U.S. v. Larkin

• Decision Date: 05 November 1979
• Docket Number: No. 78-2124,78-2124
• Parties: 102 L.R.R.M. (BNA) 2966, 87 Lab.Cas. P 11,808 UNITED STATES of America, Plaintiff-Appellee, v. Thomas A. LARKIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1360

605 F.2d 1360

102 L.R.R.M. (BNA) 2966, 87 Lab.Cas. P 11,808

UNITED STATES of America, Plaintiff-Appellee, v. Thomas A. LARKIN, Defendant-Appellant.

No. 78-2124.

United States Court of Appeals Fifth Circuit.

Nov. 5, 1979.

James M. Russ, I. Paul Mandelkern, Orlando, Fla., for defendant-appellant.

David B. Smith, App. Sec., Crim. Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before THORNBERRY, GOLDBERG and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

This case involving the arcane principles of double jeopardy and collateral estoppel is not susceptible of bright-letter law or black-letter law; the areas are most often gray, and dimly to be seen. Needless to say, one entering this field must do so with trepidation.

As a result, the battles in these areas are pockmarked by assaults, retreats, and advances. In both fields we look for terrain that has been fought over, and cast our eyes about for tactical maneuvers in order to discover some grand design which really and in fact can fit the particular case before us for judgment and disposition. But we find no classic to compare to the Clausewitz of military fame. We too are thus hesitant to enter the field, but we shall do so bravely. And, at analysis' end, we are confident that contemporary jurisprudence justifies our conclusion.

This action arose out of the bombing of a trucking firm by members of a teamsters' local which was engaged in a labor dispute with the company. Appellant Larkin was tried under an indictment which charged, in essence, that Larkin and his co-conspirator, Parker, who was president of the local, conspired to cover up Parker's involvement in the bombing.

The indictment consisted of thirteen counts, seven of which are relevant to this appeal. Count one alleged that Larkin and Parker violated 18 U.S.C.A. § 371 ¹ by conspiring to commit five illegal acts. ² It charged that the co-conspirators agreed to obstruct a criminal investigation in violation of 18 U.S.C.A. § 1510, ³ to obstruct the due administration of justice in violation of 18 U.S.C.A. § 1503, ⁴ to suborn perjury in violation of 18 U.S.C.A. § 1622, ⁵ to embezzle funds of a labor organization in violation of 29 U.S.C.A. § 501(c), ⁶ and to falsify the records of a labor organization in violation of 29 U.S.C.A. § 439(c). ⁷ Counts two through seven alleged that Larkin and Parker committed the substantive crimes of embezzling union funds and falsifying union records. Larkin's criminal responsibility under these counts, however, was not based upon any actual participation in the commission of the crimes, but was instead premised upon the vicarious liability theory of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). ⁸

From the Government's standpoint, the trial was less than successful. Larkin was acquitted by the jury on counts two through seven. As to Larkin's culpability under count one, the jury was "hopelessly deadlocked" and, as a result, the trial court Sua sponte declared a mistrial as to this count without objection by either party.

Subsequently, the Government notified the court and Larkin that it intended to retry the defendant under count one. ⁹ In response to this notice, Larkin filed a motion to dismiss, claiming that a retrial on the conspiracy charge would constitute double jeopardy in light of his acquittal on counts two through seven, the Pinkerton vicarious liability counts. From the trial court's denial of this motion, Larkin appeals. ¹⁰

In support of his double jeopardy claim, the appellant presses two contentions. First, he contends that the conspiracy charged in count one is a lesser included offense of counts two through seven, the counts predicated upon vicarious liability. Accordingly, he argues, his acquittal on the greater charges precludes his retrial on the lesser charge. Second, Larkin argues that the collateral estoppel principles engrafted upon the double jeopardy clause by Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), prevent the retrial of the conspiracy count because, in acquitting him of the Pinkerton vicarious liability charges, the jury must have found that the defendant was not a member of a conspiracy with Parker. We address each contention in turn.

