U.S. v. Cejas

• Decision Date: 18 May 1987
• Docket Number: No. 85-1144,85-1144
• Citation: 817 F.2d 595
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wilfredo CEJAS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 595

817 F.2d 595

UNITED STATES of America, Plaintiff-Appellee, v. Wilfredo CEJAS, Jr., Defendant-Appellant.

No. 85-1144.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 3, 1985.

Decided May 18, 1987.

John D. Lyons, Jr., Phoenix, Ariz. for plaintiff-appellee.

Denis H. Mark and William C. Waller, Denver, Colo., for defendant-appellant.

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

Before BROWNING, SNEED and HUG, Circuit Judges.

HUG, Circuit Judge:

Appellant Cejas appeals from the denial of his motions to dismiss the indictment returned against him in the District of Arizona. Cejas contends that this indictment is barred by the double jeopardy clause of the Fifth Amendment, by the doctrines of res judicata and collateral estoppel, and under the provisions of the Interstate Agreement on Detainers Act ("IAD"), 18 U.S.C.App. Sec. 1 et seq. (1982).

This case principally involves the assertion of a double jeopardy defense, and the application of the doctrines of res judicata and collateral estoppel in a criminal case. Cejas contends that the Government is barred from proceeding on the present indictment, which is based on an alleged drug conspiracy, because he contends a prior conviction was based upon the same drug conspiracy. An additional wrinkle is advanced in this case: Cejas contends that the question of whether the present indictment is barred by double jeopardy was finally determined in a prior proceeding; and, thus, the doctrine of collateral estoppel precludes the relitigation of that issue.

I. JURISDICTION

As a general rule, denials of pretrial motions are not considered final and are, therefore, not appealable. United States v. Garner, 632 F.2d 758, 760 (9th Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981). An exception to this general rule has been recognized in the case of a denial of a pretrial motion to dismiss based on a claim of double jeopardy. Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977); United States v. Ajimura, 598 F.2d 510, 512 (9th Cir.1979). Under Abney, the district court's order denying Cejas's motion to dismiss the indictment on double jeopardy grounds is appealable as a final order under 28 U.S.C. Sec. 1291 (1982). The bar to a second prosecution based on collateral estoppel is a principle "embodied in the Fifth Amendment guarantee against double jeopardy." Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). Thus, an order denying a motion to bar retrial based on collateral estoppel--being a double jeopardy determination--is also appealable under the rationale of Abney. See United States v. Stearns, 707 F.2d 391, 394 (9th Cir.1983), aff'g 546 F.Supp. 805 (D.Hawaii 1982), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 181 (1984).

Cejas argues that the court also has jurisdiction to review the denial of his motion to dismiss for violation of the IAD. Abney precludes this; the court does not have ancillary jurisdiction to review otherwise nonappealable questions that are raised simultaneously with the double jeopardy claim. United States v. Sisk, 629 F.2d 1174, 1181 (6th Cir.1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 871, 66 L.Ed.2d 809 (1981). To hold otherwise would encourage frivolous double jeopardy claims in circumvention of the finality requirement of section 1291. Abney, 431 U.S. at 662-63, 97 S.Ct. at 2041-42. Thus, we lack jurisdiction to consider Cejas's appeal from the denial of his motion to dismiss for violations of IAD.

II. FACTS

On April 17, 1984, Cejas was indicted, along with 38 other individuals, in the proceeding entitled United States v. Harold Jerry Garmany, et al., CR-84-090-PHX-WPC. The Garmany Indictment charged 77 counts and listed hundreds of overt acts involving an organization that allegedly imported, obtained, and distributed a variety of drugs. The principal count, Count Three, charged a conspiracy to distribute marijuana, cocaine, and methaqualone, and use of a communication facility to facilitate the same, in violation of 21 U.S.C. Sec. 846 (1982), and sets forth 265 overt acts, among which were overt actions 72, 73, 80, and 89, relating to drug transactions at Sneed's Ferry, North Carolina, and Fort Pierce, Florida, during February and March of 1981.

Cejas was named in Count Three, as well as Count Four (conspiracy to import marijuana and cocaine in violation of 21 U.S.C. Sec. 952 (1982 & Supp. III)), Count Five (conspiracy to violate 18 U.S.C. Sec. 1962(c) (1982) (Racketeer Influenced and Corrupt Organizations) ("RICO")), Count Seven (conspiracy to defraud the IRS in violation of 18 U.S.C. Sec. 371 (1982)), Count Twenty-seven (conspiracy in the use of extortionist means to collect extension of credit in violation of 18 U.S.C. Sec. 894(a)(1) (1982)), and Count Forty-one (interstate travel in aid of a racketeering enterprise in violation of 18 U.S.C. Secs. 2 (1982) and 1952 (1982)).

