(Slip Opinion) OCTOBER TERM, 2016 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BRAVO-FERNANDEZ ET AL. v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIRST CIRCUIT 

No. 15–537. Argued October 4, 2016—Decided November 29, 2016 

The issue-preclusion component of the Double Jeopardy Clause bars a 

second contest of an issue of fact or law raised and necessarily resolved by a prior judgment. Ashe v. Swenson, 397 U. S. 436, 443. 

The burden is on the defendant to demonstrate that the issue he 

seeks to shield from reconsideration was actually decided by a prior

jury’s verdict of acquittal. Schiro v. Farley, 510 U. S. 222, 233. When 

the same jury returns irreconcilably inconsistent verdicts on the issue in question, a defendant cannot meet that burden. The acquittal, 

therefore, gains no preclusive effect regarding the count of conviction. 

United States v. Powell, 469 U. S. 57, 68–69. Issue preclusion does,

however, attend a jury’s verdict of acquittal if the same jury in the

same proceeding fails to reach a verdict on a different count turning 

on the same issue of ultimate fact. Yeager v. United States, 557 U. S. 

110, 121–122. 

In this case, a jury convicted petitioners Juan Bravo-Fernandez 

(Bravo) and Hector Martínez-Maldonado (Martínez) of bribery in violation of 18 U. S. C. §666. Simultaneously, the jury acquitted them of

conspiring to violate §666 and traveling in interstate commerce to violate §666. Because the only contested issue at trial was whether 

Bravo and Martínez had violated §666 (the other elements of the acquitted charges—agreement and travel—were undisputed), the jury’s 

verdicts were irreconcilably inconsistent. Unlike the guilty verdicts

in Powell, however, petitioners’ convictions were later vacated on appeal because of error in the judge’s instructions unrelated to the verdicts’ inconsistency. In the First Circuit’s view, §666 proscribes only 

quid pro quo bribery, yet the charge had permitted the jury to find

petitioners guilty on a gratuity theory. On remand, Bravo and Martínez moved for judgments of acquittal on the standalone §666 charg­
 

 

 

 

2 BRAVO-FERNANDEZ v. UNITED STATES 

Syllabus 

es. They argued that the issue-preclusion component of the Double 

Jeopardy Clause barred the Government from retrying them on those 

charges because the jury necessarily determined that they were not

guilty of violating §666 when it acquitted them of the related conspiracy and Travel Act offenses. The District Court denied the motions, and the First Circuit affirmed, holding that the eventual invalidation of petitioners’ §666 convictions did not undermine Powell’s 

instruction that issue preclusion does not apply when the same jury 

returns logically inconsistent verdicts. 

Held: The issue-preclusion component of the Double Jeopardy Clause

does not bar the Government from retrying defendants, like petitioners, after a jury has returned irreconcilably inconsistent verdicts of 

conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency. Pp. 12–19. 

(a) Because petitioners’ trial yielded incompatible jury verdicts, petitioners cannot establish that the jury necessarily resolved in their

favor the question whether they violated §666. In view of the Government’s inability to obtain review of the acquittals, Powell, 469 

U. S., at 68, the inconsistent jury findings weigh heavily against according those acquittals issue-preclusive effect. The subsequent vacatur of petitioners’ bribery convictions does not alter this analysis.

The critical inquiry is whether the jury actually decided that petitioners did not violate §666. Ashe instructs courts to approach that

task with “realism and rationality,” 397 U. S., at 444, in particular, to 

examine the trial record “with an eye to all the circumstances of the 

proceedings,” ibid. The jury’s verdicts convicting petitioners of violating §666 remain relevant to this practical inquiry, even if the convictions are later vacated on appeal for unrelated trial error.

Petitioners could not be retried if the Court of Appeals had vacated

their §666 bribery convictions because of insufficient evidence, see 

Burks v. United States, 437 U. S. 1, 10–11, or if the trial error could 

resolve the apparent inconsistency in the jury’s verdicts. But the evidence here was sufficient to convict petitioners on the quid pro quo 

bribery theory the First Circuit approved. And the instructional error cannot account for the jury’s inconsistent determinations, for the 

error applied equally to every §666-related count. Pp. 12–16.

(b) Petitioners argue that vacated judgments should be excluded

from the Ashe inquiry because vacated convictions, like the hung 

counts in Yeager, are legal nullities that “have never been accorded 

respect as a matter of law or history.” Yeager, 557 U. S., at 124. 

That argument misapprehends the Ashe inquiry. Bravo and Martínez bear the burden of showing that the issue whether they violated 

§666 has been “determined by a valid and final judgment of acquittal.” 557 U. S., at 119 (internal quotation marks omitted). To judge 
 

 

Cite as: 580 U. S. ____ (2016) 3 

Syllabus 

whether they carried that burden, a court must realistically examine 

the record to identify the ground for the §666-based acquittals. Ashe, 

397 U. S., at 444. A conviction that contradicts those acquittals is

plainly relevant to that determination, no less so simply because it is

later overturned on appeal for unrelated legal error. See Powell, 469 

U. S., at 65. 

Petitioners further contend that, under Yeager, the §666 convictions are meaningless because the jury was allowed to convict on the 

basis of conduct not criminal in the First Circuit—payment of a gratuity. But Yeager did not rest on a court’s inability to detect the basis

for a decision the jury in fact rendered. Rather, when a jury hangs, 

there is no decision, hence no inconsistency. 557 U. S., at 124–125. 

