IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-40568
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee-
Cross-Appellant,
VERSUS
GEORGE E. BRACKETT, SR.,
Defendant-Appellant-
Cross-Appellee.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
May 21, 1997
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
We now consider the application of the collateral estoppel
doctrine to successive criminal prosecutions. George Brackett
appeals the denial of his motion to dismiss his indictment, arguing
that the Double Jeopardy Clause bars the instant prosecution for
conspiracy to possess with intent to distribute marihuana in
violation of 21 U.S.C. § 846(a)(1). The government cross-appeals,
arguing that the district court erred in suppressing evidence
introduced in a previous prosecution for possession with intent to
distribute marihuana. We affirm on the appeal, reverse on the
cross-appeal, and remand.
I.
On September 18, 1992, Brackett was stopped at a border patrol
checkpoint in Falfurrias, Texas, and consented to a search of his
tractor-trailer truck. Border patrol officers discovered 247
kilograms of marihuana in the truck, and Brackett was arrested.
Brackett was indicted on one count of possession with intent
to distribute marihuana in violation of 21 U.S.C. § 841(a)(1).
At trial, he did not contest the fact that he had been in posses-
sion when he was arrested; instead, he pleaded ignorance, claiming
that he had no knowledge of the marihuana and speculating that the
drugs must have been placed in the truck, without his knowledge,
while it was unattended. Accordingly, the prosecution and the
defense both acknowledged that mens rea was the only disputed issue
for the jury. Brackett was acquitted.
Subsequently, the government discovered evidence implicating
Brackett as a drug courier in a marihuana distribution conspiracy.
Consequently, he was indicted on one count of conspiracy to possess
with intent to distribute marihuana in violation of 21 U.S.C.
§§ 846(a)(1) and 841(b)(1)(B). The conspiracy alleged in the
indictment occurred from April 1990 to May 1994, including the
events charged in the prior possession prosecution. Moreover,
three alleged co-conspirators pleaded guilty to charges of
possession with intent to distribute, implicating Brackett in the
conspiracy and offering testimony about the September 18, 1992,
2
marihuana shipment to substantiate their allegations.
Brackett filed a pretrial motion to dismiss the indictment,
claiming that it constituted a successive prosecution barred by the
Double Jeopardy Clause, insofar as he had been acquitted previously
of the substantive offense of possession with intent to distribute.
The district court denied the motion but ordered the suppression of
all evidence introduced in the prior possession prosecution,
concluding that collateral estoppel barred the government’s use of
that evidence to prove any fact necessarily decided by the jury in
acquitting Brackett of the possession offense.
Brackett appeals the denial of his pretrial motion to dismiss
the indictment, which is an appealable order under the collateral
order doctrine. See Abney v. United States, 431 U.S. 651, 662
(1977). The government appeals the suppression order, which is
immediately appealable under 18 U.S.C. § 3731.
II.
The doctrine of collateral estoppel is incorporated into the
Double Jeopardy Clause. Ashe v. Swenson, 397 U.S. 436, 445 (1970).
Collateral estoppel guarantees that “when an issue of ultimate fact
has once been determined by a valid and final judgment, the issue
cannot again be litigated between the same parties in any future
lawsuit.” Id. at 443.
This court has consistently held that collateral estoppel may
affect successive criminal prosecutions in one of two ways. First,
it will completely bar a subsequent prosecution if one of the facts
3
necessarily determined in the former trial is an essential element
of the subsequent prosecution. Second, while the subsequent
prosecution may proceed, collateral estoppel will bar the introduc-
tion or argumentation of facts necessarily decided in the prior
proceeding. E.g., United States v. Deerman, 837 F.2d 684, 690 (5th
Cir. 1988).1
In this appeal, both applications of collateral estoppel are
at issue: The district court declined to dismiss the indictment,
but suppressed all evidence introduced in the prior possession
prosecution. The application of collateral estoppel is a question
of law that we review de novo. United States v. Smith, 82 F.3d
1261, 1265-66 (3d Cir. 1996); United States v. Rogers, 960 F.2d
1501, 1507 (10th Cir. 1992).
A.
It is axiomatic that “[c]ollateral estoppel bars relitigation
only of those facts necessarily determined in the first trial.”
