THOMPSON

Jonathan W. Anderson, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant. Elizabeth H. Danello, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and Trevor McFadden and Mervin A. Bourne, Assistant United States Attorneys, were on the brief, for appellee.
Before THOMPSON and OBERLY, Associate Judges, and TERRY, Senior Judge.

THOMPSON, Associate Judge:

This matter is an interlocutory appeal from the trial court's denial of a motion by appellant Pedro Joya to dismiss a charge of contributing to the delinquency of a minor (CDM), on which appellant is awaiting trial. Appellant contends that the government is barred by collateral estoppel, as embodied in the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, from prosecuting him on that charge, which arose in connection with robbery, assault, and weapons offenses of which appellant was acquitted in an earlier trial. The government contends that appellant waived the issues of double jeopardy and collateral estoppel when he successfully sought severance of the CDM charge from the charges on which he was tried earlier. Although we conclude that appellant did not waive the shield of collateral estoppel, we affirm the trial court's denial of the motion to dismiss.

I.

The background of this appeal is as follows. A September 21, 2011, indictment charged appellant with armed robbery, assault with significant bodily injury, carrying a dangerous weapon (CDW), possession of a prohibited weapon (PPW), and CDM. Four other men—Kelvin Parada, Edvin Ramirez, Lester Flores, and Pablo Joya (appellant's brother)—were also variously charged in the fifteen-count indictment with some or all of those and other offenses. All of the charges were in connection with a robbery that occurred on May 31, 2011, and all five men were scheduled to be tried together. As described in more detail below, the robbery victim reported that after the robbery, his assailants made “gang signs.” The grounds for the CDM charge are that (1) Parada was a minor on the date of the charged offenses, and (2) according to the government's theory, appellant, Ramirez, and Pablo Joya “invite[d], solicit[ed], recruit[ed], assist[ed], support[ed], cause[d], encourage[d], enable[d], induce[d], advise[d], incite[d], facilitate[d], permit [ted], or allow[ed]” Parada's involvement in a gang-related felony (robbery), as part of Parada's induction into gang membership.

As the parties were preparing for a joint trial of the group of defendants on all of the charges, the government filed a motion seeking leave to present expert testimony regarding the practices of the gang known as Mara Salvatrucha, or “MS–13” (according to the government, the gang to which the defendants belonged or with which they associated). There followed appellant's opposition to the government's motion to permit the introduction of gang evidence and defendants' written or oral motions for severance. At a hearing before the court on November 14, 2011, appellant's trial counsel argued that, as to the CDM charge, joinder would mean that he would “have no way of confronting the [government's gang] expert on what Kelvin Parada's state of mind is other than to use [co-defendant] Kelvin Parada, who's unavailable” (because, presumably, Parada would not testify).

After hearing from counsel at length, the trial court ruled from the bench that the gang evidence was “highly inflammatory” and would not be admissible in the government's case-in-chief as to the robbery, assault, weapons possession, and other non-CDM charges, because its probative value was far outweighed by the risk of unfair prejudice. The court reasoned, however, that the gang evidence would be of “some probative value” if Ramirez, Pablo Joya, and appellant were tried separately on the CDM charge. The court also acknowledged appellant's argument “that it really puts the defendants in ... a ... situation where the defendant is both on trial as a co-defendant and the alleged victim of Mr. Ramirez, Mr. Joya and Mr. Joya, and what is on that person's mind, what his actual role was, what he believed was happening ... becomes unavailable to them as testimony or evidence that they could use[,] because of his status as a co-defendant.” The court therefore concluded that “for a couple of reasons,” there was “a good basis to sever” the CDM counts from the other counts.