By contrast, a verdict of guilt is a jury decision, even if subsequently

vacated, and therefore can evince jury inconsistency. That is the case 

here. Petitioners gained a second trial on the standalone bribery 

charges, but they are not entitled to more. Issue preclusion is not a 

doctrine they can commandeer when inconsistent verdicts shroud in 

mystery what the jury necessarily decided. Pp. 16–19. 

790 F. 3d 41, affirmed. 

GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS, 

J., filed a concurring opinion. 
 

 

_________________ 

_________________ 

 

Cite as: 580 U. S. ____ (2016) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 15–537 

JUAN BRAVO-FERNANDEZ AND HECTOR MARTINEZMALDONADO, PETITIONERS v.
 

UNITED STATES
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIRST CIRCUIT
 

[November 29, 2016]

 JUSTICE GINSBURG delivered the opinion of the Court. 

This case concerns the issue-preclusion component of 

the Double Jeopardy Clause.1 In criminal prosecutions, as

in civil litigation, the issue-preclusion principle means 

that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot 

again be litigated between the same parties in any future

lawsuit.” Ashe v. Swenson, 397 U. S. 436, 443 (1970).

Does issue preclusion apply when a jury returns inconsistent verdicts, convicting on one count and acquitting on 

another count, where both counts turn on the very same

issue of ultimate fact? In such a case, this Court has held, 

both verdicts stand. The Government is barred by the 

Double Jeopardy Clause from challenging the acquittal, 

—————— 

1The parties use the expression “collateral estoppel component,” but 

as this Court has observed, “issue preclusion” is the more descriptive 

term. Yeager v. United States, 557 U. S. 110, 120, n. 4 (2009); see

Restatement (Second) of Judgments §27, Comment b, pp. 251–252 

(1980). 
 

 

2 BRAVO-FERNANDEZ v. UNITED STATES 

Opinion of the Court 

see Green v. United States, 355 U. S. 184, 188 (1957), but 

because the verdicts are rationally irreconcilable, the 

acquittal gains no preclusive effect, United States v. Powell, 469 U. S. 57, 68 (1984).

Does issue preclusion attend a jury’s acquittal verdict if 

the same jury in the same proceeding fails to reach a

verdict on a different count turning on the same critical 

issue? This Court has answered yes, in those circumstances, the acquittal has preclusive force. Yeager v. 

United States, 557 U. S. 110, 121–122 (2009). As “there is 

no way to decipher what a hung count represents,” we 

reasoned, a jury’s failure to decide “has no place in the 

issue-preclusion analysis.” Ibid.; see id., at 125 (“[T]he 

fact that a jury hangs is evidence of nothing—other than, 

of course, that it has failed to decide anything.”).

In the case before us, the jury returned irreconcilably 

inconsistent verdicts of conviction and acquittal. Without 

more, Powell would control. There could be no retrial of 

charges that yielded acquittals but, in view of the inconsistent verdicts, the acquittals would have no issuepreclusive effect on charges that yielded convictions. In 

this case, however, unlike Powell, the guilty verdicts were

vacated on appeal because of error in the judge’s instructions unrelated to the verdicts’ inconsistency. Petitioners 

urge that, just as a jury’s failure to decide has no place in 

issue-preclusion analysis, so vacated guilty verdicts should 

not figure in that analysis.

We hold otherwise. One cannot know from the jury’s

report why it returned no verdict. “A host of reasons” 

could account for a jury’s failure to decide—“sharp disagreement, confusion about the issues, exhaustion after a

long trial, to name but a few.” Yeager, 557 U. S., at 121. 

But actual inconsistency in a jury’s verdicts is a reality; 

vacatur of a conviction for unrelated legal error does not 

reconcile the jury’s inconsistent returns. We therefore 

bracket this case with Powell, not Yeager, and affirm the 
Cite as: 580 U. S. ____ (2016) 3 

Opinion of the Court 

judgment of the Court of Appeals, which held that issue 

preclusion does not apply when verdict inconsistency

renders unanswerable “what the jury necessarily decided.” 

790 F. 3d 41, 47 (CA1 2015). 

I 

A 

The doctrine of claim preclusion instructs that a final

judgment on the merits “foreclos[es] successive litigation 

of the very same claim.” New Hampshire v. Maine, 532 

U. S. 742, 748 (2001); see Restatement (Second) of Judgments §19, p. 161 (1980) (hereinafter Restatement). So 

instructing, the doctrine serves to “avoid multiple suits on

identical entitlements or obligations between the same

parties.” 18 C. Wright, A. Miller, & E. Cooper, Federal

Practice and Procedure §4402, p. 9 (2d ed. 2002) (hereinafter Wright & Miller). Long operative in civil litigation, 

Restatement, at 2, claim preclusion is also essential to the 

Constitution’s prohibition against successive criminal 

prosecutions. No person, the Double Jeopardy Clause 

states, shall be “subject for the same offense to be twice

put in jeopardy of life or limb.” Amdt. 5. The Clause 

“protects against a second prosecution for the same offense 

after conviction”; as well, “[i]t protects against a second

prosecution for the same offense after acquittal.” North 

Carolina v. Pearce, 395 U. S. 711, 717 (1969). “[A] verdict

of acquittal [in our justice system] is final,” the last word

on a criminal charge, and therefore operates as “a bar to a 

subsequent prosecution for the same offense.” Green v. 

United States, 355 U. S. 184, 188 (1957). 

