In the
United States Court of Appeals
For the Seventh Circuit

No. 95-1080

CHRIS JACOBS III,

Petitioner-Appellant,

v.
MARATHON COUNTY, WISCONSIN,
CIRCUIT COURT,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 94-C-663-S--John C. Shabaz, Judge.

ARGUED SEPTEMBER 27, 1995--DECIDED JANUARY 5, 1996


   Before H. WOOD, ROVNER, and EVANS, Circuit Judges.

   EVANS, Circuit Judge. A gruesome tragedy was dis-
covered in the early morning hours of July 5, 1987, in
the town of Bern in rural Marathon County, Wisconsin.
Sheriff's deputies, responding to a report of an "accident
with injuries," arrived at the Kunz family residence and
discovered the bodies of Randy, Marie, Irene, and Clarence
Kunz. All had been shot to death. The deputies were told
that the only other relative who lived in the house, Helen
Kunz, was missing. The remains of what turned out to
be the body of Helen Kunz were discovered nine months
later in Taylor County, approximately 18 miles from the
Kunz residence.

   Even before the discovery of Helen Kunz's body, police
attention focused on Chris Jacobs III as the perpetrator,
or one of the perpetrators, of the crimes. Six months after
the discovery of the four bodies at the home, and three
months before Helen's remains were uncovered, Jacobs
was arrested and detained over the weekend in connec-
tion with the homicides. He was released uncharged.

   Eventually, based on tire track marks, shell casings, and
other physical evidence, police arrested Jacobs again in
August of 1988, and charged him with five counts of first
degree murder--party to the crime. He was tried before
a jury in October of 1989 and acquitted on all five counts.

   Almost four years after the trial, armed with additional
evidence, the State charged Jacobs again, this time with
the kidnapping and false imprisonment of Helen Kunz.
Jacobs moved to dismiss the charges, claiming that the
Fifth Amendment's prohibition against double jeopardy
barred the State from charging him with the abduction
that ultimately led to the death of Helen Kunz. The
motion to dismiss was denied by the Marathon County
Circuit Court, and that decision was upheld by the Wis-
consin Court of Appeals. The Wisconsin Supreme Court
declined to review the case, and Jacobs then moved to
the federal court by filing a petition for a writ of habeas
corpus in the United States District Court for the West-
ern District of Wisconsin. The district court denied the
petition and Jacobs appeals. We affirm.

   The Double Jeopardy Clause of the Fifth Amendment
provides that no one will "be subject for the same offence
to be twice put in jeopardy of life or limb . . . ." The
clause affords protection against three classes of abuse.
"It protects against a second prosecution for the same
offense after acquittal. It protects against a second pros-
ecution for the same offense after conviction. And it pro-
tects against multiple punishments for the same offense."
Schiro v. Farley, 114 S. Ct. 783, 789 (1994) (quoting North
Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Mr. Jacobs'
habeas petition invokes the first of these protections.

   To better understand how the issue in this case is to
be resolved, we turn first to the 1989 trial that ended
in Jacobs' acquittal. In that case the jury had two options;
to find Jacobs either guilty or not guilty of murder in the
first degree as to each victim. The trial judge instructed
the jury on the law as follows:

   Before the defendant may be found guilty of
murder in the first degree, the State must prove by
evidence which satisfies you beyond a reasonable
doubt that there were present the following two ele-
ments of this offense.

   First, that the defendant or another that he aided
and abetted intended to kill Randy, Irene, Marie,
Clarence and/or Helen Kunz. Second, that the defen-
dant or another that he aided and abetted caused the
death of Randy, Irene, Marie, Clarence, and/or Helen
Kunz.

   After ten hours of deliberations, the jury submitted the
following written question to the court:

Would like "intent to kill" made clear. Can we sepa-
rate "intent to muder [sic]." That is can we separate
Chris Jacobs' intentions from possible accomplice's or
accomplices' intention.

   The note was accompanied by one of the pages of the
judge's written instructions to the jury. The following
paragraph was circled:

If a person intentionally aids and abets the commis-
sion of a crime, then that person is guilty of the
crime as well as the person who directly commits it.

   The court responded to the jury's question by writing:

Yes. You must look at the intention of the defendant.
The person who directly commits a crime must have
an intention to commit that crime. One who aids and
abets must be found to have an intent to assist
another in the commission of that crime before he
can be found guilty.

   A little over an hour after the judge answered the ques-
tion, the jury returned a verdict of not guilty on all five
counts.

