People v. Buonavolanto

• Decision Date: 20 November 1992
• Docket Number: 1-91-1043,Nos. 1-91-1023,s. 1-91-1023
• Citation: 606 N.E.2d 509,238 Ill.App.3d 665
• Parties: , 179 Ill.Dec. 677 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James BUONAVOLANTO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 509

606 N.E.2d 509

238 Ill.App.3d 665, 179 Ill.Dec. 677

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.James BUONAVOLANTO, Defendant-Appellant.

Nos. 1-91-1023, 1-91-1043.

Appellate Court of Illinois First District, Sixth Division.

Nov. 20, 1992.

Onesto, Giglio, Meltreger & Associates, Chicago (Peter A. Regulski, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Richard J. Daley Center, Chicago (Renee Goldfarb and David Stabrawa, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice RAKOWSKIdelivered the opinion of the court:

Defendant-appellantJames Buonavolanto, after prevailing in a civil forfeiture action pursuant to Ill.Rev.Stat.1989, ch. 56-1/2, par. 1505, was found guilty of delivery of a controlled substance and sentenced to a term of nine years imprisonment.Defendant appeals both the criminal conviction, and the denial of his motion to preclude the State from proceeding against him criminally due to the effect of the prior action.Because of our disposition of the collateral estoppel issue, we need not address defendant's other grounds for appealing the criminal conviction.

The pertinent facts are as follows.In 1989, the State filed a civil forfeiture suit against defendant's ownership interest in a 1987Ford Taurus automobile pursuant to the Illinois Controlled Substances Act.The trial judge, Judge Bolan, ruled that the State had failed to establish that the vehicle was used to facilitate a crime.The State then pursued criminal proceedings against defendant, charging defendant with delivery of a controlled substance in violation of section 401(a)(2) of the Illinois Controlled Substances Act(Ill.Rev.Stat.1989, ch. 56-1/2, par. 1401(a)(2)).

Defendant filed a motion to dismiss on the ground that the State was collaterally estopped from bringing the criminal action against defendant due to the State's failure to prevail in the prior civil forfeiture proceeding.The trial judge in the criminal proceeding ruled that because there was neither an identity of issue nor parties in the two proceedings, collateral estoppel did not apply.Following a bench trial, defendant was found guilty as charged.

In most respects, the testimony at the two trials was the same.Agent John Majchur of the Northwestern Metropolitan Enforcement Group (NEMEG) testified that from January through September 1988he participated in an investigation regarding the purchase of narcotics from codefendant Giovanni Dominguez.On September 20, 1988, he and other agents of NEMEG formulated plans to purchase narcotics from Dominguez.At about 6 p.m., he established surveillance at the residence of Dominguez's motherat 1533 Lombard in Cicero, Illinois.He observed agent Guerra arrive in front of the residence and speak with Dominguez.The two men entered Agent Guerra's car and proceeded to Harvey Street.

Next. according to Majchur, he saw Dominguez enter a black Ford Taurus with the license plate "Buona 1," driven by defendant.The vehicle proceeded southbound from 15th Street and turned into an alley.From a point perpendicular to the alley, agent Majchur observed defendant exit the vehicle, which had stopped, walk to a garbage can and retrieve a blue and white bag.Defendant then reentered the vehicle and drove away.Agent Majchur, after alerting other agents, then observed Dominguez exit the Ford Taurus carrying a bag.Dominguez was subsequently apprehended by other agents, while Majchur apprehended defendant.At the station, agent Guerra displayed a blue and white bag which appeared to be the same one Majchur saw in the alley.

Agent Guerra testified that on September 20, 1988, he was planning on purchasing narcotics from Dominguez as part of a NEMEG plan.He arrived at Dominquez's home, and had a brief conversation with him before they returned to the agent's car.He displayed the purchase money to Dominguez and Dominguez stated that he would have to "contact his [Dominguez's] guy."Dominguez then exited the agent's vehicle and walked to a nearby pay telephone, but Guerra was not able to tell if, in fact, Dominguez used the telephone.

About 10 minutes later, Dominguez returned, and said that he would meet "his guy," about a block away.Agent Guerra testified that when Dominguez left his presence, he was not carrying a blue and white plastic bag.Upon Dominguez's return ten minutes later, however, he did have such a bag, and Dominguez stated "check it out, there is five in there and its real good stuff."When agent Guerra opened the bag he found five clear plastic bags therein, each containing a white chunky substance subsequently determined to be cocaine.

The primary difference in testimony in the two proceedings concerned where agent Majchur was when he saw defendant exit his vehicle in the alley.At the civil forfeiture proceeding, Majchur testified that when he observed the vehicle in the alley he was parked on 16th Street.From that angle, he acknowledged later at the criminal trial that whoever went to the garbage can would have had to exit the passenger, not the driver door.At the criminal trial, however, Agent Majchur said that he was on 15th Street looking in another direction, and that the person exiting the vehicle did so from the driver side door.

