Copening v. United States

• Decision Date: 12 March 1976
• Docket Number: No. 7613.,7613.
• Citation: 353 A.2d 305
• Parties: James R. COPENING, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 305

353 A.2d 305

James R. COPENING, Appellant, v. UNITED STATES, Appellee.

No. 7613.

District of Columbia Court of Appeals.

Submitted September 18, 1974.

Decided March 12, 1976.

Alan J. Nuta, Silver Spring, Md., appointed by the court, was on the brief for appellant.

Earl J. Silbert, U. S. Atty., and John A. Terry, James F. McMullin, Robert E. Hauberg, Jr., and Joel DuBoff, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before FICKLING, NEBEKER, and HARRIS, Associate Judges.

HARRIS, Associate Judge.

Appellant was charged in a single information with three offenses: (1) carrying a pistol without a license, D.C.Code 1973, § 22-3204; (2) possession of an unregistered firearm, D.C.Pol.Reg. Art. 51, § 1; and (3) possession of ammunition for an unregistered firearm, D.C.Pol.Reg. Art. 53, § 2.¹ The charges were tried together. He was acquitted of the statutory charge by the jury, and then was found guilty on each of the Police Regulations counts by the trial judge.² Appellant contends principally that the convictions by the judge, expressed immediately following the jury's verdict of acquittal, are barred by the doctrine of collateral estoppel, as applied through the double jeopardy provision of the Fifth Amendment.³ We affirm.

I

One afternoon a police officer found appellant, unconscious, in the driver's seat of an automobile parked atop a pedestrian island. Appellant was extremely intoxicated and unable to respond to the officer's questions. Appellant and the car were transported to a police station.

At the station, appellant still could make no response to inquiries as to relatives (who might come to get him) or the ownership of the car. Finally, an officer went out to the car to look for the registration card. He opened the unlocked console between the two front seats, and found a loaded .38 caliber pistol. He seized The gun, and then found the registration card mingled with other papers in the console.⁴

Appellant was asked about the seized items but "was still very much under the influence." It was not until approximately 1½ hours after the questioning began that appellant was able to respond coherently. He provided the officers with his wife's name and his place of employment. His wife was called, and she arrived shortly thereafter. Appellant again was asked about the pistol. He was informed that he was being charged with unlawful possession of the weapon, and elected to remain silent about its presence in his car.

The maximum penalty for carrying a pistol without a license is a fine of $1,000 or imprisonment for not more than one year, or both.⁵ D.C.Code 1973, § 22-3215. On that charge, since the potential maximum imprisonment exceeded 90 days, appellant was entitled to a trial by jury. D.C.Code 1973, § 16-705(b) (1); cf. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). He chose not to waive that right. Possession of an unregistered gun and possession of ammunition for an unregistered gun each subjects a violator to a fine of not more than $300 or imprisonment for not more than 10 days. D.C.Pol.Reg. Art. 55, § 11. Following the customary procedure, one trial was conducted. The jury was to determine guilt on the charge of carrying a pistol without a license, and the trial judge was to make the adjudications on the alleged violations of the Police Regulations.

The defense consisted of the testimony of appellant and his wife. Appellant stated that he and three friends had vacationed in Atlantic City over the weekend, traveling in appellant's automobile. On the drive back they drank heavily. After they returned to the District, two passengers were dropped off. Appellant and the remaining passenger, one of his co-workers, then drove to their place of employment. Appellant explained his tardiness and his inability to work that day, and, now alone, attempted to drive home. The next thing he could remember was his wife's arrival at the police station.

Appellant testified that he paid little attention to the console during the trip, but that he had not seen anyone put a pistol in it. He denied owning a pistol or knowing of its presence in his car. Appellant's wife, who had not accompanied him, testified that she had never seen appellant with a pistol. She also stated that she happened to inspect the console on the day appellant left, and that there was no gun there at that time.

Appellant's dual defense thus was that the gun was not his and that he had no knowledge of its presence in his car. Subsequent to the court's instructions on the charge of carrying a pistol without a license, the jurors asked three times for reinstruction as to intent. Each time they were informed, in effect, that "intent" requires that the act charged be done "consciously and voluntarily and not inadvertently or accidentally." Soon after the court's final response the jury returned a verdict of not guilty. The court then found appellant guilty of possession of an unregistered firearm and possession of ammunition for an unregistered gun.

