IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30055
JEFFREY D. NEAL,
Petitioner-Appellant,
versus
BURL CAIN, Acting Warden,
Respondent-Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
May 8, 1998
Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Petitioner Jeffrey Neal was convicted in two separate trials
in Louisiana state court of sexual battery and aggravated kidnaping
respectively. He is currently serving a sentence of life
imprisonment at hard labor. Neal filed a petition for a writ of
habeas corpus in federal district court, alleging, among other
things, that the principle of collateral estoppel barred his second
trial for aggravated kidnaping after he was convicted of sexual
battery but acquitted of aggravated rape in his first trial. The
district court denied his petition and we affirm.
I.
On the evening of October 24, 1986, the victim was walking
alone in her neighborhood in Bastrop, Louisiana, when she was
grabbed from behind by Neal. Neal held a knife to her throat,
asked her if “she had ever been cut,” and told her not to scream.
He dragged her 150 feet to a secluded area behind a vacant house,
where the victim told Neal that she would do anything if he would
not hurt her. After threatening to kill her if she did not remain
quiet, Neal made the victim undress, forced her to engage in oral
sex, and then had intercourse with her. The victim complied with
Neal’s sexual demands because she was afraid that Neal would kill
her.
After Neal had intercourse with the victim, the victim asked
if she could leave. Neal refused, telling her that he had a gun
and would shoot her if she tried to escape. Neal then discussed
with the victim the idea of her making money for him by
prostituting herself. Neal suggested that he would let the victim
go if she would act as a prostitute for him. Hoping to appease
Neal and hasten her release, the victim went along with Neal’s
plan.
The victim and Neal then walked through the neighborhood
together until they reached a park, where he once again forced her
to engage in oral sex and had intercourse with her. After they
left the park, the pair arrived at a bar. Neal sent the victim
into the bar and told her to act as a prostitute for him inside.
Once inside the bar, the victim told the bar’s owner that there was
a man outside who was threatening to kill her. The police were
2
called and the victim identified Neal to them. After discovering
a knife on his person, the police arrested Neal.
A Louisiana grand jury indicted Neal on charges of aggravated
rape, aggravated oral sexual battery, and simple kidnaping. The
prosecutor chose to go to trial only on the aggravated rape charge,
see La. Rev. Stat. Ann. § 14:42, reserving the others in case
something went “wrong” at the rape trial. Neal testified at this
trial, claiming that the sexual relations between himself and the
victim were consensual. The jury convicted Neal only of the
lesser-included offense of sexual battery, see La. Rev. Stat. Ann.
§ 14:43.1, amended by Acts 1991, No. 654, § 1, and the trial court
sentenced him to ten years of imprisonment. Louisiana’s Second
Circuit Court of Appeal later affirmed this conviction on direct
appeal. See State v. Neal, 535 So. 2d 757 (La. Ct. App. 1988).
The State then returned to the grand jury and obtained new
indictments for aggravated kidnaping and aggravated oral sexual
battery. A trial on the aggravated kidnaping charge ensued, see
La. Rev. Stat. Ann. § 14:44, and Neal was convicted. For this
offense, the court sentenced Neal to life imprisonment at hard
labor, without benefit of probation, parole, or suspension of
sentence. The Louisiana appellate courts denied Neal’s direct
appeal from his second conviction as well. See State v. Neal, 550
So. 2d 740 (La. Ct. App. 1989).
Thereafter, Neal filed a habeas petition in state court. The
trial court denied relief to Neal, see State v. Neal, No. 88-11A
(La. 4th Dist. Ct. Dec. 15, 1992), a decision that was affirmed by
3
the Court of Appeal, see State v. Neal, No. 25269-KH (La. Ct. App.
Apr. 8, 1993). Neal then filed this petition for a writ of habeas
corpus in federal district court. A magistrate judge recommended
that Neal’s petition be denied, and the district court adopted the
magistrate judge’s report and recommendation. Later, the district
court also denied Neal’s request for a certificate of
appealability, but we granted Neal’s request for a certificate of
probable cause. See Brown v. Cain, 104 F.3d 744 (5th Cir.), cert.
denied, 117 S. Ct. 1489 (1997) (holding that habeas petitions filed
before effective date of AEDPA need only obtain certificates of
probable cause for appeal). This appeal followed.
