United States v. Flowers

• Decision Date: 28 June 1966
• Docket Number: Cr. No. 6922.
• Citation: 255 F. Supp. 485
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of America, Plaintiff, v. J. Percy FLOWERS, Defendant.

255 F. Supp. 485

UNITED STATES of America, Plaintiff, v. J. Percy FLOWERS, Defendant.

Cr. No. 6922.

United States District Court E. D. North Carolina, Wilmington Division.

June 28, 1966.

Robert H. Cowen, U. S. Atty., Weldon L. Hollowell, Alton T. Cummings, Asst. U. S. Attys., Raleigh, N. C., for plaintiff.

Robert L. Gavin, Gavin, Jackson & Gavin, Sanford, N. C., George Rountree, Jr., Rountree & Clark, Wilmington, N. C., Knox V. Jenkins, Jr., Smithfield, N. C., for defendant.

OPINION

MICHIE, District Judge.

J. Percy Flowers was indicted on April 28, 1965, by a Grand Jury in the Eastern District of North Carolina, Wilmington Division, for violation of the Federal liquor laws. The Grand Jury charged Flowers with 26 violations listed as separate counts of a consolidated indictment, including one count alleging a conspiracy among Flowers and a number of other individuals listed as co-conspirators but not charged as co-defendants, and 25 substantive counts. The case was brought on for trial before me on August 16, 1965. After a lengthy trial and extensive jury deliberation, the jury returned a verdict on August 25 of not guilty as to 13 counts of the indictment and reported that they were unable to reach agreement as to the remaining 13 counts.

Counsel for the defendant had previously moved, at the close of the evidence, for a judgment of acquittal pursuant to Rule 29, Federal Rules of Criminal Procedure, and timely renewal of the motion was made after the Court discharged the jury. In support of the motion the defendant relies upon the principles of res judicata (collateral estoppel) and double jeopardy and contends, in addition, that the evidence introduced by the government on the 13 counts upon which the jury failed to reach a verdict was insufficient to support a verdict of guilty.

There is no validity to the plea of double jeopardy. Each count of the indictment charged a separate and distinct crime. Only if the offenses are identical does double jeopardy constitute a defense. Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Pinkerton v. United States, 328 U.S. 640, 643-644, 66 S.Ct. 1180, 90 L. Ed. 1489 (1946). Nor do I believe, from a study of the record, that there is any merit to the argument that the evidence on any of the remaining 13 counts was insufficient to go to the jury. Much of the government's case was based upon circumstantial evidence but, in view of the testimony of an undercover agent, the evidence would have supported a verdict adverse to the defendant.

It is the question of the applicability of the collateral estoppel principle to the facts of this case which provides the most serious issue to be decided. It is well established in the federal courts that the principle of res judicata applies to criminal as well as to civil proceedings. Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180 (1948); United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68, 61 L.Ed. 161 (1916). More specifically, that branch of the res judicata principle known as collateral estoppel operates to preclude the government from relitigating, in a later proceeding, those matters in issue which the verdict in an earlier prosecution necessarily determined against the government though the offenses be different. See Hoag v. State of New Jersey, 356 U.S. 464, 470-471, 78 S.Ct. 829, 2 L.Ed. 2d 913 (1958); Sealfon v. United States, supra; United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961); Cosgrove v. United States, 224 F.2d 146, 150 (9th Cir. 1954). Thus, in the usual situation where collateral estoppel has been brought to bear, the government is barred from prosecuting a defendant on a new indictment if a verdict of acquittal on a previous indictment for a related offense resolved a factual issue in favor of the defendant and conviction on the new indictment would require that the same factual issue be resolved in favor of the prosecution. Inconsistent jury verdicts are thereby precluded.

The application of the collateral estoppel principle to jury verdicts in criminal cases, where the jury has returned only a general verdict, requires that the court rationalize the jury's decision. It must be assumed that the jury was aware of all the facts in evidence and that it logically and properly applied the instructions of the court in reaching its verdict of acquittal. The possibility that the jury acquitted by reason of charity, compromise or simple frustration flowing from hours of tedious debate is barred from the court's consideration. See, e. g., Cosgrove v. United States, supra, at 154.