The allied doctrine of issue preclusion ordinarily bars

relitigation of an issue of fact or law raised and necessarily

resolved by a prior judgment. See Restatement §§17, 27, 

at 148, 250; Wright & Miller §4416, at 386. It applies in

both civil and criminal proceedings, with an important 

distinction. In civil litigation, where issue preclusion and 
 

 

 

4 BRAVO-FERNANDEZ v. UNITED STATES 

Opinion of the Court 

its ramifications first developed, the availability of appellate review is a key factor. Restatement §28, Comment a, 

at 274; see id., §28, Reporter’s Note, at 284 (noting “the 

pervasive importance of reviewability in the application of 

preclusion doctrine”). In significant part, preclusion doctrine is premised on “an underlying confidence that the

result achieved in the initial litigation was substantially 

correct.” Standefer v. United States, 447 U. S. 10, 23, n. 18 

(1980); see Restatement §29, Comment f, at 295. “In the 

absence of appellate review,” we have observed, “such 

confidence is often unwarranted.” Standefer, 447 U. S., at 

23, n. 18. 

In civil suits, inability to obtain review is exceptional; it

occurs typically when the controversy has become moot.

In criminal cases, however, only one side (the defendant)

has recourse to an appeal from an adverse judgment on

the merits. The Government “cannot secure appellate

review” of an acquittal, id., at 22, even one “based upon an

egregiously erroneous foundation,” Arizona v. Washington, 

434 U. S. 497, 503 (1978). Juries enjoy an “unreviewable 

power . . . to return a verdict of not guilty for impermissible reasons,” for “the Government is precluded from appealing or otherwise upsetting such an acquittal by the

Constitution’s Double Jeopardy Clause.” United States v. 

Powell, 469 U. S. 57, 63, 65 (1984). The absence of appellate review of acquittals, we have cautioned, calls for

guarded application of preclusion doctrine in criminal 

cases. See Standefer, 447 U. S., at 22–23, and n. 18. 

Particularly where it appears that a jury’s verdict is the 

result of compromise, compassion, lenity, or misunderstanding of the governing law, the Government’s inability

to gain review “strongly militates against giving an acquittal [issue] preclusive effect.” Id., at 23. See also Restatement §29, Comment g, at 295 (Where circumstances

suggest that an issue was resolved on erroneous considerations, “taking the prior determination at face value for 
 

 

Cite as: 580 U. S. ____ (2016) 5 

Opinion of the Court 

purposes of the second action would [impermissibly] extend the . . . imperfections in the adjudicative process.”); 

id., §28, Comment j, at 283 (Issue preclusion may be denied where it is “evident from the jury’s verdict that the

verdict was the result of compromise.”); Wright & Miller 

§4423, at 617 (same). 

B 

This case requires us to determine whether an appellate

court’s vacatur of a conviction alters issue-preclusion

analysis under the Double Jeopardy Clause. Three prior 

decisions guide our disposition.

This Court first interpreted the Double Jeopardy Clause

to incorporate the principle of issue preclusion in Ashe v. 

Swenson, 397 U. S. 436 (1970).2 Ashe involved a robbery

of six poker players by a group of masked men. Ashe was 

charged with robbing one of the players, but a jury acquitted him “due to insufficient evidence.” Id., at 439. The 

State then tried Ashe again, this time for robbing another 

of the poker players. Aided by “substantially stronger”

testimony from “witnesses [who] were for the most part 

the same,” id., at 439–440, the State secured a conviction. 

We held that the second prosecution violated the Double

Jeopardy Clause. Because the sole issue in dispute in the

first trial was whether Ashe had been one of the robbers, 

the jury’s acquittal verdict precluded the State from trying

to convince a different jury of that very same fact in a

second trial. Id., at 445. 

—————— 

2Though we earlier recognized that res judicata (which embraces

both claim and issue preclusion) applies in criminal as well as civil

proceedings, we did not link the issue-preclusion inquiry to the Double

Jeopardy Clause. See Sealfon v. United States, 332 U. S. 575, 578 

(1948); Frank v. Mangum, 237 U. S. 309, 334 (1915) (The principle that

“a question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties” applies to “the decisions of criminal

courts.”). 
 

 

6 BRAVO-FERNANDEZ v. UNITED STATES 

Opinion of the Court 

Our decision in Ashe explained that issue preclusion in 

criminal cases must be applied with “realism and rationality.” Id., at 444. To identify what a jury in a previous trial

necessarily decided, we instructed, a court must “examine 

the record of a prior proceeding, taking into account the

pleadings, evidence, charge, and other relevant matter.” 

Ibid. (quoting Mayers & Yarbrough, Bis Vexari: New 

Trials and Successive Prosecutions, 74 Harv. L. Rev. 1, 38 

(1960)). This inquiry, we explained, “must be set in a 

practical frame and viewed with an eye to all the circumstances of the proceedings.” 397 U. S., at 444 (quoting 

Sealfon v. United States, 332 U. S. 575, 579 (1948)). We 

have also made clear that “[t]he burden is on the defendant to demonstrate that the issue whose relitigation he 

seeks to foreclose was actually decided” by a prior jury’s 

verdict of acquittal. Schiro v. Farley, 510 U. S. 222, 233 

(1994) (internal quotation marks omitted); accord Dowling 

v. United States, 493 U. S. 342, 350 (1990). 

In United States v. Powell, 469 U. S. 57, we held that a 

defendant cannot meet this burden when the same jury 

returns irreconcilably inconsistent verdicts on the question she seeks to shield from reconsideration. Powell’s 

starting point was our holding in Dunn v. United States, 

284 U. S. 390 (1932), that a criminal defendant may not

attack a jury’s finding of guilt on one count as inconsistent

with the jury’s verdict of acquittal on another count. 

Powell, 469 U. S., at 58–59. The Court’s opinion in Dunn 

stated no exceptions to this rule, and after Dunn the Court 

had several times “alluded to [the] rule as an established

principle,” 469 U. S., at 63. Nevertheless, several Courts 

of Appeals had “recogniz[ed] exceptions to the rule,” id., at 

62, and Powell sought an exception for the verdicts of guilt

she faced. 