Deerman, 837 F.2d at 690. Accordingly, the first step in resolving
a claim of collateral estoppel is to determine which facts were
“necessarily decided” in the first trial. United States v. Levy,
803 F.2d 1390, 1398-99 (5th Cir. 1986); United States v. Mock,
604 F.2d 341, 343 (5th Cir. 1979). At this first stage of the
inquiry, the defendant bears the burden of demonstrating that the
issue he seeks to foreclose was “necessarily decided” in the first
1
Accord United States v. Kalish, 780 F.2d 506, 508-09 (5th Cir. 1986);
United States v. Caucci, 635 F.2d 441, 448 (5th Cir. Unit B Jan. 1981); United
States v. Lee, 622 F.2d 787, 790 (5th Cir. 1980).
4
trial. Dowling v. United States, 493 U.S. 342, 350 (1990).2
This threshold determination is the touchstone of collateral
estoppel doctrine. “When a 'fact is not necessarily determined in
a former trial, the possibility that it may have been does not
prevent re-examination of that issue.'” Lee, 622 F.2d at 790
(quoting Adams v. United States, 287 F.2d 701 (5th Cir. 1961)).3
The application of this test to criminal cases is awkward, however,
as a general verdict of acquittal does not specify the facts
“necessarily decided” by the jury.
Therefore, to determine which facts were “necessarily decided”
in the first trial, following an acquittal by a general verdict, we
examine the record of the prior proceeding, taking into account the
pleadings, evidence, charge, and other relevant matter, in order to
determine “'whether a rational jury could have grounded its verdict
upon an issue other than that which the defendant seeks to
foreclose from consideration.'” Ashe, 397 U.S. at 444 (citations
omitted); accord Dowling, 493 U.S. at 350.
Following this directive, we have taken a functional approach
to collateral estoppel in criminal cases, like the instant appeal,
in which a defendant was first acquitted by a general verdict and
later invoked collateral estoppel to bar a subsequent prosecution.
See, e.g., Deerman, 837 F.2d at 690; Levy, 803 F.2d at 1399; Lee,
2
See also Schiro v. Farley, 510 U.S. 222, 232-36 (1994) (rejecting a claim
of collateral estoppel because the petitioner could not prove that the jury had
“necessarily determined” the issue he sought to foreclose).
3
Accord Deerman, 837 F.2d at 690; Levy, 803 F.2d at 1398; Kalish, 780 F.2d
at 508.
5
622 F.2d at 790; Mock, 604 F.2d at 344. “In making this evalua-
tion, we must examine allegations of the indictment, testimony,
court's instructions to the jury, and jury's verdict to consider
what makes the jury's verdict coherent. We should make this
determination in a realistic, rational, and practical way, keeping
in mind all the circumstances.” Deerman, 837 F.2d at 690 (cita-
tions omitted).
It is not difficult to discern the facts “necessarily decided”
by the jury in the first trial. Brackett did not deny that he was
in possession of 247 kilograms of marihuana when arrested, nor did
he contest the physical evidence and eyewitness testimony. To the
contrary, he freely conceded all the facts relevant to the actus
reus and staked his defense exclusively on the question of mens
rea.
Insisting that he had no knowledge of the marihuana, Brackett
characterized himself as an innocent driver who had been used as an
unwitting drug courier by drug smugglers, and the jury apparently
believed him. Under these circumstances, there is only one
rational explanation for the general verdict of acquittal: The
government did not prove, beyond a reasonable doubt, that Brackett
knew of the 247 kilograms of marihuana in his truck on
September 18, 1992. Accordingly, the jury “necessarily decided”
only that Brackett did not knowingly possess marihuana with intent
to distribute on that date.4
4
Cf. Ashe, 397 U.S. at 445 (concluding that a general verdict of acquittal
“necessarily decided” the question of identity in an armed robbery prosecution,
(continued...)
6
Having determined which facts were “necessarily decided” in
the first trial, we must decide whether the government is attempt-
ing to relitigate the same facts in the conspiracy trial. See
Levy, 803 F.2d at 1398-99; Mock, 604 F.2d at 343. Therefore, we
must divine whether the facts “necessarily decided” in the first
trial are essential elements of the conspiracy charge. If so, the
conspiracy prosecution is barred by collateral estoppel. If not,
we must decide whether the evidence offered in the possession
prosecution must be suppressed in the conspiracy trial.
