U.S. v. Keller, 79-1792

• Decision Date: 23 May 1980
• Docket Number: No. 79-1792,79-1792
• Citation: 624 F.2d 1154
• Parties: UNITED STATES of America v. Kerby K. KELLER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1154

624 F.2d 1154

UNITED STATES of America v. Kerby K. KELLER, Appellant.

No. 79-1792.

United States Court of Appeals,

Third Circuit.

Argued Jan. 17, 1980.

Decided May 23, 1980.

Carmen C. Nasuti (argued), Nasuti & Miller, Philadelphia, Pa., for appellant.

Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Thomas J. McBride (argued), Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before HUNTER, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Appellant, Kerby Keller, was indicted on January 25, 1979, along with four co-defendants, on a charge of conspiracy to distribute Phencyclidine Phosphate (PCP), a Schedule II, non-narcotic controlled substance, in violation of 21 U.S.C. § 841. The conspiracy allegedly ran from October 18 to October 21, 1977. After a four-day jury trial Keller was found guilty and sentenced to a term of three years' imprisonment. On appeal, Keller attacks the ruling of the trial court permitting cross-examination of Keller as to his participation in drug transactions which took place subsequent to October 21, 1977 and for which Keller had previously been tried and acquitted.

At the trial which is the subject of this appeal, the Government presented evidence that on or about October 18, 1977 one of the co-defendants telephoned John Anderson, a Government informant, from New York, seeking two pounds of PCP from Anderson, who lived in Atglen, Pennsylvania. Appellant Keller, along with another co-defendant, delivered the PCP to Anderson on October 20, 1977. On October 21, 1977, two other co-defendants arrived at Anderson's home in Atglen and picked up the PCP.

Appellant did not deny his participation in the conspiracy. Rather, his defense was entrapment. Keller testified that Anderson had been a good friend of his for several years and that he was concerned about Anderson's medical and serious financial problems. ¹ Keller testified it was Anderson who first mentioned the possibility of selling PCP so that Anderson "could make money to help pay his bills." Keller testified he did not agree to Anderson's suggestion the first time it was made, and "not the first couple of times he mentioned it." He testified that he finally agreed to participate after Anderson once again said "that he could really use the money." It was then that Keller brought the PCP to Anderson's house. Keller also testified that "I told (Anderson) that I didn't want anything (money) out of it and (Anderson) said that he could make approximately $2000 out of it."

The Government attempted to undermine Keller's entrapment defense by proving that Keller was involved in other instances of drug dealing. The Government questioned Keller about a drug conviction involving a conspiracy to distribute methamphetamine to which Keller pled guilty in 1977. That evidence is not challenged in this appeal. The Government also questioned Keller about drug transactions that took place after the events charged in the indictment. Over defense counsel's objection that the questioning was not limited in its reference to a time period, Keller was asked about his involvement in deliveries of methamphetamine. In response, Keller testified he delivered the drugs to Anderson on two or three occasions, and on four occasions he delivered them to a third party "to help Mr. Anderson" . . . "(b)ecause he got the money from it." The issue was further pursued by the Government in the course of its cross-examination of Keller, and when the defendant repeated that these transactions took place six or seven months after October 20, 1977, defense counsel objected. The objection was overruled.

The transactions which were the subject of this cross-examination were the basis of a prior federal prosecution of Keller in which he was charged with distributing methamphetamines to Anderson and another individual on approximately five occasions in 1978. In that case, as in this one, Keller testified, admitted the distribution, and pleaded entrapment as a defense, claiming he was induced by Anderson, acting as a Government agent, to commit the crime. He was acquitted of all charges.

II.

Appellant contends that the district court erred in allowing into evidence his allegedly criminal conduct which occurred subsequent to the period covered by the indictment. He bases his claim of error on three grounds:

1) Although appellant recognizes that when a defendant raises an entrapment defense, defendant's prior conduct and character become relevant to the issue of predisposition, Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 216, 77 L.Ed. 413 (1932), he claims that subsequent acts are inadmissible to show predisposition or intent. Appellant relies on this court's decision in United States v. Boyd, 595 F.2d 120 (3d Cir. 1978). There we held the Government could not rebut an anticipated entrapment defense by showing prior predisposition and intent through evidence of defendant's subsequent criminal activity. Id. at 126.