   Jacobs' first argument in support of his habeas petition
is that the present charges against him are either analogous
to or "species of" lesser included offenses of the first
degree murder charge of which he was acquitted in 1989.
Two lines of reasoning are offered in support of this argu-
ment. One is that the current charges were readily avail-
able to the State in the murder prosecution because felony
murder was an available lesser included offense of the
first degree murder charge. Kidnapping and false imprison-
ment were likewise available lesser-included offenses of
felony murder. Because the State could have included the
present charges in the prior trial, Jacobs argues, it is
barred by the Double Jeopardy Clause from bringing them
now. The other line of reasoning pursued in support of
this argument is that, while Jacobs was never charged
with felony murder, the trial was litigated as a "robbery
gone fatally wrong." Jacobs contends that the current
charges are "analogous to" lesser included offenses of the
uncharged felony murder case presented at his 1989 trial.

   The fatal flaw in this argument is that, for purposes
of double jeopardy analysis, we look to the charges ac-
tually brought against the defendant, not to all possible
charges available to the prosecution. To do otherwise would
be to follow the "same-conduct" test announced in Grady
v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d
548 (1990), a case expressly overruled in United States
v. Dixon, 113 S. Ct. 2849 (1993). The appropriate test for
determining whether new charges are barred by the Double
Jeopardy Clause was originally set out in Blockburger v.
United States, 284 U.S. 299 (1932), 52 S. Ct. 180, 76 L.
Ed. 306. "The test to be applied to determine whether
there are two offenses or only one is whether each pro-
vision (i.e. charge) requires proof of a fact which the other
does not." Blockburger at 304. New charges will pass the
Blockburger test as long as each charge requires proof
of an element not required by the other. Evaluating the
charges against Jacobs in the two prosecutions, we see
that each charge requires proof of additional elements as
demanded by the Blockburger test. First degree murder
requires proof of both a killing and an intent to kill, ele-
ments which are not required to prove the charges of kid-
napping or false imprisonment. Kidnapping and false im-
prisonment both include elements that are not required
to be proven in order to secure a conviction for first
degree murder. The Blockburger test is satisfied.

   Jacobs attempts to support his argument with citations
to Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L.
Ed. 187 (1977), Harris v. Oklahoma, 433 U.S. 682, 97 S.
Ct. 2912, 53 L. Ed. 1054 (1977), and Illinois v. Vitale, 447
U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 228 (1980). These
cases do not address the central flaw in Jacobs' argument,
however. All involve offenses for which the defendants
had actually been charged. None of them hold, as Jacobs
argues, that subsequent charges may be barred due to
charges that could have been, but were not brought in
an earlier prosecution.

   Jacobs' second argument in support of his petition hinges
on the principle of collateral estoppel. While the concept
of collateral estoppel is perhaps more familiar in the con-
text of civil procedure, the Supreme Court has explicitly
recognized that collateral estoppel protection is inherent
in the protection afforded by the Double Jeopardy Clause.
See Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25
L. Ed. 469 (1970). Ashe tells us that "when an issue of
ultimate fact has been determined by a final and valid
judgment, that issue cannot again be litigated between
the same parties in any future lawsuit." The facts of the
Ashe case illustrate the application of collateral estoppel
to double jeopardy analysis. In Ashe, three or four men
robbed a poker game involving six players, and Ashe was
tried for the robbery of one of them. There was no ques-
tion that a robbery had taken place; the only question
was whether Ashe participated in it. Ashe was acquitted
by the jury. He was then tried for the robbery of another
one of the poker players. The second time he was con-
victed. Ashe challenged the conviction on double jeopar-
dy grounds, and the Supreme Court found that the issue
of whether Ashe was present at the scene of the robbery
had necessarily been decided against the State in the first
prosecution. The only way that a reasonable jury could
have acquitted Ashe in the first trial was by finding a
reasonable doubt about whether he was present at the
scene of the robbery. Because proof of Ashe's presence
at the scene was necessary to convict him in the second
proceeding, the State was precluded under the doctrine
of collateral estoppel from bringing the second charge.

   In determining whether additional litigation of an issue
is precluded, the burden is "on the defendant to demon-
strate that the issue whose litigation he seeks to foreclose
was actually decided in the first proceeding." Dowling v.
United States, 493 U.S. 342, 350, 110 S. Ct. 668, 107 L.
Ed. 2d 708 (1990). It is important to note that "issue pre-
clusion attaches only to determinations that were neces-
sary to support the judgment entered in the first action."
Schiro v. Farley, 114 S. Ct. 783, 127 L. Ed. 2d 47 (1994)
(quoting Wright, Miller & Cooper). Mr. Jacobs must dem-
onstrate first that the question of whether he participated
in a kidnapping and false imprisonment of Helen Kunz
was litigated in the 1989 murder trial, and then that the
question was necessarily resolved against the State.

