U.S. v. Rogers

Decision Date02 April 1992
Docket NumberNo. 90-1316,90-1316
Citation960 F.2d 1501
PartiesFed. Sec. L. Rep. P 97,735 UNITED STATES of America, Plaintiff-Appellee, v. Gerald Leo ROGERS, aka T.T. Smith III, Claude de Bleu, Allan J. Martin, James F. Stokes, J.R. Kingston and Ambrose I. Goldsmith, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Thomas M. O'Rourke, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty., Gerald J. Rafferty, Asst. U.S. Atty. with him, on the brief), Denver, Colo., for plaintiff-appellee.

Stephen M. Wheeler, Denver, Colo., for defendant-appellant.

Before SEYMOUR and BARRETT, Circuit Judges, and BROWN *, District Judge.

BARRETT, Senior Circuit Judge.

Gerald Leo Rogers (Rogers) appeals from his jury conviction on thirteen counts of a thirty count indictment. The indictment charged Rogers with ten counts of mail fraud, 18 U.S.C. § 1341; one count of RICO, 18 U.S.C. § 1962(c); four counts of securities violations, 15 U.S.C. § 77l(1) and 18 U.S.C. § 2; and six counts of tax violations, 26 U.S.C. § 7206(2); all arising out of Rogers' alleged fraudulent participation in two tax shelter programs for gold mine development expenses.

In addition to the above substantive counts, the indictment charged Rogers with one count of conspiracy to obstruct justice, 18 U.S.C. § 371, and four counts of obstruction of justice, 18 U.S.C. § 1503. The conspiracy count alleged that Rogers conspired with others to obstruct a federal grand jury investigation. The four obstruction charges alleged that Rogers counseled four different witnesses to give false testimony before the grand jury. All of the above-referenced charges relate to criminal activity which took place between 1979 and 1981.

The claims of fraud advanced in this case were first alleged in a fraud injunctive complaint filed against Rogers in federal district court in California on October 30, 1980, by the Securities and Exchange Commission (SEC). In that complaint, the SEC charged Rogers with controlling a company known as the International Monetary Exchange (IME) and other companies related to tax shelter programs; using aliases; and committing numerous fraudulent acts and misrepresentations in connection with the tax shelter programs.

After a six-week bench trial, the United States District Court for the Central District of California, Judge Mariana R. Pfaelzer presiding, entered a 54-page order finding in favor of Rogers on every count. This order was subsequently affirmed by the Ninth Circuit. See, S.E.C. v. Rogers, 790 F.2d 1450 (9th Cir.1986).

Background

In 1979-80, Rogers operated tax shelters under the IME company name, and in 1981, he operated them under the name of General Mining, S.A. (GEMSA). Under the tax shelter programs, individual taxpayers were enticed into paying approximately $5,000 to acquire an interest in a mining lease held by one of the two companies, IME for the Paul Insard gold mine in French Guiana, and GEMSA for the Kanata Klondike I gold mine in Canada.

Through the use of brochures and presentations by salesmen, IME and GEMSA represented to taxpayers that the $5,000 investment equaled twenty percent (20%) of the mine development costs, and that the remaining eighty percent (80%) would be obtained by IME and GEMSA on behalf of the taxpayer through loans, options to mine the gold or other financing. IME and GEMSA further represented that, under the program, the taxpayer could deduct one hundred percent (100%) of the mine development costs from his/her current year income.

Procedural History

On November 30, 1984, a federal grand jury in Denver, Colorado, returned a 30-count superceding indictment charging Rogers with the above-described federal criminal violations. In August, 1987, during pre-trial litigation, Rogers became a fugitive when he fled to Switzerland. Rogers was apprehended in April, 1990, and returned to the United States by extradition. Upon his return to the United States, Rogers was appointed representation by the Federal Public Defender's Office. However, in May, 1990, Rogers informed the district court that he wished to proceed pro se. The court instructed the Federal Public Defender to remain as advisory counsel.

In July, 1990, the RICO, conspiracy and tax violation charges were dismissed per the extradition treaty with Switzerland, and in August, 1990, one count of securities violation was dismissed by the government for lack of proof. The trial commenced in August, 1990, and at its conclusion in September, 1990, Rogers was found guilty on all remaining counts. In October, 1990, Rogers was sentenced to a total of twenty-five years imprisonment, to be served consecutively to a ten year sentence Rogers received in an unrelated case in California.