At trial, a jury had acquitted Powell of various substantive drug charges but convicted her of using a telephone in

“causing and facilitating” those same offenses. Id., at 59– 
 

Cite as: 580 U. S. ____ (2016) 7 

Opinion of the Court 

60. She appealed, arguing that “the verdicts were inconsistent, and that she therefore was entitled to reversal of 

the telephone facilitation convictions.” Id., at 60. Issue 

preclusion, she maintained, barred “acceptance of [the] 

guilty verdict[s]” on the auxiliary offenses because the 

same jury had acquitted her of the predicate felonies. Id., 

at 64. 

Rejecting Powell’s argument, we noted that issue preclusion is “predicated on the assumption that the jury

acted rationally.” Id., at 68. When a jury returns irreconcilably inconsistent verdicts, we said, one can glean no 

more than that “either in the acquittal or the conviction 

the jury did not speak their real conclusions.” Id., at 64 

(quoting Dunn, 284 U. S., at 393). Although it is impossible to discern which verdict the jurors arrived at rationally, we observed, “that does not show that they were not

convinced of the defendant’s guilt.” Powell, 469 U. S., at 

64–65 (quoting Dunn, 284 U. S., at 393). In the event of 

inconsistent verdicts, we pointed out, it is just as likely 

that “the jury, convinced of guilt, properly reached its

conclusion on [one count], and then through mistake,

compromise, or lenity, arrived at an inconsistent conclusion on the [related] offense.” Powell, 469 U. S., at 65. 

Because a court would be at a loss to know which verdict 

the jury “really meant,” we reasoned, principles of issue

preclusion are not useful, for they are “predicated on the

assumption that the jury acted rationally and found certain facts in reaching its verdict.” Id., at 68. Holding that

the acquittals had no preclusive effect on the counts of

conviction, we reaffirmed Dunn’s rule, under which both 

Powell’s convictions and her acquittals, albeit inconsistent, 

remained undisturbed. 469 U. S., at 69. 

 Finally, in Yeager v. United States, 557 U. S. 110 (2009), 

we clarified that Powell’s holding on inconsistent verdicts 

does not extend to an apparent inconsistency between a

jury’s verdict of acquittal on one count and its inability to 
 

 

8 BRAVO-FERNANDEZ v. UNITED STATES 

Opinion of the Court 

reach a verdict on another count. See 557 U. S., at 124 

(“[I]nconsistent verdicts” present an “entirely different

context” than one involving “both verdicts and seemingly 

inconsistent hung counts.”). Yeager was tried on charges

of fraud and insider trading. Id., at 114. The jury acquitted him of the fraud offenses, which the Court of Appeals

concluded must have reflected a finding that he “did not 

have any insider information that contradicted what was 

presented to the public.” Id., at 116. Yet the jury failed to

reach a verdict on the insider-trading charges, as to which 

“the possession of insider information was [likewise] a 

critical issue of ultimate fact.” Id., at 123. Arguing that

the jury had therefore acted inconsistently, the Government sought to retry Yeager on the hung counts. We ruled 

that retrial was barred by the Double Jeopardy Clause. 

A jury “speaks only through its verdict,” we noted. Id., 

at 121. Any number of reasons—including confusion

about the issues and sheer exhaustion, we observed— 

could cause a jury to hang. Ibid. Accordingly, we said, 

only “a jury’s decisions, not its failures to decide,” identify

“what a jury necessarily determined at trial.” Id., at 122. 

Because a hung count reveals nothing more than a jury’s

failure to reach a decision, we further reasoned, it supplies

no evidence of the jury’s irrationality. Id., at 124–125. 

Hung counts, we therefore held, “ha[ve] no place in the

issue-preclusion analysis,” id., at 122: When a jury acquits

on one count while failing to reach a verdict on another 

count concerning the same issue of ultimate fact, the 

acquittal, and only the acquittal, counts for preclusion 

purposes. Given the preclusive effect of the acquittal, the 

Court concluded, Yeager could not be retried on the hung 

count. Id., at 122–125. 

C 

With our controlling precedent in view, we turn to the 

inconsistent verdicts rendered in this case. The prosecu­
 

 

 

 

 

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Opinion of the Court 

tion stemmed from an alleged bribe paid by petitioner 

Juan Bravo-Fernandez (Bravo), an entrepreneur, to petitioner Hector Martínez-Maldonado (Martínez), then a 

senator serving the Commonwealth of Puerto Rico. The 

alleged bribe took the form of an all-expenses-paid trip to

Las Vegas, including a $1,000 seat at a professional boxing match featuring a popular Puerto Rican contender. 

United States v. Fernandez, 722 F. 3d 1, 6 (CA1 2013).

According to the Government, Bravo intended the bribe to 

secure Martínez’ help in shepherding legislation through 

the Puerto Rico Senate that, if enacted, would “provid[e] 

substantial financial benefits” to Bravo’s enterprise. Ibid. 

In the leadup to the Las Vegas trip, Martínez submitted

the legislation for the Senate’s consideration and issued a

committee report supporting it; within a week of returning

from Las Vegas, Martínez issued another favorable report

and voted to enact the legislation. Id., at 6–7. 

Based on these events, a federal grand jury in Puerto

Rico indicted petitioners for, inter alia, federal-program

bribery, in violation of 18 U. S. C. §666; conspiracy to 

violate §666, in violation of §371; and traveling in interstate commerce to further violations of §666, in violation of

the Travel Act, §1952(a)(3)(A).3 Following a three-week

trial, a jury convicted Bravo and Martínez of the 

standalone §666 bribery offense, but acquitted them of the 

related conspiracy and Travel Act charges. Fernandez, 

722 F. 3d, at 7. Each received a sentence of 48 months in 

prison. Id., at 8. 