II.
The central thrust of Neal’s petition is that the principle of
collateral estoppel barred his second trial for aggravated
kidnaping. As Neal sees it, the State was collaterally estopped
from relying upon the facts of the “rape,” which he claims were
disproved in the first trial, in establishing the aggravated
kidnaping in the second trial.
As the Supreme Court has recognized, the Double Jeopardy
Clause incorporates the doctrine of collateral estoppel. See Ashe
v. Swenson, 397 U.S. 436, 443-44 (1970). Collateral estoppel
provides 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
4
443. As applied against the government in criminal cases,
collateral estoppel may either bar a subsequent prosecution, or it
may prevent the relitigation of particular facts necessarily
established in the prior proceeding. See United States v. Caucci,
635 F.2d 441, 448 (5th Cir.), cert. denied, 454 U.S. 831 (1981).
In determining whether collateral estoppel bars a subsequent
prosecution, as Neal contends it does here, we engage in a two-step
analysis. See United States v. Levy, 803 F.2d 1390, 1398 (5th Cir.
1986). First, we must discern which facts were “necessarily
decided” in the first proceeding. See United States v. Brackett,
113 F.3d 1396, 1398 (5th Cir.), cert. denied, 118 S. Ct. 341
(1997). We then consider whether the facts “necessarily decided”
in the first trial constitute essential elements of the offense in
the second trial. See id. at 1399.
The first step of the collateral-estoppel analysis requires us
to identify the facts necessarily decided in Neal’s first trial, in
which he was charged with aggravated rape. At the time of his
offense, Louisiana’s aggravated rape statute provided, in relevant
part:
A. Aggravated rape is a rape committed where the anal or
vaginal sexual intercourse is deemed to be without lawful
consent of the victim because it is committed under any one or
more of the following circumstances:
(1) When the victim resists the act to the utmost, but
whose resistance is overcome by force.
(2) When the victim is prevented from resisting the acts
by threats of great and immediate bodily harm,
accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act
because the offender is armed with a dangerous weapon.
(4) When the victim is under the age of twelve years.
Lack of knowledge of the victim’s age shall not be a
defense.
5
(5) When two or more offenders participate in the act.
. . . .
La. Rev. Stat. Ann. § 14:42. The jury, however, by a general
verdict acquitted Neal of the aggravated rape charge and convicted
him instead of the lesser-included offense of sexual battery. See
State v. Campbell, 670 So. 2d 1212, 1213 (La. 1996) (acknowledging
that conviction only of a lesser-included offense is a functional
acquittal of greater offense). At the time, the sexual battery
statute provided, in pertinent part:
A. Sexual battery is the intentional engaging in any of the
following acts with another person, who is not the spouse of
the offender, where the offender compels the other person to
submit by placing the person in fear of receiving bodily harm,
or where the other person has not yet attained fifteen years
of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by
the offender using any instrumentality or any part of the
body of the offender; or
(2) The touching of the anus or genitals of the offender
by the victim using any instrumentality or any part of
the body of the victim.
. . . .
La. Rev. Stat. Ann. § 14:43.1, amended by Acts 1991, No. 654, § 1.
Interpreting the outcome of the first trial is complicated by
the somewhat inconsistent verdict of the jury. At trial, the
victim’s testimony was that she had been forced by Neal to engage
in sexual activity with him. Neal’s defense, on the other hand,
was that the sexual activity was consensual. Thus, depending on
whom it believed, the jury’s options were either to convict or
acquit Neal of rape; no party attempted to establish that some
crime less serious than rape might have occurred instead. That
Neal was convicted on the lesser-included offense of sexual battery
6
seems to represent a compromise between those members of the jury
favoring conviction and those favoring acquittal.
Nevertheless, our task is to make legal sense of the jury’s
verdict. Cf. De La Rosa v. Lynaugh, 817 F.2d 259, 267-68 (5th Cir.
1987) (noting that in considering double-jeopardy challenges
premised on a first jury’s verdict, that jury must be presumed to
have acted in a legally correct manner); Green v. Estelle, 601 F.2d
877, 878-79 (5th Cir. 1979) (holding that, for collateral estoppel
purposes, appellate court must take jury “at its word,” even if the
verdict appears influenced by mercy). “While we do not test
ourselves as three more jurors in the case, we are compelled to
determine as best we can what makes the jury’s verdict cohere.”
