U.S. v. Weems

• Decision Date: 01 March 1995
• Docket Number: No. 93-30151,93-30151
• Citation: 49 F.3d 528
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clarke Dexter WEEMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 528

49 F.3d 528

63 USLW 2607

UNITED STATES of America, Plaintiff-Appellee, v. Clarke Dexter WEEMS, Defendant-Appellant.

No. 93-30151.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 1, 1994.

Submission Vacated Feb. 8, 1994.

Resubmitted March 15, 1994.

Decided March 1, 1995.

C. James Frush, Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, WA, for defendant-appellant.

Deborah Watson and Cynthia A. Young, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: GOODWIN, SCHROEDER and NORRIS, Circuit Judges.

Opinion by Judge SCHROEDER; Partial Concurrence by Judge William A. NORRIS.

SCHROEDER, Circuit Judge:

This is an appeal from a conviction and sentence for structuring financial transactions in violation of 31 U.S.C. Sec. 5324(a)(3). The government concedes that appellant's conviction must be reversed in light of the Supreme Court's recent decision in Ratzlaf v. United States, --- U.S. ----, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), which held that in a prosecution for structuring financial transactions to avoid a bank's reporting requirements, the government must prove that the defendant knew that structuring is illegal. The only substantial issues that we need discuss are whether the Double Jeopardy Clause bars the government from retrying the defendant, and whether the government is collaterally estopped on retrial from trying to prove that the defendant knew that one of the properties he purchased with structured funds was being used to grow marijuana. We reverse and remand for retrial, with instructions to exclude the marijuana evidence relating to one of the properties.

I. BACKGROUND

In late 1987 and 1988, Clarke Weems purchased, with structured funds, properties known as the Enumclaw and Puyallup properties. In April of 1989, the Pierce County Sheriff's Office executed a search warrant at the Puyallup property and discovered that the property was being used to grow marijuana. The government brought a civil action seeking forfeiture of this property under both 21 U.S.C. Sec. 881(a)(7), authorizing forfeiture of property connected with controlled substances, and 18 U.S.C. Sec. 981, authorizing forfeiture of property purchased through structured transactions.

In an opinion issued in October of 1990, District Judge Dimmick held that Weems had proven by a preponderance of the evidence that he was an innocent owner with no knowledge of the marijuana grown at the Puyallup property, and that therefore the property was not subject to forfeiture under 21 U.S.C. Sec. 881(a)(7). Judge Dimmick also concluded, however, that the property had been purchased with illegally structured funds, and was subject to forfeiture under 18 U.S.C. Sec. 981.

On January 23, 1992, defendant was indicted on three counts of structuring currency transactions to evade the government's reporting requirements under 31 U.S.C. Sec. 5324(a)(3). District Judge Tanner, over defendant's objection, permitted the prosecution to introduce evidence of the marijuana grown at the Puyallup property at trial as evidence of defendant's motive in structuring the transactions. Defendant subsequently was convicted and here appeals his conviction and sentence. Because the government did not argue, and Weems' jury was not instructed, regarding an essential element of his offense, see Ratzlaf, --- U.S. at ----, 114 S.Ct. at 663, Weems' conviction must be reversed. We now turn to the remaining issues in this case.

II. DOUBLE JEOPARDY

Prior to the Supreme Court's decision in Ratzlaf, this circuit did not require proof of a defendant's knowledge that structuring itself is illegal. United States v. Hoyland, 914 F.2d 1125, 1128-30 (9th Cir.1990). In each of the post-Ratzlaf cases in which structuring convictions have been vacated, we have simply remanded for new trial without any extended discussion of whether retrial might violate double jeopardy. E.g., United States v. Pitner, 23 F.3d 1497 (9th Cir.1994); United States v. Carlisle, 18 F.3d 752 (9th Cir.1994); United States v. Ratzlaf, 16 F.3d 1078 (9th Cir.1994). Following oral argument in this case, we requested supplemental briefing on the question of whether retrial is barred by the Double Jeopardy Clause in light of the government's failure to prove that Weems knew that structuring is illegal, as is now required under Ratzlaf.

