Whether the right under the Double Jeopardy Clause to the issue preclusive effect of an acquittal applies where precluded and un-precluded facts are alternative grounds for essential elements of a criminal charge

QUESTION PRESENTED In Ashe v. Swenson, 397 U.S. 436 (1970), this Court held that the collateral estoppel aspect of the Double Jeopardy Clause bars a prosecution that depends on a fact necessarily decided in the defendant’s favor by an earlier acquittal. Here, the Petitioner, Sergeant Hutchins, successfully fought war crime charges at his first trial which alleged that he had conspired with his subordinate Marines to commit a killing of a randomly selected Iraqi victim. The members panel Gury) specifically found Sergeant Hutchins not guilty of that aspect of the conspiracy charge, and of the corresponding overt acts and substantive offenses. The panel instead found Sergeant Hutchins guilty of the lesser-included offense of conspiring to commit an unlawful killing of a named suspected insurgent leader, and found Sergeant Hutchins guilty of the substantive crimes in furtherance of that specific conspiracy. After those convictions were later reversed, Sergeant Hutchins was taken to a second trial in 2015 where the Government once again alleged that the charged conspiracy agreement was for the killing of a randomly selected Iraqi victim, and presented evidence of the overt acts and criminal offenses for which Sergeant Hutchins had previously been acquitted. Sergeant Hutchins was convicted of the charges at the retrial. The military appellate courts applied Ashe, and held that the panel at the first trial acted rationally, and had acquitted Sergeant Hutchins of the alleged random victim conspiracy agreement and the related overt acts and criminal offenses. But the Court of Appeals for the Armed Forces (CAAF) found that even if those same precluded ultimate facts were presented ii as essential elements of the charges at the retrial, issue preclusion did not apply, as different facts which were not similarly precluded were available as an alternative basis for the same essential elements. Therefore, the question presented is: Whether the right under the Double Jeopardy Clause to the issue preclusive effect of an acquittal applies where precluded and un-precluded facts are alternative grounds for essential elements of a criminal charge.