U.S. v. Dipp

• Decision Date: 31 July 1978
• Docket Number: No. 77-2730,77-2730
• Citation: 581 F.2d 1323
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Raymond DIPP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1323

581 F.2d 1323

UNITED STATES of America, Plaintiff-Appellee, v. George Raymond DIPP, Defendant-Appellant.

No. 77-2730.

United States Court of Appeals, Ninth Circuit.

July 31, 1978.

Rehearing and Rehearing En Banc Denied Sept. 19, 1978.

Harry E. Claiborne, Las Vegas, Nev., for defendant-appellant.

Raymond D. Pike, Asst. U. S. Atty., Reno, Nev., for plaintiff-appellee.

Appeal From the United States District Court For the District of Nevada.

Before HUFSTEDLER, SNEED and KENNEDY, Circuit Judges.

SNEED, Circuit Judge:

Dipp appeals from his conviction for perjury in violation of 18 U.S.C. § 1623. The perjury charge arose out of testimony he gave in his own behalf at an earlier trial in which he was accused of conspiracy to smuggle drugs into the United States. Appellant was acquitted of the conspiracy charge. On this appeal we must decide, first, whether the perjury prosecution was barred either by the doctrine of collateral estoppel or by the prosecutorial misconduct and, second, if not so barred, whether there was sufficient evidence introduced at the perjury trial to establish the materiality of the allegedly false testimony in the initial trial. We find no bar to the perjury prosecution and that the evidence was sufficient to establish materiality. We, therefore, affirm the conviction.

I.

Facts.

Dipp was indicted on charges of conspiring to smuggle controlled substances into the United States from Mexico. His alleged co-conspirators, Donald Johnson and Timothy Melancon, testified against him at trial. Dipp was alleged to have provided financial support for the smuggling operation, while Johnson and Melancon actually flew the drugs into the United States. Dipp's defense at trial was that he had agreed to give Johnson financial support for a legitimate venture, but had no idea that the airplanes he helped purchase were being used to smuggle marijuana. In order to bolster its case against Dipp, the government introduced the testimony of Paul Finefrock regarding a later smuggling operation in which Finefrock flew a plane supplied by Dipp. This evidence of subsequent criminal acts was used to show Dipp's knowledge of smuggling operations and as circumstantial evidence of his intent regarding the previous transaction. On the stand, Dipp denied meeting Finefrock more than once and categorically denied any involvement in a smuggling operation with him. Dipp was acquitted of the conspiracy charge.

Before the conspiracy trial the defense attorney sought broad discovery from the prosecution. The prosecutor stated that no written or recorded statements relating to the defendant existed. When Finefrock took the stand, a further request for Jencks Act material in regard to him was made. All that was produced at that time were the prosecutor's notes from his interview with the witness. Appellant admits that at the time Finefrock took the stand neither the prosecutor nor any of the Drug Enforcement Administration (DEA) agents directly involved in the prosecution were aware of any other material. However, after the conspiracy trial a DEA agent in the Reno office discovered that the DEA office in El Paso had a tape recording of a conversation between Finefrock and Dipp. In addition, there was a tape of a debriefing statement made by Finefrock to DEA agents following the monitored conversation with Dipp. These tapes established that Dipp had participated in a smuggling operation with Finefrock.

Following discovery of these tapes, Dipp was indicted for violating 18 U.S.C. § 1623 by reason of the false testimony he had given at the conspiracy trial concerning his relationship with Finefrock. The tape was introduced at this trial and a jury convicted Dipp of perjury. This appeal is from that conviction.

II.

Collateral Estoppel As A Bar.

In one of his pre-trial motions appellant argued that the perjury prosecution should be barred by the doctrine of collateral estoppel. While Dipp did not raise this issue in his appellate brief, it is appropriate to consider this issue Sua sponte in the light of the intervening decision of this court in United States v. Hernandez, 572 F.2d 218 (9th Cir. 1978).

It is now established beyond question that the doctrine of collateral estoppel applies to criminal cases as part of the constitutional protection against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). As the Supreme Court there stated "the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality." Id. at 444, 90 S.Ct. at 1194.