The Court of Appeals for the First Circuit vacated the

§666 convictions for instructional error. Id., at 27. In the 

First Circuit’s view, the jury had been erroneously charged 

on what constitutes criminal conduct under that statute. 

Id., at 22–27. The charge permitted the jury to find Bravo 

—————— 

3Petitioners were indicted on several other charges not relevant here. 

See United States v. Fernandez, 722 F. 3d 1, 7 (CA1 2013). 
 

 

 

 

10 BRAVO-FERNANDEZ v. UNITED STATES 

Opinion of the Court 

and Martínez “guilty of offering and receiving a gratuity,” 

id., at 16, but, the appeals court held, §666 proscribes only 

quid pro quo bribes, and not gratuities, id., at 6, 22.4 

True, the court acknowledged, the jury was instructed on 

both theories of bribery, and the evidence at trial sufficed 

to support a guilty verdict on either theory. Id., at 19–20. 

But the Court of Appeals could not say with confidence 

that the erroneous charge was harmless, so it vacated the

§666 convictions and remanded for further proceedings. 

Id., at 27, 39. 

On remand, relying on the issue-preclusion component 

of the Double Jeopardy Clause, Bravo and Martínez 

moved for judgments of acquittal on the standalone §666

charges. 988 F. Supp. 2d 191 (PR 2013). They could not 

be retried on the bribery offense, they insisted, because

the jury necessarily determined that they were not guilty

of violating §666 when it acquitted them of conspiring to 

violate §666 and traveling in interstate commerce to further violations of §666. Id., at 193. That was so, petitioners maintained, because the only contested issue at trial

was whether Bravo had offered, and Martínez had accepted, 

a bribe within the meaning of §666. Id., at 196; see Tr. 

of Oral Arg. 4 (“There was no dispute that they agreed to

go to a boxing match together”; nor was there any dispute 

“that to get to Las Vegas from Puerto Rico, you have to 

travel” across state lines.). The District Court denied the 

motions for acquittal. 988 F. Supp. 2d, at 196–198. If the 

sole issue disputed at trial was whether Bravo and Martínez had violated §666, the court explained, then “the jury 

—————— 

4As the First Circuit acknowledged, this holding is contrary to the 

rulings of “most circuits to have addressed th[e] issue.” Id., at 6. Three 

other Federal Courts of Appeals have considered the question; each has 

held that §666 prohibits gratuities as well as quid pro quo bribes. See 

United States v. Bahel, 662 F. 3d 610, 636 (CA2 2011); United States v. 

Hawkins, 777 F. 3d 880, 881 (CA7 2015); United States v. Zimmerman, 

509 F. 3d 920, 927 (CA8 2007). 
 

 

 

Cite as: 580 U. S. ____ (2016) 11 

Opinion of the Court 

[had] acted irrationally.” Id., at 196. Because the same 

jury had simultaneously convicted Bravo and Martínez on 

the standalone §666 charges, “the verdict simply was 

inconsistent.” Ibid. 

The First Circuit affirmed the denial of petitioners’ 

motions for acquittal, agreeing that the jury’s inconsistent

returns were fatal to petitioners’ issue-preclusion plea.

790 F. 3d 41. The jury received the same bribery instructions for each count involving §666, the court noted, so the 

§666-based verdicts—convicting on the standalone bribery 

charges but acquitting on the related Travel Act and 

conspiracy counts—could not be reconciled. Id., at 54–55.5 

The Court of Appeals rejected petitioners’ argument

that the eventual invalidation of the bribery convictions

rendered Powell’s inconsistent-verdicts rule inapplicable. 

Ashe, the court reminded, calls for a practical appraisal 

based on the complete record of the prior proceeding; the 

§666 bribery convictions, like the §666-based acquittals, 

were part of that record. See 790 F. 3d, at 50. Nor are 

vacated convictions like hung counts for issue-preclusion

purposes, the court continued. Informed by our decision in 

Yeager, the First Circuit recognized that a hung count 

reveals only a jury’s failure to decide, and therefore cannot 

evidence actual inconsistency with a jury’s decision. 790 

F. 3d, at 50–51. In contrast, the court said, vacated convictions “are jury decisions, through which the jury has 

spoken.” Id., at 51. The later upset of a conviction on an

unrelated ground, the court reasoned, does not undermine 

Powell’s recognition that “inconsistent verdicts make it 

—————— 

5As just observed, see supra, at 10, petitioners urge that §666 bribery 

was the sole issue in controversy, and that there was no dispute on

other elements of the Travel Act and conspiracy counts. See Tr. of Oral 

Arg. 4. See also Brief for United States 13 (accepting that the jury 

“returned irreconcilably inconsistent verdicts”). If another element 

could explain the acquittals, then there would be no inconsistency and 

no argument against a new trial on bribery. See infra, at 12–13. 
 

 

12 BRAVO-FERNANDEZ v. UNITED STATES 

Opinion of the Court 

impossible to determine what a jury necessarily decided.”

790 F. 3d, at 51. The First Circuit therefore concluded 

that “vacated convictions, unlike hung counts, are relevant

to the Ashe [issue-preclusion] inquiry.” Ibid. 

We granted certiorari to resolve a conflict among courts

on this question: Does the issue-preclusion component of

the Double Jeopardy Clause bar the Government from

retrying defendants, like Bravo and Martínez, after a jury

has returned irreconcilably inconsistent verdicts of conviction and acquittal, and the convictions are later vacated

for legal error unrelated to the inconsistency?6 557 U. S. 

