REUBEN DOWLING, PETITIONER V. UNITED STATES OF AMERICA AND
GOVERNMENT OF THE VIRGIN ISLANDS

   No. 88-6025

   In The Supreme Court Of The United States

   October Term, 1988

   On Writ Of Certiorari To The United States Court Of Appeals For The
Third Circuit

   Brief For The Respondents

            TABLE OF CONTENTS
   Questions Presented
   Opinion below
   Jurisdiction
   Constitutional provisions, statute and rules involved
   Statement
   Summary of argument
   Argument:
      I. Evidence of petitioner's involvement in a prior offense was
         admissible even though petitioner was acquitted of that
         offense at a previous trial
             A. The doctrine of collateral estoppel did not bar the
                admission of evidence regarding conduct as to which
                petitioner had been previously acquitted
             B. The Due Process Clause does not bar the admission of
                evidence of offenses of which a defendant has
                been acquitted
     II. Even if the constitution prohibits the admission of evidence
         of an offense of which a defendant has been acquitted,
         petitioner's conviction should be affirmed
              A. Petitioner failed to carry his burden of establishing
                 a right to invoke collateral estoppel
              B. The admission of Henry's testimony was harmless
                 beyond a reasonable doubt
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (J.A. 30-49) is reported at 855
F.2d 114.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 22,
1988.  A petition for rehearing was denied on September 28, 1988 (J.A.
50).  The petition for a writ of certiorari was filed on November 28,
1988 (a Monday), and was granted on February 27,1989 (J.A. 51).  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

        CONSTITUTIONAL PROVISIONS, STATUTE, AND RULES INVOLVED

   The Double Jeopardy Clause of the Fifth Amendment to the
Constitution of the United States provides:

      (N)or shall any person be subject for the same offence to be
      twice put in jeopardy of life or limb(.)

   The Due Process Clause of the Fifth Amendment to the Constitution
of the United States provides:

      (N)or (shall any person) be deprived of life, liberty, or
      property, with due process of law(.)

   The "harmless error" statute, 28 U.S.C. 2111, provides:

         On the hearing of any appeal or writ of certiorari in any
      case, the court shall give judgment after an examination of the
      record without regard to errors or defects which do not affect
      the substantial rights of the parties.

   Rule 404(b) of the Federal Rules of Evidence provides:

      Other crimes, wrongs, or acts.  Evidence of other crimes,
      wrongs, or acts is not admissible to prove the character of a
      person in order to show action in conformity therewith.  It may,
      however, be admissible for other purposes, such as proof of
      motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident.

   Rule 52(a) of the Federal Rules of Criminal Procedure provides:

      Harmless Error.  Any error, defect, irregularity or variance
      which does not affect substantial rights shall be disregarded.

                          QUESTIONS PRESENTED

   1. Whether, in petitioner's trial for offenses arising out of a
bank robbery, the trial court erred by admitting evidence of a
separate robbery of which petitioner had been acquitted in a prior
trial.

   2. If the admission of that evidence was error, whether the error
was harmless.

                               STATEMENT

   Following a jury trial in the District Court of the Virgin Islands,
petitioner was convicted on one count of bank robbery, in violation of
18 U.S.C. 2113(a);  two counts of first-degree robbery, in violation
of V.I. Code Ann. tit. 14, Section 1862(2) (Supp. 1988);  two counts
of third-degree assault, in violation of V.I. Code Ann. tit. 14,
Section 297(2) (Supp. 1988);  one count of grand larceny, in violation
of V.I.  Code Ann. tit. 14, Section 1083(1) (1964);  and one count of
unauthorized use of a vehicle, in violation of V.I. Code Ann. tit. 14,
Section 1382 (Supp. 1988).  He was sentenced to 70 years'
imprisonment.  J.A. 12-14.  /1/

   1. a. The evidence at trial showed that on the afternoon of July 8,
1985, a man armed with a pistol and wearing a mask robbed the First
Pennsylvania Bank in Frederiksted, St. Croix.  Between 2:15 and 2:30
p.m., shortly before the bank closed, the robber entered the bank and
jumped over the counter into the tellers' cages.  After ordering
"nobody move," the robber pointed his gun at the teller nearest him
and told her to open her cash drawer.  The teller quickly complied,
and the robber took more than $2000 in cash and stuffed it into a
brown paper bag.  The robber proceeded to the next teller station,
which was unoccupied, but he was unable to open the locked cash
drawers.  He then moved to the next station and, pointing his gun at
the teller there, ordered her to open her cash drawers.  She complied,
and the robber took more than $5000 from her.  9/22 Tr. 92, 95,
100-104, 110, 117-118, 120, 123-124, 146, 151-152, 158-159, 187.

   The robber wore a blue or black woven ski mask or herb hat with two
holes cut out for the eyes.  He also wore a green army fatigue shirt,
blue jeans or dark pants, white sneakers, and gloves.  The pistol he
carried was a "black and shiny" small caliber handgun.  The robber was
described as being tall, fit, and athletically built.  See 9/22 Tr.
97-98, 110-111, 120, 124, 126, 147, 152, 159-160, 187-188.

   The robber left the bank and ran to a parking lot across the
street.  After running around for a short time there, he began running
up and down the street, apparently looking for something.  9/22 Tr.
108, 154-155, 190, 222-223.  The robber then stepped in front of an
approaching taxi van and stopped it.  The robber went to the driver's
side of the van, pointed his gun at the taxi driver, and pulled the
driver out of the van.  As the robber drove off with the windows
rolled down, he started to pull off his mask.  9/22 Tr. 160-161,
165-167, 170-171, 173-174, 180, 182, 223-224.

   Antonio Messer was in the bank when the robbery began, but he
managed to slip out.  While he hid behind a pillar in front of a
building near the street, he saw the robber leave the bank, run
around, and commandeer the taxi van.  Messer then watched the robber
drive toward him and pull up his mask.  Messer was approximately 15
feet away when the robber drove past, and, because the robber had
pulled up his mask by that time, Messer got a good look at the
robber's face, both head on and from the side.  9/22 Tr. 188-195,
222-226, 236-238.  At trial, Messer identified petitioner as the
robber.  9/22 Tr. 198, 239.

   After making his getaway, the robber drove the taxi van into the
front yard of a house about a mile outside of Frederiksted.  Hayde
Pichardo, who was sewing in her bedroom near the window, heard the van
and looked out the open window as the van drove into her front yard.
She became upset because her young children were playing outside, and
she shouted an obscenity at the driver.  The driver stopped the van
and stuck his head out the window to see who had shouted at him.
Pichardo got a good look at the driver's face from about 21 feet away.
 9/22 Tr. 242, 246, 258-261, 270-271.  At trial, Pichardo identified
petitioner as the driver of the van.  9/22 Tr. 246.

   Amada Rosario, Pichardo's 17-year-old daughter, was sitting near
the window watching television when she heard the taxi van pull into
the front yard.  She looked out the open window of the dining room,
and she heard her mother yell at the driver.  She was on the same
level as the taxi van, and she could see directly into the driver's
side of the van, which was nearest to her.  When the driver stuck his
head out of the window, Rosario saw his face from about 24 feet away.
9/23 & 9/24 Tr. 4-5, 16-21.  At trial, Rosario also identified
petitioner as the driver of the van.  9/23 & 9/24 Tr. 16, 37.

   b. The day before the robbery, petitioner borrowed a white
Volkswagen from a friend, Philip Tutein.  9/23 & 9/24 Tr. 37-40,
63-65.  On the morning of the robbery, a police officer saw Tutein's
Volkswagen stalled in the middle of the road.  One of the occupants of
the car was a medium to heavy built dark male wearing a knitted herb
hat and a green army fatigue shirt.  9/23 & 9/24 Tr. 44, 46, 49-50.

   Between 2:15 and 2:20 p.m. on the day of the robbery, a police
officer in Frederiksted saw a white Volkswagen parked near the bank
with its front door open into the street.  The occupants of the car
were Delroy Christian and a second individual.  The officer told the
two men to close the door, and they drove away to the north.  The
officer and her partner followed the Volkswagen for about a mile
before returning to town.  Shortly thereafter, the officers received a
radio report that the bank had been robbed.  9/23 & 9/24 Tr. 52-56.

   2. Before opening statements, the government disclosed its
intention to offer the testimony of Vena Henry pursuant to Fed. R.
Evid. 404(b).  The district court conducted a hearing to determine
whether that evidence should be admitted.  J.A. 15-25.

   According to the government's proffer, Henry would testify that
petitioner and Delroy Christian had entered her house on July 21 or
22, 1987, approximately two weeks after the bank robbery;  that
petitioner was wearing a mask with only eye holes cut out and was
carrying a small handgun;  and that during a scuffle she pulled the
mask off petitioner and was able to see his face.  J.A. 15-16.

   Henry's testimony was offered to corroborate eyewitness testimony
that petitioner was the bank robber.  J.A. 15-17.  The prosecutor
outlined the government's evidence that petitioner had borrowed a
white Volkswagen shortly before the robbery, that a person matching
the robber's description was seen in the same car on the morning of
the robbery, that Christian had been in a white Volkswagen with its
door open at the time of the robbery but had driven away after
attracting the attention of the police, and that the robber had looked
up and down the street outside the bank before commandeering the taxi
van.  Henry's testimony, the prosecutor suggested, would support the
inference that petitioner was the robber and had planned to make his
getaway in the white Volkswagen with Christian's assistance.  See J.A.
17.  The prosecutor also argued that similarities between the two
robberies tended to identify petitioner as the bank robber.  J.A.
16-17.