I

Larkin argues that the conspiracy charged in count one of the indictment is a lesser included offense of the offenses charged in counts two through seven, the Pinkerton vicarious liability counts. As a result of his acquittal on the greater charges, the Pinkerton counts, Larkin contends that he may not be retried on the conspiracy count, the lesser included offense. To establish the validity of this argument, Larkin asks us to compare a trio of recent Supreme Court double jeopardy cases Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); and Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) with Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the case which established the purported relationship between the conspiracy and vicarious liability counts. Accordingly, we now turn to an examination of this precedent.

In Brown, supra, the defendant's double jeopardy claim derived from the fact that he was twice prosecuted for stealing a car from a parking lot in East Cleveland, Ohio. In the first prosecution, the defendant pleaded guilty to the crime of joyriding, ¹¹ and was sentenced to thirty days in jail and fined one hundred dollars. Subsequently, the defendant was prosecuted and convicted of auto theft. ¹² The Supreme Court was confronted with the defendant's claim that this second prosecution violated the fifth amendment prohibition against double jeopardy.

The Court's disposition of this double jeopardy contention depended upon the answer to the threshold question whether Brown's separate trials, arising out of the single auto theft, constituted successive proceedings against him "for the same offence" within the meaning of the double jeopardy clause. ¹³ To determine whether the two offencs, joyriding and auto theft, were sufficiently distinguishable to permit successive prosecutions, the Court applied the Blockburger test: ¹⁴

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not . . . ."

Brown, supra, 432 U.S. at 166, 97 S.Ct. at 2225, Quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Examining the elements of the two crimes, the Court concluded that joyriding and auto theft were the "same offence" for the purposes of the double jeopardy clause:

As is invariably true of a greater and lesser included offense, the lesser offense joyriding requires no proof beyond that which is required for conviction of the greater auto theft. The greater offense is therefore by definition the "same" for purposes of double jeopardy as any lesser offense included in it.

Id. at 168, 97 S.Ct. at 2226. Since the crimes constituted a single offense for double jeopardy analysis, the defendant's second prosecution and conviction were prohibited. ¹⁵

The applicability of the Blockburger test to multiple prosecutions was reaffirmed by the Court's analysis in Jeffers, supra. The two proceedings in Jeffers arose from the defendant's leadership of a massive narcotics distribution network in Gary, Indiana. The first indictment returned against the defendant charged a conspiracy to distribute heroin and cocaine in violation of 21 U.S.C.A. § 846. ¹⁶ In a second and separate indictment, the defendant was charged with conducting a continuing criminal enterprise to violate the drug laws in violation of 21 U.S.C.A. § 848. ¹⁷ Prior to trial, the Government sought joinder of the charges under Fed.R.Crim.P. 8. Because the defendant successfully opposed this joinder, the two indictments were tried in different proceedings. At the first trial, the defendant was found guilty on the section 846 charge, and at the second trial, he was convicted of the section 848 offense. Contending that the section 846 conspiracy was a lesser included offense of section 848, the defendant asserted that this second prosecution violated the double jeopardy clause.

In analyzing this claim, the Court assumed, "arguendo, that § 848 does require proof of an agreement among the persons involved in the continuing criminal enterprise." Jeffers, supra, 432 U.S. at 149-50, 97 S.Ct. at 2216 (footnote omitted) (plurality opinion). The Court then applied the Blockburger test and found that section 846 was a lesser included offense of section 848 because of the requirement in section 848(b)(2)(A) of action in concert: "So construed, § 846 is a lesser included offense of § 848, because § 848 requires proof of every fact necessary to show a violation under § 846 as well as proof of several additional elements." Id. at 150, 97 S.Ct. at 2216 (plurality opinion). Despite this finding, however, the Court refused to reverse the defendant's second conviction. Instead, it held that the defendant's opposition to the Government's joinder motion constituted a waiver of his normal entitlement "to have charges on a greater and a lesser offense resolved in one proceeding . . .." Id. at 152, 97 S.Ct. at 2217 (plurality opinion).

Harris, supra, presented a factual pattern similar to those of Brown and Jeffers. During a robbery, the defendant's co-felon shot and killed a grocery store clerk. Subsequent to the defendant's conviction of felony-murder for his participation in the robbery and the resultant slaying, the defendant was convicted of robbery with firearms. Relying on a state court...