United States v. Larkin, 605 F.2d 1360, 1369 (5th Cir. 1979),
modified on other grounds, 611 F.2d 585 (5th Cir.), cert. denied,
446 U.S. 939 (1980). “We should make this determination in a
realistic, rational, and practical way, keeping in mind all the
circumstances.” United States v. Deerman, 837 F.2d 684, 690 (5th
Cir.), cert. denied, 488 U.S. 856 (1988).
The most straightforward manner of determining which facts
were necessarily decided by Neal’s implicit acquittal on aggravated
rape charges is to examine the differences between the aggravated
rape and sexual battery statutes as they existed at the time of
Neal’s trial. The rape statute, for example, requires actual
intercourse between the defendant and the victim, whereas a
defendant could violate the sexual battery statute simply by
7
touching the victim in an inappropriate manner.1 Yet there was no
dispute at trial that actual intercourse had occurred, so the
jury’s verdict could not have depended on this distinction.
Likewise, the rape statute’s references to youthful victims and
multiple assailants also were not implicated in this case.
The only remaining difference between the two statutes on
which the jury could have hung its verdict relates to the varying
definitions of “force.” A defendant can violate the aggravated
rape statute by using force in one of three separate scenarios:
“(1) When the victim resist the act to the utmost, but whose
resistance is overcome by force. (2) When the victim is prevented
from resisting the acts by threats of great and immediate bodily
harm, accompanied by apparent power of execution. [and] (3) When
the victim is prevented from resisting the act because the
offenders is armed with a dangerous weapon.” La. Rev. Stat. Ann.
§ 14:42. The sexual battery statute, on the other hand, is
violated “where the offender compels the other person to submit by
placing the person in fear of receiving bodily harm.” La. Rev.
Stat. Ann. § 14:43.1.
We need not tarry long with interpreting and distinguishing
the force elements of the two statutes,2 except to note that a
1
Apparently, it is this distinction in conduct that motivated
the Louisiana Legislature to establish sexual battery as a separate
crime. See State v. Schenck, 513 So. 2d 1159, 1162 (La. 1987)
(noting that the “legislative scheme . . . envisions sexual battery
as encompassing conduct falling short of actual rape but which is
sexually intrusive and more egregious than simple battery”).
2
Our research has revealed little judicial commentary in
Louisiana analyzing the differing levels of force in the two
8
rational jury could have premised its verdict on the differing
definitions of force in the two provisions. Neal’s jury could have
read the rape statute to mean that the defendant’s use of force
must be of an immediate nature, contemporaneous with the sexual
act. In other words, the jury might have believed that under the
aggravated rape statute, a defendant’s use of force must have been
directly aimed at overcoming the victim’s resistance. The
testimony at trial indicated that Neal’s threats to the victim and
use of a weapon preceded the sexual activity to some degree,
however minor. Thus, the jury must have reasoned that Neal’s more
general threats of violence, none of which were aimed explicitly at
securing sexual favors from the victim, came closer to satisfying
the force definition of the sexual battery statute. This is not to
say that this is the most compelling view of the case. We seek
only to assign a rational explanation to the jury’s actions. See
Larkin, 605 F.2d at 1369.
It is important that the first verdict determined
unambiguously that Neal had engaged in forcible sexual relations
with the victim. Neal submits that the first jury declared that he
had not “raped” the victim, and thus the State was precluded from
relitigating the facts of the “rape” in the second trial. While
Neal is correct in a tautological sense, by no means did his first
jury conclude that he did not have a violent sexual encounter with
statutes. See, e.g., State v. Honeycutt, 438 So. 2d 1303, 1309-10
(La. 1983)(Stoker, J., dissenting) (implying that aggravated rape,
simple rape, and sexual battery, the spectrum of sexual crimes in
diminishing order of severity, can be sorted by level of resistance
of the victim).
9
the victim. The first jury necessarily decided little if anything
against the government in convicting Neal only of sexual battery.
