       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
          Lawrence G. HUTCHINS III, Sergeant
           United States Marine Corps, Appellant
                          No. 18-0234
                    Crim. App. No. 200800393
        Argued January 23, 2019—Decided May 29, 2019
    Military Judges: Michael B. Richardson (arraignment at
          rehearing) and A. H. Henderson (rehearing)
   For Appellant: Lieutenant Colonel S. Babu Kaza, USMCR
   (argued); Captain Thomas R. Fricton, USMC, and Christo-
   pher Oprison, Esq. (on brief); Lieutenant Doug Ottenwess,
   JAGC, USN.
   For Appellee: Lieutenant Kimberly Rios, JAGC, USN (ar-
   gued); Colonel Mark K. Jamison, USMC, Major Kelli A.
   O’Neil, USMC, and Brian K. Keller, Esq. (on brief).
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges RYAN,
   SPARKS, and MAGGS, joined.
                   _______________

   Judge OHLSON delivered the opinion of the Court.
    At a 2007 general court-martial, a panel convicted Appel-
lant of a number of offenses related to the 2006 unlawful
killing of an unknown Iraqi man in the Hamdaniyah area of
Iraq. However, the panel also acquitted Appellant of a num-
ber of other offenses related to this same incident. Upon ap-
pellate review in 2013, this Court set aside the findings and
sentence and authorized a rehearing. United States v.
Hutchins, 72 M.J. 294, 300 (C.A.A.F. 2013). At the 2015 re-
hearing, Appellant was charged only with those offenses of
which he was convicted at the first trial, and he was convict-
ed of most of these charged offenses. The issue now before us
is whether at the rehearing the military judge erred when
he denied a defense motion to suppress evidence related to
offenses of which Appellant had been acquitted at his first
trial. We hold that the military judge did not err because the
          United States v. Hutchins, No. 18-0234/MC
                    Opinion of the Court

doctrine of issue preclusion does not apply in this case, and
therefore the military judge was permitted to examine
whether the evidence was admissible under the Military
Rules of Evidence (M.R.E.).
            I. Factual and Procedural Overview
                       A. The First Trial
  The following evidence was introduced at the 2007 court-
martial:
      The appellant was assigned as squad leader for 1st
      Squad, 2nd Platoon, Kilo Company, 3rd Battalion,
      5th Marines, assigned to Task Force Chromite,
      conducting counter-insurgency operations in the
      Hamdaniyah area of Iraq in April 2006. In the
      evening hours of 25 April 2006, the appellant led a
      combat patrol to conduct a deliberate ambush
      aimed at interdicting insurgent emplacement of
      improvised explosive devices (IEDs). The court-
      martial received testimony from several members
      of the squad that indicated the intended ambush
      mission morphed into a conspiracy to deliberately
      capture and kill [an Iraqi insurgent who was] a
      high value individual (HVI), believed to be a leader
      of the insurgency. The witnesses gave varying
      testimony as to the depth of their understanding of
      alternative targets, such as family members of the
      HVI or another random military-aged Iraqi male.
      Considerable effort and preparation went into the
      execution of this conspiracy. Tasks were
      accomplished by various Marines and their
      corpsman, including the theft of a shovel and AK-
      47 from an Iraqi dwelling to be used as props to
      manufacture a scene where it appeared that an
      armed insurgent was digging to emplace an IED.
      Some squad members advanced to the ambush site
      while others captured an unknown Iraqi man,
      bound and gagged him, and brought him to the
      would-be IED emplacement.
      The stage set, the squad informed higher
      headquarters by radio that they had come upon an
      insurgent planting an IED and received approval to
      engage. The squad opened fire, mortally wounding
      the man. The appellant approached the victim and
      fired multiple rifle rounds into the man’s face at
      point blank range.