   In connection with the incident at Henry's house, petitioner was
charged under territorial law with burglary, attempted robbery,
assault, and weapons offenses.  He was tried for and acquitted of
those offenses before his trial for the bank robbery began.  J.A. 17,
21-22.  However, the district judge, who had presided over
petitioner's earlier trial for the Henry robbery, commented that
petitioner "was not acquitted on the issue of identification." J.A.
21.  The court noted that petitioner's "presence in the house was not
seriously contested in th(at) case" (J.A. 21).

   Over petitioner's objection, the district court ruled that Henry's
testimony was admissible.  The court determined, by "clear and
convincing evidence," that the evidence fell "within the ambit of"
Rule 404(b) and that it was more probative than prejudicial.  J.A. 25.
 Describing the proffered testimony as "classic circumstantial
evidence," the district judge found that it was relevant "without any
question." J.A. 24-25.  /2/ The court further found that it could
avoid any prejudice arising from the introduction of the evidence "by
pointing out to the jury that in that later instance (the trial
involving the incident at Henry's house) Mr. Dowling was not
convicted." J.A. 25.

   Henry testified that two persons entered her house one morning in
July 1985 and that "one of them was wearing a mask over their (sic)
face" and carrying a "(b)lack silvery gun." J.A. 26-27.  She also
testified that she "raise(d) (the mask) half way and the person took
it off and dump (sic) it on the table." J.A. 27.  She identified
petitioner as the person who was wearing the mask, and she testified
that Delroy Christian was the man with petitioner that day.  J.A. 28.
No other details of the incident were elicited.  /3/

   When Henry left the stand, the district court instructed the jury
about petitioner's acquittal of the robbery charges and the limited
purpose for which Henry's testimony was being offered.  J.A. 28.  The
court repeated that admonition in its final charge to the jury.  J.A.
29.  On the latter occasion, the court told the jury that it could
consider Henry's testimony (ibid.):

      to the extent that it helps you in determining the identity of
      the person who committed the crimes at or near First
      Pennsylvania Bank on July 8, 1985.  If it does not fall into
      that category, you may disregard it.  (Petitioner) was found not
      guilty of the crime of robbery in connection with that.

   3. The court of appeals concluded that Henry's testimony should
have been excluded from evidence, but nevertheless affirmed
petitioner's conviction.  J.A. 40-49.  Citing its decision in United
States v. Keller, 624 F.2d 1154 (3d Cir. 1980), the court held that
petitioner's acquittal of the charges arising from the robbery at
Henry's home collaterally estopped the government from offering
evidence of that incident in petitioner's bank robbery trial.  J.A.
41-44.  /4/

   The court of appeals reached the same conclusion under the rules of
evidence.  J.A. 44-45.  Relying on Huddleston v. United States, 108 S.
 Ct. 1496 (1988), the court found that the robbery of Henry's home was
not admissible under Rule 404(b) because "when the prior act sought to
be introduced was the subject of an acquittal by a jury, a second jury
should not be permitted to conclude 'that the act occurred and that
the defendant was the actor.'" J.A. 44 (quoting 108 S. Ct. at 1501).
Even if Huddleston did not require the exclusion of the evidence, the
court of appeals continued, the prior acquittal had to be taken "to
signify that it was not proven that (petitioner) committed the 'bad'
act charged" and thus "the marginal relevance of the evidence was more
than amply outweighed by the potential prejudice" under Fed. R. Evid.
403.  J.A. 45.

   The court of appeals concluded, however, that the admission of
Henry's testimony was harmless error.  J.A. 45-49.  The court stated
(J.A. 45) that it "need not in this case be convinced that the error
was harmless beyond a reasonable doubt," the harmless error standard
that applies to constitutional errors, see Chapman v. California, 386
U.S. 18 (1967).  That standard was not applicable, the court held,
because in the court's view the error was merely evidentiary and not
of constitutional dimension.  Instead, the court applied the standard
of review that is applicable to non-constitutional errors, under which
an error is deemed harmless if it is "highly probable" that the error
did not affect the verdict (J.A. 46).  See Kotteakos v. United States,
328 U.S. 750, 765 (1946).  The court of appeals joined in the trial
court's characterization of the evidence against petitioner as
"overwhelming." J.A. 46.  In addition, the court pointed out that the
trial court had instructed the jury of the "limited value" of
testimony regarding the incident at Henry's house and of petitioner's
acquittal.  J.A. 48.  And, noting that evidence of a prior felony
conviction was properly introduced to impeach petitioner at the bank
robbery trial, the court found that "it is unlikely that the admission
of the Henry testimony more than marginally affected the jury's
overall character assessment of (petitioner)." J.A. 49.  The court of
appeals therefore concluded that "there is a 'high probability' that
the error in admitting the Henry testimony did not prejudice
(petitioner)." J.A. 49.  Having rejected petitioner's other claims of
error (J.A. 32-40), the court affirmed the conviction.

                          SUMMARY OF ARGUMENT

   I. A. Petitioner's prior acquittal on charges arising from the
incident at Henry's house did not bar the admission of Henry's
testimony at the trial below.  The prior acquittal represented only a
determination that petitioner had not been proved guilty of the
offenses charged beyond a reasonable doubt.  In light of
well-established collateral estoppel principles, that determination
did not foreclose the lesser finding required for the introduction of
Henry's testimony into evidence in this case.  Under the Rules of
Evidence, Henry's testimony was admissible if the jury could find, by
a preponderance of the evidence, that petitioner accompanied Christian
to her house while wearing a mask and carrying a gun.  Since there was
no inconsistency between that showing and petitioner's prior
acquittal, collateral estoppel is inapplicable to this case.

   The Court's decision in Ashe v. Swenson, 397 U.S. 436 (1970), does
not require a different conclusion.  In Ashe, the State was attempting
in a second prosecution to establish beyond a reasonable doubt a fact
that a prior jury had decided under the same standard of proof --
specifically, a defendant's participation in the same robbery of which
he had already been acquitted.  It would be a very substantial
extension of Ashe to hold that collateral estoppel or double jeopardy
principles limit the evidence that may be admitted to prove an offense
that is entirely separate from the one of which the defendant has been
acquitted.

   The Double Jeopardy Clause and its underlying values do not support
that extension of Ashe.  The guarantee against double jeopardy -- and
the values it expresses -- are implicated only when a defendant is
placed twice in "jeopardy" for "the same offence." U.S. Const. Amend.
V.  Admitting evidence of an offense of which a defendant has been
acquitted to prove his guilt of a separate offense cannot fairly be
characterized as putting the defendant in "jeopardy" twice for a
single offense.  The mere admission of evidence of acts that have been
the subject of an earlier prosecution does not expose the defendant to
a conviction or punishment for the acquitted offense, and it cannot be
described as an attempt to retry him for that offense.  Although the
admission of that evidence may increase the likelihood that the
defendant will be convicted of the new offense, the Double Jeopardy
Clause does not protect defendants from the tendency of relevant
evidence to make a guilty verdict more likely.

   Judicial economy, the principal basis for the doctrine of
collateral estoppel, provides even less reason to extend Ashe.  In the
criminal context, the public's interest in the accuracy and justness
of criminal verdicts is more important than reducing congestion in
court dockets.  The unavailability to the government of remedies
through which it can protect itself against erroneous acquittals also
weighs heavily against the extension of collateral estoppel that
petitioner advocates.

   B. The Due Process Clause also does not require the exclusion of
Henry's testimony.  A rule that the government may not introduce any
evidence of facts involved in a prior criminal prosecution, regardless
of the basis for a defendant's acquittal, finds no support in the
"goals of the criminal justice system" on which petitioner relies.
The wholesale exclusion of probative evidence that petitioner
advocates would undercut, rather than advance, the reliability of
fact-finding in criminal trials.  There is no inconsistency between a
defendant's acquittal on a criminal charge and the admission of
evidence relating to that charge to establish a separate offense.
Even if there were such an inconsistency, the objective of consistency
in jury verdicts is not a legitimate reason to exclude otherwise
relevant evidence.  There is no "tradition" that an acquittal of an
offense precludes all future use of evidence tending to prove that
offense, and petitioner has not even remotely demonstrated that
requiring the exclusion of such evidence is among those "'fundamental
conceptions of justice which lie at the base of our civil and
political institutions' * * * and which define 'the community's sense
of fair play and decency.'" United States v. Lovasco, 431 U.S. 783,
790 (1977).

   II. Even if the Constitution prohibits the admission of evidence of
facts determined by a prior acquittal, there would be two alternative
grounds for affirming the conviction.

   First, petitioner failed to carry his burden of proving the facts
on which the prior acquittal was based.  Collateral estoppel applies
only to issues that have been actually and necessarily decided in
favor of the party seeking to invoke the doctrine, and that party has
the burden of establishing a record sufficient to permit a court to
identify those issues.  Petitioner submitted nothing by way of
evidence or argument to suggest the basis for his prior acquittal.
Based on recollection, the trial judge found that petitioner's
presence at Henry's house was not contested at the earlier trial.
Because the relevance of Henry's testimony turned on petitioner's
presence in the house, and not whether he committed any crimes while
he was there, petitioner failed to satisfy his burden of showing that
the prior acquittal was based on a finding by the jury that is
inconsistent with the purpose for which the evidence was offered
below.

