U.S. v. Mespoulede

• Decision Date: 10 April 1979
• Docket Number: No. 764,D,764
• Citation: 597 F.2d 329
• Parties: UNITED STATES of America, Appellee, v. Patrice MESPOULEDE, a/k/a "Patrice Fabre", Defendant-Appellant. ocket 78-1428.
• Court: U.S. Court of Appeals — Second Circuit

Page 329

597 F.2d 329

UNITED STATES of America, Appellee, v. Patrice MESPOULEDE, a/k/a "Patrice Fabre", Defendant-Appellant.

No. 764, Docket 78-1428.

United States Court of Appeals,

Second Circuit.

Argued March 14, 1979.

Decided April 10, 1979.

David J. Gottlieb, The Legal Aid Soc., Federal Defender Services Unit, New York City, for defendant-appellant.

Mary Jo White, Asst. U. S. Atty., S. D. New York, New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. New York, Richard D. Weinberg, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before KAUFMAN, Chief Judge, and MULLIGAN and GURFEIN, Circuit Judges.

IRVING R. KAUFMAN, Chief Judge:

This case concerns the applicability of the doctrine of collateral estoppel to the retrial of one count of a multicount indictment. So stated, the issue presented for resolution sounds rather technical in nature, and even dry as dust. But the underlying principles that animate our decision in this case are far from abstruse. We believe that once a defendant has satisfied one jury that he is not guilty of a crime, constitutionally-rooted considerations of fairness preclude the Government from injecting any issues necessarily decided in his favor into a second trial for another offense.

I.

The constitutional question raised by this appeal cannot be decided in the abstract. Rather, the proper resolution of the case depends on a detailed examination of the transcripts of two trials, and we will therefore begin by discussing the charges and evidence before each jury.

Patrice Mespoulede was charged in a two-count indictment with conspiracy to distribute cocaine, 21 U.S.C. § 846, and with possessing, on January 31, 1978, approximately 1.2 kilograms of the drug with an intent to distribute it. 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(A). Leslie Duverglas and Giorgio Penco were named as unindicted co-conspirators.

At the initial trial before Judge Motley, Dennis Solovay, a friend of Mespoulede's, testified that on several occasions during 1977 the appellant had purchased small quantities of cocaine from him at Studio 54, a Manhattan discotheque. It was there that Mespoulede introduced Solovay to Leslie Duverglas. In December 1977, Solovay learned from Duverglas that he and Mespoulede were sharing a luxury apartment on Central Park South and had become "partners" in the cocaine business.

On January 25, 1978, Solovay was arrested on an unrelated cocaine charge and agreed to cooperate with agents of the Drug Enforcement Administration. Three days later, Solovay met Duverglas at Studio 54 and arranged to purchase a substantial quantity of cocaine. Because Solovay did not want his activities as an informant to imperil his friend, he invented an excuse to keep Mespoulede out of the pending transaction, and Duverglas acceded.

Solovay alerted the DEA, and on January 31 he made a series of visits to Duverglas at his apartment. On his third trip, Solovay saw a large quantity of cocaine on the dining room table. He then informed Duverglas that he would return shortly with the purchase price, and he left the apartment to report to the waiting DEA agents.

Two hours later, the agents entered the apartment, arrested Duverglas, and inquired if anyone else was present. Directed to the bedroom, they found Mespoulede asleep on the bed. The cocaine was on a dresser, along with a triple-beam balance scale and implements for cutting cocaine. When Mespoulede was frisked, the agents also discovered a small glass vial of cocaine. ¹ Mespoulede was not immediately arrested, however, a fact over which he later expressed no little surprise. ²

In prosecuting Mespoulede for the possession of the kilogram of cocaine on January 31, then, the Government had to overcome the effect of testimony by its own witness that Duverglas had agreed to insulate Mespoulede from the transaction. Solovay also averred that on his three visits to 210 Central Park South, he had seen no one but Duverglas in the apartment. He conceded, however, that the bedroom doors were always closed, and the prosecution attempted to prove that Mespoulede was behind one of those doors.

Amy Bonk, Duverglas's common law wife, testified under a grant of immunity that Mespoulede had indeed moved into the apartment in December 1977 and had become a partner in Duverglas's flourishing trade in cocaine, with Giorgio Penco serving as supplier. Although Mespoulede elected to remain in the background for the January 31 transaction, Bonk claimed that he agreed to participate in return for half the profit. As the "silent partner," she testified, his self-appointed task was to prepare the cocaine for sale. Between 7:30 and 8:00 P.M. on January 31, soon after Penco had delivered the drugs, Mespoulede sat at a desk in the bedroom with a scale, white powder, two bottles of inositol (a food additive used to cut cocaine), "and some spoons and strainers and things." Bonk also recalled that Mespoulede had complained that he had too little time to dilute all the cocaine to the proper ratio before Solovay arrived. Later, he packaged the cocaine in plastic and placed it in a large bag.

