U.S. v. Lee, 79-2952

• Decision Date: 30 July 1980
• Docket Number: No. 79-2952,79-2952
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Grover Lamar LEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 787

622 F.2d 787

UNITED STATES of America, Plaintiff-Appellee, v. Grover Lamar LEE, Defendant-Appellant.

No. 79-2952.

United States Court of Appeals, Fifth Circuit.

July 30, 1980.

Eugene Loftin, Jacksonville, Fla. (Court-Appointed), for defendant-appellant.

Curtis S. Fallgatter, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

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

Before COLEMAN, Chief Judge, RONEY and GARZA, Circuit Judges.

RONEY, Circuit Judge:

Grover Lamar Lee, an investigator for the public defender, was charged three times with criminal complicity in connection with a variety of crimes which grew out of the operations of Judge Sam Smith in the Third Judicial Circuit of Florida. At his first trial, Lee was acquitted on a substantive charge of marijuana possession, but found guilty of a conspiracy count. That conviction was reversed on appeal and remanded for retrial. In the meantime, Lee was acquitted in another trial on a racketeering conspiracy (RICO) charge. The Government proposes to retry Lee now on an indictment which superseded the one on which his prior conviction was reversed. Lee claims double jeopardy on collateral estoppel grounds. The case turns on whether conduct of which he was acquitted in the prior trials will be subject to further consideration for jeopardy purposes in the third trial. The district court decided that the prior juries did not necessarily resolve facts in Lee's favor which would require contrary determination for conviction here, and denied the motion to quash. On the interlocutory appeal from that denial, we affirm.

In April 1977, defendant Lee and three others, including former Judge Smith, were tried for conspiracy to distribute marijuana and possession of marijuana with intent to distribute. 21 U.S.C.A. §§ 841(a)(1) and 846. The indictment involved marijuana seized by the county sheriff. Two defendants were convicted, one acquitted, and defendant Lee was acquitted of the substantive offense but convicted for conspiracy. On appeal Lee's conviction was reversed and remanded for a new trial on the ground that the instruction to the jurors failed to direct them to consider Lee's guilt individually. United States v. Smith, 588 F.2d 111, modified, 594 F.2d 1084 (5th Cir.1979).

Following that trial but before the reversal, Lee, along with Smith and seven other defendants, was indicted and tried for conspiracy to participate in racketeering activity in violation of 18 U.S.C.A. § 1962(c) (RICO). It was alleged that the defendants conspired to conduct the affairs of the Third Judicial Circuit of the State of Florida through a pattern of racketeering activity, the racketeering activity being the predicate crimes of bribery of public officials. The bribery racketeering activities were alleged to have occurred to obtain, facilitate or permit the continuation of criminal activities involving prostitution, dog fight gambling, obstruction of justice, and the unlawful distribution of seized marijuana. The indictment mentions Lee only in connection with an attempt to distribute seized marijuana. Smith and several others were convicted but defendant Lee was acquitted.

After the reversal of Lee's prior conviction, the Government filed a superseding indictment charging defendant with conspiracy to distribute marijuana. 21 U.S.C.A. § 846. Defendant's motion to dismiss on the grounds that any reprosecution was barred by the Double Jeopardy Clause was denied by the district court and defendant took this interlocutory appeal.

While this appeal was pending, the Government filed a second superseding indictment identical to the one-count indictment now before this Court, except that it added a second count alleging the use of a telephone to facilitate the commission of the conspiracy, in violation of 21 U.S.C.A. § 843(b). The Government then moved to dismiss the first superseding indictment, but the district court denied the motion on the ground that it lacked jurisdiction because an appeal was pending as to that indictment. We have before us only the one-count first superseding indictment and therefore have no occasion to consider any question relating to the telephone count in the second superseding indictment. The filing of the second superseding indictment, upon which the Government apparently intends to try defendant, does not moot this appeal because the first superseding indictment is presently still pending and because the conspiracy counts in the first and second superseding indictments are identical so that any decision here would control the disposition of a motion directed at the subsequent indictment. Following oral argument, the Government advised that should the Court determine defendant's retrial for conspiracy to distribute marijuana to be barred, it would not prosecute on either the conspiracy count or the telephone count in the last indictment.

Defendant does not contend that he is barred from prosecution because he has already been placed in jeopardy for the same offense. As he recognizes in his brief, this Court held in United States v. Smith, 574 F.2d 308 (5th Cir.1978), an interlocutory appeal by codefendant Smith prior to the RICO trial, that the crime of conspiracy to distribute marijuana for which Lee and Smith were prosecuted in the first trial is not the "same offense" as the RICO conspiracy charged in the second trial. Instead, defendant contends that his acquittal of possession of marijuana in the first trial and his acquittal of the RICO conspiracy in the second trial determined matters of fact in his favor so as to collaterally estop the Government from now proving him guilty of conspiring to distribute marijuana.

Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), held the doctrine of collateral estoppel to be a part of the constitutional guarantee against double jeopardy. Collateral estoppel of course means that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." 397 U.S. at 443, 90 S.Ct. at 1194. The protection of collateral estoppel is an established rule of federal criminal law and extends to prevent redetermination of evidentiary facts as well as ultimate facts. United States v. Gonzalez, 548 F.2d 1185 (5th Cir.1977); Blackburn v. Cross, 510 F.2d 1014 (5th Cir.1975); Wingate v. Wainwright, 464 F.2d 209 (5th Cir.1972).

When collateral estoppel is raised by a defendant, the court's task is to decipher exactly what facts have been or should be deemed to have been determined at the first trial. United States v. Gonzalez, 548 F.2d at 1191; Adams v. United States, 287 F.2d 701 (5th Cir.1961). In making such a determination the court should apply "realism and rationality," Ashe v. Swenson, 397 U.S. at 444, 90 S.Ct. at 1194, and its inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 239, 92 L.Ed. 180 (1948). The doctrine of collateral estoppel precludes the subsequent prosecution only if the jury could not rationally have based its verdict on an issue other than the one the defendant seeks to foreclose. United States v. Smith, 470 F.2d 1299, 1301 (5th Cir.1973). When a "fact is not necessarily determined in a former trial, the possibility that it may have been does not prevent re-examination of that issue." Adams v. United States, 287 F.2d at 705. See also United States v. Ballard, 586 F.2d 1060 (5th Cir.1978); Johnson v. Estelle, 506 F.2d 347, 350 (5th Cir.1975); McDonald v. Wainwright, 493 F.2d 204 (5th Cir.1974).

This Court noted in United States v. Mock, 604 F.2d 336 (5th Cir.1979), that collateral estoppel may operate in two distinct ways. First, it may completely bar a subsequent prosecution where one of the facts necessarily determined in the former trial is an essential element to the conviction the Government now seeks. An example is when an earlier acquittal necessarily places the defendant away from the scene of the crime. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469; United States v. Kramer, 289 F.2d 909 (2d Cir.1961). Second, although the subsequent prosecution may proceed, collateral estoppel operates to bar the introduction or argumentation of certain facts necessarily established in a prior proceeding. See, e.g., United States v. Nelson, 599 F.2d 714 (5th Cir.1979); Blackburn v. Cross, 510 F.2d at 1014; Wingate v. Wainwright, 464 F.2d at 215.

The issue presented is whether defendant's reprosecution is barred because under the facts of this case any fact necessarily determined in defendant's favor in either of the two former acquittals is an essential element to the conspiracy conviction the...