   Second, under the facts of this case, any error in admitting the
evidence was harmless beyond a reasonable doubt.  Both lower courts
properly characterized the case against petitioner as "overwhelming";
Henry's testimony occupied only a small role in establishing that
petitioner was the robber;  and other factors protected petitioner
from suffering any significant prejudice from the admission of the
evidence.

                               ARGUMENT

   I. EVIDENCE OF PETITIONER'S INVOLVEMENT IN A PRIOR OFFENSE WAS
ADMISSIBLE EVEN THOUGH PETITIONER WAS ACQUITTED OF THAT OFFENSE AT A
PREVIOUS TRIAL

   A. The Doctrine Of Collateral Estoppel Did Not Bar The Admission Of
Evidence Regarding Conduct As To Which Petitioner Had Been Previously
Acquitted

   1. The doctrine of collateral estoppel provides generally that
"once an issue is actually and necessarily determined by a court of
competent jurisdiction, that determination is conclusive in subsequent
suits based on a different cause of action involving a party to the
prior litigation." Montana v. United States, 440 U.S. 147, 153 (1979);
 see Restatement (Second) of Judgments Section 27 (1982). Like res
judicata, collateral estoppel "has the dual purpose of protecting
litigants from the burden of relitigating an identical issue with the
same party or his privy and of promoting judicial economy by
preventing needless litigation." Parklane Hosiery Co. v. Shore, 439
U.S. 322, 326 (1979).  Although it was first developed in civil
litigation, collateral estoppel has become "an established rule of
federal criminal law." Ashe v. Swenson, 397 U.S. at 443.  /5/

   The doctrine of collateral estoppel is subject to a number of
exceptions -- "instances in which the policies against relitigation of
an issue may be overcome." Restatement (Second) of Judgments 249
(1982).  One of those exceptions is controlling in this case:  Even
when the requirements for an estoppel are otherwise present,
relitigation is permitted when the party against whom preclusion is
sought "had a significantly heavier burden of persuasion with respect
to the issue in the initial action than in the subsequent action." Id.
Section 28(4).  To apply collateral estoppel in that situation "would
be to hold, in effect, that the losing party in the first action would
also have lost had a significantly different burden been imposed.  * *
* Since the process by which the issue was adjudicated cannot be
reconstructed on the basis of a new and different burden, preclusive
effect is properly denied." Id. at 281 comment f.  /6/

   This exception to the doctrine of collateral estoppel is most
clearly applicable to acquittals in criminal cases.  See Restatement
(Second) of Judgments Section 85 (1982).  This Court has held on
several occasions that an acquittal in a criminal case does not estop
the government from relitigating an issue when it is presented in a
subsequent civil action governed by a lower standard of proof.

   In United States v. One Assortment of 89 Firearms, 465 U.S. 354
(1984), for instance, a defendant had been acquitted of dealing in
firearms without a license.  Thereafter, the government sought the
forfeiture of weapons seized from the defendant, alleging that they
had been used in the criminal offense of which the defendant had been
acquitted.  This Court unanimously rejected the defendant's contention
that collateral estoppel precluded relitigation of the question
whether he had committed the offense.  The Court explained that an
acquittal on criminal charges "does not prove that the defendant is
innocent;  it merely proves the existence of reasonable doubt as to
his guilt." 465 U.S. at 361.  Thus, "the jury verdict in the criminal
action did not negate the possibility that a preponderance of the
evidence could show that (the defendant) was engaged in an unlicensed
firearms business" (id. at 362).  And it was "clear," the Court
concluded, "that the difference in the relative burdens of proof in
the criminal and civil actions precludes the application of the
doctrine of collateral estoppel" (ibid.).  Accord One Lot Emerald Cut
Stones v. United States, 409 U.S. 232, 235 (1972) ("The acquittal of
the criminal charges may have only represented '"an adjudication that
the proof was not sufficient to overcome all reasonable doubt of the
guilt of the accused." ' * * * As to the issues raised, it does not
constitute an adjudication on the preponderance-of-the-evidence burden
applicable in civil proceedings.");  Helvering v. Mitchell, 303 U.S.
391, 397 (1938) ("The difference in degree of the burden of proof in
criminal and civil cases precludes application of the doctrine of res
judicata.  The acquittal was 'merely . . . an adjudication that the
proof was not sufficient to overcome all reasonable doubt of the guilt
of the accused.' * * * It did not determine that Mitchell had not
willfully attempted to evade the tax.  That acquittal on a criminal
charge is not a bar to a civil action by the Government, remedial in
its nature, arising out of the same facts on which the criminal
proceeding was based has long been settled.");  Lewis v. Frick, 233
U.S. 291, 302 (1914);  Murphy v. United States, 272 U.S. 630, 632-633
(1926);  Stone v. United States, 167 U.S. 178, 188 (1897).

   The same reasoning controls this case.  Petitioner's prior
acquittal on the charge of robbing Henry was not a determination that
petitioner had not been present in Henry's house with Christian,
wearing a mask and carrying a gun.  Rather, it merely signified "the
existence of reasonable doubt as to his guilt." 89 Firearms, 465 U.S.
at 361.  /7/ The admissibility of Henry's testimony in this case was
governed by a much lower standard of proof.  Under Huddleston v.
United States, 108 S. Ct. 1496, 1501 (1988), the district court was
entitled to admit the testimony based on no more than a determination
that the "jury could reasonably find * * * by a preponderance of the
evidence" that petitioner was the masked intruder who had been at
Henry's house with Delroy Christian.  /8/ The relation between this
standard of proof and the standard applied in petitioner's prior
criminal trial was exactly the same as in the successive proceedings
in 89 Firearms.  The doctrine of collateral estoppel is equally
inapplicable in both contexts.  See J. Weinstein & M. Berger,
Weinstein's Evidence Paragraph 404(10), at 404-74, Paragraph
803(22)(01), at 803-360 n.48 (1988);  Note, Evidentiary Use of Prior
Acquitted Crimes:  The "Relative Burdens of Proof" Rationale, 64 Wash.
U.L.Q. 189 (1986).

   These principles suggest that collateral estoppel should apply
against the government in a criminal case only where the government
seeks to prove beyond a reasonable doubt a fact that was resolved in
the defendant's favor under that standard by a prior acquittal.  In
this case, for example, the government was trying to prove beyond a
reasonable doubt that petitioner was the person who robbed the bank.
If petitioner had previously been acquitted of a related charge, such
as assaulting one of the bank tellers during the course of the
robbery, and if it was clear from the record that the acquittal was
based on the jury's conclusion that petitioner was not the person who
robbed the bank, collateral estoppel would prohibit the government
from attempting to prove in a subsequent bank robbery prosecution that
petitioner was the robber.  That conclusion follows from the fact that
the government's burden with respect to the issue of the robber's
identity is the same in both cases -- proof beyond a reasonable doubt.
 But collateral estoppel should not apply where the fact that the
evidence in the second case is offered to prove is not one that the
government is required to establish beyond a reasonable doubt.
Because the government was not required in the instant case to prove
beyond a reasonable doubt that petitioner was the person who
accompanied Delroy Christian to Henry's house, the verdict of
acquittal at the first trial should not bar the admission of that
evidence on collateral estoppel grounds.

   To hold that collateral estoppel bars the introduction of evidence
of facts as to which a jury has found a reasonable doubt would in
effect establish a different standard of relevance for that evidence
than for any other evidence.  To illustrate, if a witness in the bank
had been prepared to testify that he believed petitioner was the
robber but was not sure of his identification beyond a reasonable
doubt, that testimony would clearly have been admissible.  Under the
Rules of Evidence, the "evidentiary standard (of proof) is unrelated
to the burden of proof on the substantive issues" in a criminal case.
Bourjaily v. United States, 483 U.S. 171, 175 (1987).  The Rules
recognize that "(t)he sum of an evidentiary presentation may well be
greater than its constituent parts." Id. at 180.  Henry's testimony
should be treated no differently.  It met the standard of relevance
applicable to evidence generally, and its admission was consistent
with well-established principles of collateral estoppel.

   2. This Court's decision in Ashe v. Swenson does not require a
different conclusion.  In that case, the State was seeking to prove a
fact -- the defendant's participation in a single robbery of members
of a poker game -- that was subject to the same reasonable doubt
standard in successive prosecutions.  In the first of those
prosecutions, the State tried Ashe on the charge of robbing Knight,
one of six members of the game.  Ashe was acquitted.  The State then
tried Ashe on the charge of robbing another member of the same game,
and it obtained a conviction.  This Court reversed the conviction,
holding that the doctrine of collateral estoppel embodied in the
Double Jeopardy Clause barred relitigation of the issue whether Ashe
was one of the men who had robbed the game.  The Court explained (397
U.S. at 445):

      the record is utterly devoid of any indication that the first
      jury could rationally have found that an armed robbery had not
      occurred, or that Knight had not been a victim of that robbery.
      The single rationally conceivable issue in dispute before the
      the jury was whether the petitioner had been one of the robbers.
       And the jury by its verdict found that he had not.  (Collateral
      estoppel), therefore, would make a second prosecution for the
      robbery * * * wholly impermissible.

   Ashe thus held that the State could not bring a second prosecution
for the robbery of a second victim at the poker game.  The case did
not present the question whether the State could use evidence that
Ashe had been a participant in the robbery for a different purpose --
for example, as evidence in a trial for an entirely separate offense.
Therefore, as petitioner acknowledges (Pet. Br. 26-27), Ashe did not
address the question presented by this case.  /9/

   Petitioner asks the Court to apply Ashe to foreclose the
prosecution from introducing evidence to prove, for any prupose, a
fact as to which the jyrt in an earlier criminal case entertained a
reasonable doubt.  For the Court to do so, however, would
"significantly expand() the Ashe holding." Blackburn v. Cross, 510
F.2d 1014, 1017 (5th Cir. 1975).  We submit that the considerations
underlying the decision in Ashe do not support that extension.