2) Appellant claims the evidence is inadmissible because the doctrine of collateral estoppel bars the evidentiary use of conduct for which defendant had been acquitted.

3) Appellant contends the court abused its discretion in admitting the evidence because it was virtually irrelevant, since it led to an acquittal, and hence was far more prejudicial than probative. He claims that, therefore, it should have been excluded pursuant to Fed.R.Evid. 403. ²

We hold that the evidence was barred under the doctrine of collateral estoppel. Accordingly, we need not reach appellant's other claims.

III.

The doctrine of collateral estoppel "has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). Although first developed in civil litigation, it has been an established rule of federal criminal law since at least 1916. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970) (citing United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916)). As the Court explained, the need for the application of collateral estoppel in criminal cases arose primarily because of the recent proliferation of overlapping and related statutory offenses from a single alleged criminal transaction. Id. at 445, n. 10, 90 S.Ct. at 1195. In Ashe v. Swenson, the Court found a constitutional basis for the collateral estoppel doctrine in the Fifth Amendment guarantee against double jeopardy, and thus applied the doctrine to the states for the first time.

In this court, the doctrine of collateral estoppel as applied in criminal cases has been used to bar not only reprosecution, which we use here as encompassing multiple or fragmented prosecutions, but also evidence of crimes of which the defendant had been acquitted in prior prosecutions. In United States v. Simon, 225 F.2d 260 (3d Cir. 1955), defendant had originally been acquitted on a count of having received stolen goods (turkeys). On retrial of a charge of guilty possession of stolen goods (the same turkeys), we held the acquittal precluded introduction of evidence by the admitted thief that he had delivered the turkeys to defendant. We viewed the case as presenting a simple problem of re-litigation of decided facts, and held that "the Government is estopped from relitigating in a second trial facts already determined in the first." Id. at 262. This holding followed this court's earlier decision in United States v. DeAngelo, 138 F.2d 466, 468 (3d Cir. 1943) where we said:

The conclusiveness of a fact which has been competently adjudicated by a criminal trial is not confined to such matter only as is sufficient to support a plea of double jeopardy. Even though there has been no former acquittal of the particular offense on trial, a prior judgment of acquittal on related matters has been said to be conclusive as to all that the judgment determined.

We recognize that not all of the courts have followed the interpretation of collateral estoppel as enunciated by this court. ³ The issue was avoided by the approach followed by the Seventh Circuit which, on facts similar to those presented in the case sub judice, held that the evidence of a July 14 sale of heroin, for which defendant was acquitted, should not have been admitted in a trial on the charge of selling heroin on July 17. The court did not rely on the doctrine of collateral estoppel but instead held that the evidence lost most of its relevance when the acquittal was taken into account. The trial court's admission of the evidence was an abuse of discretion because a balancing of the relevance of the proffered evidence against its potentially unduly prejudicial effect required exclusion. United States v. Phillips, 401 F.2d 301 (7th Cir. 1968).

The Supreme Court's decision in Ashe v. Swenson incorporating collateral estoppel into the constitutional protection against double jeopardy raises the question whether double jeopardy precludes the evidentiary use of crimes for which there has been a prior acquittal or applies only in situations of reprosecution. The fact paradigm of Ashe v. Swenson presented only the latter situation. In that case, the defendant was originally prosecuted and acquitted for robbing one of a group of poker players. Thereafter, he was prosecuted and convicted for robbing another of the poker players during the same robbery. The Supreme Court reversed the conviction, noting that the jury necessarily found in the first trial that the petitioner had not participated in the robbery. Therefore, the Government was precluded from relitigating that issue in a subsequent trial.

In this case the doctrine of collateral estoppel is raised not because of a prosecutorial attempt to fragment offenses...