(dissenting):
I respectfully dissent. The declaration by a federal court of one’s inno*338cence is employed by the prosecution, over objection, as evidence of his guilt of a later crime. Such a procedure is subversive of the whole judicial process, and, the majority’s resolution of the issue is, to say the least, unprecedented and indefensible. The fact that Castro-Castro was previously tried and acquitted of the alleged offense in 1967 should compel the conclusion that the evidence concerning it should have been excluded. The prejudicial effect of the evidence is fully demonstrated by the reasoning employed by the majority, and when such a degree of prejudice inheres in inadmissible evidence, reversal is required. See, e. g., Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).
The principal basis for my view is that which I perceive as an important limitation upon the use of evidence intended to prove a common plan, motive or intent. The doctrine of collateral estoppel in some instances precludes — and in most instances should preclude — the prosecution from relitigating such acts of an accused as were previously the focus of a criminal prosecution. See Ashe v. Swenson, 397 U.S. 436, 443-45, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948); Hernandez v. United States, 370 F.2d 171 (9th Cir. 1966).
The supposed relevance of evidence tending to show a common intent is twofold. The evidence may bolster two inferences concerning intent. On the one hand, the jury is supposed to note the obvious — that it is perhaps strange or improbable that any person would unknowingly be involved in two similar acts that might be criminal. On the other hand, the jury can use the evidence as a basis for a more significant conclusion, that the accused had the requisite criminal intent at the time of the earlier incident, but was acquitted for other reasons. From that finding, the jury can, of course, infer that the defendant had a similarly evil intent during the commission of the act giving rise to the later prosecution.
In the usual case, there is no barrier to prohibit a jury from drawing both inferences. When, however, the prior act was the basis of a criminal prosecution which ended in acquittal, it seems undeniable to me that the latter, more critical, inference should be foreclosed. This is especially true when, as is the ease here, the issue to which the evidence relates is, in both proceedings, identical. Apparently, the only significant controversy at the 1967 trial was whether Castro-Castro intended to smuggle the contraband which was discovered in a truck that he was then driving. By the acquittal verdict, it was conclusively determined that he did not. Nevertheless, the prosecution, in the present case, successfully undertook to prove \_i. e., to lead the jury to infer] that Castro-Castro did have the illegal intent in 1967. This degraded the prior judicial proceedings, and I submit that the Government should have been “precluded under the doctrine of collateral estoppel from [proving] a fact that [it] sought unsuccessfully to prove in a prior action.” Yates v. United States, 354 U. S. 298, 335-36, 77 S.Ct. 1064, 1085, 1 L.Ed.2d 1356 (1957); Sealfon v. United States, supra.1
Evidence of the 1967 incident was, then, of only very limited relevance. Its probative value was restricted to support for the less important of the two possible inferences. The jury was, however, never informed of this strict limitation upon its value; it was given virtually unfettered discretion to interpret and utilize the evidence concerning Cas*339tro-Castro’s 1967 arrest.2 I cannot say with any certainty that the jury did not misuse that strongly prejudicial evidence —certainly nothing my Brothers say convinces me that it was properly employed. I would reverse.3
. Of course the majority of cases in which the collateral estoppel doctrine is applicable involves the use of evidence, previously rejected as inadequate, as direct proof of an element of a crime. I cannot see that the doctrine should be less applicable when such evidence is employed in a more sophisticated manner, as indirect evidence of criminal intent. Although the prejudice to the defendant may be less blatant in the latter situation, it is of equal magnitude.
. The jury was instructed that:
“[You] may consider evidence as to the alleged earlier act of a like nature in determining the state of mind or intent with which the accused did the act charged [in this case], and where proof of an alleged earlier act of a like nature is established by evidence which is clear and conclusive, the jury may, but it is not obligated to, draw the inference and find that in doing the act charged [here] the accused acted willfully and with specific intent . . . .”
. Even if a proper limiting instruction had been given, I would continue to entertain grave doubts as to the admissibility of the prior acquittal. The prejudicial effect of such evidence is probably less than that which attaches to evidence of a prior conviction, but even my brother judges seem to draw from the evidence the same prejudicial inference which the prosecution urged upon the jurors. The evidence doubtless raised the spectre of a defendant who had previously thwarted justice. If the prosecution may introduce evidence of a prior acquittal, then may not the accused attempt to prove that the prior acquittal was justified, even if to do so requires, in effect, that the first case be retried in totol Here, the government is given a second chance to prove something that it had previously been unable, in a trial, to demonstrate. See generally United States v. Burkhart, 458 F.2d 201 (10th Cir. 1972).