Must a defendant arguing double jeopardy preclusion prove to a virtual certainty that an issue was decided by the jury in the first trial?

In Ashe v. Swenson , this Court recognized that the Double Jeopardy Clause precludes relitigation of facts found by a jury . 397 U.S. 436 (1970) . What, exactly, the jury found is thus where the preclusion issue turns . It is also often elusive —especially when (as in the overwhelming majority of criminal cases) a jury renders a general verdict that does not specify a particular ground. This Court places the burden to prove what facts the jury found on the defendant. Dowling v. United States, 493 U.S. 342, 350– 51 (1990 ). But it has never defined what that burden of proof is. This has resulted in in-consistent standards in the lower courts and calls for this Court’s guidance. As Chief Judge Elrod pointed out in her concurrence below , this lack of guidance leaves lower courts to guess: “ Must the invoking party demonstrate [that the jury already decided the issue] by a preponderance of the evidence? Beyond a reasonable doubt? Or by some other standard? The courts ”—presumably this one — “would do well to clarify this point. ” App. 15a. The question presented is : Must a defendant arguing double jeopardy preclusion prove to a virtual certainty (as the Fifth Circuit demanded here) that an issue was decided by the jury in the first trial?