Ashe v. Swenson

LOCATION:Riverbed of the Arkansas River

DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 397 US 436 (1970)
ARGUED: Nov 13, 1969
DECIDED: Apr 06, 1970

Facts of the case


Audio Transcription for Oral Argument – November 13, 1969 in Ashe v. Swenson

Warren E. Burger:

Number 57, Ashe against Swenson.

Mr. Clifford, you may proceed whenever you’re ready.

Clark M. Clifford:

Mr. Chief Justice, may it please the Court.

I represent the petitioner in this case, Bob Fred Ashe, who as a result of the verdict of guilty was sentenced to a 35-year term in the Missouri State Penitentiary.

The case involves the construction of the basic theory of double jeopardy.

In this action, four men were charged with holding up a poker game and as a result of that, informations were returned, charging each of the four alleged robbers with six separate offenses because there were six men in the poker game, each was robbed.

So, each of the four defendants was charged with a separate offense.

In this instance Ashe, my client, was tried and acquitted at his first trial.

He then was tried a second time and that time he was convicted.

The facts of the case are of paramount importance.

So, the court will bear with me while I trace briefly what these facts are.

In this town, in the Northern Western portion of Missouri called Lee’s Summit, was known from time to time a group gathered to play poker at the home of a man named Gladson and on this Saturday evening, there were six men playing.

It was a game in which bets were made as much as a hundred dollars.

So, from time to time there would be a good deal of money on the poker table.

Early that morning, it would be early Sunday morning on January 10, 1960, there was a disturbance at the door which led into the basement of Mr. Gladson’s house where they were having the game.

One of the men got up, the door was pushed open in his face and three men entered, one of them with a shotgun and two of them with pistols.

They said, “This is a stickup.”

They forced the six poker players over with their backs to the wall.

These men gathered up the bills and currency that were lying on the table.

They removed from the persons of the six pokers player their watches, any other valuables that they might have.

When the case came to trial against my client Ashe, he was charged with armed robbery against one of the six poker players whose name was Knight.

Potter Stewart:

Mr. Clifford, I want to be sure I fully understand the facts, it is — I think you said and did I understand it correctly that these men not only scooped up what was on the table, but also personally went into the pockets of each one of the players?

Clark M. Clifford:

Yes, Your Honor and I was going to give you more detail on that regard.

I first stated the general proposition.

They forced the six men over with their back facing the wall with their backs to the room.

They took whatever cash and valuables there were on the table.

Then, in each instance, they removed from the person of the six poker players, their watches, their rings, their billfolds, whatever they could find of value on the six men who were there.

The question is a curious one as to whether there were three or four of the alleged robbers who came in, but in any event, after they had performed this robbery, these men were tied up.

Their trousers were taken away from them in an effort perhaps to prevent pursuit and the robbers left.

So that just taking Ashe alone, the petitioner here, he had six informations filed against him, alleging these six offenses against the poker players.

Clark M. Clifford:

So when the first trial came on, four of the poker players were called as witnesses among a number of other witnesses.

The fact is 15 witnesses were called by the state in this first trial against Ashe.

Gladson at whose house the game was held identified one of the robbers, a man named Brown because as the robbers came in they had hats on, they had bandanas around their face and were difficult to identify.

But in the course of the proceedings, Brown’s bandanna fell down and Gladson identified him and knew him there in town.

So, he identified him but could not identify any of the others.

Knight, the second witness at the first trial, said he’d heard that some people claim there were four men in the holdup, but he only recalled three and he couldn’t identify any of the three.

McClendon, the third poker player said that he remembered only three men in the basement and he identified all three of them as Johnson, Larson and Brown.

He was asked about Ashe at this particular case and said, no, he couldn’t remember seeing Ashe in the basement where they were having the game.

Roberts, the fourth member of the game, did identify Ashe as one of the robbers, but in a curious manner.

He said, “I didn’t see his face that evening in the room where the poker game was held.

I couldn’t see his hands because these men all had gloves on and I really couldn’t identify his voice, but Ashe was one of the robbers and he is sitting over there at the trial table when the case came to trial and that is Ashe and he was one of them.”

From there, the trial, the first trial went then to the question that the robbers escaped, stole one of the cars belonging to the poker players and escaped.

Early the next morning, witnesses saw this group and two or three witnesses saw the stolen car with three men in or around it, one lying on the ground next to it, two sitting on the other side.

And the next morning, Sunday morning, maybe 8 o’clock or so, these three men were picked up, that’s Johnson, Larson and Brown, those were the three that McClendon incidentally had recognized in the basement.

They were picked up by a Missouri Highway Patrolman.

Ashe was not with those three men.

Also, these three men picked up near the stolen car, all had money on them; ones, fives, tens, twenties, something that kind; the same kind of currency that had been used in the poker game.