___ (2016). Holding that the Double Jeopardy Clause does

not bar retrial in these circumstances, we affirm the First 

Circuit’s judgment. 

II 

When a conviction is overturned on appeal, “[t]he general rule is that the [Double Jeopardy] Clause does not bar 

reprosecution.” Justices of Boston Municipal Court v. 

Lydon, 466 U. S. 294, 308 (1984). The ordinary consequence of vacatur, if the Government so elects, is a new 

trial shorn of the error that infected the first trial. This 

—————— 

6Compare United States v. Citron, 853 F. 2d 1055, 1058–1061 (CA2

1988) (holding that retrial does not violate Double Jeopardy Clause

under these circumstances); United States v. Price, 750 F. 2d 363, 366 

(CA5 1985) (same); Evans v. United States, 987 A. 2d 1138, 1141–1142 

(D. C. 2010) (same); and State v. Kelly, 201 N. J. 471, 493–494, 992 A. 

2d 776, 789 (2010) (same), with People v. Wilson, 496 Mich. 91, 105– 

107, 852 N. W. 2d 134, 141–142 (2014) (holding that Double Jeopardy

Clause bars retrial in this situation). As the First Circuit explained, 

“[a]lthough Citron and Price predate Yeager, both the Second and Fifth 

Circuits decided that vacated counts are relevant to the Ashe analysis 

at a time when those circuits had already ruled that hung counts

should be disregarded for purposes of the Ashe inquiry.” 790 F. 3d 41, 

51, n. 7 (2015) (citing United States v. Mespoulede, 597 F. 2d 329, 332, 

335–336 (CA2 1979); United States v. Nelson, 599 F. 2d 714, 716–717 

(CA5 1979)). The Second Circuit, moreover, has adhered to Citron since 

Yeager. See United States v. Bruno, 531 Fed. Appx. 47, 49 (2013). 
 

 

 

Cite as: 580 U. S. ____ (2016) 13 

Opinion of the Court 

“continuing jeopardy” rule neither gives effect to the vacated judgment nor offends double jeopardy principles. 

Rather, it reflects the reality that the “criminal proceedings against an accused have not run their full course.” 

Ibid. And by permitting a new trial post vacatur, the 

continuing-jeopardy rule serves both society’s and criminal 

defendants’ interests in the fair administration of justice.

“It would be a high price indeed for society to pay,” we 

have recognized, “were every accused granted immunity

from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” United States v. Tateo, 377 U. S. 463, 466 (1964).

And the rights of criminal defendants would suffer too, for

“it is at least doubtful that appellate courts would be as 

zealous as they now are in protecting against the effects of 

improprieties at the trial or pretrial stage if they knew 

that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution.” Ibid. 

Bravo and Martínez ask us to deviate from the general

rule that, post vacatur of a conviction, a new trial is in

order. When a conviction is vacated on appeal, they maintain, an acquittal verdict simultaneously returned should 

preclude the Government from retrying the defendant on

the vacated count. Our precedent, harmonious with issuepreclusion doctrine, opposes the foreclosure petitioners

seek. 

A 

Bravo and Martínez bear the burden of demonstrating

that the jury necessarily resolved in their favor the question whether they violated §666. Schiro, 510 U. S., at 233. 

But, as we have explained, see supra, at 7, a defendant 

cannot meet that burden where the trial yielded incompatible jury verdicts on the issue the defendant seeks to

insulate from relitigation. Here, the jury convicted Bravo 

and Martínez of violating §666 but acquitted them of 
 

 

 

14 BRAVO-FERNANDEZ v. UNITED STATES 

Opinion of the Court 

conspiring, and traveling with the intent, to violate §666.

The convictions and acquittals are irreconcilable because

other elements of the Travel Act and conspiracy counts

were not disputed. See supra, at 10–11, and n. 5. It is 

unknowable “which of the inconsistent verdicts—the 

acquittal[s] or the conviction[s]—‘the jury really meant.’” 

790 F. 3d, at 47 (quoting Powell, 469 U. S., at 68); see 

Restatement §29, Comment f, at 295 (“Where a determination relied on as preclusive is itself inconsistent with 

some other adjudication of the same issue, . . . confidence 

[in that determination] is generally unwarranted.”). In 

view of the Government’s inability to obtain review of the 

acquittals, Powell, 469 U. S., at 68, the inconsistent jury 

findings weigh heavily against according those acquittals 

issue-preclusive effect. See Standefer, 447 U. S., at 23, 

n. 17. 

That petitioners’ bribery convictions were later vacated

for trial error does not alter our analysis. The critical 

inquiry is whether the jury actually decided that Bravo 

and Martínez did not violate §666. Ashe counsels us to 

approach that task with “realism and rationality,” 397

U. S., at 444, in particular, to examine the trial record

“with an eye to all the circumstances of the proceedings,” 

ibid. As the Court of Appeals explained, “the fact [that] 

the jury . . . convicted [Bravo and Martínez] of violating 

§666 would seem to be of quite obvious relevance” to this

practical inquiry, “even though the convictions were later 

vacated.” 790 F. 3d, at 50. Because issue preclusion

“depends on the jury’s assessment of the facts in light of

the charges as presented at trial,” a conviction overturned

on appeal is “appropriately considered in our assessment 

of [an acquittal] verdict’s preclusive effect.” United States 

v. Citron, 853 F. 2d 1055, 1061 (CA2 1988). Indeed, the 

jurors in this case might not have acquitted on the Travel

Act and conspiracy counts absent their belief that the §666 

bribery convictions would stand. See ibid. 
 