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           United States v. Hutchins, No. 18-0234/MC
                     Opinion of the Court

      The scene was then manipulated to appear
      consistent with the insurgent/IED story. The squad
      removed the bindings from the victim’s hands and
      feet and positioned the victim’s body with the
      shovel and AK-47 rifle they had stolen from local
      Iraqis. To simulate that the victim fired on the
      squad, the Marines fired the AK-47 rifle into the
      air and collected the discharged casings. When
      questioned about the action, the appellant, like
      other members of the squad, made false official
      statements, describing the situation as a legitimate
      ambush and a “good shoot.” The death was brought
      to the appellant’s battalion commander’s attention
      by a local sheikh and the ensuing investigation led
      to the case before us.
Hutchins, 72 M.J. at 296 (citation omitted).
   At trial, the Government proceeded under the theory
that Appellant and his squad developed three alternative
plans to “murder[] [a] man in cold blood” for the purpose of
sending a message to the local Iraqi population. Plan A in-
volved forcing the HVI from his house in the middle of the
night, taking him to a previously created IED hole, killing
him, and staging the scene to make it appear as if the HVI
had been planting an IED. Plan B involved taking and kill-
ing one of the HVI’s brothers if the HVI was not home. Plan
C involved murdering any adult Iraqi man if the squad could
not execute plan A or plan B. Trial counsel explained that
the squad ultimately executed plan C. The defense, however,
took the position that the command directed Appellant and
his squad to “get” the HVI, that Appellant interpreted this
directive to mean that his mission was to capture or kill the
HVI, and that Appellant believed at the time that his squad
had lawfully killed the correct person.
    The members’ general verdict convicted Appellant of four
offenses: one specification of conspiracy to commit offenses
under the UCMJ (larceny, false official statements, murder,
and obstruction of justice), one specification of making a
false official statement, one specification of unpremeditated
murder of an unknown Iraqi man, and one specification of
larceny, in violation of Articles 81, 107, 118, and 121, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 907,
918, 921 (2006). The members found a number of overt acts
to be part of the conspiracy, including: (1) four squad mem-


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           United States v. Hutchins, No. 18-0234/MC
                     Opinion of the Court

bers took an unknown Iraqi man to the IED hole; (2) three of
these squad members forced the unknown Iraqi man to the
ground and bound his hands and feet; and (3) after the
squad members left the IED hole, five squad members, in-
cluding Appellant, fired their weapons toward the unknown
Iraqi man resulting in his death.
    The members acquitted Appellant of seven other
offenses: one specification of making false official
statements, the greater offense of premeditated murder of
an unknown Iraqi man, one specification of assault on an
unknown Iraqi man by unlawfully forcing him to the ground
and binding his hands and feet, one specification of
housebreaking involving the dwelling of an unknown Iraqi
man, one specification of kidnapping an unknown Iraqi man,
and two specifications of obstruction of justice, 1 in violation
of Articles 107, 118, 128, 130, and 134, UCMJ, 10 U.S.C.
§§ 907, 918, 928, 930, 934 (2006). Additionally, for the
conspiracy     specification   the     members         excepted
“housebreaking” and “kidnapping” from the list of UCMJ
offenses that were part of the conspiracy agreement, and
they also excepted four charged overt acts including that: (1)
four squad members walked from the HVI’s house and
entered an unknown Iraqi man’s home; and (2) two squad
members took an unknown Iraqi man from his home against
his will. 2
    Based on the convictions, the members sentenced Appel-
lant to a dishonorable discharge, confinement for fifteen
years, a reprimand, and a reduction to E-1. The convening
authority approved only so much of the sentence as provided
for a dishonorable discharge, confinement for eleven years,

   1  In accordance with the military judge’s instructions, (the
members acquitted Appellant of the obstruction of justice specifi-
cations because they convicted him of the same conduct as part of
the conspiracy.
   2  The other two overt acts excepted from the conspiracy speci-
fication were that: (1) Appellant made a false statement to a staff
sergeant on April 26, 2006, relating to the circumstances of the
unknown Iraqi man’s death; and (2) Appellant made a false
statement to the Naval Criminal Investigative Service (NCIS)
about the unknown Iraqi man’s death on May 8, 2006. These two
overt acts do not play a direct role in this appeal.



