U.S. v. Bailey

Citation34 F.3d 683
Decision Date08 September 1994
Docket NumberNo. 93-4115,93-4115
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Christopher J. BAILEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Bruce Houdek, Kansas City, MO, argued, for defendant-appellant.

Christina Tabor, Kansas City, MO, argued, for plaintiff-appellee.

Before FAGG, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

HANSEN, Circuit Judge.

Christopher J. Bailey is charged in a two-count indictment with making false material representations to, and concealing material facts from, the United States Customs Service, Department of the Treasury of the United States, in violation of 18 U.S.C. Sec. 1001 (1988). In this appeal, Bailey challenges the district court's 1 order denying his motions to dismiss the pending indictment. Bailey argues that he is entitled to dismissal of the indictment on the grounds of double jeopardy and collateral estoppel and on the ground that the indictment contravenes the terms of his immunity agreement. We dismiss the appeal for lack of jurisdiction.

I. Background

In January 1989, the United States Customs Service conducted an investigation resulting in the indictment of David Hairabedian and four other individuals on charges of conspiracy to steal an airplane in the Kansas City, Missouri, area. This investigation led to a second investigation involving the distribution of large amounts of cocaine and the theft of an airplane from a Fort Lauderdale, Florida, airport in December 1988, involving several of the same individuals.

Bailey's attorney contacted the government on his behalf and indicated that Bailey was willing to cooperate in the investigation of the December 1988 Florida airplane theft in exchange for statutory immunity. The government instead offered Bailey a letter which set forth an informal promise not to prosecute in exchange for Bailey's cooperation. On May 31, 1989, in accordance with the agreement, Bailey spoke with Special Agent James Cheatham of the United States Customs Service. Bailey provided Agent Cheatham with details of the December 1988 airplane theft, including the sale of that airplane to drug dealers for $50,000 cash and 16 kilograms of cocaine. Bailey admitted that he received $5,000 from the transaction and that he burned 10 of the 16 kilograms of cocaine in a barrel. As the investigation progressed, this admission became suspect. At one point, Bailey admitted that he had lied to Agent Cheatham about the disposal of some of the cocaine involved, but the government chose not to revoke the nonprosecution agreement. Later, as discussed below, Bailey's statement about the amount of money that he allegedly received also became suspect.

While Hairabedian was on bond pending trial of the Kansas City conspiracy, Bailey cooperated with the Customs Service in an undercover narcotics operation targeting Hairabedian. As a result, the government moved to revoke Hairabedian's pretrial release. At the revocation hearing on July 31, 1989, Bailey testified, in part, that he received $5,000 from the December 1988 airplane theft and drug deal. Following the hearing, the district court revoked Hairabedian's bond.

After receiving a tip in February 1990 from the Bureau of Alcohol, Tobacco and Firearms (ATF) in Tulsa, Oklahoma, Agent Cheatham began to doubt the veracity of Bailey's statement that he received only $5,000 from the December 1988 Florida airplane theft and drug deal. The ATF informant, William Evan Crocker, provided information that Bailey had recently paid almost $20,000 cash to purchase a helicopter. This aroused Agent Cheatham's suspicions because Bailey claimed to be impoverished. Agent Cheatham subsequently questioned Bailey about his financial situation in an effort to assess his credibility, and Bailey assured him that he had received approximately $18,000 cash from working for Crocker. Agent Cheatham asked Bailey to corroborate this statement and then asked Crocker for his cooperation. Crocker later provided Agent Cheatham with a tape-recorded telephone conversation in which Bailey asked him to sign a false wage statement in the amount of $18,000 cash. Bailey also admitted on the tape that he had stolen $20,000 from a deal, unknown to the Customs Service.

In May 1992, a grand jury indictment charged Bailey with making a false declaration under oath at Hairabedian's bond hearing, in violation of 18 U.S.C. Sec. 1623, by stating that he received $5,000 from the stolen airplane and drug deal in December 1988, when in fact the amount he received was much greater. The district court 2 held a pretrial hearing on the government's motion to determine whether the statement satisfied the materiality element of section 1623. 3 The district court initially concluded that the statement was material but on reconsideration determined that it was not a material misstatement in the limited context of Hairabedian's bond hearing. Consequently, the district court dismissed the indictment on Bailey's motion.