Generally, the Double Jeopardy Clause does not prohibit retrial following reversal for an error at trial. United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). Reversal for insufficiency of the evidence, however, like a judgment of acquittal at the close of the government's case, precludes retrial. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The Burks rule requires a reviewing court to consider claims of insufficient evidence, even if it finds some other basis for reversal, because a meritorious insufficiency claim absolutely bars retrial, and consideration of the claim by the reviewing court is necessary to prevent a second jeopardy. United States v. Bibbero, 749 F.2d 581, 586 (9th Cir.1984), cert. denied, 471 U.S. 1103, 105 S.Ct. 2330, 85 L.Ed.2d 847 (1985). Weems contends that under this rule, we may not remand for a new trial without first considering whether the evidence produced at trial was sufficient for conviction. He argues, further, that the appropriate inquiry for this court is whether the evidence was sufficient under the rule announced in Ratzlaf; that is, whether the government produced sufficient evidence to show that he knew that structuring was illegal. Because the government introduced no evidence of Weems' knowledge, he contends he may not be retried. The law does not support his position.

In Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), the Supreme Court considered whether a retrial is barred following reversal of a conviction on the ground that the conviction was against the weight of the evidence. The Court began by noting that a reversal based on the weight of the evidence means only that the reviewing court disagrees with the jury's resolution of conflicting evidence, not, as is the case with reversal for insufficient evidence, that the government has failed to prove its case. Id. at 42, 102 S.Ct. at 2218. Holding that the "core" of the Double Jeopardy Clause's prohibition on multiple prosecutions is denying the prosecution a second opportunity "to supply evidence which it failed to muster in the first proceeding," id. at 41, 102 S.Ct. at 2217 (quoting Burks, 437 U.S. at 11, 98 S.Ct. at 2147), the Court held that retrial was constitutionally permissible.

Remanding for retrial in this case does not give the government the opportunity to supply evidence it "failed" to muster at the first trial within the meaning of Tibbs. The government had no reason to introduce such evidence because, at the time of trial, under the law of our circuit, the government was not required to prove that a defendant knew that structuring was illegal. E.g., Hoyland, 914 F.2d at 1128-30. The district court at trial could have required such proof only by disregarding clear rulings by this court. The government therefore is not being given a second opportunity to prove what it should have proved earlier, and double jeopardy protections do not bar retrial. See Linam v. Griffin, 685 F.2d 369, 373-74 (10th Cir.1982) (rehearing on habitual offender status not barred merely because government's original proof did not conform to the requirements of a change in law occurring after trial), cert. denied, 459 U.S. 1211, 103 S.Ct. 1207, 75 L.Ed.2d 447 (1983).

This case is analogous to the situation presented when a reviewing court finds that evidence supporting a conviction has been erroneously admitted at trial, and the remaining evidence is insufficient to support a conviction. The Supreme Court has held that remand is appropriate in these situations. Lockhart v. Nelson, 488 U.S. 33, 42, 109 S.Ct. 285, 291, 102 L.Ed.2d 265 (1988); see United States v. Chu Kong Yin, 935 F.2d 990, 1001 (9th Cir.1991). In such cases, it is presumed that the government would have attempted to offer other evidence had the challenged evidence been properly excluded in the trial court. Lockhart, 488 U.S. at 42, 109 S.Ct. at 291. Retrial, under these circumstances, "is not the sort of governmental oppression at which the double jeopardy clause is aimed...." Retrial in this case is not oppressive either; it merely permits the government to prove its case in accordance with the recent change in law. Accordingly, the proper disposition of this case is remand for new trial. ¹ See United States v. Rogers, 18 F.3d 265, 268 (4th Cir.1994).

III. ADMISSION OF MARIJUANA EVIDENCE

Because we conclude that the government may retry Weems, we also address Weems' contention that the district court erred in admitting evidence of the marijuana grow at the Puyallup property in order to prove appellant's motive in structuring the transactions at issue.

Collateral estoppel can limit the evidence the government may introduce in a criminal prosecution. See e.g., U.S. v. Keller, 624 F.2d 1154 (3d Cir.1980); see also Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Pettaway v. Plummer, 943 F.2d 1041 (9th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 296, 121 L.Ed.2d 220 (1992); United States v. Hernandez, 572 F.2d 218 (9th Cir.1978). In Hernandez, we explained that collateral estoppel should apply where (1) the issue sought to be litigated is sufficiently similar to the issue present in an earlier proceeding and sufficiently material in both actions to justify invoking the doctrine; (2) the issue was actually litigated in the first case; and (3) the issue was necessarily decided in the first case. 572 F.2d at 220.

The factual issue of whether Weems knew that the tenants of the Puyallup...