When the stolen car was found near which one witness had seen these three men, a shotgun was found some few steps behind the car, two pistols were found inside of the car.

Now, sometime later, at a point removed from this location where these three men were found, Ashe was walking along the highway.

And a separate state patrolman who was driving along, saw this man walking along the highway, stopped him and the word had gone out be on the lookout for this particular fellow.

He arrested him at the time, had him come over and stand with his hands against the automobile and searched him.

All Ashe had on at that time was a pair of pants and a white shirt and the officer said he had nothing in his pockets, he had no money of any kind.

I mention it because the identification of Ashe was extraordinarily flimsy from the witnesses who were in the game.

The case against the other three who were supposedly implicated was quite strong because they were found with money on them.

They pretty well stayed together.

They’d been seen near the car and so forth.

Ashe was separate.

All at one might know, he might just have been walking down the highway and the policeman saw him.

After the submission of the case to the jury, the defense did not put on any witnesses.

The jury went out and brought in a verdict of not guilty against Ashe.

Clark M. Clifford:

Incidentally and interestingly, the jury was given a verdict which said not guilty and they added to it not guilty due to insufficient evidence, they supplied that themselves.

The state tried the case on the theory that the four men were acting in concert and that all four took place in a robbery that involved all six poker players.

No effort was made to show that any particular defendant robbed any particular poker player Fact is there is some evidence exactly to the opposite when one witness said, “I don’t know which men of the four or three did what.

We were just all herded over there and we just saw them scooping up the money.”

So there is no specific act on the part of any defendant alleged.

It is merely that four men acting in concert robbed each of the six men.

So that’s why all four of the alleged robbers each had informations issued against them for all six poker players.

Now, in the case, the first trial of Ashe, there was only one issue in the case.

The issue was, was Ashe one of the robbers who was in the basement that evening?

There is no doubt about what else took place.

There’s no doubt that the poker game took place.

There’s no doubt that some robbers came in with guns.

There is no doubt that a substantial amount of money, maybe as much as two thousand dollars or so was taken from the table.

There is no doubt that they lost personal property.

All of that is uncontroverted, went in, very little cross-examination, no contradiction.

So, we have those facts established without any doubt or question.

The one real question, however was, was Ashe one of the men?

It was slightly complicated by McClendon for instance saying, “There were only three men and they were Johnson, Larson and Brown and I didn’t see Ashe.”

Other men said, “Well, I don’t know who there was.”

So that whereby time the jury had to consider, a reading of the record shows they really had one issue submitted to them.

Potter Stewart:

Was it the state’s theory at all that four men were involved, but that only three came in to the basement and that the other was the driver of the get away car, or anything along those lines?

Clark M. Clifford:

It was not explained.

The state alleged that there were these four men and — but the three came in all alone and then one came in afterwards, there was a good deal of confusion, but the state’s charge was in effect, there were actually four robbers at some time or another in the basement.

Warren E. Burger:

Is it not normal, usual, Mr. Clifford, in the situation where you have three people or four people robbing or committing some other crime against four, five or six that you have this kind of a confused picture?

People are — the identifications aren’t always precise so the identification or the particular movements are not always precise, so this is not uncommon, is it?

Clark M. Clifford:

It is not uncommon.

I’m sure that with the excitement of the moment, with these men coming in, the fact that they had their faces concealed, I think all of that is likely to create difficulty in identification, I accept that.

However, the fact is that when the state brought its first case against Ashe, all of the facts of the game, all of the facts of the holdup, all of the facts of the loss by each of the six was all put into the case and the one real question the jury had to determine is, was Ashe one of the four men?

The jury concluded from the reading of the record, — jury concluded after the case, I concluded also from the reading of the record that it would be very difficult to associate him with the case, the jury found him not guilty.

Thereafter, in the case — the state proceeded on the second information against Ashe.

Clark M. Clifford:

The first charged him with robbing Knight.

An identical information then was used as the basis of the second trial, it charged him with robbing a man named Roberts and the case came on for trial.

Now, I submit to you as I read the appendix of the second trial, I found it a shocking experience.

The case had changed very considerably.

Gladson, who at the first trial had said, “I could only identify Brown because his mask fell off” now says, “Yes, Ashe was one of the robbery,” just a flat categorical statement.

He was tied up with the fact that I — “When I saw the four men at the police station the next day, I could see those were the four and Ashe was one of them” so he then changes his story.

He apparently knew more about what happened that night at the second trial than he knew after the first trial.

Knight, who didn’t know anybody at the first trial, maintained his same position.

He didn’t know anybody at the second trial.

McClendon, the man who’d at the first trial had said there were only three men and they were Johnson, Larson and Brown was not called by the state the second time because he had been so positive about the identity of the three robbers which did not — his identification did not include Ashe so he was not called by the state.

Warren E. Burger:

Was there any legal impediment to the defense calling him that you know of?