Thereafter, trial (the “first trial”) proceeded on the non-CDM charges. The government presented evidence that on May 31, 2011, complainant Maximiliano Garcia–Lopez was robbed at knife point. Garcia–Lopez testified that at around 10:30 p.m., he was walking down 16th St., N.W., when Pablo Joya confronted him and demanded money. When Garcia–Lopez said that he did not have any money, Pablo Joya went behind him and stood about six or seven feet away. Ramirez and Parada then approached Garcia–Lopez. Appellant, who joined the men and also stood about six to seven feet behind Garcia–Lopez, was looking from “side to side.”

Ramirez then demanded money from Garcia–Lopez. Garcia–Lopez attempted to run away, but Ramirez caught up with him and held a knife to Garcia–Lopez's throat. Parada then took Garcia–Lopez by the arm and guided him to a nearby park, while Ramirez held the knife to Garcia–Lopez's back. In the park, Ramirez pushed Garcia–Lopez to the ground, with the knife to his back, while Parada took his wallet and bag. Garcia–Lopez testified that, meanwhile, he could see appellant watching him. He testified that he thought appellant was “the eyes” and was “watching out[.]”

After threatening that they would kill Garcia–Lopez if he reported the incident to the police, Ramirez and Parada ran off. Garcia–Lopez testified that as they ran away, they were making “motions with [their] hands” that looked like gang signs. Two days after the robbery, Garcia–Lopez spotted five men—appellant, Pablo Joya, Ramirez, Parada, and Flores—sitting together near the location where the robbery had occurred. Garcia–Lopez notified the police, who found, under the staircase where the men had been sitting, a knife that Garcia–Lopez identified as the one used in the robbery.

The government's theory, which it argued to the jury, was that appellant aided and abetted the robbery. Specifically, in opening argument, the prosecutor told the jury that appellant and Flores came over to Garcia–Lopez and stood behind him, joining the other men in surrounding him and “blocking the way he just came.” In closing argument, the prosecutor argued that appellant and Flores “t[ook] up their positions behind Mr. Garcia” and had “an integral role in the robbery,” in that they stood on the corner of 16th and Lamont Streets as “lookouts” and “performed the acts of blocking off, surrounding, intimidating, [and] scaring Mr. Garcia, and then looking out for the police to make sure that no one could stop this robbery[.]” In rebuttal, the prosecutor argued that appellant and the other lookouts were “standing about 7 feet behind him,” “facing toward the street with their backs to him looking back and forth, up and down 16th Street,” “blocking [Garcia–Lopez's] escape and ... watching for cops” or “for anybody who might be able to help” and “looking back to make sure that the robbery is going according to plan.”

Before sending the jurors to deliberate, the court gave them an aiding and abetting instruction. On December 2, 2011, the jury delivered its verdict, acquitting appellant of all charges.

The government then proceeded with the CDM charge against Ramirez, Pablo Joya, and appellant and with the (to-be-retried) robbery charge against Pablo Joya, with the trial court denying Pablo Joya's motion for severance of the robbery charge. As specified in the indictment, the CDM charge against appellant and his co-defendants is that “[o]n or about May 31, 2011, within the District of Columbia, ... being four years or more older than Kelvin Parada, a minor, [the defendants] invited, solicited, recruited, assisted, supported, caused, encouraged, enabled, induced, advised, incited, facilitated, permitted, and allowed Kelvin Parada to [commit a felony, robbery].” Appellant moved to dismiss the charge, asserting that, in acquitting appellant, the jury in the first trial had rejected the government's evidence that appellant participated in the robbery of Garcia–Lopez. Appellant argued that any “presentation of evidence, witness testimony, or arguments” that appellant had done so “would violate [appellant's] constitutional right not to be placed in jeopardy twice for the same offense,” since “the Double Jeopardy Clause [of the Fifth Amendment to the Constitution] precludes the Government from relitigating any issue that was necessarily decided by a jury's acquittal in a prior trial” (quoting Yeager v. United States, 557 U.S. 110, 119, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009)). Appellant asked the court to rule that the government therefore is precluded from presenting any evidence or arguments that appellant participated in the robbery.