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           United States v. Hutchins, No. 18-0234/MC
                     Opinion of the Court

and a reduction to E-1. In 2013 after extended appellate pro-
ceedings, 3 we set aside the findings of guilty due to a viola-
tion of Appellant’s Fifth Amendment right against self-
incrimination and we authorized a rehearing. Hutchins,
72 M.J. at 299–300.
                         B. The Rehearing
    Upon receipt of the record, the convening authority re-
ferred to a general court-martial for rehearing only those
charges of which Appellant was convicted at the 2007 trial.
None of the acquitted charges and none of the language ex-
cepted from the conspiracy specification at the first trial was
referred to the rehearing.
   The defense filed a motion to suppress “all evidence, alle-
gations and inferences of conduct subject to ‘not guilty’ find-
ings” at the first trial, arguing that the admission of this ev-
idence violated the issue preclusion component of the Fifth
Amendment’s Double Jeopardy Clause. The military judge
denied this motion at an Article 39(a), UCMJ, 10 U.S.C.
§ 839(a) (2012), session by concluding:
       There is no requirement to speculate on the
       rationale [of] the last panel of members. In fact, it’s
       folly to try to do that. The real risk of confusing [the
       current panel members will arise] if we try to parse
       the facts as proposed by the defense counsel.
       Misconduct can violate more than one article of the
       UCMJ and the conduct [that the defense has
       sought to have suppressed is] not mutually
       exclusive to the charges of which the accused was
       acquitted.
   Following this ruling, the Government relied on the same
theory at the rehearing that it had used at the first trial,
and it also relied on similar evidence. Specifically, trial
counsel asserted that Appellant was the “mastermind” of “a

   3  Following the convening authority’s action, Appellant’s case
proceeded as follows: (1) the United States Navy-Marine Corps
Court of Criminal Appeals (CCA) ordered a fact-finding hearing in
2009; (2) the CCA set aside the findings and sentence in 2010 be-
cause of an improper severance of the attorney-client relationship;
(3) this Court reversed the CCA’s decision and remanded for fur-
ther review in 2011; and (4) the CCA affirmed the findings and
sentence in 2012.



                                  5
           United States v. Hutchins, No. 18-0234/MC
                     Opinion of the Court

perfect plan to commit a murder and send a message,” which
“his squad executed.” Trial counsel went on to describe the
“three-tiered plan”: (1) plan A—capture and kill the Iraqi
HVI; (2) plan B—capture and kill the HVI’s brother; or (3)
plan C—kill any Iraqi male they could find. Trial counsel
explained that the squad abandoned plans A and B and in-
stead executed plan C by grabbing an unknown Iraqi man
who was sleeping in his house, dragging him to a nearby
IED crater, and murdering him.
   At the conclusion of the parties’ presentation of evidence,
the military judge instructed the members that:
       The burden is on the prosecution to prove each and
       every element of each offense beyond a reasonable
       doubt. Proof of one offense carries with it no
       inference that the accused is guilty of any other
       offense. I remind you again that the accused was
       acquitted at a prior proceeding of the offenses of
       kidnapping, housebreaking, assault, obstruction of
       justice, premeditated murder, and false official
       statement on or about 8 May, as well as conspiracy
       to commit kidnapping and housebreaking. You may
       therefore consider evidence that the accused may
       have been involved in plans or acts involving
       entering the alleged victim’s home, moving him to
       another location, involvement in a shooting, and
       providing a statement to NCIS on or about 8 May
       for the limited purpose of its tendency, if any, to
       prove a plan or design of the accused to commit the
       charged acts .... [Y]ou may not conclude from this
       evidence that the accused is a bad person or has
       general criminal tendencies, and that he therefore
       committed the offenses charged.
(Emphases added.) The members returned a mixed verdict
by acquitting Appellant of the sole specification of making a
false official statement, excepting two overt acts from the
conspiracy specification, 4 and convicting Appellant of the
conspiracy, unpremeditated murder, and larceny specifica-
tions. The members sentenced Appellant to a bad-conduct


   4 The two excepted overt acts alleged that Appellant submitted
a false written report about the unknown Iraqi man’s death on
April 28, 2006, and that a squad member made a false statement
to NCIS about the unknown Iraqi man’s death.