The second step in our collateral estoppel analysis is to
ascertain whether the facts decided against the government in the
first trial were essential elements of the crime charged in the
second trial. See Brackett, 113 F.3d at 1399. In his second
trial, Neal was convicted of aggravated kidnaping. Louisiana’s
aggravated kidnaping statute provides, in relevant part:
Aggravated kidnaping is the doing of any of the following
acts with the intent thereby to force the victim . . . to give
up anything of apparent present or prospective value, or to
grant any advantage or immunity, in order to secure a release
of the person under the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from
one place to another; or
(2) The enticing or persuading of any person to go from
one place to another; or
(3) The imprisoning or forcible secreting of any person.
. . . .
La. Rev. Stat. Ann. § 14:44. Most of the elements of aggravated
kidnaping are noncontroversial in this case. The government
offered ample evidence that Neal employed force, as testimony was
presented that he held the victim at knifepoint. Moreover, Neal’s
actions in compelling the victim to accompany him on a trip through
Bastrop constituted a “seizing” under the statute.
Neal, however, contends that the State encountered collateral
estoppel problems in attempting to establish the “thing of value”
element of the offense. In demonstrating that Neal intended to
make the victim relinquish a “thing of value,” the State relied on
two separate theories. First, it argued to the jury that Neal
required the victim to act as a prostitute on his behalf in order
10
to secure her release. Had the State’s proof stopped there, Neal
would not have even a colorable collateral estoppel argument, for
there would be no need to relitigate any of the forced sexual
encounters to demonstrate that Neal would not release the victim
until she served him as a prostitute. However, the State went
further and presented a second theory to the jury: that Neal also
would not release the victim until she had sexual relations with
him.3 See, e.g., State v. Branch, 475 So. 2d 388, 391 (La. Ct.
App. 1985) (acknowledging that forced sexual acts can be “things of
value” for purposes of the aggravated kidnaping statute). The
State argued that it need not demonstrate that Neal actually
succeeding in having sexual relations with the victim, only that he
conditioned her release upon her submission to his sexual advances.
Moreover, the trial court instructed the jury that sexual acts can
constitute “things of value.”
Neal argues that the principle of collateral estoppel
prevented the State from demonstrating that the sexual encounters
represented a “thing of value,” as the first jury concluded that
Neal did not “rape” the victim. Yet the first jury unquestionably
determined that Neal had engaged in forcible sexual relations with
the victim. The state therefore did not violate Neal’s double
3
There was evidence that the victim’s submission to the second
sexual encounter was premised on Neal’s releasing her. As the
Court of Appeal commented on Neal’s direct appeal, “[s]ince the
discussion regarding the victim’s release took place prior to the
rape in the park, the jury could have reasonably concluded that the
defendant forced her to engage in sexual relations in order to
secure her release.” Neal, 550 So. 2d at 744. It is less clear
that the victim’s submission to the first sexual encounter was a
condition of her release.
11
jeopardy rights by relitigating the sexual encounters. Whether
those encounters constituted “sexual battery” or “aggravated rape”
is immaterial. For the jury to determine that Neal had forced the
victim to relinquish sexual favors, the State need only have
demonstrated that the victim engaged in sexual relations with Neal
against her will. The first jury’s verdict did not preclude the
State from doing so. Cf. Ashe, 397 U.S. at 444 (“Where a previous
judgment of acquittal was based upon a general verdict . . . a
court [must] ‘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.’”) (quoting Daniel K. Mayers &
Fletcher L. Yarbrough, Bis Vexari: New Trials and Successive
Prosecutions, 74 Harv. L. Rev. 1, 38-39 (1960)).
In support of his double jeopardy argument, Neal relies on
State v. Miller, 571 So. 2d 603 (La. 1990). In Miller, the
defendant was tried separately on charges of attempted aggravated
rape and simple kidnaping. His first jury acquitted him on the
rape charge, but the second convicted him on the kidnaping charge.
The Louisiana Supreme Court reversed his kidnaping conviction,
finding that the state had improperly relied on evidence of the
attempted rape in establishing the “unlawful purpose” element of
the kidnaping. See id. at 608. Because Miller had been acquitted
of attempted rape, the State could not relitigate the attempted
rape as an essential element of simple kidnaping. This situation
12
is different, however, because Neal was not completely exonerated
by his first jury. Rather, that jury found that Neal had sexually
battered the victim, and the State was thus free to relitigate that
particular crime in Neal’s second trial.