The trial court denied the motion to dismiss, reasoning that the issue in the CDM case is whether appellant “recruited, encouraged and induced Mr. Parada to commit the robbery,” and stating, “I don't believe we could fairly say that this issue has already been decided by the first trial[.]” The court noted with approval that the government “will be presenting evidence of the robbery incident as they must ... in order to explain the background of the [CDM] charge[.]” The court cautioned, however, that the government “should stop short of focusing in its argument on statements that [appellant] committed the robbery ... [or] aided and abetted in the robbery,” because appellant “would have a compelling argument as to [preclusion of] those statements[.]” “Obviously,” the trial judge acknowledged, the court “will have to construct a clear instruction to the jury about what is before them and what is not before them,” and “there needs to be a great deal of care taken with the actual language[.]” The court also cautioned the prosecutor that it “would likely sustain an objection by [appellant's counsel] if the Government were to develop evidence about what [appellant] did other than as it directly relates to the contributing, inciting or inducing.”

This interlocutory appeal followed. Appellant's brief summarizes the issue presented as follows: “Does the collateral estoppel doctrine as embodied in the Double Jeopardy Clause preclude the government from prosecuting [appellant] on the charge of contributing to the delinquency of a minor (CDM), where the government has represented that it will prove the CDM charge by proving that [appellant] assisted Kelvin Parada to commit a robbery and [appellant] has already been acquitted of participating in the robbery as an aider and abettor?” Our review of this question—to which we give a mixed answer—is de novo. United States v. Felder, 548 A.2d 57, 64–65 (D.C.1988).

II.

The Double Jeopardy Clause of the Fifth Amendment “embodies two vitally important interests.” Yeager, 557 U.S. at 117, 129 S.Ct. 2360. “The first interest protected by the Clause is captured in what we refer to as the ‘traditional principles of double jeopardy,’ ” United States v. Howe, 590 F.3d 552, 555 (8th Cir.2009), i.e., the principle that “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Yeager, 557 U.S. at 117–18, 129 S.Ct. 2360 (quoting Green v. United States, 355 U.S. 184, 187–88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) (internal quotation marks omitted)). This first interest protects against “prosecutorial overreaching” through successive prosecutions. Ohio v. Johnson, 467 U.S. 493, 501, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).

The second interest embodied by the Double Jeopardy Clause is “preservation of the finality of judgments.” Yeager, 557 U.S. at 118, 129 S.Ct. 2360 (internal quotation marks omitted). That is, the Double Jeopardy Clause forecloses “relitigati[on] [of] any issue that was necessarily decided by a jury's acquittal in a prior trial.” Id. at 119, 129 S.Ct. 2360. Stated differently, it dictates 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[.]” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (explaining that this is the principle of “collateral estoppel”); see also United States v. McMillian, 898 A.2d 922, 933 (D.C.2006) (“[T]he ‘established rule of collateral estoppel in criminal cases is embodied in the Fifth Amendment guarantee against double jeopardy.’ ”) (quoting Ashe, 397 U.S. at 445, 90 S.Ct. 1189).

“[I]n any criminal proceeding where collateral estoppel is asserted, the burden is on the ‘defendant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.’ ” Halicki v. United States, 614 A.2d 499, 502 (D.C.1992) (quoting Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)). “Unless the record of the prior proceeding affirmatively demonstrated that an issue involved in the second trial was definitely determined in the former trial, the possibility that it may have been does not prevent relitigation of that issue.” Id. (quoting United States v. Smith, 337 A.2d 499, 503 (D.C.1975)).

III.

The government—before addressing whether the jury in the first trial already resolved the issues that a jury would be asked to resolve in the CDM trial—argues that even if collateral estoppel would otherwise preclude the government from proceeding with the CDM prosecution, appellant has waived any collateral-estoppel claim. The government invokes the principle, derived from Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), that where a defendant has successfully sought severance (here, of the CDM count), he may not claim Double Jeopardy Clause protection against a second trial on the severed charge.

