528 F.2d 1262 (2nd Cir. 1975), 158, United States ex rel. Digiangiemo v. Regan

Docket Nº:158, Docket 75--2094.
Citation:528 F.2d 1262
Party Name:UNITED STATES of America ex rel. Leo Anthony DiGIANGIEMO, Petitioner-Appellant, v. Paul J. REGAN, Commissioner, New York State Division of Parole, Respondent-Appellee.
Case Date:December 29, 1975
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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528 F.2d 1262 (2nd Cir. 1975)

UNITED STATES of America ex rel. Leo Anthony DiGIANGIEMO,



Paul J. REGAN, Commissioner, New York State Division of

Parole, Respondent-Appellee.

No. 158, Docket 75--2094.

United States Court of Appeals, Second Circuit

December 29, 1975

Argued Oct. 21, 1975.

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Theodore Ruthizer, Mineola, N.Y. (Matthew Muraskin, Mineola, N.Y., and Legal Aid Society of Nassau County, of counsel), for petitioner-appellant.

David L. Birch, New York City (Louis J. Lefkowitz, Atty. Gen., State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., and Burton Herman, Asst. Atty. Gen., of counsel), for respondent-appellee.

Before FRIENDLY, MANSFIELD and TIMBERS, Circuit Judges.

FRIENDLY, Circuit Judge:

This case has been here before, United States ex rel. DiGiangiemo v. Vincent 489 F.2d 1370 (2 Cir. 1974). Since it raises important questions of constitutional law which cannot be understood without detailed knowledge of the prior proceedings and since we cannot improve on Judge Gurfein's statement of what had transpired up to the time of his opinion, we reproduce the pertinent portions as Appendix A.

The panel which heard DiGiangiemo I conceived itself as being

'asked to decide as a matter of constitutional law that the granting of a motion to suppress evidence is a collateral estoppel to the introduction of the evidence in a subsequent trial,'

489 F.2d at 1373. It was 'reluctant to undertake the determination of this question' because it felt that 'the matter has not been adequately presented to the State court' and DiGiangiemo had an opportunity to bring a further state post-conviction proceeding under § 813--c of the former New York Code of Criminal Procedure. Accordingly the court determined that it would 'neither affirm nor reverse on the issue of collateral estoppel' but would remand to the district court with instructions to dismiss the petition and to remand to the state courts for exhaustion of the state remedy.

DiGiangiemo's new application came on for hearing before Mr. Justice Wilkes in the Nassau County Court. His conclusion was as follows:

The Court concludes that the tools offered into evidence during the defendant's Nassau County trial were not inadmissible as a matter of law, but rather that they were vulnerable to possible suppression upon the ground that they were the fruit of an unlawful search and seizure, and that the remedy of collateral estoppel was available to the defendant with respect

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thereto, approximately seven years ago at the time of his trial. However, the defendant--even then accomplished in the nuances of the law--and represented by extraordinarily able counsel, failed utterly to apply for such suppression and/or to invoke collateral estoppel. In view of the foregoing, this Court must conclude that the defendant has waived his rights thereto beyond so belated recall.

The Appellate Division for the Second Department affirmed per curiam, 47 A.D.2d 661, 364 N.Y.S.2d 37 (2d Dept. 1975), on the seemingly different ground that

The burglar's tools were not the fruit of the same search and seizure previously held unlawful, and defendant's motion was, therefore, properly denied.

Chief Judge Breitel denied leave to appeal to the Court of Appeals.

DiGiangiemo then filed a second petition for federal habeas in the Eastern District of New York. Chief Judge Mishler denied this. He ruled that DiGiangiemo's collateral estoppel claim 'does not reach constitutional dimensions' since it related to 'a collateral proceeding' whereas Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), on which petitioner placed principal reliance, 'speaks of a final adjudication.' While he thought petitioner might well have had 'a valid collateral estoppel claim which would have been recognized by the Nassau County Court had he raised it at trial,' this 'was not the type of collateral estoppel envisioned by Ashe which has constitutional protection.' The judge issued a certificate of probable cause, and this appeal followed. We affirm, although on grounds different in some respects from those of the district court.