Clark M. Clifford:

There was not.

What was the interval between the two trials?

Clark M. Clifford:

Six and a half weeks.

Roberts, the fourth man, called again although still, having difficulty with the fact that the mask were on, he also flatly said that he identified Ashe.

And he now, between the first and second trials, had concluded that he had identified him as a result of a — of his voice which he had not done at the first trial.

Now, in that case after this finding, the case went on and obviously, as you look through the record, you would see a process going on.

Witness’ stories are strengthened.

They pick up little details here that they testified to it the second trial which they didn’t at the first trial, weak places are bolstered up, here is a perfect illustration.

Obviously, the prosecution was very concerned that when Ashe was picked up, he just had pair of trousers and a shirt on and had no money of any kind on him.

So, at the second trial, an effort was made to show that he did have some money on him, but they couldn’t get around the first statement of the highway patrolman that he had searched Ashe and found nothing on him.

So, they put on a deputy sheriff who was at the jail in Jackson County and this it seems to me is really quite significant.

I want to read just two or three questions and answers.

He said he had found some money on Ashe.

Where was the money?

Answer, “In his pocket.

He had some in his coat pocket, I think.”

Question; “Did he have some in his shoe or sock?”

“That is a mistake I made.

I got it all out of the pocket of his coat.”

Clark M. Clifford:

Well, that’s a little troublesome to the state because he never had a coat.

They found him at the very beginning with just pants and shirt and he’d never had a coat on.

Then this, “Didn’t you tell me prior to this, you took it out of his shoe?”

Answer, “No, I said I made him take his shoes and socks off.

That was a misunderstanding because I have heard it four or five times.”

Sometime between the first trial and the second trial, this particular witness had had suggested to him four or five times that he had found some money in Ashe’s shoe between his sock and his shoe because there was no evidence of any kind about any money in his shoe in the first one.

And to compound what I believe is the gross injustice here, although, this witness’s name is Autoray, the deputy sheriff who took his shoes and socks off, had testified at the first trial and said nothing about finding any money in his shoe and sock at the first trial.

The prosecutor at the second trial was very anxious to get this deputy sheriff to say that and when he wouldn’t say it, then the deputy sheriff claimed surprise and asked leave to cross-examine him as a hostile witness although he had testified six weeks before at another first trial and never mentioned about the money in the shoe.

Warren E. Burger:

How was he impeached with these inconsistencies —

Clark M. Clifford:

Yes, and the court permitted him to do it and eight pages in this appendix is devoted to the prosecuting attorney trying to get this deputy sheriff to say that he’d found the money in his shoe.

Warren E. Burger:

But then the jury had all of this picture before it and resolved these conflicts, did it not?

Clark M. Clifford:

Yes, fine.

What I’m — they did Your Honor and the second time, they said, they brought in the verdict of guilty and it was under that guilty finding that he was sentenced to serve the term in the penitentiary.

Now, the point is that it is our contention in behalf of Ashe that the substance, the thrust of the Double Jeopardy Clause of the Fifth Amendment is carried over into the Due Process Clause of the Fourteenth Amendment.

And it is our contention that after he was acquitted of the first charge, when there was only one real issue and that is “Was Ashe there,” that that then became the finding of the jury and he should not have been tried again on that issue, that is the contention that we make.

Now, in this regard, when our brief was filed, there was a federal rule regarding the application of double jeopardy and a state rule.

It was perhaps best stated by the decision in State versus Palko, Justice Cardozo, it seems to me.

No, alright, State versus Palko where it was alleged and held that there was one rule for federal cases and one rule for state cases and in the state case a very watered down requirement was leveled against the state.

I think it was Judge Cardo — Justice Cardozo in the Palko case who said, “We will not disturb a second finding of guilty in a state case unless the hardship is so shocking and acute as to be unendurable.”

That is the substantial language in — and the Palko decision was followed for quite a long time.

Now, that was changed, but I’ll get to that.

We contend that in even in this instance, when there is but one issue in a case and the state has full opportunity to present its case and the one clear issue is decided in favor of the defendant in that case, that he should not be tried again for the charge for which the jury has obviously found one positive result.

So, we say that even if Palko were the law today, with this watered down requirement, I believe that this case still would come under the rule enunciated in Palko, but, the Palko case is no longer controlling in this regard because of the case of Benton versus Maryland in which Justice Marshall wrote the opinion just June of this year.

And in that opinion, this Court said that the double jeopardy concept, the double jeopardy theory, the core of the concept of double jeopardy applies to the states through the Fourteenth Amendment.

So, one cannot read the Benton versus Maryland without coming to the conclusion that now this Court has stated there are no longer two rules, one for state cases and one for federal cases.

