U.S. v. Head

• Decision Date: 10 February 1983
• Docket Number: 81-5184,Nos. 81-5123,s. 81-5123
• Citation: 697 F.2d 1200
• Parties: 12 Fed. R. Evid. Serv. 71 UNITED STATES of America, Appellee, v. Murdock HEAD, Appellant. (Two cases)
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1200

697 F.2d 1200

12 Fed. R. Evid. Serv. 71

UNITED STATES of America, Appellee, v. Murdock HEAD, Appellant. (Two cases)

Nos. 81-5123, 81-5184.

United States Court of Appeals Fourth Circuit.

Argued July 15, 1982.

Decided Dec. 30, 1982.

Rehearing and Rehearing En Banc Denied Feb. 10, 1983.

Frank W. Dunham, Jr., Arlington, Va. (Brian P. Gettings, Wallace H. Kleindienst, William L. Jacobson, Leonard, Cohen, Gettings & Sher, Arlington, Va., on brief), for appellant.

David B. Smith, Theodore S. Greenberg, Asst. U.S. Attys., Alexandria, Va. (Justin W. Williams, U.S. Atty., Alexandria, Va., on brief), for appellee.

Before WINTER, Chief Judge, and PHILLIPS and ERVIN, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

These are consolidated appeals by Dr. Murdock Head from an interlocutory pre-trial order denying his "double jeopardy" pleas, No. 81-5123, and from a final judgment of conviction on a two-count indictment charging conspiracy to bribe and to evade taxes and a substantive illegal gratuity offense, No. 81-5184. We find no merit in either Head's "double jeopardy" claims or in numerous assignments of error related to the prosecution and trial of the case, and therefore affirm the conviction.

I

The essential factual background of this appeal is related in United States v. Head, 641 F.2d 174 (4th Cir.1981). We summarize only its more critical features here.

Murdock Head was Executive Director of the Airlie Foundation until indicted in 1979. The Foundation, a tax exempt educational association which conducts seminars and produces documentary films, subcontracted its film-making work to Raven's Hollow Limited, a taxable enterprise formed by Head. The Foundation received substantial federal monies from a House of Representatives Subcommittee chaired by Congressman Daniel Flood.

Head was first convicted and sentenced to three years' imprisonment in the fall of 1979 under an indictment containing thirteen counts, one of conspiracy and the others of various substantive offenses. He was found guilty only on the conspiracy count which alleged a single conspiracy with three illegal objects: (1) the bribery of Congressman Flood and his aide, Steven Elko (the "Flood/Elko object"); (2) the giving of a thing of value to Jesse Hare, an Internal Revenue Service agent (the "Hare object"); and (3) the evasion of Raven's Hollow Limited's federal income taxes (the "tax object"). One substantive count was dismissed upon motion of the government. Four others concerning Head's dealings with IRS agent Hare were dismissed by the district court after the government had presented its case. The district court also dismissed four of the six counts dealing with substantive tax violations in connection with the Raven's Hollow returns, and the jury acquitted Head on the other two substantive tax counts.

On Head's appeal from his conspiracy conviction, we reversed and granted a new trial, United States v. Head, 641 F.2d 174 (4th Cir.1981), on the basis that the jury had not been instructed on the statute of limitations and hence might have predicated its guilty verdict on events occurring outside the applicable period.

The second trial, from which the present appeals arise, was not merely a retrial on the conspiracy count of the original indictment. Following remand, the government reduced the scope of the conspiracy count by eliminating the Hare object. ¹ On the other hand, the government--with Head's consent--added a substantive "gratuity" count alleging a violation of 18 U.S.C. Sec. 201(f).

Prior to the second trial, Head filed a motion in limine in the district court, seeking to strike the tax object of the conspiracy count along with related overt acts, and to preclude the government from introducing proof to support those allegations. Moreover, Head moved to dismiss the entire indictment, ² arguing both that application of collateral estoppel principles rendered the conspiracy count duplicitous and that double jeopardy barred retrial on the conspiracy count because prosecutorial misconduct in the first trial had preserved trial court error in the jury instructions on the statute of limitations.

The district court denied the motions, and Head noticed an interlocutory appeal and sought a stay of the trial court proceedings pending the appeal. Following district court refusal of a stay, we also declined to grant the stay or then to entertain the appeal, and Head's trial began eight days later.

The jury returned a general verdict of guilty on both the conspiracy count and the substantive gratuity count. Head then noticed an appeal from the final judgment, which, as earlier indicated, we then consolidated with his earlier interlocutory appeal.

