later prosecution cannot be described as a second try the government arranged for itself. The division traces to the defense, which asked the court for the schedule it wanted and received it, and the Clause gives a defendant no further right to turn that victory into a bar.

Because forfeiture follows responsibility, it applies only when the defense produced the split. Where the prosecutor alone chooses to try one charge first, the ordinary rule governs, and the second prosecution is barred without regard to whether the greater or the lesser offense came first.⁹ Charges that the government itself moves to join, with no defense objection, never separate at all, so the defendant keeps the protections that apply at a single trial, including the rule that multiple punishments for both offenses are barred absent a clearly expressed legislative intent to the contrary.¹⁰ The facts to look for in a problem are therefore the consolidation motion and the response to it.

The same reasoning carries over to issue preclusion, which is taught separately. In Currier v. Virginia the defendant asked to have a felon-in-possession charge severed from burglary and grand larceny charges, and the Court treated that consent to two trials as defeating an issue-preclusion claim under Ashe v. Swenson, just as it would defeat a claim under the historic core of the Clause.¹¹ Students lose this issue when they treat the defense's opposition to consolidation as irrelevant once the charges prove to be the same offense, because that opposition decides who caused the split.¹²

Elements Not Yet Ripe

The second limit on the same-offense bar covers charges that the government could not have tried together even if it had wanted to. The government is not held responsible for failing to join two charges when the elements of the second offense did not exist, or could not have been known, at the time the first charge was resolved.¹⁴ The reason is practical. A prosecutor can try only an offense whose elements have all occurred, because each element has to be proved, and an element that has not yet happened cannot be proved. A government that tries the complete charge first and brings the later charge once the missing element occurs has therefore divided nothing; it has prosecuted each offense as it became available. Applying the bar anyway would give the defendant immunity from a charge for conduct that was not yet that crime when the first case ended.

The felony-murder sequence is the standard illustration. If the charge on a predicate offense is resolved before the victim dies, a later prosecution for murder is not barred, because the death that makes the offense murder had not occurred when the first case ended.¹⁵ The assault-then-death sequence works the same way: a defendant convicted of assault with a deadly weapon may later be tried for murder if the victim dies, since the facts supporting the more serious charge did not exist at the time of the first charge.¹⁶ Diaz v. United States is the authority for this limit.¹⁷ Both applications turn on one question, which is whether every element of the later offense was in existence when the first prosecution was resolved. When the answer is no, the earlier judgment does not shield the defendant from the later charge, even though the two charges would otherwise be treated as the same offense under the Blockburger comparison of elements.

Harris v. Oklahoma sits on the other side of the line from these cases. There the robbery and the killing had both occurred before the State began its first prosecution, so no element of the later case was missing and nothing prevented the State from trying everything together. When every element already exists, the ordinary rule applies, and the bar holds without regard to which charge came first.¹⁸ The comparison isolates the variable that matters. The conduct, the victim, and the defendant are the same in both settings, and only the timing of the last element of the later offense differs.

The same reasoning reaches an offense that is completed by a course of conduct rather than a single event. In Garrett v. United States the defendant pleaded guilty to a narcotics transaction that was included in a continuing-criminal-enterprise offense, and the later enterprise charge was not barred, because that offense was still ongoing when the plea was entered.¹⁹ A defendant who had earlier been convicted of importing drugs could therefore be charged with participating in the enterprise, even though the importation was one of the predicate acts the government relied on.²⁰ The mechanism parallels the death cases. An enterprise offense is not complete until its course of conduct ends, so a prosecutor who tries an included transaction while the enterprise continues has not yet had the chance to try the finished enterprise offense.

A related situation arises when the first court lacked power to try the more serious charge. A defendant in a fatal traffic accident who is charged with excessive speed in traffic court and later with manslaughter in a district court probably is not protected by the first judgment if the traffic court had no jurisdiction to try both charges, and a state supreme court so held in Fugate v. New Mexico, which the Supreme Court affirmed by an equally divided vote.²¹ An equally divided affirmance produces no majority rationale, so the point is best held as a probable application of the same idea, not as settled doctrine. The government again could not have joined the charges, though the obstacle is the first court's lack of power, not a missing element.

Students lose this issue when they stop after finding that the two offenses overlap and never ask when the last element of the later offense occurred.²² The limit is narrow, because it needs an element that truly was missing or unknowable when the first charge was resolved, and a prosecutor who simply held back a charge whose elements were all in place gets no help from it.