Opinion
Criminal No. 04-379 (RCL).
October 5, 2006
MEMORANDUM OPINION
This matter comes before the Court on the motion of defendant Frederick A. Miller. Mr. Miller filed, on September 10, 2006, the following motion: a Motion [770] to Dismiss Count Four, Overt Acts and Racketeering Acts. The government filed, on September 25, 2006, an opposition [791] to defendant Miller's motion. All parties appeared before this Court for a hearing on September 29, 2006.
Upon a thorough review of each party's filings, the applicable law and the entire record herein, this Court has determined that the aforementioned motion is DISMISSED AS MOOT solely with regard to Mr. Miller's argument that the Double Jeopardy Clause prohibits the government from trying Mr. Miller for Count Four of the September 6, 2006, retyped indictment (hereinafter "Interim Indictment"), and the remainder of the motion is DENIED.
I. BACKGROUND
The four defendants are charged in a forty-nine count Superseding Indictment ("Indictment"). All defendants currently pending trial are charged in Count One, Narcotics Conspiracy and in Count Two, RICO Conspiracy. Defendants Eiland and Miller are charged also in Count Three, Continuing Criminal Enterprise. At least one but not all remaining defendants are also charged with the following: possession with intent to distribute narcotics (Counts 8-9, 11-13, 15-16); distribution of narcotics (Count 10); use of a communications facility to facilitate possession with intent to distribute narcotics (Counts 17-49). The trial testimony for the four defendants commenced on October 3, 2006.
Counts thirty-nine through forty-seven were severed from the present case.
II. DISCUSSION
Defendant Miller argues that the double jeopardy and collateral estoppel doctrines prevent the government from being able to use evidence against Mr. Miller in the current trial by presenting evidence of previous charges of which Mr. Miller was acquitted at the previous trial. Specifically, Mr. Miller first argues that the government cannot re-charge him with an count of Distribution of PCP that allegedly occurred on March 5, 2004, because the jury in the previous trial acquitted him of that charge, and such a re-trial runs afoul of the Double Jeopardy Clause of the U.S. Constitution. Second, Mr. Miller argues that, under the doctrine of collateral estoppel, the government cannot use evidence of alleged criminal acts of which Mr. Miller was previously acquitted at the first trial in order to prove that Mr. Miller committed other criminal acts at the current trial. Mr. Miller contends that the only matter for the jury to determine in the prior trial on the acts of which he was acquitted was the issue of whether those acts were committed in furtherance of the alleged conspiracy or enterprise (under RICO) because Mr. Miller never contested any of the other elements of the charges. It stands to reason, he states, that the jury's acquittal of Mr. Miller on those counts must mean that the jury decided those counts solely on the basis of a lack of conspiracy or enterprise. Therefore, he argues, the issue of whether the conspiracy or enterprise existed was decided by the previous jury, and should not therefore be relitigated.
In its opposition, the government argues that, as the defendant, Mr. Miller has the burden under the collateral estoppel doctrine of establishing that the issue whose re-litigation he is attempting to prevent was decided by the previous jury. (Gov. Opp. Br. [791] 3.) In their opinion, Mr. Miller has failed to meet this burden because he fails to take into consideration those counts on which the jury failed to reach a verdict. The fact that the jury did not reach a decision on these counts, they contend, prevents Mr. Miller from ascertaining exactly on what basis the jury reached their acquittal of him on those previous charges. The government argues that this uncertainty of how the counts were decided in the first trial allows them the ability to present the evidence in the current trial.
A. Double Jeopardy Issue Concerning Count Four of the September 6, 2006 Indictment
Defendant Miller argues that the double jeopardy clause of the Fifth Amendment bars prosecution of Count Four of the indictment against the defendant in light of the fact that he was acquitted of the charge of Distribution of PCP on March 5, 2004. Count Four of the Re-Typed Indictment submitted September 6, 2006, does list the aforementioned count. The government, however, resubmitted on October 2, 2006, a more recent Re-typed Indictment in which the count to which Mr. Miller refers has been removed.
Count Four of the October 2, 2006, Re-typed Indictment stems from an alleged incident occurring on March 10, 2004. The jury in the previous trial did not reach a verdict as to this count. No double jeopardy issue arises from the re-trial of this or any other count that the jury did not reach a verdict thereon. Richardson v. United States, 468 U.S. 317, 324 ("[R]etrial following a `hung jury' does not violate the Double Jeopardy Clause.").
Accordingly, Defendant Miller's motion with respect to the dismissal of Count Four of the September 6, 2006 indictment shall be dismissed as moot.
B. Collateral Estoppel Issue
1. Admissibility in Subsequent Trial of Evidence Relating to a Separate Criminal Offense for which Defendant Has Been Acquitted
The Supreme Court has recognized that the Double Jeopardy Clause incorporates the doctrine of collateral estoppel. Ashe v. Swenson, 397 U.S. 436 (1970). In that case, the Court defined the collateral estoppel doctrine as providing 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." Id. at 443. Accordingly, the Court found that the defendant's acquittal in the first trial prevented the government from bringing a second trial against the defendant arising out of the same circumstances because the jury in the subsequent would have had to reach a completely contrary conclusion as the jury in the first trial in order to convict the defendant in the subsequent trial. Id. at 445.