   As petitioner points out, a number of courts of appeals have found
support in Ashe for that extension of the doctrine of collateral
estoppel.  /10/ Those courts have attached great weight to Ashe's
general observation that collateral estoppel "means simply 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" (397 U.S. at 443).  /11/

   That shorthand characterization of the rule of collateral estoppel
cannot fairly be read to have swept away the recognized exceptions to
the doctrine.  In particular, the Court's decisions in 89 Firearms,
One Lot Emerald Cut Stones, and Helvering v. Mitchell make it clear
that issues of ultimate fact resolved by a valid and final judgment in
a criminal case can again be litigated in a subsequent civil lawsuit
governed by the preponderance of the evidence standard --
notwithstanding Ashe's reference to "any future lawsuit." /12/ Several
federal courts of appeals have refused to apply collateral estoppel to
foreclose the introduction of evidence of offenses of which a
defendant has been acquitted.  /13/ And the better reasoned cases at
the state court level have recognized that the difference in the
burdens of proof applicable to the trial of an offense and to the
introduction of evidence of acts relevant to the offense in a later
prosecution for a separate offense makes Ashe inapplicable in a case
like this one.  /14/

   In short, we believe that the constitutional rule in Ashe does not
require an expansion of the principles of collateral estoppel as they
apply to criminal cases.  Thus, Ashe applies only to cases in which
the government seeks to prove beyond a reasonable doubt a fact
resolved in the defendant's favor under that standard by a prior
acquittal.  It is only in that situation that traditional principles
of collateral estoppel would foreclose relitigation of an issue.  That
limitation on the scope of Ashe is also compelled by the
constitutional theory on which Ashe is based, because unless two
offenses are sufficiently similar as to require proof of a common fact
beyond a reasonable doubt, they cannot conceivably be characterized as
the "same offense" for purposes of the Double Jeopardy Clause.  See
Brown v. Ohio, 432 U.S. at 166-167 n.6.  There is no textual,
historical, or other basis for extending the prohibition on double
jeopardy to a second prosecution that lacks even that connection to a
prior criminal proceeding.

   3. Petitioner argues (Pet. Br. 31, 32-34) that his proposed
extension of Ashe, even if not compelled by the Double Jeopardy Clause
itself, is consistent with the values that underlie that Clause.  He
argues that to permit the introduction of evidence such as Henry's
testimony would violate the "underlying idea" of the protection
against double jeopardy, which is:

      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.

   Green v. United States, 355 U.S. 184, 187 (1957).  Similarly,
petitioner contends that admitting evidence of an offense of which a
defendant has been acquitted allows "the state to utilize an initial
trial as a 'dry run for a subsequent one'" (Pet. Br. 31 (quoting Ashe
v. Swenson, 397 U.S. at 447)), that it amounts to a "(retrial) for the
same conduct" (Pet. Br. 34), and that it places him in "jeopardy" for
the acquitted offense (Pet. Br. 36-37 & nn.37-38).

   All of these arguments suffer from the same basic flaw.  The Double
Jeopardy Clause prohibits subjecting a defendant "for the same offence
to be twice put in jeopardy of life or limb." U.S. Const. Amend. V.
Thus, the values it expressesreach only the situatin in which a
defendant can fairly be described as being threatened with "jeopardy"
for an offense on which he has earlier been tried.  They cannot
justify reworking the prohibition against successive prosecutions for
a single offense into a rule restricting the admissibility of evidence
in prosecutions for entirely separate offenses.

   The Court's cases have defined "jeopardy" in a way that makes that
concept completely inapplicable to a defendant's mere exposure to
evidence of an offense for which he is not on trial.  The risk to
which the term "jeopardy" refers "is that traditionally associated
with 'actions intended to authorize criminal punishment to vindicate
public justice.'" Breed v. Jones, 421 U.S. 519, 529 (1975) (quoting
United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-549 (1943)).
"Without risk of a determination of guilt, jeopardy does not attach."
Serfass v. United States, 420 U.S. at 391-392.  Contrary to
petitioner's suggestion, the bank robbery trial did not expose
petitioner to any "risk" of conviction or punishment for any offenses
arising from the indident at Henry's house.  Rather, he faced only the
risk that the jury would find Henry's testimony credible and rely on
it in inferring that petitioner was the masked robber at the bank.  In
that respect, Henry's testimony was no different from any other
evidence that could have been introduced to identify petitioner as the
bank robber.

   The policies underlying the Double Jeopardy Clause do not protect a
defendant from the likelihood that relevant evidence will contribute
to a conviction -- or from any "embarrassment," "expense," "ordeal,"
"anxiety," and "insecurity" (Green v. United States, 355 U.S. at 187)
that may accompany that prospect.  And, by the same token, the mere
evidentiary use of prior conduct of which a defendant has been
acquitted does not threaten the type of official oppression at which
the Double Jeopardy Clause was aimed.  The admission of such evidence
in cases like this one does not involve "repeated attempts to convict
an individual for an alleged offense" (Green v. United States, 355
U.S.  at 187), for the simple reason that at the trial in this case,
petitioner was not exposed to conviction for the Henry robbery.

   Petitioner's double jeopardy argument is based on the premise that
the introduction of Henry's testimony about petitioners's appearance
with Christian at her house, which was admitted for the sole purpose
of identifying petitioner as the person who robbed the First
Pennsylvania Bank, is indistinguishable in constitutional terms from
the inclusion of a separate count charging petitioner for a second
time with offenses arising from the incident at Henry's house.  That
premise is invalid, and with it falls petitioner's reliance on the
policies underlying the Double Jeopardy Clause.

   4. Petitioner also invokes the values underlying the doctrine of
collateral estoppel to support his argument for an extension of Ashe.
Pet. Br. 31-32, 33.  It is anomalous to suggest, however, that those
values would not justify abrogating the long-established exception to
the doctrine on which we rely.  In any event, the policies underlying
the doctrine of collateral estoppel -- the avoidance of duplicative
litigation, judicial economy, and the avoidance of inconsistent
judgments -- cannot support giving an acquittal more preclusive effect
in criminal proceedings than 89 Firearms prescribes for civil
proceedings.

   To the contrary, the differences between criminal and civil cases
weigh in favor of a cautious application of collateral estoppel in the
criminal context, not a broader application.  That point is well
illustrated by Standefer v. United States, 447 U.S. 10 (1980), in
which this Court refused to extend the doctrine of non-mutual
collateral estoppel to criminal cases, because of special
consideration applicable in the criminal context.  /15/ Because the
government in criminal cases does not enjoy the rights available to
other litigants to correct jury verdicts that are against the evidence
or based on "passion and and prejudice," the Court held that
collateral estoppel must be applied more sparingly against the
government in criminal cases than in private civil litigation.  Id. at
23.  The absence of a "full and fair opportunity to litigate," the
Court explained, "strongly militates against giving an acquittal
preclusive effect." Ibid.  /16/ A criminal case also "involves
'competing policy considerations' that outweigh the economy concerns
that undergird the estoppel doctrine." 447 U.S. at 25.  "'The public
interest in the accuracy and justice of criminal results is greater
than the concern for judicial economy professed in civil cases * * *.
To plead crowded dockets as an excuse for not trying criminal
defendants is in our view neither in the best interests of the courts,
nor the public.'" Ibid.

   All of these factors weigh against the extension of the Ashe case
that petitioner advocates here.  Moreover, they answer petitioner's
contention (Pet. Br. 23 & n.24, 37-38) that a criminal judgment is
entitled to more preclusive effect in a subsequent criminal case than
in the civil proceedings at issue in 89 Firearms.

   5. Finally, relying on what he describes as a "long established
common law principle" that evidence admitted under Fed. R. Evid.
404(b) "is not favored" (Pet. Br. 35), petitioner argues that the
constitutional doctrine of collateral estoppel should be extended so
as to "minimize the possibility that a jury will decide a defendant's
guilt on the basis of extraneous and prejudicial other crimes
evidence" (id. at 36-37).  Petitioner's analysis ignores the fact that
the Federal Rules of Evidence are congressionally mandated directions
to the courts that specify the extent to which such evidence is or is
not admissible and provide the means for dealing with any potential
prejudice.  The Rules are not general policy statements that can be
overriden when other competing policies or "common law principles"
seem more appealing.  Just as clearly, those principles cannot be used
to manipulate other doctrines, such as collateral estoppel, with the
goal of producing results different from those that the Rules of
Evidence prescribe.  /17/

   In Huddleston, this Court rejected the notion that the potential
prejudice that may accompany "other acts" evidence justifies
subjecting that evidence to a special standard of relevance.  That
argument, the Court said, is "inconsistent with the structure of the
Rules of Evidence and with the plain language of Rule 404(b)." 108 S.
Ct. at 1500.  The Court explained that a defendant's protection
against prejudice was to be found in "four other sources" recognized
by the rules:  Rule 404(b)'s requirement that the evidence be admitted
for a proper purpose;  the requirement of relevancy applicable to all
evidence;  Fed. R. Evid. 403, which permits the exclusion of evidence
whose probative value is substantially outweighed by its prejudicial
effect;  and jury instructions limiting the jury's consideration of
evidence to the purpose for which it was properly admitted.  108 S.
Ct. 1502.

