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IN THE COURT OF APPEALS OF THE STATE OF ALASKA

FRED MICHAEL ESGUERRA JR., 

 Petitioner, 

 v.

STATE OF ALASKA, 

 Respondent. 

Court of Appeals No. A-13819 

Trial Court No. 3AN-19-04854 CR

O P I N I O N

No. 2754 — August 18, 2023 

Petition for Review from the Superior Court, Third Judicial 

District, Anchorage, Erin B. Marston, Judge. 

Appearances: Melissa H. Goldstein and Julia Bedell, Assistant 

Public Defenders, and Samantha Cherot, Public Defender, 

Anchorage, for the Petitioner. Kenneth M. Rosenstein, 

Assistant Attorney General, Office of Criminal Appeals, 

Anchorage, and Treg R. Taylor, Attorney General, Juneau, for 

the Respondent. 

Before: Allard, Chief Judge, and Wollenberg and Harbison, 

Judges.

Judge ALLARD, writing for the Court. 

Judge HARBISON, concurring. 
– 2 – 2754

In 2002, Fred Michael Esguerra Jr. was convicted of two counts of firstdegree sexual abuse of a minor and one count of attempted first-degree sexual abuse of 

a minor.1 Esguerra was later released on probation. 

In October 2018, the State filed a petition to revoke Esguerra’s probation 

on three separate grounds. Esguerra testified at the probation revocation hearing and 

denied a number of the State’s factual claims. After Esguerra testified, the State, 

believing that Esguerra had lied on the witness stand, added a fourth violation to the 

petition: that Esguerra had just committed perjury. The court found that the State had 

proven two of the claimed probation violations by a preponderance of the evidence, but 

found that the State had not proven the other two, including the allegation of perjury. 

Several months later, the State indicted Esguerra on eleven counts of 

perjury based on his testimony at the probation revocation hearing. Esguerra moved to 

dismiss the indictment, arguing that because the State had failed to prove the perjury 

allegation in the probation revocation proceeding, it was barred from pursuing that 

allegation in a subsequent criminal proceeding by the doctrines of res judicata (i.e., 

claim preclusion) and collateral estoppel (i.e., issue preclusion). The superior court 

denied Esguerra’s request, and Esguerra petitioned this Court for review, which we 

granted.

We now affirm the superior court’s denial of Esguerra’s motion to dismiss 

the indictment. 

The State’s prosecution of Esguerra is not precluded by res judicata or 

collateral estoppel

This petition requires us to address whether the doctrines of res judicata 

and collateral estoppel preclude the State from pursuing criminal charges when the State 

1 AS 11.41.434(a)(1) and AS 11.41.434(a)(1) & AS 11.31.100(a), respectively. 
– 3 – 2754

failed to prove those same charges in a probation revocation proceeding alleging that 

the defendant engaged in new criminal conduct.

The doctrine of res judicata, also called claim preclusion, “prevents a party 

from suing on a claim which has been previously litigated to a final judgment by that 

party . . . and precludes the assertion by such parties of any legal theory, cause of action, 

or defense which could have been asserted in that action.”2 This doctrine does not apply 

here because the State could not pursue its current “cause of action” — i.e., its criminal 

prosecution of Esguerra — through a petition to revoke probation.

But the doctrine of collateral estoppel, also called issue preclusion, 

presents a more difficult question. Collateral estoppel “bars the relitigation of issues 

actually determined in [earlier] proceedings.”3It requires four elements: 

(1) the party against whom the preclusion is employed was 

a party to or in privity with a party to the first action; (2) the 

issue precluded from relitigation is identical to the issue 

decided in the first action; (3) the issue was resolved by the 

first action by a final judgment on the merits; and (4) the 

determination of the issue was essential to the final 

judgment.[4]

We find persuasive the California Supreme Court’s analysis of this issue

in Lucido v. Superior Court.