We conclude that Jeffers does not fully answer the question presented here because, unlike this case, it turned on application of the first interest embodied in the Double Jeopardy Clause—the “traditional” double jeopardy protection against successive prosecutions. That traditional protection means that the government may not place a defendant in jeopardy multiple times for the same conduct and thus, for example, may not “try[ ] a defendant for a greater offense after it has convicted him of a lesser included offense.” Id. at 150, 97 S.Ct. 2207. A plurality of the Supreme Court held in Jeffers, however, that where the defendant obtained severance of a “continuing criminal enterprise” charge and a lesser-included charge of drug conspiracy, and where he was thereafter convicted of the lesser charge, he could not claim double-jeopardy protection against a subsequent trial on the greater charge. Id. at 152, 97 S.Ct. 2207.Jeffers thus established that a successful motion for severance creates an exception to traditional double jeopardy protection: “there is no violation of the Double Jeopardy Clause when [a defendant] elects to have the two offenses tried separately and persuades the trial court to honor his election.” Id. at 152, 97 S.Ct. 2207.

By contrast, the issue we are asked to resolve in this case involves the second interest protected by the Double Jeopardy Clause: protection against re-litigation of issues already decided. The government rejects that distinction, contending that the exception established by Jeffers—a waiver of Double Jeopardy Clause protection where successive prosecutions have been occasioned at the defendant's behest—applies to collateral-estoppel protection just as it does to the “traditional” double jeopardy protection against successive prosecutions. For this argument, the government relies heavily on a statement contained in a footnote in Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425, which we quote below.

In Johnson, the defendant was charged with murder, involuntary manslaughter, aggravated robbery, and grand theft. He pled guilty to involuntary manslaughter and grand theft. The trial court then dismissed the murder and robbery charges on the theory that prosecuting Johnson for those remaining charges would subject him to double jeopardy. The Supreme Court reversed, reasoning that Johnson had “not been exposed to conviction on the charges to which he pleaded not guilty,” that the State had not had “the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial,” and that there “simply [had] been none of the governmental overreaching that double jeopardy is supposed to prevent.” Id. at 501–02, 104 S.Ct. 2536. In the footnote in question, the Court also addressed the argument that prosecution on the remaining charges was barred by collateral estoppel. The Court reasoned:

Respondent also argues that prosecution on the remaining charges is barred by the principles of collateral estoppel enunciated by this Court in Ashe v. Swenson, 397 U.S. 436 [90 S.Ct. 1189, 25 L.Ed.2d 469] (1970). Even if the two [i.e., involuntary manslaughter and murder] were mutually exclusive crimes, ... the taking of a guilty plea is not the same as an adjudication on the merits after full trial.... Moreover, in a case such as this, where the State has made no effort to prosecute the charges seriatim, the considerations of double jeopardy protection implicit in the application of collateral estoppel are inapplicable.
467 U.S. at 500 n. 9, 104 S.Ct. 2536 (emphasis added, footnote reference omitted). The government suggests that the language we have italicized supports the proposition that collateral estoppel may not be invoked where the government cannot be said to have overreached by initiating successive prosecutions.