The jury was not assumed to be a rational body at the inception of the jury system, see United States v. Maybury, 274 F.2d 899, 902-903 (2d Cir. 1960), and it has not yet been deemed wise to carry the process of rationalization to its logical conclusion. Thus, it is settled beyond cavil in the Federal courts that verdicts on different counts of a single indictment returned by the same jury at the same time are valid even though they may be logically inconsistent. Though a conviction on one count may be inconsistent with acquittal on another, the verdict will be allowed to stand. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Freeman, 286 F.2d 262, 263 (4th Cir. 1961); Steckler v. United States, 7 F.2d 59 (2d Cir. 1925). Though the Dunn decision preceded Sealfon and its progeny, it is well settled that the holding in Dunn was not overruled by Sealfon. United States v. Cappello, 327 F.2d 378, 379 (2d Cir. 1964); United States v. Marcone, 275 F.2d 205, 206 (2d Cir.), cert. denied, 362 U.S. 963, 80 S.Ct. 879, 4 L.Ed.2d 877 (1960); Ross v. United States, 197 F.2d 660, 662 (6th Cir.), cert. denied, 344 U.S. 832, 73 S.Ct. 40, 97 L.Ed. 648 (1952).

Had the jury in the instant case convicted the defendant on one of the counts on which they failed to reach a verdict, the conviction would not be subject to attack on the ground of inconsistency with any of the other counts upon which the defendant was acquitted. However, the jury did not convict Flowers on any of the 26 counts of the indictment; a conviction on one of the 13 remaining counts would be rendered by a different jury at a point later in time. As in Dunn, any inconsistency would be between different counts of the same indictment but, as in Sealfon, a conviction would come at a date later than the acquittal on the other counts and from a new jury.

Were the question open, with but the Dunn and Sealfon cases to serve as guides, I would be hesitant to apply the collateral estoppel principle in the case at bar. In the context of a situation such as that presented here, i. e., a verdict of acquittal on some counts coupled with the jury's inability to reach a verdict on other counts, the application of the Sealfon rationale requires the Court to assume that the jurors have been logical in reaching their decision on the acquitted counts, yet the ultimate result will often be a conclusion that the jurors, or some of them, were illogical and inconsistent in failing to acquit on the remaining counts. In short, upon the instant facts, the jury must be assumed to be logical in order to conclude that it has been illogical, an unfortunate dichotomy to say the least. The Dunn rationale, on the other hand, takes cognizance of the seemingly inevitable vagaries of jurors and would be, in my opinion based upon practical experience, a sound approach to the problem presented here. It has long been recognized that jurors often do not see the facts as the court does, nor do they always follow the judge's instructions to the letter. See United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48 (1943); Dunn v. United States, supra, 284 U.S. at 394, 52 S.Ct. 189; Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 65 L.Ed. 185 (1920).

Jury verdicts appear to be particularly susceptible to inconsistencies in the federal courts in that type of prosecution where, like the violation of the liquor laws here, the federal statutes provide a multiplex catalog of separate offenses for each of which the accused may be prosecuted and sentenced, although the actions of the defendant involve only, e. g., the operation of one illicit distillery. In this case the jury deliberated for two days on the 26-count indictment without being able to reach a verdict, after having been committed to the custody of the marshal shortly after the opening of the trial. The jurors were totally unable to agree until the court reminded them, in its second supplemental instruction, that they might return verdicts on some of the counts of the indictment if they were unable to agree upon all the counts. Against this background, the court is of the opinion that the verdicts of acquittal may well have been based upon a willingness of part of the jurors to concede their convictions in order to agree upon something and return to their homes. The application of collateral estoppel to the facts of this case therefore might well grant to the defendant a windfall based upon the court's view of what the jury verdict must be taken to mean, but which the jurors in their deliberations never actually considered.

Nevertheless, upon a careful perusal of the cases, I find that the authorities, though few in number, and albeit sub silentio, uniformly support the application of the collateral estoppel principle to the situation where, as here, the jurors have acquitted on some counts and have been unable to reach a verdict on others. See United States v. Kenny, 236 F.2d 128 (3d Cir.), cert. denied, 352 U.S. 894, 77 S.Ct. 133, 1 L.Ed.2d 87 (1956) (separate indictments tried together); Cosgrove v. United States, supra, (multiple count indictment); United States v. Perrone, 161 F.Supp. 252 (S.D.N.Y. 1958) (multiple count indictment). Additional support is found in Travers v. United States, 118 U.S.App.D.C. 276, 335 F.2d 698,...