After more investigation into the matter, Agent Cheatham concluded that Bailey had received more than $40,000 from the December 1988 Florida airplane theft and related drug deal. On May 12, 1993, a federal grand jury returned the presently pending two-count indictment charging Bailey with two violations of 18 U.S.C. Sec. 1001. 4 Count one alleges that Bailey falsely represented to the Customs Service that he received $5,000 from the Florida airplane and drug deal in December 1988. Count two alleges that Bailey concealed and covered up the material fact that he received at least $36,000 of the $50,000 cash proceeds from the sale of the stolen airplane.

Bailey moved to dismiss the instant indictment on the grounds of double jeopardy. Bailey argued (1) that the offenses of the current indictment are lesser included offenses of the charge in the earlier dismissed indictment, and (2) that under the earlier indictment, the district court determined the materiality issue (materiality being also an issue in the instant indictment), and therefore the government is collaterally estopped from relitigating that issue. Bailey filed a second motion to dismiss the indictment and to prohibit the use of immunized statements against him on the ground that the pending indictment violates the nonprosecution agreement.

By reports and recommendations, the magistrate judge advised the district court to deny both of Bailey's motions to dismiss. The district court adopted the reports and recommendations, concluding that Bailey was attempting to stretch the immunity agreement beyond its reasonable intent and that neither double jeopardy nor collateral estoppel bar the prosecution under section 1001. (Dist.Ct. Order, Dec. 2, 1993.) Bailey appeals the district court's order denying his motions to dismiss.

II. Double Jeopardy

Bailey first claims that the pending charges under 18 U.S.C. Sec. 1001 violate the Double Jeopardy Clause because section 1001 is a lesser included offense of 18 U.S.C. Sec. 1623, the charge contained in the earlier dismissed indictment. We do not address the lesser included offense argument because we conclude that we lack jurisdiction.

This court has jurisdiction under 28 U.S.C. Sec. 1291 (1988) to review the denial of a motion to dismiss on double jeopardy grounds. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977) (holding pretrial orders rejecting claims of former jeopardy constitute "final decisions" under 28 U.S.C. Sec. 1291 by reason of the collateral order exception to finality); see also United States v. Allen, 984 F.2d 940, 941 (8th Cir.1993). However, such an order is immediately appealable only if the defendant makes a showing of a colorable double jeopardy claim. United States v. Grabinski, 674 F.2d 677, 678 (8th Cir.) (en banc) (per curiam) (emphasis added), cert. denied, 459 U.S. 829, 103 S.Ct. 67, 74 L.Ed.2d 67 (1982). If the defendant has failed to state a colorable double jeopardy claim, we will dismiss the double jeopardy appeal for lack of jurisdiction. United States v. Bernard Ivory, 29 F.3d 1307, 1310 (8th Cir.1994) (citing Grabinski, 674 F.2d at 680). We must determine whether the defendant has stated a colorable double jeopardy claim.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars a second prosecution for the same offense or a lesser included offense. Brown v. Ohio, 432 U.S. 161, 168-69, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977). Jeopardy attaches to a prosecution when the jury is empaneled and sworn or, in a nonjury case, when the court begins to hear evidence. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062-63, 43 L.Ed.2d 265 (1975); see also United States v. Miller, 995 F.2d 865, 868 (8th Cir.1993). "Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier 'having jurisdiction to try the question of the guilt or innocence of the accused.' " Serfass v. United States, 420 U.S. 377, 391, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265 (1975) (quoting Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 806, 49 L.Ed. 114 (1904)). "Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy." Id. 420 U.S. at 391-92, 95 S.Ct. at 1064. Where the record clearly shows that jeopardy had not attached when the first indictment was dismissed, the defendant has failed to state a colorable double jeopardy claim. Grabinski, 674 F.2d at 680.

At the materiality hearing under the first indictment, the district court heard testimony from sworn witnesses, but there was no risk of a determination of guilt. We addressed a similar situation in United States v. Lasater, 535 F.2d 1041 (8th Cir.1976). Lasater was charged with violating 18 U.S.C. Sec. 1623, id. at 1043, and the district court...

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