The Court's holding in Ashe, however, does not preclude the introduction of all evidence at a subsequent trial merely because the jury acquitted the defendant of the charge at a previous trial. Rather, as the Supreme Court noted in Dowling v. United States, 493 U.S. 342 (1990), Ashe only prevents introduction in a subsequent trial of evidence of a charge for which the defendant has been acquitted in a prior trial when the prior acquittal determines "an ultimate issue in the present case." Dowling, 493 U.S. at 348. Following this reasoning, the Dowling Court refused to extend Ashe or the collateral estoppel doctrine "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 defendant has been acquitted." Id. Instead, the Dowling Court held that the government may introduce previously litigated facts — even if the defendant has been previously acquitted of committing those acts — in order to prove them as an element of another offense in a later trial. Id. This reasoning is based on "the basic, yet important, principle that the introduction of relevant evidence of particular misconduct in a case is not the same thing as prosecution for that conduct." United States v. Felix, 503 U.S. 378, 387 (1992).
In this case, the government is not attempting to retry the defendant for the particular acts for which he was acquitted. Rather, it appears the government is attempting to use the existence of these acts to support the inference that other substantive offenses for which the defendant was neither acquitted nor found guilty — namely, the conspiracy and racketeering acts — occurred. Such information is probative and relevant to the ultimate issue of whether or not the alleged conspiracy and enterprise existed. Therefore, the government's attempt to use the prior acquitted acts at a prior trial to establish an element of a separate charge at the current trial is permissible under the rationale set forth in Dowling, and the introduction of this evidence in the current trial does not amount to a retrial of the issue of the act itself. Accordingly, this Court therefore finds that defendant's motion to preclude the use of such evidence at the current trial is DENIED.
2. Defendant's Burden of Establishing Issue Was Actually Decided
Even if the criminal collateral estoppel doctrine would have prevented the government from introducing such evidence, the defendant still bears the burden of establishing that the issue he seeks to foreclose "was in fact determined in the first trial." United States v. White, 936 F.2d 1326, 1328 (D.C. Cir. 1991) (quoting Dowling, 493 U.S. at 350). In considering whether the defendant has met this burden of proving that the issue was actually decided by the previous jury, the Court must examine the "charge and other relevant material." White, 936 F.2d at 1329 (quoting Ashe, 397 U.S. at 444). If a defendant fails to meet the burden of establishing that the issue was actually determined by the jury at the previous trial, then the collateral estoppel doctrine does not bar the re-litigation of that issue at a later trial. White, 936 F.2d at 1329.
In White, the defendant was charged with two crimes arising from similar conduct; he was acquitted of the first count, and the jury did not reach a verdict as to the second count. Id. at 1327. The defendant argued that the issue of intent was the only issue for the jury to decide at the first trial because the defendant never denied committing the acts, but only contested the issue of his intent. Id. at 1328. Therefore, he argued that collateral estoppel barred the re-litigation of the issue of intent as to the retried second count. Id. The Court found, however, that the defendant failed to carry his burden because the Court would have had to assume that the jury acted inconsistently in order to support the defendant's position that the issue was actually determined at the previous trial. Id. at 1329. According to the Court, had the jury actually decided the issue of intent at the previous trial, then the jury would have acquitted the defendant on both counts and not merely the first. Id.
Similarly, in the present case, the Court finds that the defendant has failed to meet his burden under Dowling. Notwithstanding Mr. Miller's arguments that he can ascertain that the jury decided that the conspiracy or enterprise did not exist based upon their acquittal of the defendant on particular counts at the last trial, upon inspection of the other counts that the jury did not reach a verdict on, this Court finds that it is not clear that the jury fully determined the issue of existence of the conspiracy or enterprise at the previous trial. As the Court found in White, had the previous jury determined that such a conspiracy or enterprise did not exist, then they would have acquitted the defendant on those counts as well. Instead, as in White, the previous jury failed to reach a verdict on those counts. Mr. Miller's argument would have this Court impute an inconsistent verdict on the previous jury, which this Court is loathe to do. See White, 936 F.2d at 1329.
In light of these facts, this Court finds that the defendant has failed to meet his burden of establishing that the issue of the existence of the conspiracy or enterprise was actually determined by the jury at the previous trial. Accordingly, for this additional reason, the defendant's motion to preclude the government's use of prior acts of which the defendant has been acquitted at the first trial in order to prove the existence of a separate crime at the current trial is DENIED.
III. CONCLUSION
For the foregoing reasons, this Court has determined that the defendant's motion to dismiss Count Four of the Re-typed Indictment is DISMISSED AS MOOT, and that the remainder of the defendant's motion [770] shall be DENIED.
A separate Order shall issue this date.