B.
Collateral estoppel completely bars a subsequent prosecution
only when a fact “necessarily determined” in the first prosecution
is an essential element of the offense charged in the subsequent
prosecution. See Kalish, 780 F.2d at 508; Lee, 622 F.2d at 790.
In the instant case, none of the essential elements of the offense
of conspiracy to possess with intent to distribute marihuana was
“necessarily decided” in the prior possession trial. Consequently,
the district court properly refused to dismiss the indictment.
In order to prove the existence of a conspiracy to possess
with intent to distribute marihuana, the government is required to
prove three essential elements beyond a reasonable doubt: first,
that an agreement existed to violate the federal narcotics laws;
second, that the defendant knew of the existence of the agreement;
(...continued)
which was the “single rationally conceivable issue in dispute before the jury”).
7
and third, that he voluntarily participated in the conspiracy.
See United States v. Garcia, 86 F.3d 394, 398 (5th Cir. 1996),
cert. denied, 117 S. Ct. 752 (1997); United States v. Cardenas,
9 F.3d 1139, 1157 (5th Cir. 1993); United States v. Maltos,
985 F.2d 743, 746 (5th Cir. 1992).
As we have stated, the jury “necessarily determined” only that
the government had failed to prove, beyond a reasonable doubt, that
Brackett knew of the marihuana discovered in his truck on
September 18, 1992. To convict Brackett for conspiracy, however,
the government need not prove that he knew of the marihuana
confiscated at the checkpoint; to the contrary, the government is
required to prove only that Brackett knew of an agreement to
violate the federal narcotics laws and voluntarily participated in
that agreement. See, e.g., Garcia, 86 F.3d at 398. Consequently,
his acquittal on the possession charge did not “necessarily decide”
any essential element of the conspiracy charge.5
Under these circumstances, Brackett’s acquittal of possession
with intent to distribute does not collaterally estop the United
States from prosecuting him, in a subsequent proceeding, for
conspiracy to possess with intent to distribute. Accordingly, the
district court did not err in refusing to dismiss the indictment.6
5
See Lee, 622 F.2d at 790 (holding that an acquittal on charges of
marihuana possession does not foreclose proof of any element essential to a
conviction for conspiracy to distribute marihuana).
6
In the district court, Brackett also claimed the Double Jeopardy Clause
bars the subsequent conspiracy prosecution. Insofar as he renews this claim on
appeal, it is without merit. A substantive offense and conspiracy to commit that
offense are not the “same offense” for purposes of double jeopardy. United
(continued...)
8
C.
Even when a subsequent prosecution is not completely barred,
this court has held that collateral estoppel may bar the admission
or argumentation of facts necessarily decided in the first trial.
See, e.g., Deerman, 837 at 690; Kalish, 780 F.2d at 508-09; Caucci,
635 F.2d at 448; Lee, 622 F.2d at 790. Relying on this doctrine,
the district court concluded that all evidence introduced in the
possession prosecution must be suppressed in the conspiracy trial.
The government appeals this suppression order, arguing that it is
overbroad and contrary to Supreme Court precedent. We agree.
A general verdict of acquittal, exculpating the defendant of
liability for a substantive offense, does not estop the government
from introducing the same evidence in a subsequent prosecution for
conspiracy to commit the same offense. E.g., United States v.
Garza, 754 F.2d 1202, 1209 (5th Cir. 1985). A general verdict of
acquittal merely indicates that the government has failed to
convince the jury, beyond a reasonable doubt, of at least one
essential element of the substantive offense; it does not “neces-
sarily determine” any facts at issue in the conspiracy trial.
Therefore, the doctrine of collateral estoppel is inapposite. Id.
(...continued)
States v. Felix, 503 U.S. 378, 389-92 (1992).
Likewise, Brackett suggests that a successive prosecution is barred if the
government seeks to establish an essential element of the second offense by
proving conduct for which the defendant was prosecuted in the first prosecution.
