United States District Court, Northern District of Illinois, E.D
December 20, 1985
UNITED STATES OF AMERICA, EX REL. DONALD HOFFER, PETITIONER,
ROBERT MORROW, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Grady, District Judge.
The facts involved in determining the merits of this habeas
corpus petition are simple; the resolution of the legal issue
involved is not.
Petitioner was tried in state court for shooting and killing
Harold Peters. He was convicted of murder, voluntary manslaughter
and involuntary manslaughter. The trial court entered judgment
on the murder verdict and sentenced petitioner. On appeal, the
appellate court held that the three verdicts of guilty were
legally inconsistent, and, therefore, reversed all the
convictions and remanded for a new trial. People v. Hoffer,
122 Ill. App.3d 13, 77 Ill. Dec. 520, 460 N.E.2d 824 (2d Dist. 1984).
The Illinois Supreme Court affirmed the appellate court's
judgment, also holding that the jury's verdicts were legally and
logically inconsistent, requiring reversal and a new trial.
People v. Hoffer, 106 Ill.2d 186, 88 Ill.Dec. 20,
478 N.E.2d 335 (1985). Petitioner, having been released on bond pending the
Illinois Supreme Court's decision, has now been re-arrested, and
the state has indicated its intention to retry him for murder.
Throughout the proceedings subsequent to his convictions,
petitioner has argued that his conviction for involuntary
manslaughter must stand, and that the state cannot retry him for
murder and/or voluntary manslaughter without violating the double
jeopardy clause of the Fifth Amendment to the United States
Constitution. He asserts two arguments in support of his
position: (1) by convicting him of involuntary manslaughter, the
jury impliedly acquitted him of the greater offenses, and (2) the
state is collaterally estopped from relitigating the necessary
state of mind element in a murder or voluntary manslaughter
While multiple convictions for murder, voluntary manslaughter
and involuntary manslaughter appear to be disturbingly frequent
events in Illinois, see Hoffer, 106 Ill.2d at 200, 88 Ill.Dec.
at 27, 478 N.E.2d at 342, we have found and the parties have
cited no federal cases which discuss whether the double jeopardy
clause precludes retrial in this situation. Because we believe
that the instant situation involves the principles of continuing
jeopardy or procedural error discussed in Richardson v. United
States, 468 U.S. 317, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242
(1984), and Justices of Boston Municipal Court v. Lydon,
466 U.S. 294, 307-08, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984), we
hold that retrial is not constitutionally barred.
In a recent case, the Supreme Court held that when a defendant
is convicted of a "compound" offense, but acquitted on the
predicate offense, the conviction on the compound offense is
unreviewable on double jeopardy grounds. United States v.
Powell, ___ U.S. ___, 105 S.Ct. 471, 83 L.Ed.2d 461 (1985).*fn1
This is because once a defendant is acquitted, he may not be
retried on that charge under any circumstances, and "it is hardly
satisfactory to allow the defendant to receive a new trial on the
conviction as a matter of course." Id. at ___, 105 S.Ct. at
477. Since the acquittal, whether due to mistake, compromise or
lenity, is unreviewable, so also is the conviction. Id. See Will
v. Comprehensive Accounting Corp., 776 F.2d 665, 676-77 (7th
Cir. 1985) (since the double jeopardy clause "blocks any review
of a verdict in favor of the defendant," inconsistent guilty
verdicts may stand).
In a footnote in Powell, the Court specifically noted that
nothing in the opinion was intended to decide "the proper
resolution of a situation where a defendant is convicted of two
crimes, where a guilty verdict on
one count logically excludes a finding of guilty on the other."
Powell, ___ U.S. at ___, n. 8, 105 S.Ct. at 479, n. 8. The
court cited United States v. Daigle, 149 F. Supp. 409 (D.D.C.),
aff'd per curiam, 248 F.2d 608 (1957), cert. denied,
355 U.S. 913, 78 S.Ct. 344, 2 L.Ed.2d 274 (1958), as such a situation. In
Daigle, the jury found the defendant guilty of both larceny and
embezzlement, which the court held was inconsistent. Id. at
414. The court entered a judgment of acquittal on the greater
offense, and allowed the conviction on the lesser offense to
stand. The defendant's motion for a new trial was denied. Id.
Here, we have the opposite situation. Petitioner has been
inconsistently convicted, as in Daigle,*fn2 but, instead of
moving for a new trial, he wishes to retain the lesser
conviction, as the court ordered in Daigle. While, as
indicated, we have found no cases on point, we note that both
Powell and Daigle at least imply that double jeopardy would
not bar a new trial. In Powell, the Court held that a
conviction inconsistent with an acquittal may stand because the
defendant should not be allowed to retry his conviction.
Powell, ___ U.S. at ___, 105 S.Ct. at 477. This at least
implies that a new trial on the inconsistent conviction would not
violate the Constitution. Similarly, in Daigle, it apparently
did not occur to either the defendant or the court that the
defendant could not be retried.
