December 5, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 10 CR 33 - James
B. Zagel, Judge.
Easterbrook and ROVNER, Circuit Judges, and Shadid, District
Easterbrook, Circuit Judge.
EMC-423 exploded on January 19, 2005, while under way between
Joliet and Chicago with a cargo of clarified slurry oil. The
blast threw deckhand Alex Oliva into the water; he did not
survive. Contending that Dennis Egan, master of the tug Lisa
E that had been pushing the barge, had told Oliva to warm a
pump using a propane torch, the United States obtained an
indictment charging Egan and the tug's owner (Egan Marine
Corp.) with violating 18 U.S.C. §1115, which penalizes
maritime negligence that results in death, plus other
statutes that penalize the negligent discharge of oil into
bench trial, Judge Zagel found that the prosecution had
established, beyond a reasonable doubt, that Egan gave the
order to Oliva, that the torch caused the explosion, that
Oliva died as a result, and that the barge released oil as a
further result. That such an order, if given, was negligence
(or worse) no one doubted; open flames on oil carriers are
forbidden by Coast Guard regulations and normal prudence. The
court sentenced Egan to six months' imprisonment, a
year's supervised release, and restitution of almost
$6.75 million. Egan Marine was placed on probation for three
years and ordered to pay the same restitution, for which it
and Egan are jointly and severally liable.
criminal prosecution was the second trial of these
allegations. Two years before the grand jury returned its
indictment, the United States had filed a civil suit against
Egan Marine seeking damages on the same theory: that Egan
directed Oliva to warm the pump using a torch, whose flame
caused an explosion, a death, and an oil spill. That case,
too, went to a bench trial. And Judge Leinenweber, who heard
the evidence, determined that the United States had not
proved its claim. 2011 U.S. Dist. Lexis 138087 (N.D. 111.
Oct. 13, 2011) at ""11 ("the Government did
not prove, by a preponderance of the evidence, that Alex
Oliva was using a propane torch on the cargo pump of the EMC
423 at the time of the incident"). The United States did
not appeal from that adverse decision but instead pressed
forward with this criminal prosecution.
and Egan Marine sought the benefit of issue preclusion
(collateral estoppel), arguing that the United States should
not be allowed to contend that they are guilty beyond a
reasonable doubt after Judge Leinenweber found that the proof
did not show culpability even by a preponderance of the
evidence. But Judge Zagel rejected this contention.
Supreme Court has said that the outcome of a civil case has
preclusive force in a criminal prosecution. See Yates v.
United States, 354 U.S. 298, 335-36 (1957). (Burks
v. United States, 437 U.S. 1 (1978), overruled a
different portion of Yates relating to double
jeopardy; Burks did not question the portion of
Yates dealing with preclusion.) If the United States
cannot prove a factual claim on the preponderance standard,
it cannot logically show the same thing beyond a reasonable
doubt. The prosecutor maintains that this statement in
Yates was dictum, but we do not think that
characterization appropriate. It was integral to the
Court's rationale-for although the Justices proceeded to
conclude that the civil suit did not block the Yates
prosecution under ordinary principles of preclusion, it would
not have undertaken that exercise had the Court believed
issue preclusion categorically inapplicable to the
States v. Weems, 49 F.3d 528 (9th Cir. 1995), and
United States v. Rogers, 960 F.2d 1501 (10th Cir.
1992), both took Yates at face value and held that a
criminal prosecution can be blocked by the preclusive effect
of a decision in a civil case. No court of appeals has held
otherwise. But the United States maintains, and Judge Zagel
concluded, that our decision in United States v.
Alexander, 743 F.2d 472 (7th Cir. 1984), means that
preclusion is unavailable notwithstanding Yates.
held that the outcome of an administrative
proceeding cannot be invoked to block the resolution of a
criminal indictment. The opinion observed that many
administrative systems are designed to be informal and
expeditious, and that when the agency loses an administrative
adjudication it may not be entitled to judicial review. 743
F.2d at 477. Making the administrative process reliable
enough to justify preclusive effect in a criminal prosecution
might require a substantial investment of prosecutorial
resources-if that were even possible under the statute in
question. The United States' alternative might be to
forego the administrative proceeding, which could have bad
consequences of its own.
using these considerations of public policy to decide whether
to give preclusive effect to administrative adjudications,
Alexander drew on Standefer v. United
States, 447 U.S. 10 (1980), which had concluded that it
would be unwise to apply nonmutual preclusion from one
criminal prosecution to another. Standefer and Niederberger
had been charged with joint criminal activity. Niederberger
was tried first and acquitted; Standefer maintained that he
was entitled to the benefit of that adjudication, because it
takes two to tango. The Court held not, observing (447 U.S.
at 21-23) that nonmutual preclusion (that is, using the
result in A's case to determine the result in B's) is
designed largely to reduce litigation costs in civil suits,
while the criminal process has different and more important
goals. The Justices added that acquittals in criminal
prosecutions are unreasoned and cannot be reviewed (given the
Double Jeopardy Clause); they may reflect compromise or
misunderstanding rather than a determination of contested
facts. That's why inconsistent verdicts within a single
criminal prosecution do not work in a defendant's favor.
See, e.g., Bravo-Fernandez v. United States, No.
15-537 (U.S. Nov. 29, 2016).
did not cast doubt on Yates. The considerations that
led the Court to abjure nonmutual preclusion in the
criminal-criminal sequence do not pertain to mutual
preclusion in the civil-criminal sequence. Many a civil
decision is fully explained (as Judge Leinenweber's was),
and all are reviewable on appeal. The Supreme Court
understands mutual preclusion not just as a judicial
work-saving device but as a matter of right for the litigants
involved. See, e.g., Federated Department Stores, Inc. v.
Moitie, 452 U.S. 394 (1981).
so even when one of the litigants is the United States. See,
e.g., Montana v. United States,440 U.S. 147 (1979);
United States v. Stauffer Chemical Co.,464 U.S. 165
(1984). The prosecutor's brief in our case tells us that
allowing Judge Leinenweber's decision to foreclose the
criminal charges would cause the United States either to pour
extra resources into civil suits, disrupting its litigation
strategy, or to forego or postpone such suits pending the
outcome of criminal cases. Similar arguments were made by the
Solicitor General in Montana and Stauffer
Chemical, where the United States maintained that the
outcome of a poorly litigated civil case (perhaps pursued by
a single Assistant United States Attorney in some remote
outpost) should not be allowed to block a new suit that has
the Department of Justice's full attention and may be
designed to serve a vital public goal. But the Justices had
none of this. They concluded that ordinary rules of
preclusion apply to the United States and that the Department
of Justice must navigate around established legal rules,
rather than the rules giving way ...