See Grady v. Corbin, 495 U.S. 508, 510 (1990); Illinois v. Vitale, 447 U.S. 410,
420 (1980). This “same conduct” test for double jeopardy was abandoned, however,
in United States v. Dixon, 509 U.S. 688, 704 (1993). See Wright v. Whitley,
11 F.3d 542, 545-46 (5th Cir. 1994). Therefore, Brackett can find no shelter in
the Double Jeopardy Clause.
9
Accordingly, the government may introduce evidence of an
alleged criminal act, notwithstanding the fact that the defendant
previously has been acquitted of the substantive offense, to prove
participation in a conspiracy to commit the substantive offense.
Overt acts in furtherance of a conspiracy need not be criminal;
therefore, acquittal for the substantive offense does not bar the
admission of the same evidence in a subsequent conspiracy trial.
“Merely because appellants were acquitted of the substantive . . .
charges does not mean that the facts upon which the charges were
based cannot later be used as non-criminal overt acts in further-
ance of the conspiracy to commit the substantive offenses.” Id. at
1209-10.7
The Supreme Court has placed its imprimatur on this principle.
In Dowling v. United States, 493 U.S. 342 (1990), the Court held
that a prior acquittal does not preclude the government from
relitigating a question of fact when the issue is governed by a
lower standard of proof in a subsequent proceeding. Id. at 347-50.
The Dowling Court adopted the same reasoning we employed in Garza,
acknowledging that a general acquittal does not “necessarily
decide” an ultimate issue of fact but merely indicates that the
evidence was not sufficient to prove every element of the offense
beyond a reasonable doubt.
When the same evidence is admissible for a purpose that does
7
See also United States v. Morris, 79 F.3d 409, 411 n.2 (5th Cir. 1996)
(reaffirming that “acquittal of the substantive offense does not preclude use of
the same facts as evidence of noncriminal overt acts in furtherance of a
conspiracy”).
10
not require proof beyond a reasonable doubt, therefore, collateral
estoppel does not bar the government from relitigating the issue in
a subsequent proceeding. Id. at 348-49.8 Therefore, the Dowling
Court declined the defendant’s invitation “to extend Ashe v.
Swenson and the collateral-estoppel component of the Double
Jeopardy Clause to exclude in all circumstances . . . relevant and
probative evidence that is otherwise admissible under the Rules of
Evidence simply because it relates to alleged criminal conduct for
which a defendant has been acquitted.” Id. at 348. Informed by
Dowling, we decline to extend the doctrine of collateral estoppel
to bar relitigation of all evidence introduced in Brackett’s prior
possession prosecution.9
8
The Court has recently reaffirmed this principle, holding that a general
acquittal does not collaterally estop the government from introducing the same
evidence in a subsequent proceeding governed by a lower burden of proof. See
United States v. Watts, 117 S. Ct. 633, 637 (1997).
9
In the aftermath of Dowling, collateral estoppel bars the introduction
of evidence in a subsequent proceeding only if the facts “necessarily decided”
in the first trial were determined under the same burden of proof applicable in
the subsequent trial. Accordingly, Dowling calls into question the line of cases
holding that collateral estoppel may bar the admission or argumentation of facts
necessarily decided in the first trial, even if the subsequent prosecution is not
completely barred. See, e.g., Deerman, 837 F.2d at 690; Kalish, 780 F.2d at 508-
09; Caucci, 635 F.2d at 448; Lee, 622 F.2d at 790. A general verdict of
acquittal “necessarily determines” only that the evidence was insufficient to
prove each element of the offense beyond a reasonable doubt; therefore,
collateral estoppel bars relitigation only of facts that must be proven beyond
a reasonable doubt.
Because only ultimate facts must be established beyond a reasonable doubt,
however, Dowling effectively limits the doctrine of collateral estoppel to cases
in which the government seeks to relitigate an essential element of the offense.
See Dowling, 493 U.S. at 348 (declining to give collateral estoppel effect to a
prior acquittal that did not decide an ultimate issue in the second prosecution);
see also Ashe, 397 U.S. at 443 (limiting collateral estoppel to ultimate facts).