5 The California Supreme Court acknowledged that the 

technical elements of collateral estoppel will often be met when the government seeks 

to file criminal charges based on alleged probation violations that it previously failed to 

2 McElroy v. Kennedy, 74 P.3d 903, 906 (Alaska 2003) (alteration in original) 

(emphasis added) (quoting Dixon v. Pouncy, 979 P.2d 520, 523 (Alaska 1999)). 

3 Sykes v. Lawless, 474 P.3d 636, 643 (Alaska 2020) (alteration in original) (quoting 

Latham v. Palin, 251 P.3d 341, 344 (Alaska 2011)). 

4

Id. (quoting Latham, 251 P.3d at 344). 

5 Lucido v. Superior Court, 795 P.2d 1223 (Cal. 1990). 
– 4 – 2754

prove, but the court went on to hold that the public policies underlying the doctrine of 

collateral estoppel would not be served by applying it to this context.

Lucido explained that there are three core public policies underlying 

collateral estoppel: preservation of the integrity of the judicial system, promotion of 

judicial economy, and protection of litigants from harassment by vexatious litigation.6

With respect to the integrity of the judicial system, the court 

acknowledged that “[p]ublic confidence in the integrity of the judicial system is 

threatened whenever two tribunals render inconsistent verdicts.”7 But the court 

concluded that eliminating this potential inconsistency by displacing full determination 

of factual issues in criminal trials would have an even greater effect on public 

confidence in the judiciary.

8

As the Lucido court explained, “Probation revocation hearings and 

criminal trials serve different public interests.”9 The role of the judge in a probation 

revocation proceeding is “not to determine whether the probationer is guilty or innocent 

of a crime,” but only “whether a violation of the terms of probation has occurred and, 

if so, whether it would be appropriate to allow the probationer to continue to retain 

[their] conditional liberty.”10 The court further reasoned:

Because the limited nature of this inquiry may not involve or 

invoke presentation of all evidence bearing on the 

underlying factual allegations, the [government’s] failure to 

satisfy the lower burden of proof at the revocation hearing 

6

Id. at 1227. 

7

Id. at 1229.

8

Id. 

9

Id.

10 Id. at 1230. 
– 5 – 2754

does not necessarily amount to an acquittal or demonstrate 

an inability to meet the higher criminal standard of proof.[11]

In light of these differing purposes, the Lucido court concluded that 

“[p]reemption of trial of a new charge by a revocation decision designed to perform a 

wholly independent social and legal task would undermine the function of the criminal 

trial process as the intended forum for ultimate determinations as to guilt or innocence 

of newly alleged crimes.”12

With respect to the promotion of judicial economy, the court 

acknowledged that applying collateral estoppel would potentially promote judicial 

economy in two ways: “it would reduce the number of court proceedings by precluding 

prosecution of issues determined adversely to the [government] at the revocation 

hearing[;]” and “by increasing the already high stakes of the revocation hearing, it might 

encourage the [government] to prosecute first.”13 But the court found that these 

concerns were insufficient to justify applying collateral estoppel, writing that

“[w]hatever the efficiencies of applying collateral estoppel in this case, they pale before 

the importance of preserving the criminal trial process as the exclusive forum for 

determining guilt or innocence as to new crimes.”14

With respect to the protection of litigants from harassment by vexatious 

litigation, the court explained that although application of collateral estoppel would 

prevent repetitive litigation, “[t]he essence of vexatiousness . . . is not mere repetition” 

but rather “harassment through baseless or unjustified litigation.”15 As the court 

11 Id.

12 Id. at 1230-31.

13 Id. at 1232.

14 Id.

15 Id. 
– 6 – 2754

explained, it is generally “neither vexatious nor unfair for a probationer to be subjected 

to both a revocation hearing and a criminal trial” because “[t]he public has a legitimate 

expectation that a person once found guilty of a crime may both be held to the terms of 

