Justices Agree to Hear Virginia Double Jeopardy Case

(CN) – The Supreme Court on Monday said it will take up the case of a Virginia man who says his conviction on a federal firearms charge was precluded by his acquittal on two related charges tried separately in the interest of protecting his right to a fair trial.

As recounted in his petition for a writ of certiorari, Michael Currier was identified as an accomplice in a March 2012 break-in in Albemarle County, Virginia, during which a large safe containing $71,000 and 20 guns were removed from a home.

The safe was found a few days later in a nearby river with all the guns still inside, and all  the cash missing. Police arrested a nephew of the victim, who pleaded guilty and then implicated Currier.

The Commonwealth of Virginia charged Currier with breaking and entering, grand larceny, and possessing a firearm after being convicted of a felony.

The firearm charge was based on the theory that he had briefly handled the guns inside the safe while removing the money.

In Virginia, as in many other states, evidence that a defendant has committed crimes other than those for which he is being tried is considered highly prejudicial and is generally inadmissible.

As a result, a trial court typically must sever a charge of possession of a firearm by a convicted felon from other charges that do not require proof of a prior conviction.

That’s what happened in Currier’s case, the trial court concluding that prosecuting all three charges simultaneously would prejudice the case against him. After a trial, a jury concluded Currier was not guilty of the breaking-and-entering and grand jury charges.

Despite the jury in the first trial believing Currier did not steal the safe, the Commonwealth insisted on pressing ahead with the felon-in-possession prosecution.

Currier  responded by arguing the preclusion component of the double jeopardy clause barred prosecutors from trying to convince a second jury he’d been involved in the break-in and theft.

In a second motion he asked the court to dismiss the felon-in-possession charge outright.

The Commonwealth argued because it sought separate trials to avoid unduly prejudicing the case against him, the double jeopardy clause did not apply.

The trial court agreed, rejecting both of Currier’s motions. He was ultimately convicted and was sentenced to five years in prison.

Currier moved to have the verdict set aside on double jeopardy grounds, but the trial court demurred. The case then went to the Virginia Court of Appeals, which affirmed Currier’s conviction, holding, as the trial had before it, that the clause did not apply because the concern over prosecutorial “overreaching through successive trials” was not implicated in this case and because the separate trials occurred “with the defendant’s consent and for his benefit.”

The Virginia Supreme Court granted discretionary review and also affirmed Currier’s conviction.

As is their custom,  the justices did not explain their rationale for hearing Currier’s case. However, the petitioner’s writ notes that the preclusion component of the double jeopardy clause is an issue “over which federal courts of appeals and state high courts are openly and intractably divided.”

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