Phillips v. U.S.

• Decision Date: 13 August 1974
• Docket Number: No. 73-2516,73-2516
• Citation: 502 F.2d 227
• Parties: Eddie Lawrence PHILLIPS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 227

502 F.2d 227

Eddie Lawrence PHILLIPS, Appellant, v. UNITED STATES of America, Appellee.

No. 73-2516.

United States Court of Appeals, Fourth Circuit.

Argued April 2, 1974.

Decided Aug. 13, 1974.

Alan P. Owens, Norfolk, Va., for appellant.

J. Brian Donnelly, Asst. U.S. Atty., for appellee.

Before CRAVEN, ADAMS ^* and RUSSELL, Circuit Judges.

ADAMS, Circuit Judge:

This appeal calls for an application of the time-honored principle of collateral estoppel ¹ in a somewhat unusual factual setting.

I.

The appellant, Eddie Lawrence Phillips, was indicted under 18 U.S.C. 2113(a) and (d), and charged with robbing a federally insured bank in Nansemond, Virginia. On April 16 and 17, 1973, Phillips was tried before a jury. At that trial, the government sought to prove that Phillips was one of four armed men who had entered the bank, perpetrated a robbery in the bank during which a gun was fired, and then made off with some $34,000 in bank funds. Phillips' counsel sought to establish an alibi defense, and specifically challenged prosecution witnesses whose testimony tended to place Phillips in the bank during the robbery.

At the conclusion of the evidence, and after closing statements by counsel, the district judge proceeded to instruct the jury on, among other things, the necessary elements of the crimes charged. ² The jury retired to consider its verdict, but before concluding its deliberations posed the following query to the district judge:

'If we believe that Phillips was involved in the bank robbery but not at the bank at the time of the robbery is he considered guilty or not guilty?' ³ The district judge responded to the jury's question with the following supplementary instruction:

'I specifically tell you that insofar as the question of robbery of the bank, if you do not believe that Phillips was in the bank, he could not be found guilty of the crime of robbery of that bank. If you believe that the event, that his participation was not as one of those who were in the bank, I repeat, you could not find him guilty of robbery of that bank.' ⁴

However, the district court proceeded to instruct the jury that it might find Phillips guilty of possession of, or disposing of, what he knew to be the proceeds of the bank robbery. This offense was styled by the trial judge a 'lesser included offense' under the indictment for bank robbery. ⁵

Ten minutes after the supplementary instruction was given, the jury returned the following verdict:

'We, the jury, find the defendant guilty of the lesser offense of possession of stolen money with knowledge that the money was stolen from the bank.' ⁶

On July 18, 1973, the district court set aside the conviction based on possession, on the grounds that it was not included in the indictment, and granted Phillips a new trial, 'to proceed only upon the lesser included charge of possession of money, knowing the same to have been stolen in a bank robbery.' In September of 1973, the grand jury issued a new indictment, under U.S.C.A. 2113(c), charging Phillips only with illegally possessing the money which he had earlier been indicted for stealing. ⁷ On motion by the government, the earlier indictment for bank robbery was dismissed.

Phillips proceeded to trial upon the new indictment on November 14, 1973. Prior to the swearing in of the jury, Phillips' counsel moved the district court to prohibit the introduction of any evidence tending to show Phillips' presence in the bank at the time of the robbery. The stated ground for this motion was that the issue of Phillips' presence at the bank during the robbery had been adjudicated in Phillips' favor at the first trial.

Counsel for Phillips maintained that the first jury, by having failed to convict him of bank robbery, the offense for which he was primarily charged in the first trial, had determined that he was not in the bank during the robbery. Phillips' motion to exclude evidence showing his participation in the robbery was overruled.

The jury was sworn, the second trial proceeded, and the government, over continuing objection by Phillips' counsel, proferred evidence tending to establish that Phillips participated in the robbery itself, and specifically that he had been in the bank. Government counsel made several statements to show that Phillips had taken an active part in the robbery. ⁸ Before the jury returned, the district court gave the following instruction regarding the evidence of Phillips' involvement in the robbery:

'Any evidence admitted at this trial concerning statements alleged to have been made by the defendant that he participated or had any connection with the bank robbery was admitted only on the question of knowledge of the defendant that if he possessed any money taken in the robbery he possessed it knowing it had been stolen.' ⁹

The jury found Phillips guilty of possession of the stolen money, with knowledge that it had been stolen.

On this appeal Phillips invokes the principle of collateral estoppel and contends, inter alia, that the district court erred in admitting evidence at the second trial that tended to prove he was present at the bank when the robbery took place. Phillips further contends that testimony as to what occurred in the bank at the time of the robbery prejudiced him, since it showed the use of force on bank personnel. Phillips asserts that because of the prejudicial nature of this evidence, he is entitled to a new trial. We agree, and reverse Phillips' conviction.

II.

Collateral estoppel '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.' ¹⁰ Considerations of judicial economy, conservation of public funds, and avoidance of multiple litigations underly the doctrine. ¹¹ Implicit, of course, in any limitation on relitigation of issues already determined in the criminal context is an appreciation of the substantial burdens, psychological as well as otherwise, placed on one who must defend against criminal prosecution. ¹² At least since 1916, collateral estoppel has been an acknowledged rule of federal criminal law. ¹³ Since 1970, the rule has been recognized as an integral aspect of federal constitutional law as well, under the Fifth Amendment's guarantee against double jeopardy. ¹⁴ This Court, too, has heretofore signalled its acceptance of the general principle, and its readiness to apply it in an appropriate case. ¹⁵

Perhaps the most vexatious task facing a court in the application of collateral estoppel is the determination whether a particular factual issue has been settled by the prior adjudication. ¹⁶ At common law, the inquiry was often an excruciatingly technical one, the court having to cull 'ultimate fact' from 'mediate data' with an almost thomistic exactitude. ¹⁷ The federal courts, however, have exhibited a marked tendency to forego over-refined technique in favor of a more practical approach, at least in criminal cases. This modern attitude is articulated in Ashe v. Swenson, supra:

'The Federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hyper-technical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to 'examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude 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.' Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240, 92 L.Ed. 180. Any test more mechanically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.' ¹⁸

Among the 'hyper-technical' devices to be eschewed under this view, then, is the notion that a general verdict of acquittal 'may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases . . .' ¹⁹ Each general verdict of acquittal must be examined carefully, to determine what facts, if any, can be deemed to have been adjudicated.

Pursuing this approach, and after reviewing the indictments, the trial transcripts, the various colloquys between court and counsel, the exchanges between the court and jury, the jury's decision in the first trial to acquit Phillips of bank robbery, and setting the 'inquiry into a practical frame,' we are convinced that the first jury effectively determined that Phillips was not in the bank at the time of the robbery.

Several circumstances support this conclusion. First, the jury inquired specifically whether a finding of presence in the bank was requisite to a conviction under the robbery statute. They were instructed, in no uncertain terms, that it was. ²⁰ A scant ten minutes after being so enlightened, they declined to return a verdict of guilty on the robbery charge. A 'realistic and rational' appraisal of these facts tends to show that the pivotal factual question in the jury's deliberations was whether Phillips was present in the bank. The jury's decision not to convict, following so closely upon the heels of clarifying instruction, leads almost inexorably to the conclusion that, at least in the jury's eye, Phillips was not in the bank at the time of the robbery, or that the government had failed to prove that Phillips was in the bank at the time of the robbery. Any test more mechanically restrictive 'might well amount to a rejection of the rule of collateral estoppel.'

The conclusion by the first jury that...