“Dowling teaches that the Ashe holding only bars relitigation of a previously
rejected factual allegation where that fact is an ultimate issue in the
subsequent case.” Wright v. Whitley, 11 F.3d 542, 546 (5th Cir. 1994); accord
Nichols v. Scott, 69 F.3d 1255, 1271-72 (5th Cir. 1995), cert. denied,
116 S. Ct. 2559 (1996).
(continued...)
11
Although the jury in the first trial “necessarily determined”
that the government had failed to prove, beyond a reasonable doubt,
that Brackett knew of the 247 kilograms of marihuana in his truck,
the government need not prove that fact beyond a reasonable doubt
in the conspiracy prosecution, as it is not an ultimate issue. In
order to convict Brackett for participation in the conspiracy, the
government must prove only that Brackett knowingly participated in
a conspiracy to violate the federal narcotics laws; evidence
concerning the September 18, 1992, marihuana shipment is relevant
to establish Brackett’s voluntary participation in the conspiracy,
but is not required to prove the essential elements of the offense.
Accordingly, collateral estoppel does not bar the government from
relitigating evidence originally offered in the possession trial,
because the burden of proof governing the admissibility of evidence
in the conspiracy prosecution is lower than the burden of proof
required to establish an ultimate issue in the possession trial.10
The admissibility of evidence relevant to an ultimate issue is
governed by FED. R. EVID. 401, which defines “relevant evidence” as
(...continued)
Given the narrow interpretation of collateral estoppel endorsed in Dowling,
it is difficult to conceive of a case in which collateral estoppel would bar the
admission or argumentation of facts necessarily decided in the first trial,
without completely barring the subsequent prosecution. In the instant case,
however, we have no occasion to consider whether Dowling has overruled this line
of decisions, and we leave that question for another day.
10
Cf. Bourjaily v. United States, 483 U.S. 171, 175 (1987) (“Evidence is
placed before the jury when it satisfies the technical requirements of the
evidentiary Rules, which embody certain legal and policy determinations. The
inquiry made by a court concerned with these matters is not whether the proponent
of the evidence wins or loses his case on the merits, but whether the evidentiary
Rules have been satisfied. Thus, the evidentiary standard is unrelated to the
burden of proof on the substantive issues, be it a criminal case or a civil
case.”) (internal citations omitted).
12
evidence “having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”11
It is indisputable that evidence concerning the September 18, 1992,
marihuana shipment is highly relevant to the determination whether
Brackett participated in a conspiracy to possess with intent to
distribute marihuana, regardless of the fact that the evidence was
insufficient to prove, beyond a reasonable doubt, his guilt of the
substantive offense. Evidence that Brackett had transported 247
kilograms of marihuana, when corroborated by the statements of his
alleged co-conspirators, would have a tendency to prove the
essential elements of conspiracy to possess with intent to
distribute marihuana: that an agreement existed to violate the
narcotics laws, that Brackett knew of the agreement, and that he
voluntarily participated in the conspiracy. Therefore, the
evidence is relevant and admissible.12
In the instant case, the standard governing the admissibility
of evidence is lower than was the burden of proof in the first
11
In Dowling, the contested evidence concerned extrinsic evidence of other
bad acts, admissible under FED. R. EVID. 404(b). In the instant case, however,
the evidence is intrinsic evidence directly relevant to the conspiracy charge and
thus is governed by FED. R. EVID. 401-03.
12
Relevant evidence is presumptively admissible. FED. R. EVID. 402.
Relevant evidence may be excluded by the district court if the probative value
of the evidence is “substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.” FED. R. EVID. 403. Had the
district court excluded all evidence introduced in the possession trial pursuant
to rule 403, we would review that determination for abuse of discretion. See,
e.g., Morris, 79 F.3d at 411-12 (affirming the suppression of evidence under
rule 403 despite the conclusion that the evidence was not collaterally estopped).
The district court did not cite rule 403 as the basis for its ruling, however,
and thus we have no occasion to consider such an alternative basis for decision.
13
trial. Under both Fifth Circuit precedent and Dowling, therefore,
the government is not collaterally estopped from introducing the
same evidence in the conspiracy prosecution. Accordingly, the
district court erred in suppressing all evidence introduced in the
possession trial.
III.
The order refusing to dismiss the indictment is AFFIRMED. The
suppression order is REVERSED, and this matter is REMANDED for
further proceedings consistent with this opinion.
14