When Solovay arrived at the apartment to examine the cocaine, Bonk, Mespoulede, and Penco retired to a bedroom behind a closed door. After Solovay departed, Mespoulede expressed annoyance that he had failed to bring the money with him. ³ In addition, Agents Maddox and Tuerack testified that when they arrested Mespoulede in April he confessed that he had cut and packaged the cocaine. Appellant did not call any witnesses, but in cross-examination and summation he launched a powerful attack on Bonk's credibility, eliciting and emphasizing an admission that she had perjured herself at Duverglas's trial. Defense counsel stressed the agreement between Solovay and Duverglas to leave Mespoulede out of the deal and insisted that his client was at most a knowing bystander. ⁴

The jury evidently found these arguments persuasive, for it acquitted Mespoulede on the possession count. It failed to reach a verdict on the conspiracy count, however, and Judge Motley declared a mistrial on that charge.

Retrial before Judge Knapp commenced on October 10, 1978, and Mespoulede moved to bar the Government from introducing evidence that he had possessed the cocaine involved in the January 31 transaction. He argued that the first jury had necessarily resolved this question in his favor when it acquitted him of possession, and he contended that it would violate the double jeopardy clause to permit relitigation of this issue.

Although Judge Knapp concluded that the jury had indeed decided that Mespoulede did not possess the cocaine beyond a reasonable doubt, he denied the motion to suppress. The judge concluded that a jury could have a reasonable doubt as to possession but still rationally consider evidence of the substantive offense, in combination with other evidence, as probative of participation in the conspiracy.

The Government's presentation shifted in the new trial, doubtless because Amy Bonk had proved less than a wholly convincing witness. Duverglas himself testified and alleged that he and Mespoulede were involved in as many as 50 cocaine sales between November and January. Duverglas provided the apartment and Mespoulede the requisite expertise. Duverglas also discussed the January 31 transaction, describing in some detail the procedure Mespoulede allegedly used to cut and package the cocaine. The jury learned that Mespoulede "real quickly" mixed the drug with inositol, put it through a strainer, and then through a coffee grinder. In addition, Agent Tuerack again testified that Mespoulede had confessed to mixing cocaine on January 31. Judge Knapp denied a defense request that the jury be told that appellant had been acquitted of possession, and in both her opening statement and summation, the prosecutor made frequent reference to the testimony of Tuerack and Duverglas. Mespoulede was convicted, ⁵ and this appeal followed. We reverse for the reasons set forth below.

II.

We shall first set out some legal principles of the "black letter" variety. It is firmly established that collateral estoppel applies to criminal prosecutions as an element of the double jeopardy clause, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); United States v. Cala, 521 F.2d 605, 607 (2d Cir. 1975), and that the Government is precluded from relitigating an issue decided in defendant's favor by a valid final judgment. Justice Black, concurring in Ashe, supra, 397 U.S. at 448, 90 S.Ct. at 1196, stated the principle succinctly: "the doctrine of collateral estoppel is a basic and essential part of the Constitution's prohibition against double jeopardy." See United States v. Seijo, 537 F.2d 694, 696-97 (2d Cir. 1976), Cert. denied, 429 U.S. 1043, 97 S.Ct. 745, 50 L.Ed.2d 756 (1977). ⁶ Judge Friendly noted in United States v. Kramer,289 F.2d 909, 913 (2d Cir. 1961), that the application of the principle of collateral estoppel has two phases. Initially, we must determine what the first judgment decided. Then we must go on to examine how that determination bears on the second case.

At the outset, then, the defendant must carry the burden of proving that the fact-finder acquitted him because it resolved in his favor the very issue that he seeks to foreclose from consideration in the second trial. United States v. Gugliaro, 501 F.2d 68, 70 (2d Cir. 1974); United States v. Tramunti, 500 F.2d 1334, 1346 (2d Cir.), Cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974). Although the ground of acquittal cannot generally be ascertained, See, e. g., United States v. Seijo, supra, 537 F.2d at 697, we must not make the defendant's task even more formidable by straining to postulate "hypertechnical and unrealistic" grounds on which the jury could conceivably have rested its conclusions, United States v. Jacobson,547 F.2d 21, 23 (2d Cir. 1976), Cert. denied, 430 U.S. 946, 97 S.Ct. 1581, 51...