                               6
          United States v. Hutchins, No. 18-0234/MC
                    Opinion of the Court

discharge and 2,627 days of confinement, and the convening
authority approved the adjudged sentence.
                       C. CCA Opinion
    Appellant presented thirteen assignments of error to the
CCA, including whether the military judge erred in denying
the motion to suppress evidence relating to conduct of which
he was acquitted. United States v. Hutchins, No. NMCCA
200800393, 2018 CCA LEXIS 31, at *2–3, 2018 WL 580178,
at *1 (N-M. Ct. Crim. App. Jan. 29, 2018) (unpublished). The
CCA concluded that the issue preclusion component of the
Double Jeopardy Clause did not apply in this case because
the evidence Appellant wanted excluded—i.e., evidence re-
garding the conspiracy to murder the HVI’s brother or a
random Iraqi male—did not constitute an issue of ultimate
fact. Id. at *19–20, 2018 WL 580178 at *7. The CCA further
concluded that the military judge did not abuse his discre-
tion in admitting evidence involving “issue[s] of less than
ultimate fact” of which Appellant had been acquitted at the
first trial because this evidence was probative under M.R.E.
401 and M.R.E. 404(b) and was not unfairly prejudicial un-
der M.R.E. 403. Hutchins, 2018 CCA LEXIS 31, at *20, *35–
43, 2018 WL 580178, at *7, *12–14. Following a thorough
review of the remaining issues, the CCA affirmed the find-
ings and sentence. Id. at *202, 2018 WL 580178, at *68.
                  D. Order Granting Review
   We granted review to resolve the following issue:
      Whether the military judge erred when he denied
      the defense motion to suppress evidence of conduct
      for which Appellant had been acquitted at his first
      trial.
United States v. Hutchins, 78 M.J. 111 (C.A.A.F. 2018) (or-
der granting review).
                   II. Standard of Review
   We review a military judge’s ruling to admit or suppress
evidence for an abuse of discretion. United States v. Jerkins,
77 M.J. 225, 228 (C.A.A.F. 2018) (admission of evidence);
United States v. Eppes, 77 M.J. 339, 344 (C.A.A.F. 2018)
(suppression of evidence). An abuse of discretion occurs
when the military judge’s factual findings are clearly erro-



                              7
            United States v. Hutchins, No. 18-0234/MC
                      Opinion of the Court

neous, view of the law is erroneous, or decision is outside of
the range of reasonable choices. United States v. Bess, 75
M.J. 70, 73 (C.A.A.F. 2016). The questions of “[w]hether a
prosecution violates the Double Jeopardy Clause or [the doc-
trine of issue preclusion] are issues of law.” United States v.
Brown, 571 F.3d 492, 497 (5th Cir. 2009); see also Schiro v.
Farley, 510 U.S. 222, 232 (1994) (stating that “[t]he preclu-
sive effect of the jury’s verdict … is a question of law”). We
review these issues of law de novo. See United States v.
Paul, 73 M.J. 274, 277 (C.A.A.F. 2014); United States v.
Cessa, 861 F.3d 121, 140 (5th Cir. 2017).
                      III. Legal Principles
    The Double Jeopardy Clause of the Fifth Amendment
states that no person shall “be subject for the same offence
to be twice put in jeopardy of life or limb.” U.S. Const.
amend. V. In Ashe v. Swenson, the Supreme Court held that
this clause “embodie[s]” the “extremely important principle”
of issue preclusion. 5 397 U.S. 436, 442–43 (1970).
    Issue preclusion “means simply that when an issue of ul-
timate 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.” 6 Id. at 443. An issue of
ultimate fact is an issue that was “necessary to the [initial]
judgment.” Bobby v. Bies, 556 U.S. 825, 835 (2009) (internal
quotation marks omitted) (citation omitted). A “determina-
tion ranks as necessary … only when the final outcome
hinge[d] on it.” Id.

