U.S. v. Brackett

• Decision Date: 21 May 1997
• Docket Number: No. 96-40568,96-40568
• Citation: 113 F.3d 1396
• Parties: UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. George E. BRACKETT, Sr., Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1396

113 F.3d 1396

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. George E. BRACKETT, Sr., Defendant-Appellant-Cross-Appellee.

No. 96-40568.

United States Court of Appeals Fifth Circuit.

May 21, 1997.

Florence Y. Pan, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, Paula Camille Offenhauser, Assistant U.S. Attorney, Houston, TX, for Plaintiff-Appellee-Cross-Appellant.

L. Aron Pena, Edinburg, TX, for Defendant-Appellant-Cross-Appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

We now consider the application of the collateral estoppel doctrine to successive criminal prosecutions. George Brackett appeals the denial of his motion to dismiss his indictment, arguing that the Double Jeopardy Clause bars the instant prosecution for conspiracy to possess with intent to distribute marihuana in violation of 21 U.S.C. § 846(a)(1). The government cross-appeals, arguing that the district court erred in suppressing evidence introduced in a previous prosecution for possession with intent to distribute marihuana. We affirm on the appeal, reverse on the cross-appeal, and remand.

I.

On September 18, 1992, Brackett was stopped at a border patrol checkpoint in Falfurrias, Texas, and consented to a search of his tractor-trailer truck. Border patrol officers discovered 247 kilograms of marihuana in the truck, and Brackett was arrested.

Brackett was indicted on one count of possession with intent to distribute marihuana in violation of 21 U.S.C. § 841(a)(1). At trial, he did not contest the fact that he had been in possession when he was arrested; instead, he pleaded ignorance, claiming that he had no knowledge of the marihuana and speculating that the drugs must have been placed in the truck, without his knowledge, while it was unattended. Accordingly, the prosecution and the defense both acknowledged that mens rea was the only disputed issue for the jury. Brackett was acquitted.

Subsequently, the government discovered evidence implicating Brackett as a drug courier in a marihuana distribution conspiracy. Consequently, he was indicted on one count of conspiracy to possess with intent to distribute marihuana in violation of 21 U.S.C. §§ 846(a)(1) and 841(b)(1)(B). The conspiracy alleged in the indictment occurred from April 1990 to May 1994, including the events charged in the prior possession prosecution. Moreover, three alleged co-conspirators pleaded guilty to charges of possession with intent to distribute, implicating Brackett in the conspiracy and offering testimony about the September 18, 1992, marihuana shipment to substantiate their allegations.

Brackett filed a pretrial motion to dismiss the indictment, claiming that it constituted a successive prosecution barred by the Double Jeopardy Clause, insofar as he had been acquitted previously of the substantive offense of possession with intent to distribute. The district court denied the motion but ordered the suppression of all evidence introduced in the prior possession prosecution, concluding that collateral estoppel barred the government's use of that evidence to prove any fact necessarily decided by the jury in acquitting Brackett of the possession offense.

Brackett appeals the denial of his pretrial motion to dismiss the indictment, which is an appealable order under the collateral order doctrine. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977). The government appeals the suppression order, which is immediately appealable under 18 U.S.C. § 3731.

II.

The doctrine of collateral estoppel is incorporated into the Double Jeopardy Clause. Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). Collateral estoppel guarantees that "when an issue of ultimate fact has once been determined by a valid and final judgment, the issue cannot again be litigated between the same parties in any future lawsuit." Id. at 443, 90 S.Ct. at 1194.

This court has consistently held that collateral estoppel may affect successive criminal prosecutions in one of two ways. First, it will completely bar a subsequent prosecution if one of the facts necessarily determined in the former trial is an essential element of the subsequent prosecution. Second, while the subsequent prosecution may proceed, collateral estoppel will bar the introduction or argumentation of facts necessarily decided in the prior proceeding. E.g., United States v. Deerman, 837 F.2d 684, 690 (5th Cir.1988). ¹

In this appeal, both applications of collateral estoppel are at issue: The district court declined to dismiss the indictment, but suppressed all evidence introduced in the prior possession prosecution. The application of collateral estoppel is a question of law that we review de novo. United States v. Smith, 82 F.3d 1261, 1265-66 (3d Cir.1996); United States v. Rogers, 960 F.2d 1501, 1507 (10th Cir.1992).