There is just one rule now and that is for the federal rule because as the opinion of Judge Marshall said that the basic protection of double jeopardy is so thoroughly ingrained in our law that it was present even at the common law before it was enshrined in the Fifth Amendment.

And, therefore, that you cannot permit an individual when his constitutional rights are being grossly affected as I believe this defendant’s were, to have a court say, “Well, we’ll apply one rule to that man on the double jeopardy question and another rule if his case was in a federal court.”

I see that I have at five minutes left and I would like to use the five minutes after my colleague has argued.

Warren E. Burger:

Thank you Mr. Clifford.

Mr. Voigts.

Gene E. Voigts:

Mr. Chief Justice and may it please the Court.

While we agree with the facts as have been related by Mr. Clifford in detail, the sequence of events that transpired in the Circuit Court of Jackson County back in 1960 and the facts that were introduced adduced in evidence at the time of the two trials, we of course, disagree with the conclusion that he withdraw from those facts.

We believe, of course, that the general issue involved in this case is whether or not the state may try a defendant for a charge of robbery, if the defendant has previously been acquitted on a charge of robbery involving a different victim and different property even though the two charges of robbery arose out of essentially the same transaction and the same point in time.

It is our belief and our contention that the state may do so and we suggest that the state may do so, first because the second trial based upon a second separate and distinct offense did not amount to fundamental unfairness.

Secondly, we suggest that the constitutional prohibition against placing a person twice in jeopardy for the same offense is precisely that, that the test is the identity of the offense rather than the test being the same transaction.

Third, we suggest that the principle of collateral estoppel is not applicable upon the facts presented in this case and finally, that even if this Court should conclude that the principle of collateral estoppel applies to the fact of this case, that it is not required by the constitution either under the double jeopardy provision or as a part of the Due Process Clause.

We believe that these issues based upon the questions presented in this case must be resolved in favor of the state.

If I may then, I would like to direct my attention first to the question as to whether or not the constitutional prohibition —

Thurgood Marshall:

On the questions of the facts I’m a little worried.

Was the state’s position that Ashe took money out of both of these men’s pockets?

Gene E. Voigts:

Your Honor, I think as Mr. Clifford previously indicated, at both of the trials, it was not clear and there was not any clear cut identification as to which one of the four robbers took the money out of, shall we say Mr. Knight’s pocket, who was the robbery victim in the first trial or Mr. Roberts’ pocket in the second trial.

Thurgood Marshall:

Well, is it the state’s position that Ashe could be charged with robbing all six?

Gene E. Voigts:

He was in fact charged with robbing all six Your Honor.

Thurgood Marshall:

Well, isn’t that contrary to all the evidence?

The evidence says that the four passed around the six, so one man didn’t do it all.

Gene E. Voigts:

That is right, Your Honor.

The instruct —

Thurgood Marshall:

But you think you could charge him with that?

Gene E. Voigts:

He was so charged and the instructions to the jury — instructed the jury to return a verdict of guilty if they found that he did these certain specified elements either acting alone or knowingly acting in concert with the others.

Thurgood Marshall:

Rob all six of them?

Gene E. Voigts:

That is correct, Your Honor.

Thurgood Marshall:

So he could be convicted six times?

Gene E. Voigts:

It is possible.

I do not believe that to sustain the state’s position in this case Your Honor that I need to necessarily go to that extension.

I think that my position has to simply be that by virtue of his acquittal on the first trial, in fact did not constitutionally preclude the state from trying him the second time.

Thurgood Marshall:

And third?

Gene E. Voigts:

Of course, obviously, I believe that there’s —

Thurgood Marshall:

Well, are the information still outstanding for the others?

Gene E. Voigts:

Your Honor, I do not know.

It does indicate in the record that there were six informations filed, that he was tried in May of 1960 on the first information, acquitted.

Gene E. Voigts:

He was tried on the second information in June and was convicted.

There is no indication as to what has happened as to the status of the four remaining (Voice Overlap) —

Thurgood Marshall:

So the four might still be sitting there?

Gene E. Voigts:

Yes, of course.

I am sure that there are problems, should there ever be any attempt by the state to prosecute on those because of the lapse of time that has been involved.

Warren E. Burger:

You never — pretty good speedy trial defense claim, wouldn’t he?

Gene E. Voigts:

I should think so, Your Honor.

Hugo L. Black:

In the trial where he was acquitted, did he plead an alibi?

Gene E. Voigts:

No, Your Honor.

There was no evidence introduced by the defendant whatsoever in either the first trial or the second trial.

Interestingly enough and purely as in the side, the counsel for the defendant at the first trial even waived to closing argument to the jury.

It was simply the state’s evidence, the first part of the state’s final argument, the jury retired to deliberate and it then of course returned a verdict of not guilty.

It if — Mr. Clifford has indicated, had written on it due to insufficient evidence, we submit this as really not relevant or important.

We believe that would have been applied in the verdict in any event.

