The recent Court of Appeals decision in Thomas v. United States on October 24, 2013, reiterates the doctrine of collateral estoppel.  The issue in the case was whether a retrial on certain counts was barred due to collateral estoppel.  Thomas was charged initially with five counts.  The first trial resulted in the jury acquitting Thomas of ADW (assault with deadly weapon) and PFCV (possession of firearm during crime of violence), but hung on CPWL (carrying a pistol without a license) and UA (unlawful possession of ammunition). The trial court declared a mistrial on those counts as well as the fifth count the FIP (unlawful possession of firearm by a felon).

The government on the retrial pursued the FIP, CPWL, and UA counts.  Thomas claimed that the government was collaterally estopped on both the CPWL and the FIP counts. The trial court ruled against Thomas and he was convicted on both the FIP and UA counts (government dismissed the CPWL).

The Court in applying the legal principles of collateral estoppel determined that the case requires remand.  The Court expounded on the doctrine “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.” That “the defendant has the burden of demonstrating that ‘the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.’

In order to determine if a count was barred on retrial by the doctrine of collateral estoppel – the first trial record has to be examined considering all pleadings, evidence and instructions and closings at which the question is whether the jury could have acquitted the defendant on any count other than the one defendant is seeking to bar from retrial.  That is, if the facts and evidence necessitating conviction was considered by the jury in the first trial before verdict – then the defendant cannot be retried on the same facts and evidence the second time.

Thus on appeal Thomas argued that the jury in the first trial determined that he did not bring a gun to the altercation therefore, collateral estoppel barred retrial on the FIP count. That “the jury in the first trial at least decided that he did not pull out a gun during his encounter with the Lamar brothers, and therefore, collateral estoppel barred admittance of the evidence of assault in his second trial.”   The Court of Appeals agreed and remanded the case.

The doctrine of collaterial estoppel is an effective tool for criminal litigators to eliminate counts, facts and evidence already litigated or considered by the jury.