We do not think the dictum in Johnson can fairly be read to mean that it can never be appropriate to apply collateral estoppel where the government has not sought to initiate successive prosecutions. Indeed, we think Yeager forecloses such a reading. In Yeager, defendant was charged with multiple offenses, and the jury acquitted on some of the charges, and was hung on others. 557 U.S. at 114–15, 129 S.Ct. 2360. The Supreme Court held that the acquittals and collateral estoppel barred the government from re-trying Yeager on the charges on which the jury hung, reasoning that since “the possession of insider information was a critical issue of ultimate fact in all of the charges against petitioner, a jury verdict that necessarily decided that issue in his favor protects him from prosecution for any charge for which that is an essential element.” Id. at 122–23, 129 S.Ct. 2360. The Yeager majority thus implicitly rejected the view of the dissenting Justices that collateral estoppel is inapplicable “where the State has made no effort to prosecute the charges seriatim[.]” Id. at 131, 129 S.Ct. 2360 (Scalia, J., dissenting). As one court recognized even prior to Yeager, “the dictum in Ohio v. Johnson is unavailing” where a defendant invokes estoppel “as a shield to prevent the government from having an opportunity to relitigate issues which were already decided in the first trial.” United States v. Bailin, 977 F.2d 270, 278–79 (7th Cir.1992); see also id. at 275 (rejecting the government's argument that “collateral estoppel can never apply in circumstances where double jeopardy does not”).

Neither Jeffers, nor Yeager, nor this court's case law squarely answers the question presented here: whether collateral-estoppel protection is waived where, through a successful motion for severance, a defendant has waived traditional double-jeopardy protection against a successive prosecution for the same conduct. Courts have not been uniform in their rulings about whether collateral estoppel can bar a prosecution even if (because of a waiver) the “traditional” protection against double jeopardy does not, but we think the better reasoning is that it can, and that a defendant's waiver of double-jeopardy protection through a successful motion for severance does not amount to a waiver of the principle that the government may not re-litigate an issue resolved in a prior trial (or in a simultaneous trial). We agree with the Supreme Court of Iowa that “[t]o hold otherwise would violate our notions of fundamental fairness[.]” State v. Butler, 505 N.W.2d 806, 810 (Iowa 1993) (holding that although the defendant “certainly waived his right to protest a second prosecution under double jeopardy, we find no reason to conclude collateral estoppel is likewise waived”).

We conclude that appellant is entitled to protection from re-litigation of any issues that the jury decided in the first trial. We must next consider whether this means—as appellant argues—that the CDM prosecution may not go forward. The question is whether the jury's “not guilty” verdicts necessarily resolved in appellant's favor any issue of fact that must be proven to convict him of the charged offense of CDM.

IV.

“A determination of what issue of fact has previously been determined by a verdict of not guilty requires a court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Felder, 548 A.2d at 64 (quoting Ashe, 397 U.S. at 444, 90 S.Ct. 1189) (further citations and internal quotation marks omitted). “A reviewof the evidence presented at trial as well as the positions urged by the United States during trial is necessary to our Ashe v. Swenson analysis.” Id. at 58.

In this case, the prosecutor told the trial court that the government will argue in the CDM trial that appellant assisted, encouraged “and [did] all of these other things [to assist] Kevin Parada in robbing the victim[.]” As already noted in footnote 12, the phrase “all of these other things” was a reference to the string of verbs used in the CDM statute, which states in relevant part:

It is unlawful for an adult, being 4 or more years older than a minor, to invite, solicit, recruit, assist, support, cause, encourage, enable, induce, advise, incite, facilitate, permit, or allow the minor to: ... violate any criminal law of the District of Columbia for which the penalty constitutes a felony, or any criminal law of the United States, or the criminal law of any other jurisdiction that involves conduct that would constitute a felony if committed in the District of Columbia, except for acts of civil disobedience.
D.C.Code § 22–811(a). The government also told the court that it expects to prove its case through the testimony of Garcia–Lopez and the testimony of its gang expert, Immigration and Customs Enforcement Special Agent Robert Nieves, and that it does not expect to have “testimony from [Parada,] the targeted minor,” although that could “change.” As the government stated in opposing appellant's motion for a bill of particulars, it expects that Nieves will testify about initiation into MS–13, which entails requiring a prospective gang member to carry out a “mission,” “usually a robbery or other violent crime,” to demonstrate that the prospect is “worthy to be inducted into the gang.” Nieves is expected to testify that established MS–13 members “may take active roles as well ... or they may watch and evaluate” the prospective member's actions. They may “stand ready to jump in and assist in the crime if it appears that the [prospective member] may get hurt or if the target appears to be getting the upper hand.” Nieves will testify that “[a]fter a successful mission, [prospective members] are ready for initiation into the gang.”