 

Cite as: 580 U. S. ____ (2016) 15 

Opinion of the Court 

Bravo and Martínez could not be retried on the bribery 

counts, of course, if the Court of Appeals had vacated their

§666 convictions because there was insufficient evidence to

support those convictions. For double jeopardy purposes, 

a court’s evaluation of the evidence as insufficient to convict is equivalent to an acquittal and therefore bars a

second prosecution for the same offense. See Burks v. 

United States, 437 U. S. 1, 10–11 (1978); cf. Powell, 469 

U. S., at 67 (noting that defendants are “afforded protection against jury irrationality or error by [courts’] independent review of the sufficiency of the evidence”). But 

this is scarcely a case in which the prosecution “failed to

muster” sufficient evidence in the first proceeding. Burks, 

437 U. S., at 11. Quite the opposite. The evidence presented at petitioners’ trial, the Court of Appeals determined, supported a guilty verdict on the gratuity theory

(which the First Circuit ruled impermissible) as well as 

the quid pro quo theory (which the First Circuit approved). 790 F. 3d, at 44. Vacatur was compelled for the 

sole reason that the First Circuit found the jury charge

erroneous to the extent that it encompassed gratuities. 

See supra, at 9–10, and n. 4. Therefore, the general rule

of “allowing a new trial to rectify trial error” applied. 

Burks, 437 U. S., at 14 (emphasis deleted).

Nor, as the Government acknowledges, would retrial be

tolerable if the trial error could resolve the apparent inconsistency in the jury’s verdicts. See Brief for United 

States 30 (If, for example, “a jury receives an erroneous 

instruction on the count of conviction but the correct instruction on the charge on which it acquits, the instructional error may reconcile the verdicts.”). But the instructional error here cannot account for the jury’s

contradictory determinations because the error applied

equally to every §666-related count. See supra, at 11. 

 As in Powell, so in this case, “[t]he problem is that the

same jury reached inconsistent results.” 469 U. S., at 68. 
 

 

 

 

16 BRAVO-FERNANDEZ v. UNITED STATES 

Opinion of the Court 

The convictions’ later invalidation on an unrelated ground

does not erase or reconcile that inconsistency: It does not 

bear on “the factual determinations actually and necessarily made by the jury,” nor does it “serv[e] to turn the 

jury’s otherwise inconsistent and irrational verdict into a 

consistent and rational verdict.” People v. Wilson, 496 

Mich. 91, 125, 852 N. W. 2d 134, 151 (2014) (Markman, J., 

dissenting). Bravo and Martínez, therefore, cannot establish the factual predicate necessary to preclude the Government from retrying them on the standalone §666 

charges—namely, that the jury in the first proceeding 

actually decided that they did not violate the federal bribery statute. 

B 

To support their argument for issue preclusion, Bravo

and Martínez highlight our decision in Yeager. In Yeager, 

they point out, we recognized that hung counts “have

never been accorded respect as a matter of law or history.”

557 U. S., at 124. That is also true of vacated convictions, 

they urge, so vacated convictions, like hung counts, should 

be excluded from the Ashe inquiry into what the jury 

necessarily determined. Brief for Petitioners 20–24. 

Asserting that we have “never held an invalid conviction

. . . relevant to or evidence of anything,” Tr. of Oral Arg. 5,

Bravo and Martínez argue that taking account of a vacated 

conviction in our issue-preclusion analysis would impermissibly give effect to “a legal nullity,” Brief for Petitioners 39; see Wilson, 496 Mich., at 107, 852 N. W. 2d, at 

142 (majority opinion) (considering a vacated count would 

impermissibly “bring that legally vacated conviction back 

to life”).

This argument misapprehends the Ashe inquiry. It is 

undisputed that petitioners’ convictions are invalid judgments that may not be used to establish their guilt. The 

question is whether issue preclusion stops the Govern­
Cite as: 580 U. S. ____ (2016) 17 

Opinion of the Court 

ment from prosecuting them anew. On that question,

Bravo and Martínez bear the burden of showing that the

issue whether they violated §666 has been “determined by

a valid and final judgment of acquittal.” Yeager, 557 U. S., 

at 119 (internal quotation marks omitted). To judge

whether they carried that burden, a court must realistically examine the record to identify the ground for the

§666-based acquittals. Ashe, 397 U. S., at 444. A conviction 

that contradicts those acquittals is plainly relevant to that 

determination, no less so simply because it is later overturned on appeal for unrelated legal error: The split verdict—finding §666 violated on the standalone counts, but 

not violated on the related Travel Act and conspiracy

counts—tells us that, on one count or the other, “the jury

[did] not follo[w] the court’s instructions,” whether because

of “mistake, compromise, or lenity.” Powell, 469 U. S., at 

65; see supra, at 7. Petitioners’ acquittals therefore do not 

support the application of issue preclusion here.7

 Further relying on Yeager, Bravo and Martínez contend 

that their vacated convictions should be ignored because, 

as with hung counts, “there is no way to decipher” what

they represent. Brief for Petitioners 28 (quoting Yeager, 

557 U. S., at 121). The §666 convictions are meaningless, 

they maintain, because the jury was allowed to convict on 

the basis of conduct not criminal in the First Circuit— 

payment of a gratuity. Brief for Petitioners 24. 