Subsequently, it was learned that Cejas had been convicted on charges of conspiracy involving the Sneed's Ferry-Fort Pierce transactions on April 11, 1982 in the Southern District of Florida ("Florida conviction"). Count One of the Florida conviction charged Cejas with conspiracy to distribute marijuana in violation of 21 U.S.C. Sec. 846; Count Two charged him with use of a communication facility in facilitating a conspiracy to distribute marijuana in violation of 21 U.S.C. Sec. 843(b) (1982).

Cejas moved for dismissal of Count Three of the Garmany Indictment on double jeopardy grounds, arguing that the conspiracy charged in Count Three was the same conspiracy for which he was convicted in Florida. In opposing this motion, the Government conceded that overt acts 72, 73, 80, and 89 of Count Three of the Garmany Indictment were the same acts that formed the basis of the Florida conviction. The Government suggested, however, that the Garmany Indictment could be purged of this taint by merely excising those overt acts.

Cejas also moved for dismissal of the remaining counts against him in the Garmany Indictment on the ground that each count depended on the conspiracy charged under Count Three and, as that count was barred by double jeopardy, the district court should exercise its supervisory powers and order the remaining counts dismissed. On January 28, 1985, the district court dismissed all counts against Cejas "on the grounds of double jeopardy and the [United States v.] Guido [597 F.2d 194 (9th Cir.1979) ] and [United States v.] Allen [539 F.Supp. 296 (C.D.Cal.1982) ] cases as stated." The Government did not seek reconsideration of, and did not appeal from, the district court's dismissal.

On February 20, 1985, Cejas was indicted on two counts in the present case, which we designate as the Cejas Indictment. Count One of the Cejas Indictment charges conspiracy to distribute marijuana and cocaine in violation of 21 U.S.C. Sec. 846; Count Two charges conspiracy to violate 18 U.S.C. Sec. 1962(c) (RICO) in violation of 18 U.S.C. Sec. 1962(d). The Cejas Indictment was issued by a different grand jury than the one that handed down the Garmany Indictment. Both counts involve three basic transactions: (1) in New Orleans, 10,000 pounds of marijuana was sold to the Garmany organization by Cejas through Letitia Serpas ("Serpas") and Rex Ryland ("Ryland") in January of 1981; (2) near Raleigh, North Carolina, a DC-4 load of 9,000 pounds of marijuana, which was arranged and carried out by Cejas, Serpas, Ryland, and Harold Lee Baumann; and (3) in Augusta, Georgia, the distribution of 2,000 pounds of marijuana to Cejas from the Garmany organization in late June or early July of 1981. On the Government's motion, the matter was consolidated with the proceedings in Garmany.

Cejas filed the motions to dismiss, based on the double jeopardy clause of the Fifth Amendment and the doctrines of res judicata and collateral estoppel. The Government opposed the motions, and the district court denied them without a hearing. Cejas timely filed his notice of appeal.

III. DISMISSAL OF GARMANY INDICTMENT

We consider first the effect of the district court's dismissal of Cejas from the Garmany Indictment. Cejas, relying upon United States v. Ajimura, 598 F.2d 510 (9th Cir.1979), contends that this dismissal was a final decision on the merits, which was not appealed by the Government, and The doctrines of res judicata and collateral estoppel apply to criminal, as well as civil, proceedings. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 239, 92 L.Ed. 180 (1948); United States v. Adams, 281 U.S. 202, 205 (1930); United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68, 69, 61 L.Ed. 161 (1916); United States v. Stearns, 707 F.2d 391, 394 (9th Cir.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 181 (1984); United States v. Powell, 632 F.2d 754, 757 (9th Cir.1980); United States v. Dipp, 581 F.2d 1323, 1325 (9th Cir.1978), cert. denied, 439 U.S. 1071, 99 S.Ct. 841, 59 L.Ed.2d 37 (1979); United States v. Venable, 585 F.2d 71, 75 (3d Cir.1978); United States v. Pappas, 445 F.2d 1194, 1197 (3d Cir.), cert. denied, sub nom. Mischlich v. United States, 404 U.S. 984, 92 S.Ct. 449, 30 L.Ed.2d 368 (1971). In most instances, the application of either doctrine has been after a jury verdict. Here, we are concerned with the effect of the dismissal of an indictment, and the issue is whether that was a final decision on the merits that bars further prosecution. The Government argues that the dismissal of Cejas from the Garmany Indictment was simply a procedural ruling, not a decision on the merits and, thus, could have no res judicata or collateral estoppel effects.

thus, became res judicata and precluded the Government from proceeding further against Cejas on that indictment. The Government did not proceed further against Cejas on the Garmany...