In January, 1986, prior to fleeing the jurisdiction, Rogers filed a motion for collateral estoppel pertaining to the charges involving the IME corporation. This motion was predicated on the fact that the IME claims in the SEC case had been adjudicated in his favor. The district court denied the motion in a lengthy opinion addressing numerous motions. See, United States v. Rogers, 636 F.Supp. 237, 254 (D.Colo.1986). In its opinion, the district court stated that,

Review of the complaint and the court's ruling in the SEC case and comparison of the issues in that case with the superseding indictment in the present case reveals the issues are not identical. The SEC case focused on alleged violations of federal securities laws from 1978 to 1980. The offenses charged in the instant case allegedly did not occur until after that period. Although the overall scheme may be the same, the offenses charged in the superseding indictment are not the same as those litigated in the SEC case. Accordingly, Rogers' motion for collateral estoppel is denied.

Id. at 255.

At the request of the government, the district court addressed the issue of collateral estoppel again in its order granting the government's motion to compel. The government's request was supported by Count I of the superceding indictment which alleged fraudulent schemes in 1977 and 1978. In acknowledging the error of its statement regarding the dates of the alleged offenses (1978 to 1980), the court declared the statement obiter dictum to its holding that there was no identity of issues between the two actions. (R., Vol. V, Tab 81, p. 2).

At trial, the government presented evidence that the brochures and salesmen's presentations included material misrepresentations and that Rogers' companies never raised the eighty percent (80%) portion of the costs. The government further established that Rogers' central misrepresentation was that matching funds had been acquired and spent for mining development.

The government contended that although the French Guiana concession had respectable mineral deposits, it would not make a profit because of the mining techniques employed at the site. The government further contended that the investors received neither a return on their investment nor gold and that the Internal Revenue Service (IRS) disallowed their deductions.

Appellate Contentions

On appeal, Rogers contends that: (1) the district court erred in determining the government was not barred from prosecuting him by the Fifth Amendment protection against double jeopardy and the doctrine of collateral estoppel due to the prior SEC action finding in his favor; (2) he was denied Brady v. Maryland material and investigative assistance, thus depriving him of a fair trial; (3) the government evidence presented at trial was not sufficient to meet the burden of proof beyond a reasonable doubt; (4) the outrageous conduct of the district court and government required dismissal of the charges; and (5) the sentence of twenty-five consecutive years violated his constitutional guarantee of proportionality in sentencing.

Discussion--Conclusion

We respectfully disagree with the district court's determination that its erroneous statement regarding the dates involved in the two suits was obiter dictum and with the district court's findings that the four requisites for application of the doctrine of collateral estoppel had not been met. However, we reject Rogers' contentions that double jeopardy applies, and that the entire prosecution should be dismissed. Thus, we hold that the district court correctly determined that the double jeopardy clause was inapplicable. However, we hold that the district court erred in determining that the doctrine of collateral estoppel did not apply to Counts I-IV in the superceding indictment regarding the IME corporation. As to Rogers' remaining contentions of error, we hold that they are without merit.

I.

Rogers contends that the district court erred in its determination that the government was not barred from prosecuting him by the Fifth Amendment protection against double jeopardy and the doctrine of collateral estoppel.

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.

United States v. Mock, 604 F.2d 341, 343-44 (5th Cir.1979).

a.

We review de novo the legal conclusion made by the district court regarding double jeopardy claims. United States v. Raymer, 941 F.2d 1031, 1937 (10th Cir.1991); United States v. Cardall, 885 F.2d 656, 665 (10th Cir.1989). Underlying findings of fact are reviewed under the clearly erroneous standard. Raymer, supra, at 1037; United States v. Jones, 816 F.2d 1483, 1486 (10th Cir.1987).

The Double Jeopardy Clause of the Fifth Amendment embodies three protections; the protection against a second prosecution for the same offense after an acquittal or conviction, and the protection against multiple punishments for the same offense. United States v. Felix, 926 F.2d 1522, 1525 (10th Cir.1991).

Rogers argues that his first and third protections under the Double Jeopardy Clause were violated. H...

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