U.S. v. Price

• Decision Date: 02 January 1985
• Docket Number: No. 84-1445,84-1445
• Citation: 750 F.2d 363
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rex J. PRICE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

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 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 income.

Ylda and the three representatives of the toy manufacturer testified at the second trial that they made cash payments to Price at his requests, and the toy manufacturer's representatives testified that they paid for several of Price's dinners. On appeal, Price argues that the testimony of these witnesses should have been barred in the second trial under the doctrine of collateral estoppel since the first jury in its two acquittals necessarily must have found that he had not received any illegal kickback, and had no knowledge that the other employees were engaging in such activity. We must decide, therefore, whether the doctrine of collateral estoppel applies to bar the introduction of evidence in the second trial when an arguably inconsistent verdict is rendered in the first trial. We hold that the doctrine has no application in this case.

II.

It has long been recognized that criminal juries in the United States are free to render "not guilty" verdicts resulting from compromise, confusion, mistake, leniency or other legally and logically irrelevant factors. Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 190-91, 76 L.Ed. 356 (1932). Consequently, an acquittal is not necessarily to be taken as the equivalent of a factual finding of innocence; nor does it necessarily reflect a failure of proof on the part of the prosecution. United States v. Espinosa-Cerpa, 630 F.2d 328 (5th Cir.1980). It is for these reasons that a conviction cannot be set aside merely because it is inconsistent with other findings of the jury verdict. Harris v. Rivera, 454 U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981). We consider each count in a multi-count verdict separately, and a guilty verdict upon any count may stand, notwithstanding its inconsistency, provided it is supported by substantial evidence. United States v. Varkonyi, 611 F.2d 84 (5th Cir.1980).

The application of this rule becomes less clear when it is considered with the doctrine of collateral estoppel on retrial. The doctrine of collateral estoppel is one aspect of the protection afforded by the double jeopardy clause. The doctrine prevents an issue of ultimate fact that has been determined by a valid and final judgment from being relitigated...