Other indications that retrial is permissible here can be found
in Pipefitters Local Union No. 562 v. United States,
407 U.S. 385, 400-401 n. 11, 92 S.Ct. 2247, 2256 n. 11, 33 L.Ed.2d 11
(1972); Mathews v. Marshall, 754 F.2d 158, 160 n. 3 (6th Cir.
1985), cert. granted, ___ U.S. ___, 105 S.Ct. 2673, 86 L.Ed.2d
692 (1985); and Crawford v. Fenton, 646 F.2d 810, 817 n. 8 (3d
Cir.), cert. denied, 454 U.S. 872, 102 S.Ct. 344, 70 L.Ed.2d
In Pipefitters, the Court discussed the impact of the jury's
special findings, which were probably inconsistent with its
general verdict. The Court stated that if the two were
inconsistent, "petitioners would still be entitled at best to a
new trial, not acquittal." Id. Therefore, again, the Court was
at least implying that no double jeopardy difficulties would
arise in retrying the defendants. In Crawford, the jury's
answers to special interrogatories were inconsistent with its
guilty verdict, and the trial judge ordered the jury to resume
deliberations. When the jury indicated further confusion and
asked to be released, the judge declared a mistrial. Crawford,
646 F.2d at 812. The Third Circuit held that the defendant could
be retried because the mistrial was by manifest necessity — a
confused jury is similar to a deadlocked jury, permitting
retrial. Id. at 817. In a footnote, the court, citing
Pipefitters, noted that even if the judge had accepted the
verdict and had not declared a mistrial, the defendant "would
have been entitled, at most, to a new trial." Crawford, 646
F.2d at 817.
Finally, in Mathews, the petitioner was convicted of armed
robbery on a plea of guilty. He was then indicted and found
guilty of aggravated murder. The petitioner argued, and the
appellate court eventually agreed, that the aggravated murder
conviction violated the double jeopardy clause, since the same
elements were involved in armed robbery and aggravated murder.
Murder, as opposed to aggravated murder, does not involve the
same elements as armed robbery, and the issue in Mathews was
whether the aggravated murder conviction could simply be reduced
to murder (as the state contended), or whether the state had to
retry the petitioner for murder (as the petitioner contended).
Both the state and the petitioner agreed that the
petitioner could still be tried for murder without violating the
double jeopardy clause. The court stated that the reason retrial
would be permitted was that the reversal of the aggravated murder
conviction rested on procedural grounds, and the Supreme Court
"has consistently recognized that the reversal of a conviction on
procedural grounds does not preclude the government from retrying
a defendant." Mathews, 754 F.2d at 160 n. 3, citing United
States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1588-89, 12
L.Ed.2d 448 (1964).
All these cases permitted or indicated approval of retrial
despite inconsistent guilty verdicts. Only Mathews explains the
basis for this permission — the procedural nature of the
reversal. It is a longstanding principle of American
jurisprudence that when a first trial is terminated in a mistrial
because the jury could not reach a verdict, the defendant may be
retried, because "the ends of public justice would otherwise be
defeated." Richardson, 468 U.S. at ___, 104 S.Ct. at 3086,
citing United States v. Perez, 9 Wheat. 579 (1824). It is also
clear that the double jeopardy clause does not bar re-prosecution
of a defendant whose conviction is overturned on appeal (except
if it is overturned based on insufficiency of the evidence). See
Lydon, 466 U.S. at 307-08, 104 S.Ct. at 1813, citing United
States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300
(1896). In the first situation, mistrial, courts view the
jeopardy of the first trial as never having terminated, and,
therefore, the second trial does not subject the defendant to
double jeopardy. See Richardson, 468 U.S. at ___, 104 S.Ct. at
3086. In the second situation, reversal of conviction, while
jeopardy may technically have terminated, sound administration of
justice still permits retrial. See Lydon, 466 U.S. at 316-18,
104 S.Ct. at 1818 (Brennan, J., concurring); Tateo, 377 U.S. at
466, 87 S.Ct. at 1589. Thus, it is only when the government is
attempting to attack an acquittal that the double jeopardy clause
acts to bar such governmental overreaching. See Ohio v.
Johnson, 467 U.S. 493, ___, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425
(1984). Otherwise, the "ends of public justice" or "sound
administration of justice" precludes application of the clause to
We agree with the court in Crawford that a jury evincing
inconsistency most closely parallels a deadlocked jury. A
logically inconsistent multiple conviction is the equivalent of
no verdict at all. Therefore, pursuant to Richardson and
Perez, retrial should be allowed. Alternatively, if the
multiple convictions are treated as a verdict, it is a verdict of
conviction, which, under the principles of Tateo and Ball
may, after it has been set aside, subject the petitioner to a new
trial. Under either theory, the ends of justice permit retrial.
Petitioner argues that by convicting him of involuntary
manslaughter, the jury made a factual finding that he
unintentionally caused Peters' death. Therefore, the jury
impliedly acquitted him of the greater charges, or alternatively,
this finding as to his state of mind cannot be relitigated.
