IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. xx-055 (RCL) v. :
:
:
xxxxxxxxxxxxxxxxxx, :
:
Defendant. :
MOTION TO DISMISS INDICTMENT
xxxxxxxxx, through undersigned counsel, respectfully moves, pursuant to the Fifth Amendment to the United States Constitution, to dismiss the indictment in this case, and as grounds, shows the court:
1. Mr. xxxxxx was arraigned on a two count indictment on June 7, 1995. Count One of the indictment charges a distribution of cocaine base on April 7, 1992. Count Two charges a distribution of cocaine base on August 20, 1992.
2. In United States v. Maurice xxxxxx, Criminal Number 94-232, Mr. xxxxxx was charged, inter alia, with distributions of cocaine base on May 5, 1992 and on June 1, 1992. The trial of that case commenced on September 26, 1994 and on September 29, 1994, Mr. xxxxxx was acquitted of all counts of the indictment.
3. At the trial of the May 5 and June 1 incidents, the government's evidence consisted primarily of the testimony of Drug Enforcement Administration (DEA) agent Ronald Woods, which was corroborated by videotapes and by tape-recorded conversations with Mr. xxxxxx.(1) Woods testified that on April 22, 1992, he had a conversation with Mr. xxxxxx in which Mr. xxxxxx agreed to sell him four ounces of cocaine base for $900 per ounce. Tr. 152-54.(2) That sale did not take place as agreed. Instead, on May 5, 1992, Mr. xxxxxx sold Agent Woods one and three-quarter ounces of cocaine base. Tr. 156-58, 163. Again on June 1, 1992, Mr. xxxxxx sold the agent four ounces of cocaine base, in exchange for $4,200. Tr. 198, 207.
4. Mr. xxxxxx's defense was that he was entrapped to sell the cocaine base to Agent Woods. Mr. xxxxxx was the sole defense witness. He related that he met Agent Woods on April 7, 1992, through his lifelong friend, Darrell Wheeler, who introduced Woods as his cousin. Tr. 315, 331. He recited several telephone conversations and meetings with Woods about the cocaine sales on May 5 and June 1. Tr. 320, 326. xxxxxx admitted that he had sold cocaine previously but denied any cocaine sales within the year before meeting Woods. Tr. 328.
5. Before the trial of the May 5 and June 1 incidents, the government agreed that it would not introduce evidence of the April 7 and August 20, 1992 sales in its case in chief, but reserved the right to put on such evidence in rebuttal. Tr. 242-43.(3) At the close of Mr. xxxxxx's direct examination, Richard Edwards, the Assistant United States Attorney prosecuting the case for the government, moved to cross-examine Mr. xxxxxx about the uncharged sale of April 7, 1992, arguing that the defense had opened the door to that inquiry. The court agreed, and permitted the cross-examination. In response to questions about the April 7 sale, Mr. xxxxxx admitted that sale, explaining that the drugs were delivered to Agent Woods on that date by Darrell Wheeler, who received the money and gave it to him. Tr. 355-57.
6. In its closing argument, the government urged the jury to view the April 7 sale as proof of Mr. xxxxxx's predisposition to sell drugs to Agent Woods. The government equated predisposition with character, arguing that the April 7 sale showed Mr. xxxxxx to be of the character to sell drugs. Tr. 439, 441-42.
7. The jury was instructed on entrapment, including that predisposition to commit the charged offenses could be proven by prior criminal conduct such as the April 7, 1992 sale. Tr. 463. Additionally, the jury was instructed that it could consider the defense of entrapment separately, for each of the two charged sales. Tr. 474.(4) After several hours of deliberations, the jury asked to be reinstructed on the defense of entrapment. Tr. 476. Following an overnight recess, the court re-read its previous instruction. Tr. 480. After several more hours of deliberations, the jury returned its verdicts of not guilty. Tr. 485-86.
8. Now the government seeks to try defendant xxxxxx on the two sales it elected not to prosecute in the first trial. Based on information and belief, the government's evidence will be that on April 7, 1992 and on August 20, 1992, Mr. xxxxxx sold quantities of cocaine base to Agent Woods. It is the position of the defendant that the instant prosecution is barred by the collateral estoppel component of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
ARGUMENT
In Sealfon v. United States, 332 U.S. 575, 580 (1948), the Supreme Court imported the doctrine of res judicata into the criminal law, holding that the prosecution may not at a later trial have the opportunity "to prove. . . [that which was] crucial to the prosecution's case and which was necessarily adjudicated in the former trial. . . ." Subsequently, in Ashe v. Swenson, 397 U.S. 436 (1970), the Court ruled that the Fifth Amendment's guarantee against double jeopardy embodied collateral estoppel as a constitutional requirement and held that:
"`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 deter-
mined by a valid and final judgment, that issue cannot
again be litigated between the same parties in any
future lawsuit." 397 U.S. at 443.