[their] probation and (if deemed appropriate by the prosecution) tried anew for any 

offenses alleged to have been committed during the probationary period.”16 The fact 

that the government failed to prevail at the revocation hearing “does not alone transform 

the otherwise permissible subsequent trial into harassment.”17

For all these reasons, the California Supreme Court concluded that 

“[a]pplying collateral estoppel would unduly expand the designated function of the 

revocation hearing and undermine the public interest in determining criminal guilt and 

innocence at criminal trials.”18

Much like California, Alaska courts have repeatedly “looked to the public 

policies underlying the doctrine [of collateral estoppel] before concluding that collateral 

estoppel should be applied in a particular setting.”19 And we agree with the California 

16 Id.

17 Id.

18 Id. at 1233. 

19 Id. at 1226; see, e.g., Burcina v. Ketchikan, 902 P.2d 817, 822 (Alaska 1995) (“We 

hold, based on public policy grounds, that a civil plaintiff is collaterally estopped from 

relitigating any element of a criminal charge to which [they have] pled nolo contendere.”); 

Lamb v. Anderson, 147 P.3d 736, 742 (Alaska 2006) (applying the holding in Burcina to 

civil defendants); Jones v. State, 215 P.3d 1091, 1097, 1100 (Alaska App. 2009) 

(explaining that Burcina, Lamb, and similar cases were “based on policy considerations,” 

and noting that whether collateral estoppel applies involves “issues regarding the policies 

underlying the doctrine of issue preclusion”); see also Bearden v. State Farm Fire & Cas. 

Co., 299 P.3d 705, 713-15 (Alaska 2013) (addressing, and ultimately rejecting, appellant’s 

policy arguments that application of collateral estoppel to his case was manifestly unfair);

May v. State, Com. Fisheries Entry Comm’n, 168 P.3d 873, 883 (Alaska 2007) (declining 

to apply collateral estoppel against a state agency because it “would violate the flexibility 

that courts have traditionally given agencies to correct errors in order to properly 

implement policy”); State v. United Cook Inlet Drift Ass’n, 895 P.2d 947, 952 (Alaska 
– 7 – 2754

Supreme Court that those policies support refusing to apply collateral estoppel to the 

situation presented here.

We also note that at the time Lucido was decided in 1990, courts were 

roughly split on this question. Lucido cited five jurisdictions (Arizona, Florida, New 

York, Washington, and the Sixth Circuit) holding that collateral estoppel does not apply 

and three jurisdictions (Illinois, Oregon, and Texas) holding that it does.20 But Lucido

now firmly states the majority rule. We count at least ten additional states (Connecticut, 

Georgia, Maine, Massachusetts, Michigan, Mississippi, Rhode Island, Pennsylvania, 

Vermont, and Wisconsin) holding that collateral estoppel does not apply.

21 And one of 

the three states cited in Lucido as holding that collateral estoppel does apply (Texas) 

recently overturned its prior case law and joined the majority view.

22

1995) (holding that “sound policy justifications support the adoption by this court of a 

limited exception to the application of collateral estoppel against the State on ‘unmixed 

questions of law’”); Holmberg v. State, Div. of Risk Mgmt., 796 P.2d 823, 824-27 (Alaska 

1990) (addressing whether, on policy grounds, determinations of the Public Employees 

Retirement Board should generally be given preclusive effect, and only then addressing 

whether the conditions of collateral estoppel were met in the specific case at issue); Palfy 

v. First Bank of Valdez, 471 P.2d 379, 384 (Alaska 1970) (explaining that “the policy of 

finality underlying res judicata and collateral estoppel must be tempered by our paramount 

concern that a party be afforded [their] day in court”).

20 Lucido, 795 P.2d at 1228 (collecting cases). 

21 State v. McDowell, 699 A.2d 987, 991 (Conn. 1997); Teague v. State, 312 S.E.2d 

818, 820 (Ga. App. 1983) (Teague was issued before Lucido, but is not cited in that case); 

State v. Reed, 686 A.2d 1067, 1069 (Me. 1996); Krochta v. Commonwealth, 711 N.E.2d 

142, 144-45 (Mass. 1999); People v. Johnson, 477 N.W.2d 426, 429 (Mich. App. 1991); 

State v. Oliver, 856 So. 2d 328, 332 (Miss. 2003); State v. Gautier, 871 A.2d 347, 359 (R.I. 