   Those same evidentiary principles are sufficient to protect
defendants from any prejudice that may accompany evidence that
pertains to offenses of which the defendant has been acquitted.  And,
by contrast with petitioner's sweeping rule of absolute exclusion,
they provide far more discriminating means for courts to accommodate
the (see Fed. R. Evid. 402) with the defendant's interest in avoiding
unfair prejudice.

   This case illustrates the effectiveness of the techniques that are
available to trial judges under the Rules of Evidence.  The trial
court addressed the admissibility of Henry's testimony before trial
and specifically found both that it was relevant to the issue of the
bank robber's identity and that its probative value outweighed its
prejudicial effect.  The court admonished the prosecutor to limit
Henry's testimony to the particulars tending to show that petitioner
was the bank robber -- his presence in Henry's house with Christian
and the fact that petitioner was wearing a mask and carrying a gun.
Both when Henry testified and when the court delivered its final jury
charge, the court advised the jury of petitioner's acquittal and of
the limited purpose of the testimony.  Protective measures of that
kind are sufficient to guard against prejudice arising from evidence
encompassed by Rule 404(b), even if the evidence relates to offenses
of which the defendant has been acquitted.

                      * * * * *

   In conclusion, the doctrine of collateral estoppel, the Double
Jeopardy Clause, and the values each expresses were no obstacle to the
admission of Henry's testimony.  The verdict in petitioner's trial for
offenses arising from the incident at Henry's house determined only
that petitioner was not proved guilty beyond a reasonable doubt.  That
determination did not foreclose the showing of relevance needed to
admit Henry's testimony in this case, which was governed by a lower
standard of proof.  The government did not, as in Ashe, seek to prove
beyond a reasonable doubt a fact that had been determined in
petitioner's favor under that standard.  The admission of Henry's
testimony did not place petitioner in "jeopardy" for offenses of which
he had been acquitted or otherwise implicate the values underlying the
Double Jeopardy Clause.  The admission of the evidence was thus
governed solely by the Rules of Evidence.  The trial court
scrupulously adhered to the terms of those Rules, and it took a
variety of steps to protect petitioner from the possibility that
jurors might employ the the evidence for a purpose prohibited by Fed.
R. Evid. 404(b) or might entertain a mistaken impression as to the
disposition of those charges.  /18/ The court of appeals erred when it
held that the prior acquittal foreclosed the admission of the
evidence, and petitioner's conviction should be upheld on that ground.

   B. The Due Process Clause Does Not Bar The Admission Of Evidence Of
Of Offenses Of Which A Defendant Has Been Acquitted

   Beyond the specific guarantees enumerated in the Bill of Rights,
the Due Process Clause has very limited operation.  As the Court
observed in United States v. Lovasco, 431 U.S. 783, 790 (1977):

      Judges are not free, in defining "due process," to impose on law
      enforcement officials (their) "personal and private notions" of
      fairness and to "disregard the limits that bind judges in their
      judicial function." Rochin v. California, 342 U.S. 165, 170

(1952).  * * *

      (They) are to determine only whether the action complained of *
      * * violates those "dundamental conceptions of justice which lie
      at the base of our civil and political institutions," Mooney v.
      Holohan, 294 U.S. 103, 112 (1935), and which define "the
      community's sense of fair play and decency," Rochin v.
      California, supra, at 173.

   Petitioner argues that due process prohibits the use of any
evidence that tends to prove an offense of which a defendant has been
acquitted, regardless of the theory of defense that prevailed in the
first trial -- an inquiry that petitioner downplays as "the often
convoluted collateral estoppel analysis." Pet. Br. 23;  see id. at 14
n.18.  This contention is strikingly broad in two respects:  it would
attribute to the Due Process Clause a limitation on successive
prosecutions that is not even remotely grounded in principles of
double jeopardy, and it would forgo even the analysis that Ashe found
necessary to bar relitigation of issues in a criminal case.
Petitioner cannot establish that this type of broad immunity from
probative evidence is a "fundamental" aspect of fair criminal
proceedings or that it is mandated by the "goals of the criminal
justice system" that he invokes.  Pet. Br. 15, 18.

   1. The evidentiary immunity petitioner advocates would undercut,
rather than advance, the reliability of fact-finding in criminal
trials.  See Pet. Br. 18-19.  First, it would exclude even evidence on
which a verdict of acquittal casts no doubt whatever.  In this case,
for instance, petitioner's rule would have required the exclusion of
Henry's testimony even if a careful review of the record of his prior
trial had established that he had been acquitted on some ground other
than his not having been present with Christian in Henry's house.
There is no legitimate, let alone "fundamental," interest in the
exlusion of testimony and physical evidence whose probative value is
not even in question as a result of a prior acquittal.

   Second, even if it were limited to facts as to which a jury has
demonstrably entertained a reasonable doubt in an earlier prosecution,
petitioner's proposed rule would undercut the reliability of the
fact-finding process.  Criminal trials are conducted on the
well-founded assumption that reliable fact-finding is most likely to
occur when "(a)ll relevant evidence is admissible." Fed. R. Evid. 402.
 If evidence meets the test of relevance, and if its admission would
not violate a privilege or other legal right, doubts about reliability
are resolved by allowing the opposing party to cross-examine, to
submit countervailing evidence, and to argue against the inferences
that the other party's evidence is said to support.  Petitioner's
proposed rule, by contrast, would deny the jury any opportunity to
consider evidence that meets the test of admissibility applicable to
all other proof.  Petitioner's rule is therefore contrary to the
principal guarantee of reliable fact-finding -- permitting the jury to
hear from both sides all of the facts that may assist it in reaching a
verdict.

   Contrary to petitioner's suggestion (Pet. Br. 18-19), the admission
of evidence that resulted in an acquittal at an earlier trial is not
analogous to the use at trial of a void conviction.  When a conviction
is used at trial, whether to trigger a recidivist statute or to
impeach credibility in accordance with Fed. R. Evid. 609, it is
conclusive as to the fact of the conviction and the defendant's guilt
of the crime.  /19/ The defendant has no opportunity to prove that he
did not commit the offense.  Evidence that resulted in an earlier
acquittal, by contrast, is not conclusive on any point, but is subject
to challenge by the defendant by any appropriate means.

   Moreover, when a prior conviction is void for constitutional
reasons, such as the defendant's lack of representation by counsel at
trial, the conviction is considered factually unreliable, since it was
not the product of a constitutionally fair adjudication.  That problem
of reliability is inapplicable to evidence of the sort involved in
this case.  The jury was free to assess the truthfulness and the
significance of Henry's testimony, and petitioner was free to attempt
to show that the evidence was either false or insignificant.  Nor did
the process of obtaining that testimony involve any error that could
have irreparably undercut its reliability.  See Simmons v. United
States, 390 U.S. 377, 384 (1968) (due process bars the admission of
in-court identification only if impermissibly suggestive pretrial
identification procedures gave rise to "very substantial likelihood of
irreparable misidentification").

   Finally, reliance on a conviction that is invalid because it was
obtained when the defendant was unrepresented "erodes the principle"
that a defendant is entitled to counsel and requires him to "suffer()
anew from the deprivation of that * * * right." Burgett v. Texas, 389
U.S. 109, 115 (1967).  See Loper v. Beto, 405 U.S. 473, 481 (1972)
(plurality opinion);  United States v. Tucker, 404 U.S. 443, 449
(1972).  By contrast, in this case the government did not obtain
Henry's testimony through any violation of petitioner's constitutional
rights;  the exclusion of the evidence in this case is therefore not
required in order to avoid perpetuating the effects of a prior
constitutional violation.  /20/

   2. Petitioner's proposed rule cannot be justified by the "goal of
consistency in jury verdicts." Pet. Br. 20.  At the outset, there is
no inconsistency between petitioner's acquittal on the charge of
robbing Henry and a conviction on the charges in this case, even
though his conviction may have been based in part on the evidence that
he accompanied Christian to Henry's house wearing a mask and carrying
a gun.  The bank robbery conviction did not entail any judgment by the
jury with respect to offenses that may have occurred at Henry's house,
since the jury in this case made no collective finding as to
petitioner's guilt or innocence of robbing Henry.  Their only joint
determination -- that petitioner was guilty beyond a reasonable doubt
of offenses associated with the bank robbery -- was neither foreclosed
by, nor inconsistent with, the prior not guilty verdict.

   Even if the verdict in this case were inconsistent with
petitioner's prior acquittal, the Court's cases establish that
inconsistency in jury verdicts is a fact of life in the criminal
justice system, not a basis for creating new rights for criminal
defendants.  Standefer v. United States, supra;  United States v.
Powell, 469 U.S. 57 (1984).  In Standefer, the Court refused to vacate
a conviction on a charge of aiding and abetting an alleged offense
even though a different jury had acquitted the principal.  The Court
explained that this result was consistent with the "appearance of
justice" and continued (447 U.S. at 25):

      This case does no more than manifest the simple, if
      discomforting, reality that "different juries may reach
      different results under any criminal statute.  That is one of
      the consequences we accept under our jury system." Roth v.
      United States, 354 U.S. 476, 492, n.30 (1957).  While symmetry
      of results may be intellectually satisfying, it is not required.

