U.S. v. Mock

• Decision Date: 09 October 1979
• Docket Number: No. 78-5536,78-5536
• Parties: 80-1 USTC P 9184 UNITED STATES of America, Plaintiff-Appellee, v. Lawton Scott MOCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 341

604 F.2d 341

80-1 USTC P 9184

UNITED STATES of America, Plaintiff-Appellee, v. Lawton Scott MOCK, Defendant-Appellant.

No. 78-5536.

United States Court of Appeals, Fifth Circuit.

Oct. 9, 1979.

Arnold D. Levine, Tampa, Fla., for defendant-appellant.

Anthony LaSpada, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

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

Before GOLDBERG, FAY and RUBIN, Circuit Judges.

FAY, Circuit Judge:

Appellant was convicted on two counts of tax evasion. Finding that the government was prohibited by collateral estoppel from presenting some of the factual evidence used to convict the appellant, we reverse.

Count I of the indictment charged a violation of 26 U.S.C. § 7203 (1976). The indictment alleged that the appellant failed to make an income tax return for gross income received during the calendar year 1972. Count II charged the appellant with wilfully and knowingly attempting to evade income tax due for income received during the calendar year 1972 by failing to make an income tax return and by making false statements to treasury agents in an attempt to conceal his taxable income. The indictment charged that these alleged actions violated 26 U.S.C. § 7201 (1976). Count III of the indictment charged that the appellant filed a false and fraudulent income tax return for income received during the calendar year 1973, a violation of 26 U.S.C. § 7201. Appellant entered a plea of not guilty. The jury returned a verdict of guilty as to counts I and II and not guilty as to count III. On appeal, appellant raises several claims in addition to his collateral estoppel claim, but none of these have merit.

I.

In order to consider the impact of the collateral estoppel doctrine on this case, it is of course necessary to relate in detail the nature of the charge in the first trial and the evidence adduced in support thereof. The prior prosecution which gives rise to the collateral estoppel question was a one-count indictment charging appellant with conspiracy to import, possess, and distribute marijuana in the United States. The indictment charged that the conspirators imported large quantities of marijuana from Colombia, South America into Zephyrillis, Florida aboard a DC-3 aircraft. The marijuana was then taken to parts of Florida and New York, where it was sold. As overt acts in furtherance of the conspiracy, the indictment alleged that appellant's co-conspirators imported marijuana into this country on April 9, 1972 from Colombia and that large amounts of money changed hands. The other individuals named in the indictment were Pedro Alvarez, Michael Sarga, Derril Lee, Jerold Martin Massler, Paul Rice, John Leslie Wells, Pedro Davilla, and Raoul Alberto Davillo.

The government's primary witness at both trials was William Rand Kilgore. The following facts were introduced through Kilgore in the first trial to show a conspiracy to import and distribute marijuana and in the second trial to show that appellant received income from that same scheme: Kilgore testified to the effect that appellant and Alvarez were in the marijuana business together. First trial transcript ("First trial") at 181-83, 564; Second transcript ("Second trial") at vol. V, p. 78-79, 82. Alvarez hired Kilgore to guard the "stash house," where the marijuana was stored. First trial at 9; second trial at vol. V, p. 59-60. Appellant and Alvarez took Kilgore to the "stash house" in February, 1972. First trial at 11; second trial at vol. V, p. 61. Kilgore received money in exchange for marijuana at the "stash house." First trial at 13; second trial at vol. V, p. 62-63. In February of 1972, appellant and another person visited the "stash house." First trial at 22-24; second trial at vol. V, p. 62. At Alvarez' direction, Kilgore, along with pilots John Wells and Paul Rice, flew a DC-3 aircraft to Colombia and returned to Zephyrillis, Florida with a substantial quantity of marijuana. First trial at 150-77; second trial at vol. V, p. 72-77. Appellant, Lee and Alvarez unloaded the marijuana from the aircraft into a Winnebago motor home. First trial at 179; second trial at vol. V, p. 77-78. The marijuana was taken by Kilgore, appellant, Alvarez, and others to Wayne Hockett's house. Hockett received one-third, and Mock and Alvarez kept two-thirds of the marijuana. ¹ First trial at 180-83; second trial at vol. V, p. 78-79. While Mock and Kilgore were in the Winnebago, Mock told Kilgore that he and Alvarez were looking for someone "to take over the operation," meaning the handling of the marijuana. First trial at 181-83; second trial at vol. V, p. 78-79. Significantly, Kilgore testified at the second trial that he had had no contact with appellant before December 31, 1971 or after June, 1972. Thus, Kilgore's only contact with the appellant was during the period covered by the marijuana conspiracy charge of which appellant was acquitted.