2005); Commonwealth v. Cosgrove, 629 A.2d 1007, 1011 (Pa. Super. 1993); State v. 

Brunet, 806 A.2d 1007, 1010-13 (Vt. 2002); State v. Terry, 620 N.W.2d 217, 222 (Wis. 

App. 2000).

22 State v. Waters, 560 S.W.3d 651 (Tex. Crim. App. 2018) (overruling Ex parte 

Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986)). 
– 8 – 2754

For all the reasons stated above, we agree with the vast majority of courts 

that have decided this issue that collateral estoppel does not apply to the situation at 

issue here.

But although we conclude, after balancing all of the relevant policy 

considerations, that collateral estoppel should not be applied in this context, we take 

this time to remind the State that public confidence in the integrity of the judicial system 

is indeed undermined whenever two tribunals render inconsistent verdicts.23 In his 

concurrence in McCracken v. Corey, Justice Rabinowitz recommended that when the 

government intends to seek revocation of probation based on conduct constituting a 

crime, it should first determine whether it also intends to bring criminal charges. If it 

does not, the probation revocation proceeding should proceed; but if it does, the 

revocation proceeding should be suspended until after the outcome of the criminal 

prosecution.24 As the concurrence to this case correctly notes, had the State adopted that 

approach here, there would have been no risk of inconsistent verdicts, and thus no risk 

of undermining public confidence in the integrity of our judicial system.

Conclusion

We AFFIRM the superior court’s ruling denying Esguerra’s motion to 

dismiss and REMAND this case for further proceedings.

23 See Lucido, 795 P.2d at 1229.

24 McCracken v. Corey, 612 P.2d 990, 1000-01 (Alaska 1980) (Rabinowitz, J., 

concurring).
– 9 – 2754

Judge HARBISON, concurring.

I agree with both the reasoning and the conclusion of the majority opinion 

in this case. However, I write separately to emphasize a legal premise that flows from 

today’s opinion and previous case law — that when a defendant is faced with a 

probation revocation and a criminal charge based on the same alleged conduct, the 

defendant is entitled to have probation revocation proceedings postponed until after the 

underlying criminal charges are resolved.

The underpinnings of this point of law were first identified by the Alaska

Supreme Court in a concurring opinion in State v. DeVoe.

1

In that opinion, Justice 

Rabinowitz explained:

When the probation revocation proceeding is based upon 

alleged criminal conduct as to which the probationer’s 

innocence or guilt remains to be adjudicated in a criminal 

proceeding, there is the possibility of dilution of the 

probationer’s privilege against self-incrimination, since at 

the criminal trial the prosecutor may be able to use evidence 

which the probationer presented in the probation revocation 

proceeding. Thus, in many situations “. . . the defendant is 

confronted with the choice of either producing evidence at 

the revocation hearing and thus providing the state with 

incriminating evidence, or not producing evidence and thus 

foregoing a valuable defense.” In my view this is a problem 

of some significance which calls for a solution.[2]

Several years later, in McCracken v. Corey, the supreme court had 

occasion to offer a solution to the problem identified by the DeVoe concurrence. In 

McCracken, the defendant faced a parole revocation and a criminal charge based on the 

same alleged conduct.3 The supreme court noted that holding the revocation hearing 

1 State v. DeVoe, 560 P.2d 12, 15-17 (Alaska 1977) (Rabinowitz, J., concurring).

2

Id. at 16 (Rabinowitz, J., concurring) (citation omitted).