   Similarly, in United States v. Powell, the court reaffirmed the
"established principle" that inconsistency in a jury's verdicts on
separate counts in an indictment does not warrant disturbing
convictions on the counts as to which the jury returned guilty
verdicts.  469 U.S. at 63.  /21/

   3. Finally, petitioner contends that the introduction of evidence
of an offense of which the defendant has been acquitted violates
"commonly accepted notions of fair play," a "tradition * * * that a
person tried and acquitted of a crime should not again be forced to
defend that accusation in a subsequent criminal proceeding," and
"fundamental notions of fairness." Pet. Br. 16-17, 24-25.  To the
extent that those concerns are of constitutional magnitude, however,
they are fully expressed in the Double Jeopardy Clause.  The Due
Process Clause is not a device for freely extending the prohibition
against double jeopardy to cases involving only the admission of the
same evidence in two successive criminal proceedings.

   Before the Court held the Double Jeopardy Clause applicable to the
States through the Fourteenth Amendment (see Benton v. Maryland, 395
U.S. 784 (1969)), due process was held to prohibit only those
successive prosecutions that subjected a defendant to "a hardship so
acute and shocking that our polity will not endure it." Palko v.
Connecticut, 302 U.S. 319, 328 (1937).  Moreover, the judgment as to
whether a second prosecution was fundamentally unfair was not decided
in terms of "any over-all formula" -- i.e., in terms of broad rules
like the one proffered by petitioner -- but rather " 'in the facts and
circumstances of each case.'" Hoag v. New Jersey, 356 U.S. 464, 468
(1958) (quoting Brock v. North Carolina, 344 U.S. 424, 427-428
(1953)).  Under these tests, due process was held to permit state
prosecutions that would have been flatly prohibited by the Double
Jeopardy Clause.  In fact, in Hoag, a case with facts
indistinguishable from those of Ashe v. Swenson, the Court expressed
"grave doubts whether collateral estoppel can be regarded as a
constitutional requirement." 356 U.S. at 471.

   Those decisions were overruled when the Court "incorporated" the
guarantee against double jeopardy in the Due Process Clause of the
Fourteenth Amendment.  However, they foreclose petitioner's contention
that notions of "fundamental fairness" provide more protection from
successive prosecutions than is guaranteed by the Double Jeopardy
Clause.  As Lovasco reflects, the standard that the Court applied in
Palko, Hoag, and Brock is still the test applicable to claims, like
petitioner's, that cannot be brought under one of the specific
guarantees in the Bill of Rights.  /22/ Petitioner cannot satisfy that
test on the facts of this case.

   Rather than reflecting an "acute and shocking" form of unfairness,
the admission of the Henry evidence in this case actually promoted the
interest in fair and evenhanded adjudication.  "(T)he central purpose
of a criminal trial is to decide the factual question of the
defendant's guilt or innocence." Delaware v. Van Arsdall, 475 U.S.
673, 681 (1986).  The public has a paramount interest in "prosecuting
those accused of crime and having them acquitted or convicted on the
basis of all the evidence which exposes the truth." Alderman v. United
States, 394 U.S. 165, 175 (1969).

   Petitioner makes no serious effort to demonstrate that a rule
excluding all evidence relevant to an offense of which a defendant has
been acquitted occupies any place in the traditions of fairness that
have grown up around a criminal trial or that such a rule could be
regarded as "fundamental" in the sense required by the Due Process
Clause.  /23/ Recognition of such a rule would undercut the
reliability of fact-finding in criminal cases by excluding relevant
evidence, it would subordinate the goal of just judgments in criminal
cases to a misplaced concern for consistency in jury verdicts, and it
would miscast the values that support a ban on successive prosecutions
for a single offense as the basis for a transactional evidentiary
immunity in successive prosecutions for different offenses.

   II. EVEN IF THE CONSTITUTION PROHIBITS THE ADMISSION OF EVIDENCE OF
AN OFFENSE OF WHICH A DEFENDANT HAS BEEN ACQUITTED, PETITIONER'S
CONVICTION SHOULD BE AFFIRMED

   If the Court concludes that Henry's testimony should have been
excluded, it could reach that conclusion on either constitutional or
nonconstitutional grounds.  If the Court rejects petitioner's
constitutional contentions but concludes that Henry's testimony should
have been excluded on nonconstitutional grounds, petitioner's
conviction would have to be affirmed, because in that event, as
petitioner concedes (Br. 10-11 n.2), the court of appeals would be
correct in applying the harmless error standard for nonconstitutional
errors and finding the error harmless.  On the other hand, if the
Court concludes that the admission of Henry's testimony violated the
Constitution, a more stringent harmless error standard would be
applicable -- requiring that the error be shown to be harmless beyond
a reasonable doubt.  See Chapman v. California, supra.  Because the
court of appeals' harmless error ruling was based on the less
restrictive harmless error standard, the court of appeals' analysis of
the harmless harmless error issue would not be dispositive.  The Court
would then have to consider two further questions on which the
validity of petitioner's conviction would turn.  The resolution of
either question in the government's favor would require affirmance of
the judgment below.

   A. Petitioner Failed To Carry His Burden of Establishing A Right to
Invoke Collateral Estoppel

   The courts of appeals are in agreement that the defendant bears the
burden of establishing that collateral estoppel bars the admission of
particular evidence.  E.g., United States v. Citron, 853 F.2d 1055,
1058 (2d Cir. 1988);  United States v. Ragins, 840 F.2d 1184, 1194
(4th Cir. 1988);  United States v. Mock, 640 F.2d 629, 631 n.5 (5th
Cir. 1981);  United States v. Gentile, 816 F.2d 1157, 1162 (7th Cir.
1987);  United States v. Baugus, 761 F.2d 506, 508 (8th Cir. 1985);
United States v. Lasky, 600 F.2d 765, 769 (9th Cir.), cert. denied,
444 U.S. 979 (1979);  United States v. Hewitt, 663 F.2d 1381, 1387
(11th Cir. 1981).  Moreover, as the Ninth Circuit explained in Lasky,
600 F.2d at 769, it is not enought for the party seeking to invoke
collateral estoppel simply to advert to the decision of the earlier
court;  rather the party must provide a sufficient basis for the trial
court "to pinpoint the exact issues previously litigated." /24/

   Petitioner thus had the burden in this case of making a record from
which the courts below could determine the basis for petitioner's
prior acquittal.  In particular, petitioner bore the burden of
persuading the court that a rational jury could not have "'grounded
its verdict upon an issue other than that which the defendant seeks to
foreclose from consideration." Ashe v. Swenson, 397 U.S. at 444.

   In this case, petitioner offered nothing to the court, by way of
evidence or argument, to suggest what issues the jury must have
resolved at the prior trial.  The only basis for determining what the
prior acquittal resolved was the recollection of the trial judge who
heard both cases.  His interpretation of the prior verdict would not
have foreclosed Henry's testimony, even if Ashe v. Swenson were
extended to this type of case.  He stated that in his view,
"(petitioner) was not acquitted on the issue of identification" (J.A.
21), and added (ibid.):

      Mr. Dowling's presence in the house was not seriously contested
      in the case but he stated the general defense.  Mr. Dowling, I
      don't think, took the stand.

   On that state of the record, petitioner has failed to satisfy his
burden of establishing a right to invoke collateral estoppel to
exclude Henry's testimony.  If petitioner's presence in the Henry
house with Delroy Christian was not in dispute, as the district court
found, the most plausible explanation for the verdict is that the jury
concluded that petitioner's conduct at Henry's house did not satisfy
the legal definitions of burglary, robbery, and assault.  If that were
accepted as the basis for the jury's verdict, Henry's testimony would
not be excludable, since the relevance of that testimony did not turn
on whether petitioner committed any crimes on that occasion;  instead,
the evidence was relevant principally because it showed petitioner's
association with Christian and his possession of a mask similar to the
one used in the bank robbery.  Thus, the record in this case will not
sustain the finding necessary for the application of collateral
estoppel -- i.e., that the jury actually and necessarily determined
the issue material to this case in petitioner's favor.  Therefore,
even if the Court rejects our principle submission in this case, the
judgment of the court of appeals affirming petitioner's conviction
should be upheld on this basis.  /25/

   B. The Admission Of Henry's Testimony Was Harmless Beyond A
Reasonable Doubt

   If the Court concludes that the district court's admission of
Henry's testimony rose to the level of constitutional error, and that
petitioner met his burden of establishing the right to invoke
collateral estoppel, there would remain the question whether that
error was harmless beyond a reasonable doubt.  Although the Court
could of course remand the case to allow the court of appeals to
consider that question, we believe that it is clear that any error in
admitting Henry's testimony was harmless beyond a reasonable doubt,
and in light of the protracted nature of the proceedings in this case,
we submit that the Court may wish to address the harmless error issue
itself.  See United States v. Lane, 474 U.S. 438, 450 (1986).

   1. Both the district court and the court of appeals agreed that the
evidence of petitioner's guilt was "overwhelming" (J.A. 46;  9/25 Tr.
16).  That was a fair characterization of the three eyewitness
identifications and strong circumstantial case that the government
presented.

   Messer saw the bank robber leave the bank and remove his mask while
driving away in the taxi van.  Messer had "a clear recollection in
(his) own mind of what the face of the man looked like" (9/22 Tr.
198).  Messer also "knew I was trying to identify somebody, looking
for a feature or a face or something like that, because I know I would
have to say something to the police officials or give a description or
something like that" (9/22 Tr. 194).  He also testified that it was a
clear afternoon and that there was "no obstruction" of his view of the
bank robber as he removed his mask (9/22 Tr. 194-195).

