755 F.2d 1387 (9th Cir. 1985), 83-1231, United States v. Webbe

Docket Nº:83-1231.
Citation:755 F.2d 1387
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sorkis J. WEBBE, Defendant-Appellant.
Case Date:March 19, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1387

755 F.2d 1387 (9th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Sorkis J. WEBBE, Defendant-Appellant.

No. 83-1231.

United States Court of Appeals, Ninth Circuit

March 19, 1985

Argued and Submitted Sept. 13, 1984.

Page 1388

Geoffrey A. Anderson, Asst. Sp. Atty., Las Vegas Strike Force, Dept. of Justice, Louis M. Fischer, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Albert J. Krieger, Miami, Fla., for defendant-appellant.

Appeal from the United States District Court for the District of Nevada.

Before MERRILL, ALARCON and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Sorkis J. Webbe appeals his jury conviction on two counts of making and filing a false income tax return in violation of 26 U.S.C. Sec. 7206(1). Webbe, along with several others, had earlier been acquitted of conspiracy to defraud a union pension fund (United States v. Linton, CR-80-24-ECR). Webbe argues that the government was barred by collateral estoppel from trying him on the tax charges, because of his earlier acquittal on the conspiracy charges. Next, Webbe asserts that the district court erred in admitting certain evidence under Fed.R.Evid. 801(d)(2)(E). Finally, he challenges the sufficiency of the evidence supporting his conviction. We affirm.

The collateral estoppel doctrine means 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." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). To determine whether collateral estoppel bars a subsequent retrial of issues following an acquittal based on a general verdict, we must ask " 'whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' The inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Ashe, 397 U.S. at 444, 90 S.Ct. at 1194 (quoting Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240, 92 L.Ed. 180 (1948)).

In United States v. Hernandez, 572 F.2d 218, 220 (9th Cir.1978), we said that

[t]he collateral estoppel analysis involves a three-step process: (1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently...

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