3 McCracken v. Corey, 612 P.2d 990, 991 (Alaska 1980). 
– 10 – 2754

before the criminal trial could “disrupt[] the maintenance of a ‘fair state-individual 

balance’ at the criminal trial, where the burden of proving the guilt of the defendant 

must be shouldered entirely by the state.”4In addition, forcing the defendant to choose 

between their right to defend themself at the parole revocation hearing and their right 

to remain silent with respect to their criminal trial, while possibly not rising to the level 

of “compulsion” prohibited by the Fifth Amendment, posed an unfair dilemma which 

“runs counter to our historic aversion to cruelty reflected in the privilege against selfincrimination.”5

The supreme court thus held that the “most desirable” method of resolving 

the problems of concurrent criminal and probation revocation proceedings is for the 

revocation proceedings “not even to be initiated” until after the disposition of the related 

criminal proceedings.

6 But the supreme court acknowledged that the State has an 

interest in initiating prompt revocation proceedings upon the occurrence of a criminal 

offense, and it ultimately stopped short of requiring a stay of the revocation proceeding 

in every case.7 The court instead held that, when a revocation hearing is conducted prior 

to a criminal trial for the same conduct, the State may not introduce any evidence or 

testimony that had been presented by the defendant at the revocation hearing in the 

subsequent criminal proceeding, nor may it introduce the fruits of any such evidence or 

testimony.8

4

Id. at 996 (citation omitted). 

5

Id. (citation omitted).

6

Id. at 997 (citation omitted). 

7 See Armstrong v. Tanaka, 228 P.3d 79, 83 (Alaska 2010) (noting that, in 

McCracken, the supreme court “declined to require a stay of the revocation hearing”).

8 McCracken, 612 P.2d at 998.
– 11 – 2754

Just as the supreme court’s McCracken decision did not announce a 

blanket prohibition on conducting a probation revocation hearing prior to a criminal 

trial, today’s opinion likewise does not prevent courts from proceeding in such a 

manner. However, today’s opinion relies heavily on a number of policy considerations 

which support the view, expressed in McCracken, that revocation proceedings should 

be conducted after the disposition of any criminal charges alleging the same conduct.

As noted by today’s majority opinion, such an approach reduces the risk 

of inconsistent verdicts and accordingly does much to uphold the integrity of the judicial 

system. Furthermore, if the court delays the probation revocation adjudication hearing

until after the criminal charges are resolved, this preserves the criminal trial process as 

the forum for adjudicating crimes. This also promotes judicial economy because the 

allegation of new criminal conduct could be resolved conclusively by a jury’s guilty 

verdict, making it unnecessary for the State to present the evidence of this conduct a 

second time during the revocation proceedings. Lastly, this approach would almost 

certainly result in more considered charging decisions and more careful presentation of 

evidence in probation revocation matters — in contrast to the impromptu, and 

ultimately unsuccessful, charging decision that was made in this case.

Here, the prosecutor added a new count to the petition to revoke 

Esguerra’s probation, alleging that Esguerra had committed perjury, after the evidence 

had been presented in the case, during closing arguments. Under these circumstances, 

Esguerra certainly would have been entitled to have the court postpone adjudication of 

the new allegation until a later date, including until after the disposition of any

underlying criminal charge. But the defense attorney did not ask to postpone the 

adjudication of the new allegation. Instead, the attorney acquiesced in submitting the 

matter to the judge for decision based on the evidence that had already been presented 

— a tactic which proved to be advantageous to Esguerra, as was shown by the judge’s 

finding that the evidence was not sufficient to support the perjury allegation.
– 12 – 2754

The rationale of today’s decision, together with prior Alaska case law on 

this subject, lead to the conclusion that the denial of a defendant’s request to continue 

a probation revocation hearing until the related criminal proceeding is resolved will 

almost always be an abuse of the court’s discretion. Thus, a probation revocation 

hearing will rarely, if ever, be adjudicated prior to the disposition of the underlying 

criminal charge, and the legal dilemma resolved by the majority opinion today is 

unlikely to arise in future cases.