At issue here, therefore, is whether the jury which acquitted Mr. xxxxxx of the May 5 and June 1, 1992 sales determined an issue of ultimate fact which cannot be relitigated. Ashe provides a framework for the resolution of the issue:
"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
practical frame and viewed with an eye to all the circum-
stances of the proceedings. Id., 397 U.S. 443-44.
This Circuit has interpreted Ashe to preclude prosecution for an offense when an issue of ultimate fact or an element essential to conviction has been determined in the defendant's favor by a valid and final judgment in a prior proceeding between the same parties. United States v. Bowman, 609 F.2d 12, 17 (D.C. Cir. 1979). In Bowman, the court held that the government could not retry defendant Bowman because an acquittal in the first trial on the charge of obstruction of justice by conveying threats to one George Jackson meant that the jury had necessarily found that Bowman did not threaten Jackson. Since threatening Jackson was an essential element of the second charge, retrial was precluded. Id., 14, 19. See also, Travers v. United States, 335 F.2d 698, 703 (D.C. Cir. 1964) (defendant could not be retried for interstate transportation of stolen automobile from District of Columbia when a jury had earlier determined that he was not guilty of unauthorized use of that automobile in the District).(5)
Other circuits have reached similar results. In United States v. Seley, 957 F.2d 717, 721-22 (9th Cir. 1992), the court concluded that the jury's acquittal of the charge of possession with intent to distribute marijuana was likely due to the government's failure to prove possession or knowledge, and that the acquittal necessarily subsumed the ultimate fact that Seley did not know that propane tanks inside a truck in which he was a passenger contained marijuana. As a consequence, the government could not retry Seley for a crime that would necessitate a finding that he had knowledge of the marijauna, the court held. Similarly, in United States v. M. Gonzalez-Sanchez, 825 F.2d 572, 583-84 (1st Cir. 1987), the court held that collateral estoppel should have precluded the government from seeking to prove at the second trial the ultimate fact resolved in defendant's favor when a jury acquitted him at an earlier trial - that is, his involvement in an arson conspiracy. In the present case, the issue which Mr. xxxxxx seeks to preclude from reconsideration is whether he sold drugs to Agent Woods on April 7, 1992 and on August 20, 1992 with the requisite criminal intent. At the first trial, the jury must necessarily have determined that Mr. xxxxxx was entrapped to make the charged sales. Moreover, given the government's argument that the April 7, 1992 sale evinced Mr. xxxxxx's predisposition, and the court's instruction that the jury was to determine whether that sale was proof of predisposition, it is equally clear that the jury determined that Mr. xxxxxx's sale on April 7, 1992 was the result of entrapment.
Because the government failed to sustain its burden as to the April 7, 1992 sale at the first trial, it does not get another bite at the apple. The heart of the protection provided by the collateral estoppel principle is that when the government fails to prove a defendant's guilt on the first try, it cannot "hale [the defendant] before a new jury to litigate that issue again." Ashe v. Swenson, 397 U.S. at 446.
The same reasoning applies to the August 20, 1992 sale. At the first trial, the government put on evidence of a course of dealing between Agent Woods and Mr. xxxxxx which Mr. xxxxxx characterized as coercive. It is apparent from the verdicts that the jury accepted that characterization in order to acquit Mr. xxxxxx. Since the August 20, 1992 sale was part and parcel of this course of dealing, Mr. xxxxxx cannot now be said to have the requisite criminal intent, an intent which the first jury found lacking.
CONCLUSION
Because the ultimate issue of whether Mr. xxxxxx sold drugs to Agent Woods on April 7, 1992 and also on August 20, 1992 with criminal intent was determined in his favor by a previous jury trial, he cannot be tried in this case for those sales. Under principles of collateral estoppel embodied in the Double Jeopardy Clause of the United States Constitution, this indictment must be dismissed.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
_____________________________
Reita Pendry
Assistant Federal Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500
1. The only other government witnesses were the DEA chemist who analyzed the drugs and Joseph Gabor, a DEA agent who was part of the surveillance team watching Woods make the drug purchases.
2. "Tr." refers to the continuously-paginated transcript of the trial of United States v. Maurice xxxxxx, Criminal Number 94-232, which is contained in four volumes, dated September 26-29, 1994.
3. The government explained to the court that it had made a tactical decision not to charge those sales because of the involvement of the confidential informant. Id.
4. This was a correct statement of the law of entrapment. See, e.g., United States v. Morris, 974 F.2d 587 (5th Cir. 1992).
5. Cf., United States v. White, 936 F.2d 1326, 1328-29 (D.C. Cir. 1991) (holding that collateral estoppel did not bar retrial where defendant's acquittal did not mean that he did not have the criminal intent necessary for a related count of the indictment on which the first jury was unable to reach a verdict.)