U.S. v. Miller
Citation | 952 F.2d 866 |
Decision Date | 23 January 1992 |
Docket Number | No. 90-3512,90-3512 |
Parties | UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Marsden W. MILLER, Jr., and William C. Huls, Defendants-Appellants Cross-Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
John M. McCollam, Robert B. Wiygul, Gordon, Arata, McCollam & Duplantis, New Orleans, La., William T. D'Zurilla, Francis M. Bouillion, Benjamin B. Blanchet, Lafayette, La., Edward M. Booth, Jacksonville, Fla., for Marsden W. Miller, Jr.
Camille F. Gravel, Jr., Alexandria, La., William H. Jeffress, Jr., Miller, Cassidy, Larroca & Lewin, Washington, D.C., for William C. Huls.
P. Raymond Lamonica, U.S. Atty., Baton Rouge, La., James M. Cole, Deputy Chief, Public Integrity Section, U.S. Dept. of Justice, Washington, D.C., for U.S.
Appeals from the United States District Court for the Middle District of Louisiana.
Before BROWN, KING, and GARWOOD, Circuit Judges.
Following the reversal by this Court of the mail fraud convictions of defendants-appellants Marsden W. Miller, Jr. (Miller) and William C. Huls (Huls) because the indictment and the jury instructions permitted the jury to convict without finding the deprivation of a property right, the government brought a new indictment. In this pretrial appeal, both Miller and Huls appeal from the district court's order denying their motions to dismiss the indictment on double jeopardy and collateral estoppel grounds. The government cross-appeals from the district court's collateral estoppel ruling to the extent that the district court thereby held that whether a stock sale by Huls to Miller was a sham was decided adversely to the government by acquittals on various counts at the first trial, and therefore may not be relitigated at the second trial.
The facts are drawn from our opinion under the first indictment, United States v. Huls, 841 F.2d 109, 110 (5th Cir.1988):
In November 1986, Miller and Huls were indicted on fifteen counts charging mail fraud and conspiracy to commit mail fraud. 18 U.S.C. §§ 2, 371, 1341. The indictment alleged that Huls' sale of his XCL stock to Miller was a sham, that Huls had other financial interests in XCL, that XCL had provided Huls various other benefits while he was in office, and that Huls and Miller conspired to hide these facts from both the Mineral Board and the Louisiana Ethics Commission. The indictment alleged that, despite having ties to XCL that mandated his recusal, Huls participated in the Board's decision to grant the leases to the XCL/TIPCO partnership.
Miller and Huls were convicted on only three and four counts, respectively, of the fifteen counts in the indictment. Miller was convicted on the conspiracy count and the two substantive counts relating to the granting of the leases. Huls was convicted on these same three counts, and also on one of the two substantive counts relating to the Ethics Commission. Both defendants were acquitted on all ten counts relating to the alleged sham stock sale.
While the defendants' appeal to this Court was pending, the Supreme Court decided McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), which held that mail fraud covers only fraudulent schemes intended to deprive the victim of money or property and rejected lower court decisions that had authorized convictions without proof of such conduct. This Court reversed the defendants' convictions in light of McNally because the indictment and jury instructions did not require the government to prove all the elements of mail fraud. Huls, 841 F.2d at 112. 1
The government procured a new, six-count indictment, which included two new counts that had not been charged in the first indictment. The district court granted the defendants' motion to dismiss these two new counts for prosecutorial vindictiveness, and the government has not appealed this ruling. Although the phrasing of the indictment has been changed in an attempt to comply with McNally, Miller and Huls now stand indicted again on essentially the same three and four counts, respectively, on which they were convicted at the first trial.
The defendants sought dismissal of the new indictment on double jeopardy and collateral estoppel grounds. The district court struck language from the indictment pertaining to the alleged sham stock sale but otherwise denied the motions. Arguing that retrial is barred on double jeopardy and collateral estoppel grounds, Miller and Huls have perfected this interlocutory appeal. The government has cross-appealed from the district court's order striking the allegations of the sham stock sale from count one of the indictment (the conspiracy count).
Miller and Huls contend that reprosecution is barred by the Double Jeopardy Clause. They advance three primary arguments in support of this contention. First, they argue that retrial is barred because the government never presented a valid mail fraud theory at the first trial, in particular in the jury instructions, and was not prevented from doing so by any adverse trial court ruling. Second, they contend the Supreme Court's recent ruling in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), bars this reprosecution on a new theory not presented at the first trial, although available to the government there. Third, they argue that there was insufficient evidence to support a conviction on a valid mail fraud theory, and thus retrial is barred. Although some of these arguments are not without force, we must reject them under controlling Supreme Court precedent.
In a line of precedent almost a century old, the Supreme Court has repeatedly stressed that the Double Jeopardy Clause does not preclude the government from retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction. Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 1826, 95 L.Ed.2d 354 (1987); United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 2193-94, 57 L.Ed.2d 65 (1978); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). As the Court explained in Tateo:
The defendants fault the government for failing to present a valid (property rights) theory of mail fraud at the first trial. They further note that the government gained certain strategic advantages, including the exclusion of certain evidence favorable to the defendants, by not pursuing such a theory. Relying on cases such as Davis v. Herring, 800 F.2d 513 (5th Cir.1986), they argue that double jeopardy principles bar reprosecution of a defendant on "charges that, through errors of law or strategy, are not ultimately presented to the jury." Id. at 519; see also Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Both Davis and Grady involved separate charges in a successive prosecution, however, and this case does not. The government brings its charges under the very same criminal stat...
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