   5 The Ashe opinion uses the term “collateral estoppel,” but in
“modern usage” this term is now referred to as “issue preclusion.”
Schiro, 510 U.S. at 232; see also Bravo-Fernandez v. United States,
137 S. Ct. 352, 356 n.1 (2016) (describing issue preclusion as “the
more descriptive term”). This opinion follows the modern usage.
   6  Issue preclusion is recognized under Rule for Courts-Martial
(R.C.M.) 905(g). See United States v. Harris, 67 M.J. 611, 614 (A.F.
Ct. Crim. App. 2009); Manual for Courts-Martial, United States,
Analysis of Rules for Courts-Martial app. 21 at A21-53 (2016 ed.).
Appellant appears to take the position that the right in R.C.M.
905(g) is no different than the issue preclusion component of the
Double Jeopardy Clause. This opinion similarly treats the issue
preclusion rule in R.C.M. 905(g) the same as the issue preclusion
rule of the Fifth Amendment.


                                 8
           United States v. Hutchins, No. 18-0234/MC
                     Opinion of the Court

    An appellant bears the burden “to demonstrate that the
issue whose relitigation he seeks to foreclose was actually
decided in the first proceeding.” Dowling v. United States,
493 U.S. 342, 350–51 (1990) (citations omitted). Courts ex-
amine “all the circumstances of” the first trial, including
“the pleadings, evidence, charge, and other relevant matter,”
to determine “whether a rational [fact-finder] could have
grounded its verdict upon an issue other than that which the
[accused] seeks to foreclose from consideration.” Ashe, 397
U.S. at 444 (internal quotation marks omitted) (citation
omitted).
    In Currier v. Virginia, the Supreme Court stated: “Ashe
forbids a second trial only if to secure a conviction the prose-
cution must prevail on an issue the jury necessarily resolved
in the defendant’s favor in the first trial.” 138 S. Ct. 2144,
2150 (2018). Thus, an appellant can prevail under the doc-
trine of issue preclusion only if he can satisfy both prongs of
the following test: (1) the appellant first must demonstrate
from evidence in the record that the panel’s acquittal at the
first court-martial necessarily determined an issue of ulti-
mate fact in his favor; and (2) the appellant then must
demonstrate that in order to obtain a conviction at the se-
cond court-martial, the government was required to prove
beyond a reasonable doubt the existence of that same issue
of ultimate fact. See id.; Yeager v. United States, 557 U.S.
110, 123 (2009).
    The Ashe test “is a demanding one.” Currier, 138 S. Ct. at
2150. The Supreme Court therefore has limited its applica-
tion by, for instance, declining to extend “the [issue preclu-
sion] component of the Double Jeopardy Clause to exclude in
all circumstances … relevant and probative evidence that is
otherwise admissible under the Rules of Evidence simply
because it relates to alleged criminal conduct for which a de-
fendant has been acquitted.” Dowling, 493 U.S. at 348.
    Consistent with Supreme Court precedent, we have held
that a military judge may admit “otherwise admissible
evidence even though it was previously introduced on
charges of which an accused has been acquitted” as long as
“the evidence is relevant” and “the probative value of the
proffered evidence is [not] outweighed by its prejudicial
effect.” United States v. Cuellar, 27 M.J. 50, 54 (C.M.A.