II

Appellant's first argument is that given the jury's acquittal on the statutory charge, the trial court was collaterally estopped to find him guilty of the two regulatory offenses. Appellant combines his premise that both the statute and the regulation contemplate the same concept of possession (i. e., that the accused must be shown to have been aware of the weapon's presence), with an assertion that the verdict necessarily reflects the jury's conclusion that the government inadequately established the requisite knowledge. It thus is argued that once the jury announced its verdict, the doctrine of collateral estoppel barred the court's findings of guilt on the Police Regulations charges. We disagree.

Appellant bases his argument on the Supreme Court's decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed. 2d 469 (1970), in which the principles of collateral estoppel were held to be a necessary corollary to the Fifth Amendment's guarantee against double jeopardy.⁶ The Ashe Court observed (id. at 443, 90 S.Ct. at 1194):

"Collateral estoppel" is an awkard phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply 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.

In Ashe, the petitioner and several codefendants allegedly had robbed six men who had been engaged in a poker game. Ashe first was tried for the robbery of four of the six victims, and was acquitted. Thereafter, in a separate proceeding, Ashe was tried for the robbery of the other two and was convicted. The Supreme Court reversed. It first determined that the record of the prior proceeding affirmatively demonstrated that "[t]he single rationally conceivable issue in dispute before the [first] jury was whether the petitioner had been one of the robbers." 397 U.S. at 445, 90 S.Ct. at 1195. The Court then concluded that the constitutional interests underlying the double jeopardy guarantee required that the state be estopped to prosecute a second case which necessarily turned on the same crucial issue of identity. Ashe thus stands for the proposition that an individual cannot be tried by the same sovereign for an offense the conviction of which would require the readjudication of a factual issue which previously has been determined in his favor. Cf. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). As we read Ashe, application of the collateral estoppel doctrine requires the concurrence in different proceedings of the three circumstances of (1) a common factual issue necessary to both adjudications, (2) a prior determination of that issue in litigation between the same parties, and (3) a showing that the determination was in favor of the party seeking to raise the estoppel bar.

The doctrine of collateral estoppel generally is applicable only where there has been a conclusive prior resolution of the precise factual question presented in the subsequent proceedings. See Ashe v. Swenson, supra 397 U.S at 443, 90 S.Ct. 1189. See also United States v. International Building Co., 345 U.S. 502, 504-05, 73 S.Ct. 807, 97 L.Ed. 1182 (1953); Commissioner v. Sunnen, 333 U.S. 591, 599-600, 68 S.Ct. 715, 92 L.Ed. 898 (1948). It falls to the party asserting an estoppel bar to establish both the prerequisite existence of a common factual issue and the fact that such issue was "necessarily determined" in his favor. Sec Moore v. United States, 120 U.S.App.D.C. 173, 175, 344 F.2d 558, 560 (1965); United States v. Cala, 521 F. 2d 605, 608 (2d Cir. 1975). Where the prior judgment relied upon is in the form of a general verdict, the difficulty of establishing the existence of the necessary prerequisites is compounded. Sec United States v. Tramunti, 500 F.2d 1334, 1346 (2d Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974). The Ashe Court instructed that the appropriate inquiry necessarily involves a "realistic" examination of the whole of the circumstances. 397 U.S. at 444, 90 S.Ct. 1184. Pursuant to such guidance, we have required a clear showing of the threshold elements of collateral estoppel:

"Unless the record of the prior proceeding affirmatively demonstrates that an issue involved in the second trial was definitely determined in the former trial, the possibility that it may have been does not prevent the relitigation of that issue." [United States v. Smith, D.C. App., 337 A.2d 499, 503 (1975), quoting United States v. Haines, 485 F.2d 564, 565 (7th Cir. 1973), cert. denied, 417 U. S. 977, 94 S.Ct. 3184, 41 L.Ed.2d 1147 (1974).]

Neither the record before us nor the arguments advanced by appellant persuade us that the issue of knowledge or intent under § 22-3204 necessarily is identical to that involved in the prosecution of the regulatory offenses,⁷ or that doubt as...