Although the Supreme Court had recognized in federal criminal prosecutions a claim of what was called res judicata, but which today would be described as collateral estoppel, beyond the bounds of the double jeopardy clause as early as United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916), a claim that failure to apply collateral estoppel in favor of a defendant violated the due process clause did not come before it until Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958). The Court did not decide this point. Although expressing 'grave doubts whether collateral estoppel can be regarded as a constitutional requirement,' 356 U.S. at 471, 78 S.Ct. at 834, Mr. Justice Harlan, writing for the majority, found it unnecessary to determine the question since 'New Jersey both recognized the rule of collateral estoppel and considered its applicability to the facts of this case.' The Supreme Court of New Jersey had found the rule to be inapplicable because the previous trial 'involved several questions, not just (petitioner's) identity, and there is no way of knowing upon which question the jury's verdict turned.' The Supreme Court accepted the state court's application--more accurately non-application--of collateral estoppel, although intimating some doubt whether it would have approved a similar ruling by a lower federal court. There were separate dissents, one by Chief Justice Warren, another by Mr. Justice Douglas joined by Mr. Justice Black. Mr. Justice Brennan did not participate--for the rather apparent reason that, as a member of the Supreme Court of New Jersey, he had joined in the dissent from the judgment under review, State v. Hoag, 21 N.J. 496, 506, 122 A.2d 628, 634 (1956).

Dealing with facts about as close to Hoag as those in one criminal case can ever be to those in another, the Supreme Court, in Ashe v. Swenson, supra, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 reached an opposite result. The Court did not hold Hoag to have been wrong in the constitutional setting in which that case had arisen; it held rather that the setting had changed as a result of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), which had ruled that the guarantee against double jeopardy in the Fifth Amendment had been made applicable to the states by the Fourteenth. Characterizing the issue

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as being 'whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again' on a charge of robbing a different victim at the same time and place, 397 U.S. at 446, 90 S.Ct. at 1195, the Court held that the double jeopardy clause required a negative answer.

We agree with the district judge that Ashe v. Swenson does not rule this case. We do not reach that conclusion because of the passage in the Ashe opinion which describes collateral estoppel as meaning '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, 90 S.Ct. at 1194 (emphasis supplied), which the district judge evidently thought to exclude an order on a suppression motion. For purposes of issue preclusion, "final judgment' includes any prior adjudication of an issue in another action between the parties that is determined to be sufficiently firm to be accorded conclusive effect,' ALI, Restatement of Judgments 2d, Tent.Draft No. 1, § 41 (1973); Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 87--90 (2 Cir. 1961), cert. denied, 368 U.S. 986, 82 S.Ct. 601, 7 L.Ed.2d 524 (1962); Zdanok v. Glidden Co., 327 F.2d 944, 955 (2 Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964). Factors supporting a conclusion that a decision is final for this purpose are 'that the parties were fully heard, that the court supported its decision with a reasoned opinion, (and) that the decision was subject to appeal or was in fact reviewed on appeal.' Restatement, supra, § 41 at 7. All these exist with respect to the granting of the motion to suppress by the Queens County judge. 1 The reason why the holding in Ashe v. Swenson, as distinguished from some of its reasoning, is inapplicable to this case is rather the simple one that Ashe rested on the double jeopardy clause and DiGiangiemo was never placed in jeopardy in Queens County, where the indictment was dismissed before the beginning of a trial. Oppenheimer v. United States,supra, 242 U.S. at 87, 37 S.Ct. 68; Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). We are thus back to the question which the Court left unanswered in Hoag, namely, how far due process, unaided by the double jeopardy clause, requires a state to apply collateral estoppel in favor of a criminal defendant.


A hypothetical case may help in the consideration of this problem. Defendant X is the subject of two indictments in two counties, one for bank robbery, the other for having stolen an automobile to be used as the getaway car. He pleads not guilty to both charges and notifies the state that he proposes to prove an alibi, which will exonerate him of both offenses, and for which he has...

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