Hugo L. Black:

Well, if he had been acquitted and the issue on which he was acquitted was that he was not there and did not participate, would your same argument be valid?

Gene E. Voigts:

I think so to the extent Your Honor that we suggest that the principle of collateral estoppel would not be constitutionally required to be applied by the state in this situation.

Warren E. Burger:

Does Missouri have a special verdict or general (Voice Overlap)?

Gene E. Voigts:

No, Your Honor, it’s a general verdict.

They returned a finding of either guilty or not guilty and of course, in this situation he was charged under the — our habitual criminal act and so the jury did not have the added function of assessing the sentence.

Hugo L. Black:

Well, I suppose if a man was acquitted on an issue which would absolutely absolve him from all the guilt such as that would, that you’d have a pretty hard time, wouldn’t you in saying it although called collateral estoppel didn’t amount to double jeopardy?

Gene E. Voigts:

That may be, Your Honor, but what we are suggesting is that you do not go beyond those issues which necessarily had to be found.

And we’re suggesting that the ultimate issue involved in this case in the first trial was whether or not Ashe either acting alone or knowingly in concert with another robbed Don Knight and whether or not the jury in that case found beyond a reasonable doubt all of the necessary elements which they would have to find on a charge of robbery in the first degree.

Now, of course, I will concede and agree with Mr. Clifford that if you examine the record, this was perhaps the really only contested issue but I think if you will examine the record of the first trial, one must conclude that there was hardly any issue contested at all if you are talking about contesting an issue from the standpoint of serious and extensive cross-examination by the defense counsel.

The state’s evidence came in relatively free from any objection, relatively free from any extensive cross examination whatsoever.

The jury returned a verdict of acquittal and we suggest that when they —

Hugo L. Black:

Did they return the verdict for acquittal for of the others?

Gene E. Voigts:


This was a separate trial, Your Honor.

Hugo L. Black:

Separate —

Gene E. Voigts:

Just Mr. Ashe was involved in this particular trial.

Gene E. Voigts:

Prior to this, he had move for a severance of his trial.

Hugo L. Black:

How do you explain that jury verdict? You have studied the record and I’m just asking.

Gene E. Voigts:

Your Honor I cannot explain the jury verdict and I do not frankly believe that it is necessary that I do explain the jury verdict.

Hugo L. Black:

I just want to know what was your impression of the record as to why he was acquitted?

Gene E. Voigts:

I think it’s very possible that the jury found that there was a lack of sufficient identification of Mr. Ashe as one of the participants in this.

I think it was equally suggested by the Missouri Supreme Court and by the United States Court of Appeals for the Eighth Circuit that even though there had been other evidence that was un-contradicted as to the taking of property or as to a number of other elements that they might have found on those.

And I think too, it was interesting that the United States Court of Appeals for the Eighth Circuit observed that perhaps the jury finding these six gentlemen playing poker until I believe about four o’clock in the morning for — as Mr. Clifford has indicated quite sizable stakes, the jury may have simply decided that they were not going to extend any protection of the law to the people that were engaging in this type of activity.

Now, I cannot really stand here and argue to the court that they found on anyone of these items any more logically or reasonably than another, but what I am suggesting is that it is not necessary for the state’s position in this case to go beyond that verdict and to try to make a determination or to speculate as to what facts might have been considered by the jury or as to what facts the jury might necessarily have based their verdict on.

Byron R. White:

And isn’t it an element of the crime in Missouri that the victim be in fear of his life?

Gene E. Voigts:

Yes, it is, Your Honor.

Byron R. White:

Would that — could that fact vary between the defendant — they’d do in the victim?

Gene E. Voigts:

It might well have done so I must say in all candid though that I don’t think that the record necessarily clearly indicates that this was an element.

But this is in part why I am suggesting that one need not go that additional step to examine the record in its entirety to attempt to pinpoint and determine what specific element the jury found like in — at the first trial.

As indicated by Mr. Clifford, of course, at the time that this case originally came to this Court and at the time that the briefs were in the process of being prepared and submitted, Palko versus Connecticut was of course still essentially the law insofar as the application of the Fifth Amendment to state action.

Since that time of course we have had Benton versus Marilyn and Justice Marshall speaking for the Court of observed there that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritages and that it should apply to the states through the Fourteenth Amendment.

And its — while that case did not deal specifically with the question as to whether this applicable to the same offense or what type of test you would apply in determining whether a person has been placed twice in jeopardy, I think its significant that there was quotation in that opinion from Blackstone and significant that the quotation was at the plea of former acquittal as grounded on the universal maxim of law of England, that no man is to be brought into jeopardy of his life more than once for the same offense.

And I submit that it is interesting that the constitutional language, the language that is used by Blackstone is the same offense and it is interesting to note that in the common law cases of England that the emphasis was placed upon the identity of the offense from the standpoint of the same evidence test perhaps.