   Pichardo's in-court identification was also strong.  She testified,
"I could be dead and born again, and I will never forget that face.
It's that gentleman sitting over there.  I would never forget those
eyes.  I would never forget those looks" (9/22 Tr. 246).  And Rosario
also made an unequivocal in-court identification of petitioner as the
person driving the taxi van (9/23 & 9/24 Tr. 16, 37).  Thus,
petitioner was identified at trial as the bank robber by three
witnesses.  /26/

   The eyewitness identification testimony was buttressed by
circumstantial proof that petitioner planned to use the white
Volkswagen as the getaway car.  Even without Henry's testimony, the
government proved that petitioner had borrowed the white Volkswagen,
that on the morning of the robbery it was occupied by a man matching
the bank robber's description, that it was present in the vicinity of
the bank near the time of the bank robbery, but that the occupants of
the Volkswagen drove off when they attracted the attention of the
police, and that the robber's movements suggested that he was looking
for, but could not find, a planned getaway car.

   2. The court of appeals also correctly determined that in the
context of this trial there was little likelihood that the jury could
have put the Henry evidence to any inappropriate use.  When petitioner
took the stand, he was impeached with evidence of a prior bank robbery
conviction.  J.A. 49.  The possibility is remote, in view of the
district court's repeated instructions as to the limited purpose of
Henry's testimony and the fact of the acquittal, that Henry's
testimony led any juror to alter his or her view about petitioner's
propensity to commit crimes or to reach a verdict on that basis.
Accordingly, even if it was constitutional error to admit Henry's
testimony, any such error was harmless beyond a reasonable doubt.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   STEPHEN L. NIGHTINGALE

      Assistant to the Solicitor General

   JOSEPH C. WYDERKO

      Attorney

   JUNE 1989

   /1/ This case arises from petitioner's third trial on the present
charges.  At the first trial, the jury failed to reach a verdict.  At
the second trial, petitioner was convicted, but the court of appeals
reversed on the ground that petitioner may have been prejudiced by the
jury's exposure to newspaper accounts of the fact that petitioner had
been charged with commiting another robbery and a murder while on bail
awaiting his bank robbery trial.  Government of the Virgin Islands v.
Dowling, 814 F.2d 134, 141 (1987).

   /2/ The district court explained (J.A. 24):

      The discussion that we have just heard, while it deals with 404B
      also deals with a classic situation of circumstantial evidence
      insofar as it is sought to demonstrate through the Tutein
      vehicle being lent to Mr. Dowling, the presence of Mr. Delroy
      Christian in the Tutein vehicle and then earlier or later,
      rather, a relationship between Mr. Delroy Christian and Mr.
      Dowling.  This is classic circumstantial evidence from which
      inferences are sought to be drawn.

   /3/ Petitioner's attorney did not cross-examine Henry.  Petitioner
took the stand and denied being involved with Christian in the
incident at Henry's house.  Pet. Br. App. 2a-4a.

   /4/ The court rejected the government's contention that
petitioner's acquittal on charges arising from the Henry robbery did
not establish that he had not accompanied Christian to Henry's house,
wearing a mask and carrying a gun.  J.A. 42-43.  Noting that no
extrinsic evidence of the record of the prior trial had been
submitted, the court of appeals found the trial court's observations
that petitioner "was not acquitted on the issue of identification" and
that his "presence in the house was not seriously contested" were "an
insufficient basis on which to conclude that the issue of Dowling's
participation in the robbery was not determined" (J.A. 43).  "Even
assuming that (petitioner's) identity and presence in Henry's house
were not specifically disputed," the court continued, the government
could not assert "that evidence concerning one element of an offense
is separable for evidentiary purposes from a jury's general verdict of
acquittal merely because it was not directly contradicted." J.A. 44.

   /5/ See Sealfon v. United States, 332 U.S. 575, 578 (1948);  United
States v. Oppenheimer, 242 U.S. 85, 87 (1916);  United States v.
Adams, 281 U.S. 202, 205 (1930).

   /6/ This exception could also be justified by the principle that
collateral estoppel applies only to facts that were "actually and
necessarily determined." Montana v. United States, 440 U.S. at 153.  A
jury that has resolved an issue against a party that faces a lower
standard of proof in a second proceeding cannot be said to have
"actually and necessarily" resolved the issue under that lesser
standard.

   /7/ Petitioner argues that it is "not unreasonable to interpret an
acquittal as reflecting a finding of innocence by the jury." Pet. Br.
42.  Even if that contention were not foreclosed by this Court's
cases, it would have little to recommend it.  The only point on which
jurors must agree to return a verdict of not guilty -- and the only
finding such a verdict "necessarily" reflects -- is that the
government failed to prove its case beyond a reasonable doubt.  Even
if one or more members of a jury entertained a belief that the
government's proof failed to meet some lesser standard, that belief
would not be recorded in the collective jury verdict.  It is also fair
to assume that in practice juries rarely reach a collective
determination that a defendant is entirely innocent of an offense.
Jury instructions routinely admonish jurors to adhere to the
reasonable doubt standard, and defense counsel vigorously reinforce
that message in their closing arguments.  Jurors striving toward
unanimity in favor of an acquittal undoubtedly focus their attention
on the issue of reasonable doubt.

   /8/ Because the trial in this case preceded the Court's decision in
Huddleston, the trial court actually determined the admissibility of
the evidence by the more exacting "clear and convincing evidence"
standard that some courts had applied to "other acts" evidence offered
under Rule 404(b).  J.A. 25.  See 108 S. Ct. at 1499 n.2.

necessarily relied on the premise that the robbery of the second poker
player was in a sense the "same offense" as the robbery of the first.
Indeed, this Court subsequently explained that because of the close
relationship between the two crimes, the Court considered them to be
the "same offense" for purposes of the constitutional protection
against double jeopardy, even though each required proof of a fact
that the other did not -- i.e., that a different individual had been
robbed.  See Brown v. Ohio, 432 U.S. 161, 166-167 n.6 (1977).
Obviously, the offenses involved in the present case and in the prior
robbery of Henry cannot be considered to be the "same offense" under
any standard.

   /10/ Before Ashe, an overwhelming majority of the courts to
consider the issue held that an acquittal did not prohibit the use of
evidence of an offense in a subsequent prosecution for a separate
offense.  See Annotation, Admissibility of Evidence As to Other
Offense As (1962);  Note, Expanding Double Jeopardy:  Collateral
Estoppel and the Evidentiary Use of Prior Crimes of Which the
Defendant Has Been Acquitted, 2 Fla. St. U.L. Rev. 511, 522 (1974).

   /11/ United States v. Gonzalez-Sanchez, 825 F.2d 572, 583-584 (1st
Cir.), cert. denied, 108 S. Ct. 510 (1987);  United States v.
Mespoulede, 597 F.2d 329, 332 (2d Cir. 1979);  Wingate v. Wainwright,
464 F.2d 209, 212 (5th Cir. 1972);  United States v. Mock, 604 F.2d
341, 343 (5th Cir. 1979);  De La Rosa v. Lynaugh, 817 F.2d 259, 263
(5th Cir. 1987);  United States v. Whitaker, 702 F.2d 901, 903 (11th
Cir. 1983);  Albert v. Montgomery, 732 F.2d 865, 869 (11th Cir. 1984);
 United States v. Gornto, 792 F.2d 1028, 1031 (11th Cir. 1986);
United States v. Day, 591 F.2d 861, 868 (D.C. Cir. 1978).

   The Third Circuit, as its decision in this case reflects (J.A.
45-46), apparently does not understand the application of collateral
estoppel to this type of case to involve the constitutional principles
recognized in Ashe.  See United States v. Keller, 624 F.2d at
1157-1160.

   The Sixth Circuit has not made clear what it regards as the source
of its rule foreclosing the use of evidence in the second of two
criminal trials.  Compare United States v. Johnson, 697 F.2d 735,
739-741 (1983), with Rice v. Marshall, 816 F.2d 1126, 1130 (1987).

   /12/ Petitioner's reliance (Pet. Br. 38) on Ashe's quotation from
United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961), is also
misplaced.  The principal authority for the statement quoted from
Kramer was the Court's decision in Coffey v. United States, 116 U.S.
436, 442-443 (1886), a decision that the Court overruled in 89
Firearms.  465 U.S. at 361.  In light of that development, Kramer is
no longer good law to the extent that it suggested that a difference
between the standards of proof in successive proceedings is immaterial
to the application of collateral estoppel.  Ashe's reliance on Kramer
must be viewed as similarly qualified.

   /13/ United States v. Kills Plenty, 466 F.2d 240 (8th Cir. 1972),
cert. denied, 410 U.S. 916 (1973);  United States v. Riley, 684 F.2d
542, 546 (8th Cir. 1982), cert. denied, 459 U.S. 1111 (1983);  Flittie
v. Solem, 775 F.2d 933, 942 (8th Cir. 1985), cert. denied, 475 U.S.
1025 (1986);  United States v. Castro-Castro, 464 F.2d 336 (9th Cir.
1972), cert. denied, 410 U.S. 916 (1973);  United States v. Rocha, 553
F.2d 615, 616 (9th Cir. 1977);  United States v. Van Cleave, 599 F.2d
954, 957 (10th Cir. 1979);  Holt v. United States, 404 F.2d 914 (10th
Cir. 1968), cert. denied, 393 U.S. 1086 (1969).