A.

It is axiomatic that "[c]ollateral estoppel bars relitigation only of those facts necessarily determined in the first trial." Deerman, 837 F.2d at 690. Accordingly, the first step in resolving a claim of collateral estoppel is to determine which facts were "necessarily decided" in the first trial. United States v. Levy, 803 F.2d 1390, 1398-99 (5th Cir.1986); United States v. Mock, 604 F.2d 341, 343 (5th Cir.1979). At this first stage of the inquiry, the defendant bears the burden of demonstrating that the issue he seeks to foreclose was "necessarily decided" in the first trial. Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 673, 107 L.Ed.2d 708 (1990). ²

This threshold determination is the touchstone of collateral estoppel doctrine. "When a 'fact is not necessarily determined in a former trial, the possibility that it may have been does not prevent re-examination of that issue.' " Lee, 622 F.2d at 790 (quoting Adams v. United States, 287 F.2d 701 (5th Cir.1961)). ³ The application of this test to criminal cases is awkward, however, as a general verdict of acquittal does not specify the facts "necessarily decided" by the jury.

Therefore, to determine which facts were "necessarily decided" in the first trial, following an acquittal by a general verdict, we examine the record of the prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, in order to determine " 'whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' " Ashe, 397 U.S. at 444, 90 S.Ct. at 1194 (citations omitted); accord Dowling, 493 U.S. at 350, 110 S.Ct. at 673.

Following this directive, we have taken a functional approach to collateral estoppel in criminal cases, like the instant appeal, in which a defendant was first acquitted by a general verdict and later invoked collateral estoppel to bar a subsequent prosecution. See, e.g., Deerman, 837 F.2d at 690; Levy, 803 F.2d at 1399; Lee, 622 F.2d at 790; Mock, 604 F.2d at 344. "In making this evaluation, we must examine allegations of the indictment, testimony, court's instructions to the jury, and jury's verdict to consider what makes the jury's verdict coherent. We should make this determination in a realistic, rational, and practical way, keeping in mind all the circumstances." Deerman, 837 F.2d at 690 (citations omitted).

It is not difficult to discern the facts "necessarily decided" by the jury in the first trial. Brackett did not deny that he was in possession of 247 kilograms of marihuana when arrested, nor did he contest the physical evidence and eyewitness testimony. To the contrary, he freely conceded all the facts relevant to the actus reus and staked his defense exclusively on the question of mens rea.

Insisting that he had no knowledge of the marihuana, Brackett characterized himself as an innocent driver who had been used as an unwitting drug courier by drug smugglers, and the jury apparently believed him. Under these circumstances, there is only one rational explanation for the general verdict of acquittal: The government did not prove, beyond a reasonable doubt, that Brackett knew of the 247 kilograms of marihuana in his truck on September 18, 1992. Accordingly, the jury "necessarily decided" only that Brackett did not knowingly possess marihuana with intent to distribute on that date. ⁴

Having determined which facts were "necessarily decided" in the first trial, we must decide whether the government is attempting to relitigate the same facts in the conspiracy trial. See Levy, 803 F.2d at 1398-99; Mock, 604 F.2d at 343. Therefore, we must divine whether the facts "necessarily decided" in the first trial are essential elements of the conspiracy charge. If so, the conspiracy prosecution is barred by collateral estoppel. If not, we must decide whether the evidence offered in the possession prosecution must be suppressed in the conspiracy trial.

B.

Collateral estoppel completely bars a subsequent prosecution only when a fact "necessarily determined" in the first prosecution is an essential element of the offense charged in the subsequent prosecution. See Kalish, 780 F.2d at 508; Lee, 622 F.2d at 790. In the instant case, none of the essential elements of the offense of conspiracy to possess with intent to distribute marihuana was "necessarily decided" in the prior possession trial. Consequently, the district court properly refused to dismiss the indictment.

In order to prove the existence of a conspiracy to possess with intent to distribute marihuana, the government is required to prove three essential elements beyond a reasonable doubt: first, that an agreement existed to violate the federal narcotics laws; second, that the defendant knew of the existence of the agreement; and third, that he voluntarily participated in the conspiracy. See United States v. Garcia, 86 F.3d 394, 398 (...