And I submit that when you apply that same evidence test and that is namely whether or not in the second trial, the identical evidence which was produced at the first trial was necessary to support the indictment that we must conclude that there is not that identity of offenses.

Hugo L. Black:

What difference — what difference are you emphasizing on that?

Gene E. Voigts:

The difference as was indicated by Mr. Justice White from one thing.

In Missouri the thrust of the charge of robbery is the taking of property either from the ownership or the possession of a person by threat or fear of violence to their person and obviously, this involved a different issue than would have necessarily had to be litigated at the first trial.

The evidence which would necessarily support a conviction on the charge of robbing Knight was not that same evidence which was necessary to support the charge as to whether or not he robbed Roy Roberts.

Hugo L. Black:

In other words, you don’t — go going on the basis that each robber, each person must be considered as two separate offenses?

Gene E. Voigts:

That’s right, Your Honor.

The Missouri Supreme Court has so indicated that that is the law as it exists in the state of Missouri and as I understand this Court’s prior ruling in the Hoag versus New Jersey, of course, that is a determination to be made by that court as to whether or not at the same time you rob two people whether or not that constitutes one offense or whether or not it constitutes separate and independent offenses as against each of those two people.

Hugo L. Black:

Any other differences?

Gene E. Voigts:

No, Your Honor.

Hugo L. Black:

Merely the difference of robbing two different people?

Gene E. Voigts:

Yes, Your Honor, if I understand the question.

Thurgood Marshall:

Any evidence that Ashe pointed a gun at either one of them?

Gene E. Voigts:

I’m sorry Your Honor.

Thurgood Marshall:

Is there any evidence in the record that Ashe pointed a gun at either?

Gene E. Voigts:


Once again, Mr. Justice, at the time of both trials there is this problem of identity of robbers, number one, two, three and four.

There is evidence in the record though that as they came down into that basement that one of the robbers had I believe a sawed-off shotgun which was described as perhaps a 410.

The other two had pistols of a smaller caliber.

Thurgood Marshall:

Well, which — what evidence is in the record that Ashe threatened either one of these first two people?

Gene E. Voigts:

The evidence is essentially that at the second trial and I believe at the first trial that once again that the people who came down into the basement, Your Honor, with the guns forced these six participants in the card games to go over against the wall at one point.

They then forced them back into the center of the room, had all, but one of them I believe removed their trousers and they were tied together at that point.

And there was testimony of course by each one of the witnesses as to the various people who came around —

Thurgood Marshall:

(Voice Overlap) the same witnesses, in both sides?

Gene E. Voigts:


Except for the modifications that were indicated by Mr. Clifford in his statement (Voice Overlap) —

Thurgood Marshall:

But the same witnesses were at both trials?

Gene E. Voigts:

Yes sir.

Thurgood Marshall:

And they testified substantially the same thing at both trials?

Gene E. Voigts:

With the exception Your Honor that the question of identification was developed much more extensively at the second trial.

Thurgood Marshall:


Gene E. Voigts:

And in addition —

Thurgood Marshall:


I’m sure you wouldn’t know cause you weren’t there?

Gene E. Voigts:

I don’t know but I think it’s quite obvious, Your Honor, that this is one of the problems apparently that it concerned the prosecutor at the first trial.

It was the same prosecutor at the two trials.

Thurgood Marshall:

And it’s one of the reasons why a man shouldn’t be put in jeopardy twice too, isn’t it?

Gene E. Voigts:

But under the test of —

Thurgood Marshall:

Why if he’d be — he was acquitted this time, then the third time, they really wouldn’t have something here.

Gene E. Voigts:

I’m suggesting that there is protection to this man though Your Honor, by virtue of a — if you will, a fundamental unfairness type test.

And I cannot tell this Court whether it arises upon the second trial or the third trial or the fourth trial.

I submit that depends upon the facts —

Thurgood Marshall:

Well, Benton would suggest its at the second trial, wouldn’t it?

Gene E. Voigts:

I’m sorry Your Honor.

Thurgood Marshall:

Benton would suggest that at the second stage it becomes unfair.

Gene E. Voigts:

I would suggest that that’s not necessarily a conclusion that must follow from Benton.

Thurgood Marshall:

Well, what would you suggest?

Gene E. Voigts:

I would suggest —

Thurgood Marshall:

Because six — is it six information against this man?

Gene E. Voigts:

Yes Your Honor.

Thurgood Marshall:

Where would you think the cutoff point would be?

Gene E. Voigts:

Once again, Your Honor, I’ve suggested that I do not feel that I can indicate a mathematical number to this Court.

But I think that the protection which does extend to this defendant would be a protection under a fundamental unfairness and perhaps this Court may well conclude on the facts of this case that that arose at the conclusion of the first trial or it may conclude that the — after the second trial it arose.