This argument trips on Yeager’s reasoning. Yeager did 

—————— 

7Nor is this the first time we have looked to a vacated conviction to 

ascertain what a jury decided in a prior proceeding. Our holding in 

Morris v. Mathews, 475 U. S. 237 (1986), that a conviction vacated on

double jeopardy grounds may be “reduced to a conviction for a lesser

included offense which is not jeopardy barred,” id., at 246–247, rested 

on exactly that rationale. See id., at 247 (relying on a jeopardy-barred 

vacated conviction for aggravated murder to conclude that the jury

“necessarily found that the defendant’s conduct satisfie[d] the elements

of the lesser included offense” of simple murder). 
 

18 BRAVO-FERNANDEZ v. UNITED STATES 

Opinion of the Court 

not rest on a court’s inability to detect the basis for a jury’s

decision. Rather, this Court reasoned that, when a jury

hangs, there is no decision, hence no evidence of irrationality. 557 U. S., at 124–125. A verdict of guilt, by contrast, is a jury decision, even if subsequently vacated on 

appeal. It therefore can evince irrationality.

That is the case here. Petitioners do not dispute that

the Government’s evidence at trial supported a guilty

verdict on the quid pro quo theory, or that the gratuity

instruction held erroneous by the Court of Appeals applied

to every §666-based offense. Because no rational jury 

could have reached conflicting verdicts on those counts,

petitioners’ §666 convictions “reveal the jury’s inconsistency—which is the relevant issue here—even if they do not 

reveal which theory of liability jurors relied upon in reaching those inconsistent verdicts.” Brief for United States 

31. In other words, because we do not know what the jury 

would have concluded had there been no instructional 

error, Brief for Petitioners 28–29, a new trial on the counts 

of conviction is in order. Bravo and Martínez have succeeded on appeal to that extent, but they are entitled to no 

more. The split verdict does not impede the Government

from renewing the prosecution.8 

—————— 

8A number of lower courts have reached the same conclusion. See 

Citron, 853 F. 2d, at 1059 (If the defendant “was convicted of the 

offense that is the subject of the retrial,” the case is materially different 

from one with “an acquittal accompanied by a failure to reach a verdict.”); Price, 750 F. 2d, at 366 (a case in which “the jury returned no 

verdict of conviction” on the compound count, “but only a verdict of 

acquittal on the substantive count,” is not instructive on whether the 

Government may retry a defendant after an inconsistent verdict has

been vacated); Evans, 987 A. 2d, at 1142 (“Yeager does nothing to 

undermine” the conclusion that a defendant may be retried after an 

inconsistent verdict is overturned.); Kelly, 201 N. J., at 494, 992 A. 2d, 

at 789 (explaining in the context of retrial following vacatur that 

“Yeager has no application to a case . . . involving an inconsistent

verdict of acquittals and convictions returned by the same jury”). 
 

 

Cite as: 580 U. S. ____ (2016) 19 

Opinion of the Court 

The Double Jeopardy Clause, as the First Circuit explained, forever bars the Government from again prosecuting Bravo and Martínez on the §666-based conspiracy and 

Travel Act offenses; “the acquittals themselves remain 

inviolate.” 790 F. 3d, at 51, n. 6. Bravo and Martínez 

have also gained “the benefit of their appellate victory,” 

ibid.: a second trial on the standalone bribery charges, in

which the Government may not invoke a gratuity theory.

But issue preclusion is not a doctrine they can commandeer when inconsistent verdicts shroud in mystery what

the jury necessarily decided. 

* * * 

For the reasons stated, the judgment of the Court of

Appeals for the First Circuit is 

Affirmed. 
_________________ 

_________________ 

Cite as: 580 U. S. ____ (2016) 1 

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 15–537 

JUAN BRAVO-FERNANDEZ AND HECTOR MARTINEZMALDONADO, PETITIONERS v.
 

UNITED STATES
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIRST CIRCUIT
 

[November 29, 2016]

 JUSTICE THOMAS, concurring. 

The question presented in this case is whether, under 

Ashe v. Swenson, 397 U. S. 436 (1970), and Yeager v. 

United States, 557 U. S. 110 (2009), a vacated conviction 

can nullify the preclusive effect of an acquittal under the

issue-preclusion prong of the Double Jeopardy Clause.

As originally understood, the Double Jeopardy Clause 

does not have an issue-preclusion prong. “The English

common-law pleas of auterfoits acquit and auterfoits convict, on which the Clause was based, barred only repeated

‘prosecution for the same identical act and crime.’” Id., at 

128 (Scalia, J., dissenting) (quoting 4 W. Blackstone, 

Commentaries on the Laws of England 330 (1769); emphasis added by dissent); see also Grady v. Corbin, 495 

U. S. 508, 530–535 (1990) (Scalia, J., dissenting). But “[i]n 

Ashe the Court departed from the original meaning of the 

Double Jeopardy Clause, holding that it precludes successive prosecutions on distinct crimes when facts essential to conviction of the second crime have necessarily 

been resolved in the defendant’s favor by a verdict of acquittal of the first crime.” Yeager, supra, at 128 (Scalia, J., 

dissenting).

In Yeager, this Court erroneously and illogically extended 

Ashe. See 557 U. S., at 128–131. “Ashe held only that 
 

2 BRAVO-FERNANDEZ v. UNITED STATES 

THOMAS, J., concurring 

the Clause sometimes bars successive prosecution of facts

found during ‘a prior proceeding.’” Id., at 129 (quoting 

Ashe, supra, at 444). Yeager, however, “bar[red] retrial on 

hung counts after what was not . . . a prior proceeding but 

simply an earlier stage of the same proceeding.” 557 U. S., 

at 129 (Scalia, J., dissenting). 

In an appropriate case, we should reconsider the holdings of Ashe and Yeager. Because the Court today properly declines to extend those cases, and indeed reaches the 

correct result under the Clause’s original meaning, I join 

its opinion.