On these appeals, Head makes the following contentions: (1) under Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), his interlocutory appeal from denial of his "double jeopardy" objections gave rise to a right to immediate review and divested the trial court of jurisdiction to proceed with trial pending that review; ³ (2) his "double jeopardy" rights were in any event violated by putting him to second trial, so that his conviction must be reversed; (3) specific rulings and the overall conduct of the trial judge constituted reversible error; and (4) the evidence adduced at the second trial was insufficient to support the conviction on either count.

II

When we declined on Head's interlocutory appeal in No. 81-5123 to review on the merits his denied "double jeopardy" claims or to grant his requested stay of trial pending appeal, the effect, as intended, was to dispose summarily of those claims on the basis that, as double jeopardy claims, they were frivolous. See Abney, 431 U.S. at 662 n. 8, 97 S.Ct. at 2041 n. 8. ⁴

We issued no written opinion at that time but retained jurisdiction of that appeal while the second trial proceeded and later consolidated the interlocutory appeal with the appeal from final judgment in No. 81-5184. We write now to give our reasons for that summary disposition of the interlocutory appeal. ⁵

The three "double jeopardy" claims presented and denied on Head's motion in limine in the district court were based, respectively, on collateral estoppel, prosecutorial misconduct, and duplicitousness of the second trial indictment. On the basis of the motion papers upon which these claims were advanced in the district court, ⁶ we considered each to be "frivolous" in the sense contemplated by the Abney decision, so that interlocutory review of their denial was properly refused.

Our analysis proceeded on the assumption that "frivolousness" in the Abney sense must embrace both a perception that a claim that is manifestly "double jeopardy" in substantive content is wholly lacking in merit, and a perception that a claim advanced as one of "double jeopardy" is manifestly not that in substantive content. On this basis, for reasons that follow, we considered none of the claims to be true double jeopardy claims, without regard to their degree of apparent merit on grounds other than double jeopardy.

A

Head's primary "double jeopardy" claim was that his first trial acquittal--by court dismissal and jury verdict--on all the substantive tax offenses precluded his reprosecution on the tax object and related overt acts in the conspiracy count remanded for retrial. Under Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), he contends, the factual determinations necessarily implicit in his acquittal must be given collateral estoppel effect which, per Ashe, is constitutionally guaranteed by the Double Jeopardy Clause.

Ashe did of course hold that principles of collateral estoppel which had long been applied as an "established rule of federal criminal law," id. at 445, 90 S.Ct. 1195, were actually "embodied in the Fifth Amendment guarantee against double jeopardy," id. at 443, 90 S.Ct. at 1194, and that on the facts of that case their application barred a second trial. But the holding was in a context where a fact necessarily determined in the defendant's favor by his earlier acquittal made his conviction on the challenged second trial for a concededly different offense impossible unless the fact could be relitigated and determined adversely to the defendant. ⁷ In such a context, despite the technical difference between the two offenses, the guarantees of the Double Jeopardy Clause against being required to " 'run the gantlet' a second time," id. at 446, 90 S.Ct. at 1195, or being subjected to the "hazards of trial and possible conviction more than once," id. at 447, 90 S.Ct. at 1196 (Black, J., concurring), were held to preclude relitigation of the critical fact so that the second prosecution must be absolutely barred. See also Phillips v. United States, 502 F.2d 227 (4th Cir.1974), vacated on other grounds, 518 F.2d 108 (4th Cir.1975), cert. denied, 424 U.S. 976, 96 S.Ct. 1483, 47 L.Ed.2d 747 (1976).

We understand the holding in Ashe to be limited to its factual context, so that double jeopardy guarantees are not engaged by collateral estoppel which, if applied, would merely restrict proof but not make conviction impossible. ⁸ Since successful interlocutory appeal from denial of such a collateral estoppel claim could only lessen and not wholly remove the possibility of conviction and lesser associated hazards of being again tried, see Abney, 431 U.S. at 661-62, 97 S.Ct. at 2041, no constitutional, as opposed to legal, right is at stake in such a claim. See id. at 659, 97 S.Ct. at 2040 (contrasting, for appealability purposes, double jeopardy and evidence suppression rulings); United States v. Powell, 632 F.2d 754, 758 (9th Cir.1980) (refusal to limit proof on collateral estoppel grounds not immediately appealable); United States v. Mock, 604 F.2d 336, 338-40 (5th Cir.1979) (same); but cf. United States v. Larkin, 605 F.2d 1360 (5th Cir.1979) (interlocutory appealability assumed though collateral estoppel would merely...