But what I am suggesting is that there was not any substantial delay between the first trial and the second trial as was present in the case of Hoag, there was almost two years elapsed between the first trial and the second trial in that situation.

I am further suggesting that there was no showing or indication in the record that by virtue of the delay or the second trial that the defendant lost any witnesses or had any difficulty procuring any evidence which might have been available to him otherwise.

And these are some of the factors which I submit, Mr. Justice, would we considered in that total question of determining whether or not there was a fundamental unfairness and we submit under that facts here involved that there was not.

The record indicates clearly that defense counsel had the benefit of the transcript, of the testimony of witnesses at the preliminary hearing that he was able to use in cross-examination.

He apparently had the benefit of their testimony at the first trial that he was able to use in cross-examination for purposes of impeachment.

And so, under those circumstances, where you do have two separate and distinct crimes, I submit that the second trial presented on the facts of this case did not rise to the level of fundamental unfairness.

We further submit that it does not constitute double jeopardy under the test that had traditionally been used to determine whether or not there is that identity of offense that results in a person being placed twice in jeopardy.

Finally, I suppose we come to the issue then as to whether or not there is a collateral estoppel that is applicable as applied to the facts of this case.

And we suggest very simply first of all that there has not a collateral estoppel because the ultimate fact that was determined at the first trial was whether or not Ashe robbed Knight.

We submit that there was not any determination of merely evidentiary facts or merely evidentiary matters and that since that ultimate fact is not therefore conclusive on the issue as to whether or not he robbed Roberts on the separate, second separate and distinct offense that collateral estoppel is not applicable upon the facts of the case, but perhaps more importantly, we suggest that collateral estoppel need not be applied by this Court simply because as indicated in this Court’s decision in Hoag versus New Jersey there was a reluctance to declare the principle of collateral estoppel as a constitutional principle that was applicable to the state action and we submit that the same reasoning which was applied by the Court at that time should once again be applied by the court to the facts of this case.

Byron R. White:

Mr. Voigts, let’s assume that there’d had been a trial to the court and the court at the — in the first go around they had found Ashe not guilty and made his findings and said that I find that Ashe wasn’t there and then Ashe is tried again —

Gene E. Voigts:

Well —

Byron R. White:

— for robbing Roberts or whoever such a man was (Voice Overlap) —

Gene E. Voigts:

If on —

Byron R. White:

In Missouri, in the state courts, would he have a plea of collateral estoppel in that event?

Gene E. Voigts:

Your Honor, I must frankly say, I do not think that that question has been adjudicated by the courts of Missouri

Byron R. White:

Well its been adjudicated —

Gene E. Voigts:

I frankly, I would suggest —

Byron R. White:

It’s been adjudicated in the federal courts, hasn’t it?

Gene E. Voigts:

Yes, sir and I would suggest that under those circumstances if there were express findings of fact that the principle of collateral estoppel would be applicable without getting into the question as to whether or not the principle of collateral estoppel rises to the level of being constitutional applicable.

Byron R. White:


Well, what — let’s talk about federal courts.

You would think in the federal courts there would be a collateral estoppel in that event, that’s been tried by the judge?

Gene E. Voigts:

As I understand it Your Honor it has been applied (Voice Overlap) situations.

Byron R. White:

Would there be a double jeopardy?

Gene E. Voigts:

The cases which I have examined on that question, Your Honor, deal with it I believe as a principle of collateral estoppel without elevating it necessarily to the level of a constitutional guarantee.

Byron R. White:

Well, what would be your view though, wholly aside from the cases, would that be a double jeopardy if the —

Gene E. Voigts:

Obviously, my view has to be in this case, Your Honor, that collateral estoppel does not rise to the level of a constitutional guarantee.

That collateral estoppel may well be applied by this Court in the federal court cases as a part of its supervisory power but that it (Voice Overlap) —

Byron R. White:

Why wouldn’t it be double jeopardy in the facts I posed?

Because of — because you would still say it’s a different offense?

Gene E. Voigts:

That’s right, Your Honor because it is collateral estoppel I would submit is not a part of the definition of double jeopardy as would be applied by our constitution.

Byron R. White:

Thank you.

Gene E. Voigts:

For those reasons then, we would submit that this Court should affirm the judgment of the United States Court of Appeals for the Eighth Circuit; first, on the basis that the actions here brought in question did not constitute a fundamental unfairness to the petitioner.

Secondly, that although the Fifth Amendment prohibition against double jeopardy is applicable to the states that nonetheless there were two separate and distinct offenses involved in this particular case.

Finally, we would suggest that collateral estoppel is not applicable to the facts of this particular case and even if this Court should so find that it is not constitutionally required.

For those reasons we would ask affirmance of the opinion of the United States Court of Appeals for the Eighth Circuit.