The only issue we address is whether the State, having failed to prevail in its civil forfeiture action against defendant, was precluded from pursuing a criminal action against defendant based upon the same theory.We conclude that the State was barred from proceeding criminally in this case.

The State argues that it was not collaterally estopped from proceeding on the criminal action due to the lack of commonality of issues in the two proceedings.According to the State, in a forfeiture action such as the one involving defendant's vehicle, guilt or innocence is not at issue, only whether the vehicle was used in the commission of the offense.(SeeIn re $27,440(1987), 164 Ill.App.3d 44, 46, 115 Ill.Dec. 293, 517 N.E.2d 704.)The issue in the State's forfeiture action was whether it proved by a preponderance of the evidence that defendant's vehicle was used to transport, or in any manner facilitate the transportation, sale, receipt, possession or concealment of a controlled substance.(People ex rel. Daley v. 1986 Honda(1989), 182 Ill.App.3d 322, 324, 130 Ill.Dec. 748, 537 N.E.2d 1077;seeIll.Rev.Stat.1989, ch. 56-1/2 par. 1505(a)(3).)Essentially, the State must prove a nexus between defendant's vehicle and the cocaine.(People v. Strong(1986), 151 Ill.App.3d 28, 104 Ill.Dec. 247, 502 N.E.2d 744.)The issue in the State's criminal proceeding was whether it proved beyond a reasonable doubt that defendant knowingly delivered the cocaine.(SeeIll.Rev.Stat.1989, ch. 56-1/2, par. 1401(a)(2).)Consequently, according to the State, the issues are not identical and the doctrine does not apply to estop the State from bringing criminal proceedings against defendant.

Additionally, the State argues that People v. Moore(1990), 138 Ill.2d 162, 149 Ill.Dec. 278, 561 N.E.2d 648andPeople v. Williams(1990), 206 Ill.App.3d 1071, 151 Ill.Dec. 893, 565 N.E.2d 164 require that we affirm.

The parties have not cited any federal or out-of-state authority upon the issue.However, there is abundant authority, which if not precisely on point, provides guidance in our determination.Preeminent is the United States Supreme Courtcase of United States v. One Assortment of 89 Firearms(1984), 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361.There, the Court was faced with a collateral estoppel issue in a case which procedurally involved the opposite of what occurred sub judice, in that a criminal acquittal preceded a forfeiture proceeding.In One Assortment, the defendant was found not guilty on the criminal charge of knowingly engaging in the business of dealing in firearms without a license.The Government then instituted an in rem proceeding for forfeiture of the subject firearms.The Court held that acquittal of the gun owner on criminal charges involving firearms did not preclude a subsequent in rem proceeding against the firearms.(465 U.S. at 362, 104 S.Ct. at 1104-05.)Critical to the Court's holding was the difference in the standard of proof in the two proceedings.In the prior criminal case, the standard of proof was guilt beyond a reasonable doubt, and an acquittal on that charge reflected only a reasonable doubt as to the guilt of the defendant.In the forfeiture proceeding, on the other hand, the Government's standard of proof only was that of the preponderance of the evidence.Consequently, while the State may have failed to prove the crime, it could still prevail by the latter, lesser standard.

The type of thinking employed by the One Assortment of 89 Firearms Court was consistent with prior Supreme Courtcases(seeHelvering v. Mitchell(1938), 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917;One Lot Emerald Cut Stones and One Ring v. United States(1972), 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438), and has been followed by numerous Federal and state tribunals, wherein its reasoning was helpful to the disposition of collateral estoppel issues.(See inter alia, U.S. v. Fifty Thousand Dollars ($50,000) U.S. Currency(6th Cir.1985), 757 F.2d 103;U.S. v. Furlett(N.D.Ill.1991), 781 F.Supp. 536;U.S. v. Pryba(E.D.Va.1987), 674 F.Supp. 1518;U.S. v. Approximately 2,475,840 Lbs. of Coffee Beans(D.C.Puerto Rico1985), 608 F.Supp. 288;United States v. Crispino(D.N.J.1984), 586 F.Supp. 1525;In re Neil C.(1987), 521 A.2d 329, 308 Md. 591;State v. One 1977 Buick Automobile(1985), 493 A.2d 874, 883 n. 8, 196 Conn. 471; see also Annot., Acquittal or Conviction in Criminal Prosecution As Bar to Particular Actions for Forfeiture of Property or for Statutory Damages or Penalty--79 L.Ed.2d 960, 972, 977, (1984).)Our own appellate court has relied in part on the rationale of One Assortment of 89 Firearms in...