Case No. 16-1348 | Va.
Following a burglary, Michael Currier was charged with breaking and entering, grand larceny, and possessing a firearm after being convicted of a felony. The prosecution alleged that, on March 7, 2012, Mr. Currier and Bradley Wood broke into a house and proceeded to steal a safe containing $70,000 and more than twenty guns. After briefly removing the guns to access the money, the duo allegedly took the money and threw the safe carrying the guns into a river. The felon-in-possession charge was based on the theory that Mr. Currier briefly laid out the guns on the bed of the truck (thus possessing them) before placing them back into the safe and throwing the safe in the river.
Because the felon-in-possession charge required the prosecution to introduce evidence of Mr. Currier’s criminal history—in particular, previous breaking and entering and grand larceny convictions—both parties agreed to sever the charges. There would first be a trial on the breaking and entering and grand larceny charges. The felon-in-possession charge would be prosecuted in a second trial. Virginia later emphasized the rationale behind the severance: to help Mr. Currier. The state reasoned that if there had been a single trial to hear all the charges, the jury would have heard evidence of Mr. Currier’s prior convictions and possibly assumed guilt.
At the first trial, a jury acquitted Mr. Currier of both the breaking and entering and grand larceny charges. But at the second trial, after more refined witness testimony and a corrected procedural mistake from the first trial, a jury convicted Mr. Currier and sentenced him to five years in prison. Mr. Currier argues that issue preclusion under double jeopardy precluded the second trial because one jury had already found him innocent of the first two charges, and thus he could not have possessed the firearms (as the latter conviction requires the former conviction). In other words, Mr. Currier’s argument is: if he did not participate in the break-in, as a jury decided, he could not have later participated in the getaway involving the gun possession.
Both the trial court and the Virginia Court of Appeals disagreed with Mr. Currier and upheld his conviction at the second trial. The judges opined that a double jeopardy violation requires prosecutorial overreaching, which was simply not present here. In fact, they argued, the entire reason behind the severance was to protect Mr. Currier from undue prejudice; rather than prosecutorial overreaching, this scheme actually helped the defendant. The courts added that Mr. Currier waived his right to issue preclusion by consenting to the severance in the first place. Respondent pushes this argument in its brief to the Supreme Court by emphasizing that when a defendant agrees to risk the hazards of a second trial, he is accepting the possibility of inconsistent results.
Mr. Currier disagrees, arguing that the Supreme Court has held in multiple cases that prosecutorial overreaching is not required to violate double jeopardy. Additionally, he argues that the lower courts misapplied prior case law when coming to the conclusion that issue preclusion is unavailable when a defendant consents to having separate trials. Mr. Currier emphasizes the basic definition of issue preclusion—that is, precluding relitigation of any issue that was necessarily decided by a jury’s acquittal in a prior trial—and that these facts fit squarely within that definition.