Thank you Mr. Justice.

Warren E. Burger:

Thank you Mr. Voigts.

Mr. Clifford, you have about five minutes.

Clark M. Clifford:

Yes, Mr. Chief Justice.

I wish to make three points and I must touch them lightly because I want to get them all in the five minutes I have left.

The question asked by Mr. Justice White; the federal court for a long time has distinguished between a strict double jeopardy case and what we will call a double jeopardy situation.

The Benton case was one where a defendant had been found guilty of both burglary and larceny and when he was or had been charged with burglary and larceny and on trial had been acquitted of larceny.

The court held he could not be charged or tried again on larceny because it was now the federal rule was applying and it was double jeopardy.

Warren E. Burger:

That didn’t involve multiple parties, did it?

Clark M. Clifford:

It did not in that instance.

Now, this Court, the Supreme Court, and many of the Court of Appeals, Federal Courts of Appeals have met the question of what do you do in a double jeopardy situation when it is not the exact charge that is being directed against the defendant for the second time?

They have in that instance resorted to the accepted rule of collateral estoppel and they have said many times that when the facts of a case show clearly that there is one major thrust to the state’s evidence and the defendant has met that and has been acquitted on that one major point, then we are not going to make him run the gauntlet again.

It compares collateral estoppel with the theory of res judicata.

Clark M. Clifford:

The Chief Justice himself in the Watts case recognized the application of collateral estoppel to a federal criminal case.

Justice Douglas referred to it in the Sealfon Sugar case and there it was applied.

Thurgood Marshall:

Not as the constitutional argument?

Clark M. Clifford:

It was not, it was not, but it was — on those particular facts he said that this should apply.

Justice Holmes did it in Oppenheimer case.

There is an excellent review of the whole question of collateral estoppel in the Kramer case where Judge Friendly of the Second Circuit analyzes the whole matter and says that it should be used in federal cases when it’s appliable.

And under the Benton decision, this case now must be looked at in the light of the federal rule and not the old state rule which has now become archaic.

Second quick point, the State of Missouri, in the Supreme Court of Missouri, in the Federal District Court, in the Federal Court of Appeals and here has cited the Hoag case as its authority for forcing this man to serve this sentence when he was tried on exactly the same issue.

A quick comment on the Hoag case; that was a case tried in New Jersey.

It so happens that Justice Brennan sat in that case, it was a four to three decision.

Justice Brennan dissented in that case, it was a holdup case like this one.

That case came on to the Supreme Court of the United States.

Justice Brennan abstained and it was a five to three decision here.

If he had voted I assume it would be five to four.

So, we have a case that’s four to three in New Jersey and would have been five to four in this case, I believe had he voted.

Now, they can no longer use the Hoag case I submit to Your Honor.

One; the Hoag case has been repudiated by the Supreme Court of New Jersey in the Kermeyer (ph) case and they specifically referred to the Hoag case in the Kermeyer case and suggest they’re not going to follow that rule any longer.

And the language of the Kermeyer decision now in the New Jersey Supreme Court is that collateral estoppel should be ungrudgingly applied in this type of case.

Also, I submit to you, Hoag is no longer an authority in this case because Benton has changed Hoag also.

Because Hoag comments on the fact that there are two rules, one rule that is quite beneficial to defendants in federal cases and one that really hardly at all as to state cases.

Also, in the Hoag case, this Court said we’re not going to go behind the finding of the New Jersey Supreme Court and look into that record.

We don’t want to do that to state courts, that was under the old rule.

You can do it now because it is under the federal rule and you have the right to look.

So, I say Hoag is no longer an authority for the case.

Last comment; sometimes when you go through a record of this kind and look at it, it’s murky, it’s difficult to find out really what happened.

Occasionally, you come to a door and you open the door and let light right on in, that happened in this case.

And, I refer Your Honors to what happened just before this second case was tried.

After he was acquitted the first time, there was a colloquy between the trial judge and the counsel for the defendant and the prosecuting attorney and that that —

Warren E. Burger:

Would you just give us this page cite on that?

Clark M. Clifford:

Yes sir, it’s 107 —

Warren E. Burger:

(Voice Overlap), I think your time is up.

Clark M. Clifford:

Its 107 Your Honor and I just want to say this.

If the judge said in view of the wide publicity that’s attended this case, the fact that the co-defendants have been tried and convicted, so that by time this fellow came to trial the second time, he’d had one trial, the other three had been tried and acquitted with resulting publicity and yet the State of Missouri said that original acquittal meant absolutely nothing to us or to this man.

Thank you Your Honor.

Warren E. Burger:

Thank you Mr. Clifford.

Now, you appeared at our request and by our appointment Mr. Clifford.

We thank you for your assistance to the Court and to the petitioner.

We thank you for your submission.

Clark M. Clifford:

Thank you Your Honor.