This court in Hernandez described the collateral estoppel doctrine as follows:

When an issue of fact or law is actually litigated and determined by a final and valid judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.

(Restatement of the Law, 2d, Judgments, § 68 (Tent. Draft No. 1, March 28, 1973)) 572 F.2d at 220.

Application of the doctrine, we said in Hernandez, involves a three-step process of analysis:

(1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was 'litigated' in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case. Id.

In Hernandez we applied this three-step process and concluded that the defendant's former acquittal barred a subsequent prosecution for perjury with respect to certain testimony of the defendant in the trial that resulted in his acquittal. The truthfulness or no of this testimony was a material issue in both proceedings, the truthfulness or no was litigated in the first case, and the first case necessarily decided that the defendant's relevant testimony was true. ¹

The instant case presents a substantially different situation. While Dipp's relationship with Finefrock was an issue in both trials, we cannot say that it was "litigated" in the first trial nor can we say that it was " necessarily decided" in the first trial by the jury verdict of acquittal. Finefrock's testimony at the first trial did not relate to the conspiracy for which Dipp was being tried, but involved a later conspiracy involving different persons. This testimony was only admissible to show Dipp's knowledge of smuggling operations and his apparent intent to engage in such behavior. The jury verdict of acquittal on the charged conspiracy did not necessarily decide that the jury credited Dipp's version of the relationship with Finefrock. The jury reasonably could have believed that Dipp was heavily involved in smuggling operations with Finefrock, but that there was insufficient evidence to link him with the Johnson-Melancon conspiracy. Therefore, collateral estoppel does not bar Dipp's prosecution for falsely testifying regarding his relationship with Finefrock.

Invocation of collateral estoppel to bar prosecution for perjury following an acquittal on a conspiracy charge is frequently difficult. See United States v. Brown, 547 F.2d 438, fn. 2 (8th Cir.), Cert. denied, 430 U.S. 937, 97 S.Ct. 1566, 51 L.Ed.2d 784 (1977). An acquittal on such a charge need not mean that all elements required to prove a conspiracy were found to be lacking. If several elements were litigated, acquittal can mean that the jury found in favor of the defendant on only one element. A general verdict, however, does not reveal the identity of that element. United States v. Tramunti, 500 F.2d 1334 (2d Cir.), Cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974) (acquittal of conspiracy does not necessarily determine whether defendant was not at a meeting of the conspirators, particularly in light of weak evidence he ever agreed to conspire even if he was there); See also United States v. Gugliaro, 501 F.2d 68 (2d Cir. 1974).

Similarly, Dipp's acquittal cannot be viewed as turning solely on the jury's acceptance of his denial of Finefrock's testimony as true. Dipp vigorously denied the assertion that he had any connection with the conspiracy at all. Under these circumstances the jury could have disbelieved Dipp's testimony about Finefrock but acquitted him nonetheless. Therefore, collateral estoppel is inapplicable.

III.

Prosecutorial Misconduct As A Bar.

Appellant also alleges that prosecutorial misconduct in the first trial (1) in using perjured testimony from Finefrock and (2) in failing to reveal a tape of a conversation between Finefrock and Dipp, pursuant to a broad discovery order, should bar the subsequent perjury prosecution.

Assuming Arguendo that the prosecution knowingly used perjured testimony at the first trial, appellant's conviction could have been reversed if there was any reasonable likelihood that the false testimony could have affected the judgment of the jury. United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1977). Fed.R.Crim.P. Rule 16(a)(1)(A) requires the prosecutor to produce the tape recording of Finefrock's conversation with Dipp, and while the trial judge has broad discretion in determining the sanctions for failure to comply with such an order, Rule 16(d)(2), dismissal of the charges may be an appropriate sanction in situations where the failure to produce is both wilful and severely prejudicial. United States v. Roybal, 566 F.2d 1109 (9th Cir. 1977); United States v. Stofsky, 527 F.2d 237 (2d Cir. 1975), Cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976).

These sanctions are, however, inapposite in this the perjury case. Dipp was acquitted of the conspiracy charge; he was clearly not prejudiced at the first trial by any of the alleged...