                               9
            United States v. Hutchins, No. 18-0234/MC
                      Opinion of the Court

1988) (internal quotation marks omitted) (quoting United
States v. Hicks, 24 M.J. 3, 8 (C.M.A. 1987)). As the Supreme
Court held in Dowling, “[A]n acquittal in a criminal case
does not preclude the Government from relitigating an issue
when it is presented in a subsequent action governed by a
lower standard of proof” such as in an M.R.E. 404(b) context.
493 U.S. at 349; see also Hicks, 24 M.J. at 9. “The fact of the
prior acquittal may diminish the probative value of the
evidence, however, and should be considered by the military
judge when” conducting the M.R.E. 403 analysis. Hicks, 24
M.J. at 9.
                           IV. Analysis
                        A. Issue Preclusion
   Appellant argues that issue preclusion barred the Gov-
ernment at the rehearing from presenting the “narrative” 7
that he conspired to murder a random Iraqi male at the re-
hearing. As noted above, in order to prevail Appellant must
meet both prongs of the issue preclusion test. Specifically,
Appellant first must demonstrate from evidence in the rec-
ord that the panel’s acquittals at the first court-martial nec-
essarily determined a specific issue of ultimate fact in his
favor, and then he must demonstrate that in order to obtain
a conviction at the rehearing the Government was required
to prove beyond a reasonable doubt the existence of that
same issue of ultimate fact.
    There are two instances where Appellant has failed to
meet his burden under the first prong of the issue preclusion
test. First, Appellant’s acquittals regarding the obstruction
of justice specifications did not determine any issue of ulti-
mate fact. The military judge instructed the members that
they were required to acquit Appellant of these offenses if
they convicted him of the conspiracy involving obstruction of

   7  We note that issue preclusion is concerned with issues of ul-
timate fact, not impressions, generalizations or, as Appellant
characterizes it in his brief, a “narrative” of the underlying crime
which is drawn from those facts. Brief for Appellant at 25, United
States v. Hutchins, No. 18-0234 (C.A.A.F. Oct. 10, 2018); see Cessa,
861 F.3d at 140 (“The doctrine of [issue preclusion] as delineated
in Ashe … deals with facts not theories.” (alteration in original)
(internal quotation marks omitted) (citation omitted)).



                                10
           United States v. Hutchins, No. 18-0234/MC
                     Opinion of the Court

justice. Thus, no issue of ultimate fact can be deduced from
these acquittals because the panel members were compelled
to comply with the military judge’s legal instructions.
    Second, in regard to Appellant’s acquittal for assault,
there is an inconsistency between the members’ not guilty
finding for this substantive offense and the members’ guilty
finding for the conspiracy offense that involved overt acts
that formed the basis for this same substantive offense. Giv-
en this inconsistency, no issue of ultimate fact can be identi-
fied. Bravo-Fernandez, 137 S. Ct. at 356–57 (explaining that
where “verdicts are rationally irreconcilable, the acquittal
gains no preclusive effect” (citing United States v. Powell,
469 U.S. 57, 68 (1984))).
    Even if we were to assume arguendo that in certain in-
stances Appellant has met the first prong of the issue pre-
clusion test because he can identify issues of ultimate fact
resolved in his favor arising from other acquittals at his first
trial, he still cannot meet his burden under the second prong
of the test.
   To begin with, Appellant has not cited, and we cannot
discern, any nexus between an issue of ultimate fact
resulting from Appellant’s acquittal on the false official
statement specification at the first trial and any charges at
the rehearing.
    Next, the issue of ultimate fact that Appellant asserts
was resolved in his favor at the first trial—that he was not
involved in a conspiracy to murder a random Iraqi man—did
not preclude the Government from proving at the rehearing
the conspiracy, unpremeditated murder, and larceny offens-
es. It is important to note that Appellant was convicted of
these three offenses at the first trial, thereby demonstrating
that the Government’s success at the rehearing did not
hinge on the purported ultimate fact now cited by Appellant.
See United States v. Citron, 853 F.2d 1055, 1059 (2d Cir.
1988) (“[A]n acquittal accompanied by a conviction on the
count sought to be retried does not have a similar preclusive
effect; the conviction casts doubt on whatever factual find-
ings might otherwise be inferred from the related acquittal.”
(citations omitted)); see also Bravo-Fernandez, 137 S. Ct. at
366 & n.8 (“The split verdict does not impede the Govern-



