United States v. Kamins

• Decision Date: 30 November 1979
• Docket Number: Crim. No. 78-208.
• Citation: 479 F. Supp. 1374
• Parties: UNITED STATES of America, Plaintiff, v. (1) Melvin KAMINS, (6) Reuben Sturman, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

479 F. Supp. 1374

UNITED STATES of America, Plaintiff, v. (1) Melvin KAMINS, (6) Reuben Sturman, Defendants.

Crim. No. 78-208.

United States District Court, W. D. Pennsylvania.

November 30, 1979.

Robert J. Cindrich, U. S. Atty., Pittsburgh, Pa., for plaintiff.

Herald Price Fahringer, New York City, Bernard A. Berkman, Cleveland, Ohio, for defendants.

OPINION

COHILL, District Judge.

The deceptively narrow question before us today requires this Court to juggle the concepts of double jeopardy, conspiracy, and obscenity — each a nebulous circle in itself— while at the same time attempting to balance the government's interest in prosecuting alleged crimes against the constitutional rights of the defendants not "to be twice put in jeopardy." In attempting to achieve some equilibrium, we will rely heavily on the facts of record before us, which are tangible and therefore more manageable, and on the significant appellate decisions in these three areas.

Reuben Sturman and Melvin Kamins are two of six defendants charged in an indictment brought in the Western District of Pennsylvania with 15 substantive violations of 18 U.S.C. § 1462 (1976) (interstate transportation of obscene magazines and motion pictures) and one count of conspiracy to transport obscene materials interstate under 18 U.S.C. § 371 (1976). Only defendants Sturman and Kamins and only the conspiracy count are before us today. In 1978 these two defendants, among others, were tried in the United States District Court for the Northern District of Ohio on a multiple-count indictment including a charge of conspiracy to disseminate obscene materials interstate. At the conclusion of a lengthy trial, both defendants were acquitted on all counts by the jury. They have moved this Court to dismiss the current conspiracy count as to them on the basis of double jeopardy.

Both the government and defendants have agreed that the double jeopardy motion should be isolated from the defendants' "omnibus pretrial motions" and be considered first because our ruling will be appealable prior to trial. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Inmon, 568 F.2d 326, 328 (3d Cir. 1977).

Sturman and Kamins argue that the prior acquittal of conspiracy bars reprosecution on the same charge. The government responds that where a current indictment charges a separate offense than was previously adjudicated the double jeopardy protection is inapplicable. Theoretically, both parties are correct. The more precise task before us is defining the legal theory required by this set of facts. The entire transcript of the prior trial as well as the prior indictment have been made part of the record before us.

Double Jeopardy

The Fifth Amendment to the United States Constitution includes this guarantee:

Nor shall any person be subject for the same offense to be twice put in jeopardy . . .

This basic guarantee was imported as a part of our common law heritage. As the Supreme Court explained in an early case, "if there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense." Ex parte Lange, 85 U.S. (18 Wall.) 163, 168, 21 L.Ed. 872 (1874). Defining what constitutes the "same offense" has not been an easy task for courts or commentators.¹

In 1970 the Supreme Court of the United States decided Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), holding that the civil concept of collateral estoppel — issue preclusion — is an inherent ingredient of the Fifth Amendment double jeopardy guarantee. There the defendant had been indicted for his alleged participation in a robbery of six men who had been playing poker. After a jury acquitted him of the robbery of one of the men, the state prosecuted him again for the robbery of another of the victims. Although disagreeing on several aspects of the definition of the "same offense" for double jeopardy purposes,² seven members of the Court agreed that the general verdict of acquittal after the first trial resolved the issue of the defendant's participation in the robbery and precluded that issue from being litigated a second time. Justice Stewart wrote for the majority:

"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law for at least . . . 50 years . . . As Mr. Justice Holmes put the matter in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 1916, "It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt."

397 U.S. at 443, 90 S.Ct. at 1194 (citations omitted).

Turning to the application of this rule, Justice Stewart added:

The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.

397 U.S. at 443-44, 90 S.Ct. at 1194 (citation omitted).

Many decisions since Ashe have attempted to apply the collateral estoppel principle in cases where the facts have been less graphic. E. g., United States v. Venable, 585 F.2d 71 (3d Cir. 1978) (trial on a false statements count was not barred by a prior acquittal of an extortion count where the acquittal was clearly based on the government's failure to establish dates of the alleged extortion payments); United States v. Nelson, 574 F.2d 277 (5th Cir. 1978), cert. denied, 99 S.Ct. 355 (1979) (where a jury acquitted defendant of a charge of using a gun during the commission of a felony, he could not be retried on a charge of putting lives in jeopardy with a dangerous weapon during commission of a bank robbery); United States v. Hernandez, 572 F.2d 218 (9th Cir. 1978) (perjury trial foreclosed by prior acquittal of false statements charge where the defendant's truthfulness in the subject episode was necessarily decided by the false statements acquittal); United States v. Barket, 530 F.2d 181 (8th Cir. 1976), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976) (bank officer's acquittal of willful misapplication of funds did not bar prosecution for violation of campaign contribution statute involving same funds where the two crimes were distinct and separate offenses). These and other cases stress that the double jeopardy decision turns not on the nature of the charges alone, but also on what actually transpired at the first trial. Courts have asked themselves whether factfindings favorable to the defendant were necessarily part of the jury's verdict or whether a first jury implicitly acquitted a defendant of later charges, Hardwick v. Doolittle, 558 F.2d 292, 298 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978); whether previously decided facts or resolved issues are to be litigated anew, Venable, supra, 585 F.2d at 77-78; United States v. Pappas, 445 F.2d 1194 (3d Cir. 1971), cert. denied, 404 U.S. 984, 92 S.Ct. 449, 30 L.Ed.2d 368 (1971); United States v. Nash, 447 F.2d 1382, 1384 (4th Cir. 1971); and what facts, arguments of counsel, and rulings of the trial judge influenced the earlier acquittal, Barket, supra; Hutchings v. Estelle, 564 F.2d 713 (5th Cir. 1977). But a district court has warned against conjecture about the jury's reasoning. Jones v. Blankenship, 458 F.Supp. 521, 524-25 (W.D.Va. 1978).

A Florida district court succinctly stated the rule of Ashe and its progeny in United States v. Gurney, 418 F.Supp. 1265, 1268 (M.D.Fla.1976); there Chief Judge Young wrote,

while the Government may charge, try and convict a defendant with more than one charge growing out of the same transaction, it may not in a second trial relitigate an issue of either ultimate fact or evidentiary fact upon which the defendant was acquitted in an earlier trial.

In a thoughtful recent opinion, the Ninth Circuit adopted a three-step analysis to determine whether the collateral estoppel principle of double jeopardy applies in a given case:

(1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was "litigated" in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case.

Hernandez, supra, 572 F.2d at 220. This analysis synthesizes the holdings we have reviewed. We will adopt this process in making our independent review.

Several cases, including some in the Third Circuit, have placed on the defendant the burden of persuasion to convince courts that double jeopardy applies. Barket, supra, 530 F.2d at 188;...