When a defendant has been prosecuted and convicted of a lesser
included offense, then, as Mathews indicates, he cannot later
be prosecuted for the greater offense. See Illinois v. Vitale,
447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). Similarly,
when the government initially prosecutes a defendant for the
greater offense, and the jury convicts only on the lesser
included offense, the government cannot reprosecute for the
greater offense. Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757,
26 L.Ed.2d 300 (1970); Green v. United States, 355 U.S. 184, 78
S.Ct. 221, 2 L.Ed.2d 199 (1957). This is because by convicting
only on the lesser charge, the jury has "impliedly acquitted" the
defendant on the greater charge. Price, 398 U.S. at 328, 90
S.Ct. at 1761; Green, 355 U.S. at 191, 78 S.Ct. at 225.
We agree with the Illinois Supreme Court that the doctrine of
implied acquittal does not apply here, where the jury has
expressly convicted the petitioner on all the charges. In both
Price and Green, when the juries convicted on the lesser
included charge, they remained silent as to the
greater charges, allowing for the implication of acquittal. Here,
obviously the jury did not mean to acquit the petitioner on the
greater charges, and it did not in fact acquit him on those
charges. As indicated above, because petitioner was expressly
convicted of the greater offenses, the jury's verdicts can be
considered as either no verdict or multiple convictions. The
verdict cannot be considered an acquittal.
An "acquittal" is a resolution in the defendant's favor of some
or all of the factual elements of the offense charged. United
States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57
L.Ed.2d 65 (1978) citing United States v. Martin Linen Supply
Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642
(1977). See Will, cited supra at 668-69 (verdicts "in favor" of
defendant). Under no rational perspective can a jury's express
finding of guilty be considered a factual resolution in the
defendant's favor, and, therefore, an acquittal.*fn3 The verdict
of guilty on the involuntary manslaughter charge can be viewed as
an implied finding of not guilty on the other charges only be
ignoring the express findings of guilt on those other charges.
There is no rule that in double jeopardy determinations only part
of the picture is considered. Since petitioner was not acquitted,
he can be retried.
Similarly, petitioner's collateral estoppel argument must fail.
In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469
(1970), the Supreme Court held that "when an issue of ultimate
fact has once been determined by a valid and final judgment, the
issue cannot again be litigated between the same parties in any
future lawsuit." Id. at 443, 90 S.Ct. at 1194. Therefore, when
a jury by its verdict must have found in the defendant's favor at
trial, the state cannot relitigate that issue. Id. at 446, 90
S.Ct. at 1195.
Here, there has been no valid and final judgment, see Hoffer,
106 Ill.2d at 199, 88 Ill.Dec. at 27, 478 N.E.2d at 342;
petitioner was not acquitted (see Ashe, 397 U.S. at 446, 90
S.Ct. at 1195 — collateral estoppel is to "protect a man who has
been acquitted"); and the jury did not necessarily find in
petitioner's favor. See United States v. Price, 750 F.2d 363
(5th Cir.), cert. denied, ___ U.S. ___, 105 S.Ct. 3526, 87
L.Ed.2d 651 (1985).
In Price, the defendant, a former employee of the Army Air
Service, was indicted on three counts: conspiracy to obtain
gratuities, making false statements before the grand jury, and
income tax evasion. The jury acquitted him (inconsistently) on
the latter two counts, but convicted him on the conspiracy count.
On appeal of the first conviction, the Fifth Circuit reversed
because of an evidentiary error, and remanded for a new trial on
the conspiracy count. In the second trial, the defendant was
again convicted for conspiracy to obtain gratuities. The
defendant appealed, arguing that under the doctrine of collateral
estoppel, the trial court improperly permitted the introduction
of evidence which should have been barred as a result of his
acquittal on the perjury and tax evasion charges. The Fifth
Circuit affirmed the conviction. Id. at 364. The court held
that by convicting him on the conspiracy count in the first
trial, the jury necessarily found the defendant culpable and
resolved factual issues adversely to him. While he was
inconsistently acquitted on the perjury and tax evasion charges,
no evidence at the first trial was used solely to prove an income
tax evasion or perjury, and, therefore, all the evidence admitted
at the first trial could be used against him. The court
emphasized that the defendant had been convicted in the first
trial, and, therefore, the inconsistent verdicts as to the other
counts "are not to be read as a finding of fact favorable [to the
defendant] on testimony which overlapped each count." Id. at
366. Moreover, the court even expressed doubt whether the
doctrine of collateral estoppel applies at all when the second
trial involves the same offense as the first trial. Id. See also
Johnson, 467 U.S. at ___, 104 S.Ct. at 2541-42 n. 9.
Here, petitioner was not even acquitted of the greater
offenses, and therefore no finding of fact was necessarily made
in his favor. As Price indicates, when a defendant is
inconsistently convicted and acquitted, the court cannot assume
that facts were found in the defendant's favor when those same
facts had to be otherwise resolved to convict him. Certainly when
a defendant is inconsistently convicted, with no acquittals, this
principle still applies.
Petitioner's habeas corpus petition is denied.