   /14/ See State v. Smith, 271 Or. 294, 296, 532P.2d 9, 10 (1975);
State v. Fielders, 124 N.H. 310, 313-314, 470 A.2d 897, 898-900
(1983).

   Although decisions of the federal courts of appeals have largely
deprived state courts of their freedom of choice on this issue, a
clear majority of the state courts that have spoken to the question
before or after Ashe have the permitted use of evidence of conduct
relevant to an offense of which a defendant has been acquitted.  See
Annotation, Admissibility of Evidence As to Other Offense As Affected
by Defendant's Acquittal of That Offense, 25 A.L.R. 4th 934 (1983).

   /15/ In Standefer, a defendant charged with aiding and abetting a
criminal offense argued that the alleged principal's acquittal
estopped the government from relitigating, in the aider and abettor's
trial, the question whether the principal had committed that offense.
In one respect, the argument for the application of collateral
estoppel was substantially stronger in Standefer than it is here;  in
Standefer the government was attempting in the second trial to prove
beyond a reasonable doubt a fact -- the principal's participation in
the offense -- as to which the prior jury had necessarily found a
reasonable doubt.  The court nevertheless refused to preclude the
government from relitigating the principal's actions in the alleged
aider and abettor's trial.

   /16/ See Montana v. United States, 440 U.S. at 164 n.11
("Redetermination of issues is warranted if there is reason to doubt
the quality, extensiveness, or fairness of procedures followed in
prior litigation.");  Restatement (Second) of Judgments Section 28(1)
(1982) (collateral estoppel does not apply where "(t)he party against
whom preclusion is sought could not, as a matter of law, have obtained
review of the judgment in the initial action").

   /17/ Any attempt to draw a sharp line between the category of
evidence encompassed by Rule 404(b) and other relevant evidence is
inherently artificial.  In this case, for instance, Henry's testimony
was introduced not only to prove that petitioner had engaged in a
"similar act" after the bank robbery, but also as "classic
circumstantial evidence" (J.A. 24) linking him with Christian.
Assuming that a special rule of collateral estoppel were justified for
"other acts" evidence, it is uncertain whether it would be applicable
to this case.

   Moreover, although collateral estoppel is often invoked in response
to an attempt to introduce evidence of similar acts under Fed. R.
Evid. 404(b), disputes over its applicability are not limited to that
context.  Courts have sometimes held that collateral estoppel is
applicable when a defendant is acquitted on certain counts in an
indictment, and a second trial is necessary on others because of a
severance, a mistrial, or a conviction followed by a reversal on
appeal that permits retrial.  See, e.g., United States v. Corley, 824
F.2d 931 (11th Cir. 1987);  United States v. Mespoulede, 597 F.2d at
336-337.  But see, e.g., United States v. Smith, 337 A.2d 499, 501-503
(D.C. 1975).  Our view is that collateral estoppel should play no role
in such cases.  See Ohio v. Johnson, 467 U.S. 493, 500 n.9 (1984).

   /18/ To be sure, the court of appeals held, in the alternative,
that Henry's testimony was inadmissible under the Rules of Evidence,
either because it was not relevant or because its prejudicial effect
outweighed its probative value.  J.A. 44-45.  However, the court's
reasoning makes it clear that those determinations embodied the same
error concerning the effect of the prior judgment as the court's
ruling on collateral estoppel.  The court's finding on relevance was
based on its view that, after petitioner's acquittal, "a second jury
should not be permitted" to conclude that petitioner was the intruder
at Henry's house.  J.A. 44.  Likewise, the court of appeals' balance
of probative value and prejudice reflected its view that "the jury's
verdict in the Henry occurrence must be taken to signify that it was
not proven that (petitioner) committed the 'bad' act charged." J.A.
45.  Because the court's purported evidentiary rulings depended on the
same mistaken assessment of the effect of petitioner's acquittal as
the court's ruling on collateral estoppel, those rulings cannot stand
as an alternative basis for excluding the evidence.

   /19/ See Rule 609 Advisory Committee note, 28 U.S.C. App. at 703
("As a means of impeachment, evidence of conviction of crime is
significant only because it stands as proof of the commission of the
underlying criminal act.").

   /20/ Contrary to petitioner's claim (Br. 19-20), the admission of
Henry's testimony had no effect whatever on the government's burden of
proving petitioner guilty of the bank robbery beyond a reasonable
doubt, and thus no tendency to increase the likelihood of an erroneous
conviction for that offense.  See generally In re Winship, 397 U.S.
358 (1970);  Mullaney v. Wilbur, 421 U.S. 684 (1975).

   /21/ The Court explained that inconsistent verdicts "should not
necessarily be interpreted as a windfall to the Government at the
defendant's expense," that "the Government has no recourse if it
wishes to correct the jury's error," that jury verdicts may reflect
the exercise of lenity, and that criminal defendants are afforded
protection "against jury irrationality or error" by the courts' review
of the sufficiency of the evidence of guilt.  469 U.S. at 64-67.  In
light of those factors, the Court held, the "best course to take is
simply to insulate jury verdicts from review on this ground." Id. at
68-69.

   /22/ In Showery v. Samaniego, 814 F.2d 200, 204 (1987), the Fifth
Circuit "decline(d) to find the collateral estoppel doctrine
cognizable as a constitutional claim apart from those claims that are
recognized under the double jeopardy clause." In Showery, the State
had failed to carry its burden at a bond revocation hearing of showing
by a preponderance of the evidence that a defendant had committed an
offense while free on an appellate bond.  The defendant argued that
under the doctrine of collateral estoppel that determination should
bar the State from prosecuting him for that offense.  The court
rejected that contention.  But cf. United States ex rel. DiGiangiemo
v. Regan, 528 F.2d 1262, 1265-1266 (2d Cir. 1975) (due process
requires State to give collateral estoppel effect to determination
that evidence was obtained through a violation of the Fourth
Amendment), cert. denied, 426 U.S. 950 (1976).

   /23/ In fact, before Ashe, the proposition that an acquittal did
not bar introduction of evidence of an offense was "upheld by the
great weight of authority throughout the country." State v. Yormark,
117 N.J. Super. 313, 337, 284 A.2d 549, 560 (1971) (citing many
cases).  See Annotation, 86 A.L.R.2d 1132.

   /24/ Petitioner acknowledges (Br. 41) that it is normally the
defendant's burden to prove affirmative defenses based on collateral
estoppel and double jeopardy.  Nevertheless, relying on a reference in
the Advisory Committee note to Fed. R. Evid. 401, he contends (Br.
41-42) that the drafters of the Rules of Evidence intended to reverse
that burden when those defenses are raised in an effort to have
evidence excluded.  The statement on which he relies is the
Committee's observation that relevancy "is not an inherent
characteristic of any item of evidence but exists only as a relation
between an item of evidence and a matter properly provable in the
case." Advisory Committee note to Rule 401, 28 U.S.C. App. at 688.
That comment does not even remotely support petitioner's argument on
the burden of proof issue.  The reference to matters that are
"properly provable" is plainly a shorthand description of what the
Rule refers to as "any fact that is of consequence to the action."
Fed. R. Evid. 401.  The drafters could not have intended the
unelaborated reference to "properly provable" matters to impose on the
party offering evidence the burden to anticipate and rebut affirmative
defenses, when the law had long placed that burden on the party
opposing the admission of the evidence.

   /25/ As the party defending the lower court's judgment, the United
States "may rely on any matter appearing in the record in support of"
that judgment.  Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982).  See R.
Stern, E. Gressman & S. Shapiro, Supreme Court Practice 382 (6th ed.
1986).

   /26/ Contrary to petitioner's suggestion (Pet. Br. 6-7), the force
of this identification testimony was not significantly undercut by the
fact that the witnesses did not identify petitioner in some of the
pretrial identification procedures.  Each of the witnesses selected
petitioner's picture from one or more pretrial photo arrays.  9/22 Tr.
 205-206, 210-213 (Messer);  9/22 Tr. 247-248, 256 (Pichardo);  9/22 &
9/23 Tr. 9-13, 15 (Rosario).  Moreover, the witnesses provided
entirely plausible explanations for their failure to identify
petitioner during other pretrial identification procedures.  Despite
extensive cross-examination, their explanations were not seriously
undercut.

   First, none of the witnesses chose petitioner at a lineup.
However, the results of that lineup were suspect, since the witnesses
viewed the lineup through an office window that, at least one feared,
could have permitted the members of the lineup to see them.  9/22 Tr.
212.  All three witnesses testified to being scared in that setting.
9/22 Tr. 212 (Messer -- "scared like the dickens");  9/22 Tr. 254-256
(Pichardo -- "put down my face * * * (and) covered my eyes");  9/23 &
9/24 Tr. 14-15 (Rosario).  All three witnesses later selected
petitioner's photograph from an array made up of the participants in
the lineup.  9/22 Tr. 212, 256;  9/23 & 9/24 Tr. 15, 134-136.

   Second, Pichardo and Rosario did not immediately advise the police
that they recognized petitioner's picture in one of the photo arrays
each of them was shown.  9/22 Tr. 252-253;  9/23 & 9/24 Tr. 12.
However, both testified that they had recognized petitioner's picture
in the array, but did not make an identification because they did not
want to become involved.  9/22 Tr. 254;  9/23 & 9/24 Tr. 12-13.
Pichardo subsequently went to see a police officer she knew and told
him she had actually recognized a picture in the array she had been
shown.  9/22 Tr. 252-253.

   The totality of this identification testimony warranted the
description both lower courts gave it -- "overwhelming."