United States v. Webbe, CR-R-80-25-ECR.

• Decision Date: 07 February 1983
• Docket Number: No. CR-R-80-25-ECR.,CR-R-80-25-ECR.
• Citation: 558 F. Supp. 55
• Parties: UNITED STATES of America, Plaintiff, v. Sorkis J. WEBBE, Defendant.
• Court: U.S. District Court — District of Nevada

558 F. Supp. 55

UNITED STATES of America, Plaintiff, v. Sorkis J. WEBBE, Defendant.

No. CR-R-80-25-ECR.

United States District Court, D. Nevada.

February 7, 1983.

Geoffrey A. Anderson, Sp. Atty., Las Vegas Strike Force, Las Vegas, Nev., Marvin L. Rudnick, Sp. Atty., Los Angeles Strike Force, Los Angeles, Cal., for plaintiff.

Albert J. Krieger, Miami, Fla., for defendant.

ORDER

EDWARD C. REED, Jr., District Judge.

The defendant has moved to dismiss the two-count indictment herein on the basis of the doctrine of collateral estoppel which applies in criminal cases as part of the constitutional protection against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Defendant contends that since he was acquitted of the conspiracy count in the companion case of United States v. Linton, CR-R-80-24-ECR (Linton), prosecution of this action for filing false income tax returns is barred because the conspiratorial agreement litigated in Linton is a necessary element to be proved here.

The facts and circumstances which gave rise to the indictment in this case as well as Linton are integrally related. Both indictments were returned by the same grand jury on the same day and relate to an alleged scheme by the defendants to defraud the Central States, Southeast and Southwest Areas Pension Fund of the International Brotherhood of Teamsters (Pension Fund) through payment of "kickbacks" out of loan proceeds obtained from the Pension Fund to finance a construction project at the Aladdin Hotel in Las Vegas, Nevada. More specifically, the basis for the instant prosecution is the allegation that defendant Webbe failed to account in his federal income tax returns for a substantial portion of the income he received in the form of "fees, commissions and kickbacks" during the Aladdin Hotel construction project. The gravamen of defendant's motion is that the government must, in this action, prove that the source of the income defendant failed to report is the very criminal conspiracy of which defendant was previously acquitted and which is an essential element of the instant indictment that cannot be relitigated.

The law of collateral estoppel as applied to criminal cases in this circuit is set forth in United States v. Hernandez, 572 F.2d 218, 220 (9th Cir.1978), as follows:

"When an issue of fact or law is actually litigated and determined by a final and valid judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." (Restatement of the Law, 2d, Judgments, § 68 (Tent. Draft No. 1, March 28, 1973).)

"The collateral estoppel analysis involves a three step process:

"(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."

In this context the defendant carries the burden of proving that the fact-finder resolved in his favor at the first trial the very issue he seeks to foreclose from consideration at the second trial. United States v. Lasky, 600 F.2d 765, 769 (9th Cir.1979). "The burden is particularly onerous where the acquittal in the first trial involves the crime of conspiracy." United States v. Clark, 613 F.2d 391, 400 (2d Cir.1979); see United States v. Dipp, 581 F.2d 1323 (9th Cir.1978).

Pursuant to Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194, the Court in determining what issues were necessarily resolved in the first trial should inquire "whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Such inquiry should be practical and involve examination of "the record of the prior proceeding, taking into account the pleadings, evidence, charge and other relevant matter." Id. This Court, which presided over the lengthy conspiracy trial in Linton, does not deem it necessary or appropriate to review all of the evidence and testimony presented during that proceeding. Rather, under these circumstances it is sufficient that the court examine the indictments, the instructions given the jury, and the relevant portions of argument presented by counsel during the conspiracy trial.

In examining what the jury decided and how the judgment of acquittal on the conspiracy count bears on the second trial for tax evasion, the basis for the general verdict usually cannot be demonstrated with certainty. United States v. Seijo, 537 F.2d 694, 697 (2d Cir.1976). The ultimate issue decided by the jury in the Linton trial, of course, was the absence of a conspiracy among the defendants. Among other things, receipt of certain funds by defendant Webbe and...