Appellant argues that (1) any conduct that the government may seek to prove constituted CDM would necessarily also have constituted aiding and abetting the armed robbery; and (2) since the jury acquitted appellant of aiding and abetting the robbery, it necessarily found that he did not commit any of the acts that the government now alleges constitute CDM. We think this argument goes too far. We agree with appellant that the jury's guilty verdict means that the jury rejected the government's argument that appellant aided and abetted the robbery by doing one or more of the things that Garcia–Lopez described. Thus, the acquittal requires us to assume that the jury found that appellant did not participate in the robbery by blocking Garcia–Lopez's way and cutting off his escape route; or by “watching out” or acting as a lookout for police or others who might stop the robbery; or by intimidating or scaring Garcia–Lopez. Accordingly, we agree with appellant that the government is estopped from seeking to prove and from arguing that appellant assisted in the robbery in any of these ways and that he committed CDM by so doing.

However, with appellant having successfully sought severance and having thereby waived his protection against double jeopardy, the government is not precluded from attempting to prove that appellant committed CDM by engaging in other conduct that is covered by the CDM statute and that is related to the May 31, 2011, robbery, even if that conduct constituted participating in, assisting, or aiding and abetting the robbery. We reach this conclusion because we cannot say that the jury in the first trial “necessarily determinedthat [appellant] did not aid and abet the robbery” in any way, or that he did not engage in any activity that might constitute aiding and abetting; we can say only that the jury necessarily found that appellant did not aid and abet the robbery in the manner the government sought to prove and argued he did in the first trial. In this situation, i.e., “where an acquittal cannot be definitively interpreted as resolving an issue in favor of the defendant with respect to a remaining charge, the [government] is free to commence with trial as it wishes.” States, 938 A.2d at 1021.

As the trial court appeared to recognize, whether the government will be able to prove that appellant committed CDM in some way not foreclosed by the limitations described above is a matter of some doubt. As the court put it, “whether or not the Government's case will survive an MJOA [motion for judgment of acquittal]” “raises a different issue[.]” Conceivably, however, Special Agent Nieves's testimony and other evidence the government might marshal could persuade the jury that appellant encouraged the younger man Parada to commit robbery simply by being present and available to carry out the role of an established gang member, by watching to see whether Parada “ha[d] the heart to commit [the] crime[ ] in furtherance of the gang.” Or, the jury might find that appellant was more active, e.g., that appellant was among those who told Parada “what [he] needed to do, ... expect[ing] that [as a] prospective [member, Parada] would go out and do that” (even if appellant took no active role during the robbery on May 31, 2011). Asking the jury to find that appellant encouraged or assisted the robbery in these ways would not be asking them to resolve factual issues that the first jury already resolved, even though such conduct might qualify as aiding and abetting. “[F]ederal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.” Felder, 548 A.2d at 65 (internal quotation marks omitted). We think this means, in part, not standing on the fact that the jury in the first trial acquitted appellant of aiding and abetting, but looking to the evidence and to the points urged by the government during the first trial to determine what evidence the jury must necessarily have rejected as proving aiding and abetting.

To summarize, although appellant did, by winning severance, waive double-jeopardy protection from prosecution for CDM, he did not waive the shield of collateral estoppel. Accordingly, the government is estopped from re-litigating whether appellant assisted in the armed robbery in the ways the complainant asserted, and the government argued, he did in the first trial. The government is free, however, to attempt to prove that appellant committed CDM by acting in other ways that satisfy the elements of that offense, even if the conduct would also constitute aiding and abetting robbery.

For the foregoing reasons, the ruling of the trial court denying the motion to dismiss the CDM charge is hereby

Affirmed.

* * *