U.S. v. Price, No. 84-1445

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GEE, WILLIAMS and JOLLY; E. GRADY JOLLY
Citation750 F.2d 363
Decision Date02 January 1985
Docket NumberNo. 84-1445
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Rex J. PRICE, Defendant-Appellant.

Page 363

750 F.2d 363
UNITED STATES of America, Plaintiff-Appellee,
v.
Rex J. PRICE, Defendant-Appellant.
No. 84-1445.
United States Court of Appeals,
Fifth Circuit.
Jan. 2, 1985.

William F. Billings, Dallas, Tex., for defendant-appellant.

James A. Rolfe, U.S. Atty., Jack C. Williamson, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, WILLIAMS and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This second appeal after a second conviction presents the issue of whether the doctrine of collateral estoppel applies to the

Page 364

facts of this case to bar retrial. In the first trial, Rex Price, a former employee of the Army Air Force Exchange Service (AAFES), was indicted on three counts: conspiracy to obtain gratuities, making false statements before the grand jury, and income tax evasion. The first jury acquitted Price of the latter two counts, but convicted him on the conspiracy count. On appeal of the first conviction, we reversed Price's conviction because the testimony of an Internal Revenue Service agent improperly bolstered the credibility of other witnesses, and we remanded for a new trial. United States v. Price, 722 F.2d 88 (5th Cir.1983).

Pursuant to our remand, Price was retried for conspiracy to obtain gratuities. The jury again found Price guilty on a superseding indictment limited to the conspiracy charge in violation of 18 U.S.C. 201(g). He was convicted and sentenced to a maximum prison term of five years and a $5,000 fine. Price has appealed this second conspiracy conviction, arguing that under the doctrine of collateral estoppel, the trial court improperly permitted the introduction of evidence which should have been barred as a result of his acquittal of the perjury and tax evasion charges. We reject Price's arguments, and affirm the district court.

I.

At the initial trial, the conspiracy case was based principally on the testimony of Naar, Mazziotti and Goodman, three individuals who owned a company that sold toys to the AAFES. Each of the three testified that he paid cash to Price to remain in his favor and had paid for several of his dinners. Mr. Ylda, a former AAFES employee, also testified that he had given Price half a $1,000 payment he had received from a supplier and told Price that, in return for his favors, he could receive appliances free of charge from another AAFES supplier. All four of the witnesses testified at the first and second trials.

At the first trial, one of the allegations of perjury was that Price had falsely declared that he had never received anything of value from Mr. Ylda, and did not receive any cash payments. Another allegation of perjury was that Price falsely declared that he had no knowledge of any AAFES employees receiving money or anything of value from the toy manufacturers. The income tax evasion charge was based on Price's failure to report the bribes he allegedly received as income.

The elements of perjury are that the statement must be false, material and made with knowledge of its falsity. 18 U.S.C. Sec. 1623; United States v. Dudley, 581 F.2d 1193 (5th Cir.1978). The elements of income tax evasion are that an additional tax is due and owing, an attempt is made to evade or defeat such tax, and the attempt is willful. Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); United States v. Dwoskin, 644 F.2d 418 (5th Cir.1981). The elements of the third offense with which Price was charged, conspiracy to violate section 201, require proof that the conspiracy existed, that the accused knew it existed and with that knowledge, voluntarily joined it, and that one of the conspirators performed an overt act in furtherance of the conspiracy. See United States v. Wieschenberg, 604 F.2d 326 (5th Cir.1979); United States v. Barrentine, 591 F.2d 1069 (5th Cir.1979). Thus, some evidence admitted to prove the necessary elements of one offense established the necessary elements of the other offenses. For example, evidence that Price received illegal kickbacks would tend to prove not only a violation of section 201 but perjury as well, since he denied receiving funds before the grand jury. That fact would also prove evasion of income tax, since he never reported illegal kickbacks as...

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20 practice notes
  • Hampton v. Long, Civ. A. No. TY-84-541-CA.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • March 28, 1988
    ...and final judgment. J.M. Muniz, Inc. v. Mercantile Texas Credit Corporation, 833 F.2d 541, 544 (5th Cir. 1987); United States v. Price, 750 F.2d 363, 365 (5th Where a factual issue has been determined in prior state court proceedings, the law of the forum state determines whether and how th......
  • United States v. Bravo-Fernandez, Nos. 14–1089
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 15, 2015
    ...only other circuits to have decided the issue, see United States v. Citron, 853 F.2d 1055, 1059 (2d Cir.1988) ; United States v. Price, 750 F.2d 363, 366 (5th Cir.1985),7 as well as the highest courts of New Jersey and the District of Columbia, see State v. Kelly, 201 N.J. 471, 992 A.2d 776......
  • Bravo-Fernandez v. United States, No. 15–537.
    • United States
    • U.S. Supreme Court
    • November 29, 2016
    ...1058–1061 (C.A.2 1988) (holding that retrial does not violate Double Jeopardy Clause under these circumstances); United States v. Price, 750 F.2d 363, 366 (C.A.5 1985) (same); Evans v. United States, 987 A.2d 1138, 1141–1142 (D.C.2010) (same); and State v. Kelly, 201 N.J. 471, 493–494, 992 ......
  • U.S. v. Felder, No. 87-871.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 16, 1988
    ...to partial verdicts in multi-count indictments. See, e.g., United States v. Garza, 754 F.2d 1202 (5th Cir. 1985); United States v. Price, 750 F.2d 363 (5th Cir.), cert. denied, 473 U.S. 904, 105 S.Ct. 3526, 87 L.Ed.2d 651 (1985); United States v. Kimberlin, 805 F.2d 210 (7th Cir. 1986), cer......
  • Request a trial to view additional results
20 cases
  • Hampton v. Long, Civ. A. No. TY-84-541-CA.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • March 28, 1988
    ...and final judgment. J.M. Muniz, Inc. v. Mercantile Texas Credit Corporation, 833 F.2d 541, 544 (5th Cir. 1987); United States v. Price, 750 F.2d 363, 365 (5th Where a factual issue has been determined in prior state court proceedings, the law of the forum state determines whether and how th......
  • United States v. Bravo-Fernandez, Nos. 14–1089
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 15, 2015
    ...only other circuits to have decided the issue, see United States v. Citron, 853 F.2d 1055, 1059 (2d Cir.1988) ; United States v. Price, 750 F.2d 363, 366 (5th Cir.1985),7 as well as the highest courts of New Jersey and the District of Columbia, see State v. Kelly, 201 N.J. 471, 992 A.2d 776......
  • Bravo-Fernandez v. United States, No. 15–537.
    • United States
    • U.S. Supreme Court
    • November 29, 2016
    ...1058–1061 (C.A.2 1988) (holding that retrial does not violate Double Jeopardy Clause under these circumstances); United States v. Price, 750 F.2d 363, 366 (C.A.5 1985) (same); Evans v. United States, 987 A.2d 1138, 1141–1142 (D.C.2010) (same); and State v. Kelly, 201 N.J. 471, 493–494, 992 ......
  • U.S. v. Felder, No. 87-871.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 16, 1988
    ...to partial verdicts in multi-count indictments. See, e.g., United States v. Garza, 754 F.2d 1202 (5th Cir. 1985); United States v. Price, 750 F.2d 363 (5th Cir.), cert. denied, 473 U.S. 904, 105 S.Ct. 3526, 87 L.Ed.2d 651 (1985); United States v. Kimberlin, 805 F.2d 210 (7th Cir. 1986), cer......
  • Request a trial to view additional results

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