                              11
           United States v. Hutchins, No. 18-0234/MC
                     Opinion of the Court

ment from renewing the prosecution.”). Moreover, this pur-
ported ultimate fact did not prevent the Government from
obtaining convictions on the conspiracy, unpremeditated
murder, and larceny offenses at the rehearing because no
element of the offenses of conviction at the rehearing hinged
on Appellant’s involvement in a conspiracy to kill a random
Iraqi male. 8 See Currier, 138 S. Ct. at 2150.
    In regard to the 2007 acquittals for housebreaking, kid-
napping, and conspiracy to commit housebreaking and kid-
napping, Appellant appears to argue broadly that the issue
of ultimate fact from these acquittals is that he had nothing
to do whatsoever with any conduct related to these offenses,
and therefore no evidence related to this conduct was admis-
sible at the rehearing. However, we first note that these par-
ticular offenses were not charged at the rehearing. Moreo-
ver, we further note that Appellant has failed to meet his
burden of demonstrating how any of the charges of which he
was convicted at the rehearing required the Government to
prove this purported issue of ultimate fact beyond a reason-
able doubt. Stated differently, at the rehearing the Govern-
ment could prove all of the elements of the offenses of which
Appellant was convicted without having to prove beyond a
reasonable doubt that Appellant committed any of the con-
duct related to these offenses of which Appellant was acquit-
ted at the first trial. Currier, 138 S. Ct. at 2150; Yeager, 557
U.S. at 123.
    And finally, Appellant’s acquittal for premeditated mur-
der of an unknown Iraqi man at the first trial did not pre-
clude the Government from proving unpremeditated murder
of an unknown Iraqi man at the rehearing. To begin with,
we underscore the point that Appellant was actually convict-
ed of unpremeditated murder of an unknown Iraqi man at
the first trial. See Citron, 853 F.2d at 1059; see also Bravo-
Fernandez, 137 S. Ct. at 366. Further, the acquittal for pre-
meditated murder of an unknown Iraqi man at the first trial


   8  The conspiracy to commit murder charge did not specify the
identity of the victim. Therefore, Appellant was not necessarily
charged with a conspiracy to murder any random Iraqi male at
the first trial. No issue of ultimate fact can be discerned under
these circumstances.



                               12
           United States v. Hutchins, No. 18-0234/MC
                     Opinion of the Court

at most established that Appellant did not act with premedi-
tation in killing the unknown Iraqi man. 9 This fact was not
necessary for proving the charged conspiracy to murder at
the rehearing because Appellant’s agreement to murder the
HVI, and overt acts in furtherance of this agreement, would
suffice to establish the conspiracy. See United States v.
Simpson, 77 M.J. 279, 284 (C.A.A.F. 2018) (noting that a
conspiracy only requires an agreement to commit an offense
and an overt act).
   Based on the foregoing analysis, we conclude that the is-
sue preclusion component of the Fifth Amendment’s Double
Jeopardy Clause does not apply in this case.
                   B. Admissibility of Evidence
    Because issue preclusion is inapplicable in this case, the
military judge properly examined whether the evidence re-
lated to the acquitted offenses was admissible at trial under
M.R.E. 403 and M.R.E. 404(b). As noted above, the Supreme
Court stated in Dowling that the holding in Ashe is not in-
tended “to exclude in all circumstances … relevant and pro-
bative evidence that is otherwise admissible under the Rules
of Evidence simply because it relates to alleged criminal
conduct for which a defendant has been acquitted.” 493 U.S.
at 348. Rather, the proper way to decide this issue is to fac-
tor in the prior acquittal as part of the balancing test under
M.R.E. 403. See Hicks, 24 M.J. at 9. Therefore, the evidence
offered by the Government at the rehearing in the instant
case was not barred as a matter of issue preclusion under
Ashe. Accordingly, the military judge was correct when he
determined that the admissibility of the Government’s evi-
dence should be decided using the framework of M.R.E.
404(b) and M.R.E. 403. Because Appellant does not mean-
ingfully contest the military judge’s application of those
rules on their own terms, we need not address the military
judge’s specific analysis of those rules.


   9  Appellant’s acquittal for premeditated murder at the first
trial may also have been a result of lenity or member confusion
about the military judge’s instructions. Issue preclusion does not
apply in these circumstances. See Bravo-Fernandez, 137 S. Ct. at
360.



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         United States v. Hutchins, No. 18-0234/MC
                   Opinion of the Court

                      V. Conclusion
  We affirm the judgment of the United States Navy-
Marine Corps Court of Criminal Appeals.




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