U.S. v. DeMarco

• Decision Date: 16 June 1986
• Docket Number: No. 84-5885,84-5885
• Citation: 791 F.2d 833
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph DeMARCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 833

791 F.2d 833

UNITED STATES of America, Plaintiff-Appellee, v. Joseph DeMARCO, Defendant-Appellant.

No. 84-5885.

United States Court of Appeals Eleventh Circuit.

June 16, 1986.

Winkel & Sims, William M. Winkel, West Palm Beach, Fla., for defendant-appellant.

Leon Kellner, U.S. Atty., Karen Atkinson, Linda Collins-Hertz, David O. Leiwant, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before VANCE and HATCHETT, Circuit Judges, and SWYGERT ^*, Senior Circuit Judge.

HATCHETT, Circuit Judge:

This appeal involves double jeopardy and collateral estoppel claims. The district court held that the government could put the appellant to trial, on substantive charges of violating 18 U.S.C. Sec. 2314, even though in an earlier trial, appellant was acquitted of conspiring to violate 18 U.S.C. Sec. 2314. The district court also held that the government could use the same time period as covered in the earlier conspiracy trial, with one condition: that the government not introduce in the substantive offense trial evidence seeking to prove that the appellant conspired to violate 18 U.S.C. Sec. 2314. We affirm.

BACKGROUND

By indictment, the government charged appellant, Joseph J. DeMarco, with several counts of fraud and with conspiring with Eli Vance and Maurice Baskin to defraud Curt G. Joa, Inc. in violation of 18 U.S.C. Sec. 2314. The time period covered by the indictment was January, 1980, to June, 1982. The district court acquitted DeMarco on all charges. A second indictment was dismissed without prejudice.

On May 22, 1984, a federal grand jury returned the indictment we now review charging DeMarco with violations of 18 U.S.C. Secs. 2314 and 2. The indictment alleges, in separate counts, that on March 27, 1980, April 29, 1980, May 21, 1980, May 27, 1980, June 23, 1980, July 15, 1980, and August 4, 1980, "DeMarco did knowingly and willfully transport and cause to be transported in interstate commerce ... securities and monies valued in excess of ... $5,000 [describing the check] knowing the same to have been stolen, converted and taken by fraud." On June 19, 1984, DeMarco filed a motion to dismiss the indictment on grounds of double jeopardy and prosecutorial vindictiveness. The district court denied the motion to dismiss, but ruled that "a trial in this case is permissible only if no evidence of a conspiracy (a combination or agreement) of Defendant and one Eli Vance joining together to attempt to accomplish the offenses alleged in the indictment is brought out at the trial, the United States being collaterally estopped to introduce such evidence.

At oral argument, we inquired whether the government could successfully prosecute DeMarco for violating 18 U.S.C. Sec. 2314, in light of the district court's collateral estoppel order. On November 29, 1985, the government responded by letter that "the United States will be able to prove that on the dates charged in the indictment, DeMarco transported in interstate commerce monies in excess of $5,000 knowing the same to have been taken by fraud, and that the United States will be able to prove these charges without introducing evidence that DeMarco conspired with Eli Vance to accomplish the aforementioned offenses."

DISCUSSION

DeMarco contends that because he was acquitted of conspiring with Eli Vance and Maurice Baskin to violate 18 U.S.C. Sec. 2314 during the period from January, 1980, to June, 1982, collateral estoppel and double jeopardy bars the government from prosecuting him for violating section 2314 on seven dates during that period.

The government contends that the district court ruled correctly that DeMarco's acquittal of conspiracy to violate 18 U.S.C. Sec. 2314 during the period January, 1980, through June, 1982, does not bar his prosecution on substantive charges of violating section 2314 during the same time period on double jeopardy grounds. The government agrees that it is collaterally estopped from offering proof that DeMarco conspired with Eli Vance and Maurice Baskin to commit the substantive crimes charged in this indictment.

The collateral estoppel doctrine provides that once an issue of ultimate fact has been determined by a valid and final judgment, the issue cannot be relitigated between the same parties in a future lawsuit. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In a criminal case, collateral estoppel is a protection included in the fifth amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. at 445, 90 S.Ct. at 1195, 25 L.Ed.2d at 476. Collateral estoppel applies in two ways: (1) it may bar prosecution or argumentation of facts necessarily established in a prior proceeding; or (2) it may completely bar subsequent prosecution where one of the facts necessarily determined in the former trial is an essential element of the conviction the government seeks. United States v. Griggs, 735 F.2d 1318 (11th Cir.1984).

Acquittal of conspiracy does not collaterally estop the government from prosecution of the substantive crime which was the object of the conspiracy. United States v. Mock, 604 F.2d 341, 344 (5th Cir.1979), aff'd after remand, 640 F.2d 629 (5th Cir. Unit B 1981). To determine whether an exception to this general rule exists, we must examine the record to identify the...