After all the evidence had been presented at the first trial, the jury was unable to arrive at a verdict and the trial court declared a mistrial. Pursuant to Fed.R.Crim.P. 29, the court then acquitted the appellant, stating: "(T)he Court is persuaded as to Defendant Mock (and for the reasons articulated in counsel's post-trial memorandum in his behalf) that a reasonable-minded jury would necessarily have to have a reasonable doubt as to his guilt." ² The memorandum alluded to by the court argued that Kilgore, the only witness to testify against appellant in that trial, was so unbelievable as to be insubstantial. In attacking the credibility of Kilgore's testimony, the memorandum pointed out inconsistencies between his testimony at trial and his testimony at prior proceedings, ³ the immunity which he was granted by the government, his inability to recall facts such as the year of his felony conviction, and his regular use of marijuana, hashish, heroin and cocaine, possibly leading to a loss of memory.

II.

In principle, the law of collateral estoppel is clear; in application, it can be a slippery concept indeed. According to Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), collateral estoppel "means simply 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." Id. at 443, 90 S.Ct. at 1194. Thus, Ashe mandates two inquiries: First, what facts were necessarily determined in the first law suit? See United States v. Ballard, 586 F.2d 1060 (5th Cir. 1978); Adams v. United States, 287 F.2d 701 (5th Cir. 1961). Second, has the government in a subsequent trial tried to relitigate facts necessarily established against it in the first trial? Facts so established in the first trial may not be used in the second trial either as ultimate or as evidentiary facts. Blackburn v. Cross, 510 F.2d 1014 (5th Cir. 1975); Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972). Thus, while the parent doctrine of double jeopardy bars a subsequent prosecution based on a different section of the criminal code when "the evidence required to support a conviction upon one of them (the indictments) would have been sufficient to warrant a conviction upon the other," ⁴ its progeny, collateral estoppel, bars only the reintroduction or relitigation of Facts already established against the government. To state the distinction in more prosaic terms, the traditional bar of double jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from relitigating certain facts in order to establish the fact of the crime. See United States v. Kramer, 289 F.2d 909 (2d Cir. 1961) (Friendly, J.).

III.

The problem here is that the government urged in the tax evasion case that appellant received income from the very conspiracy operation of which he had been acquitted in the first trial. In addition, the government elicited essentially identical testimony from Kilgore to prove that he received income from the marijuana conspiracy.

Generally, it is true that a defendant may be acquitted of conspiracy without collaterally estopping the government from later presenting the evidence necessary to convict him of the substantive crime which was the object of the conspiracy. See United States v. Ballard, 586 F.2d 1060 (5th Cir. 1978). In addition, since the charges require different elements of proof, double jeopardy would pose no bar to the subsequent prosecution. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); Wingate v. Wainwright, 464 F.2d 209, 214 (5th Cir. 1972). Ashe teaches, however, that we must " 'examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter,' " 397 U.S. at 444, 90 S.Ct. at 1194 (footnote omitted), in order to assess the applicability of collateral estoppel. "The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' " Id., quoting Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 92 L.Ed. 180 (1947). In taking this pragmatic approach, the court in Sealfon, while recognizing that conspiracy and the substantive offense are different for double jeopardy purposes, nevertheless held that an acquittal on the charge of conspiracy to defraud the United States prohibited the government from later trying to prove that the defendant committed the substantive offense of defrauding the United States, since "the core of the prosecutor's case was in each case the same . . .." 332 U.S. at 580, 68 S.Ct. at 240; Accord, United States v. Kramer, 289 F.2d 909, 919 (2d Cir. 1961). Likewise, in Yawn v. United States, 244 F.2d 235 (5th Cir. 1957), a case notably similar to the instant case, the defendant was first tried and acquitted of possession of a still at a certain time and place; he was subsequently charged with a...