   Jacobs' collateral estoppel argument is flawed because it
focuses on what the jury might have decided in acquitting
him of first degree murder, rather than what the jury
must have decided in order to reach its decision. Col-
lateral estoppel applies only where an issue was neces-
sarily decided in a previous proceeding, and it is simply
not the case that the question of whether Chris Jacobs
participated in the events of July 4, 1987, was necessari-
ly decided against the State in the 1989 trial. The jury
could rationally have based its decision on the question
of proof of an intent to kill rather than on the question
of Jacobs' participation in the events. That the intent-to-
kill element was critical to the jury's consideration of the
case is obvious by the question, quoted earlier, that the
jury sent to the judge near the end of its deliberations.

   Jacobs argues that it was not any hang-up over "intent"
that turned the trial his way, but rather that the jury
concluded that he had nothing to do with the crimes in
the first place. He says the jury concluded that he did
not commit any crimes--first degree murder, felony murder,
kidnapping, false imprisonment, or what-have-you, because
it determined that he was not in or about the Kunz resi-
dence when the offenses were committed. To buttress this
claim, Jacobs offers identical affidavits signed by five
jurors which read:

As a juror in the case of State v. Chris Jacobs, III,
88-CR-767, it was my verdict and the verdict of the
jury that the defendant was not guilty of 5 counts
of First Degree Murder as a Party to the Crime, in-
cluding the murder of Helen Kunz. In arriving at that
verdict I concluded that the State had not established
its theory that the Defendant had been present at
the Kunz residence at the time in question and had
not established its theory that the Defendant had ab-
ducted or participated in the abduction of Helen
Kunz.

   Rule 606(b) of the Federal Rules of Evidence (sec. 906.06(2)
Wis. Stat. is the virtual equivalent) says:

Upon an inquiry into the validity of a verdict or in-
dictment, a juror may not testify as to any matter
or statement occurring during the course of the jury's
deliberations or to the effect of anything upon that
or any other juror's mind or emotions as influencing
the juror to assent to or dissent from the verdict or
indictment or concerning the juror's mental processes
in connection therewith, except that a juror may tes-
tify on the question whether extraneous prejudicial
information was improperly brought to the jury's at-
tention or whether any outside influence was improp-
erly brought to bear upon any juror. Nor may a juror's
affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be
precluded from testifying be received for these pur-
poses. 

   Because the juror affidavits here were not offered as
part of "an inquiry into the validity of a verdict," they
were competent evidence admissible on Jacobs' claim of
double jeopardy. See United States v. Barragan-Cepeda,
29 F.3d 1378 (9th Cir. 1994). But admissibility does not
compel a finding of believability. Even admissible post-
trial juror affidavits should be taken with a lot of salt.
The affidavits here are no exception.

   First, the affidavits were obviously lawyer-generated.
That doesn't necessarily condemn them, but any affidavit,
couched as these are in quasi-legalese which fits comforta-
bly into a litigant's view of a case, invites the raising of
an eyebrow or two. If affidavits were subject to a leading-
question objection, one would be sustained to each of
these identical five. Second, and related to the first, these
affidavits were taken under controlled conditions. Last-
ly, they were secured three years after the trial. What
this all means, in our view, is that although they were
admissible, their weight is not particularly impressive.

   These observations regarding the juror affidavits should
not be construed as a criticism of the attorneys who rep-
resented Jacobs on this appeal. We mean nothing of the
sort. The attorneys have done a splendid job of briefing
and arguing the issues presented in the case. Our obser-
vations are offered simply to note that post-trial affidavits
of individual jurors are rarely helpful to the process of
reviewing the collective action of a jury. The institution
of the jury has force only when it acts authoritatively by
rendering a unanimous verdict. It is the verdict of the
jury, not the individual expressions of jurors after a trial,
that carries legal heft. In this case, the district court was
not impressed with the affidavits, finding that they were
not sufficient to meet Jacobs' burden of showing that the
issue of whether or not he kidnapped or falsely imprisoned
Helen Kunz was necessarily resolved against the State
in the 1989 trial. We agree with that conclusion.

   We also recognize that in certain unique situations, with
the right kinds of facts, a prosecutor can get a second
kick at the cat, as the State does here, without violating
the Double Jeopardy Clause of the Constitution. That is
an inevitable by-product of the abandonment of the Grady
v. Corbin "same-conduct" test in favor of an energized
Blockburger "elements" test as explained two years ago
by Justice Scalia in United States v. Dixon. It is true,
of course, that this gives the prosecutor an advantage,
but as the law stands today it is an advantage that she
can appropriately seize.

   For the reasons stated above, the decision of the dis-
trict court denying Mr. Jacobs' petition for a writ of
habeas corpus is affirmed.