Therefore, the principle of collateral estoppel did not
prevent the State from taking Neal to trial on aggravated kidnaping
charges following his implicit acquittal of aggravated rape. What
few facts that were decided against the government in Neal’s first
trial were nonessential to the aggravated kidnaping charge in his
second.
III.
The other issues Neal raises in his habeas petition are
similarly without merit. Neal argues that he was subject to
vindictive prosecution, contending that the state charged him with
aggravated kidnaping in retaliation for his appeal from the sexual
battery conviction. Neal points to a plea offer made by the State
in the second proceeding, in which the prosecutor offered a plea to
lesser charges if, among other things, Neal would drop his appeal
from the first conviction. The prosecutor, on the other hand,
claimed that he brought the aggravated kidnaping charges against
Neal because Neal’s acquittal on the rape charge was a “travesty of
13
justice,” and because he felt that Neal still presented a threat to
the community.4
Neal has made an insufficient showing of prosecutorial
vindictiveness. Vindictiveness may be demonstrated where a
prosecutor brings additional charges against a defendant to punish
the defendant for his exercise of procedural rights. See United
States v. Ward, 757 F.2d 616, 619 (5th Cir. 1985). Apart from the
plea offer that included a demand to drop the appeal, there is no
connection between the second trial and the exercise of any of
Neal’s procedural rights. As to the plea offer, it is a standard
feature of plea agreements for the defendant to drop an appeal or
relinquish appellate rights. We will not presume from the mere
presence of an appeal waiver in the plea offer that the State went
to the expense of bringing new charges against Neal simply to
punish him for the exercise of his appellate rights in a separate
proceeding. The prosecutor’s stated interests in justice and the
safety of the community were legitimate reasons to take Neal to
trial a second time. See United States v. Aggarwal, 17 F.3d 737,
744 (5th Cir. 1994) (noting that no presumption of prosecutorial
4
According to the prosecutor, he did not seek an aggravated
kidnaping charge in the first indictment because of an adverse
appellate court ruling which held that sexual acts could not
constitute “things of value” for purposes of the aggravated
kidnaping statute. Without any citation, the State asserts in its
brief that this ruling was overturned before the second grand jury
convened. Although we assign no disingenuous motive to the
prosecutor’s statement, we do find that his reading of Louisiana
law is wrong. Long before Neal committed his crime, the Louisiana
Supreme Court had made it clear that sexual gratification can
constitute something of value under the kidnaping statute. See,
e.g., State v. Sonnier, 402 So. 2d 650, 658 (La. 1981), cert.
denied, 463 U.S. 1229 (1983).
14
vindictiveness arises if prosector has legitimate reasons for
increasing the charges against the defendant in a second
proceeding, such as a desire to see justice done); see also United
States v. Stokes, 124 F.3d 39, 45 (1st Cir. 1997) (“[P]rosecutors
are not required to function as bloodless automatons: they may
(indeed, they should) makes judgments about dangerousness, set
priorities, and give heightened attention to cases which inspire a
sense of outrage.”), cert. denied, 118 S. Ct. 1103 (1998).
Moreover, it should be noted that the new charges brought against
Neal were not more severe than the original charges; both
aggravated rape, charged in the first indictment, and aggravated
kidnaping, charged in the second, carry mandatory penalties of life
imprisonment. See La. Rev. Stat. Ann. § 14:42 & 14:44.
Neal next argues that the trial court erred in permitting the
introduction of evidence in the second trial relating to the
extraneous offense of rape, after he had been acquitted of that
charge. We will not grant habeas relief for errors in a trial
court’s evidentiary rulings unless those errors result in a “denial
of fundamental fairness” under the Due Process Clause. See Porter
v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983), cert. denied, 466
U.S. 984 (1984). The erroneous admission of prejudicial evidence
will justify habeas relief only if the admission was a crucial,
highly significant factor in the defendant’s conviction. See id.
Here, the trial court committed no error, much less any error
creating fundamental unfairness. Neal was not acquitted of
sexually assaulting the victim, but only of “raping” her. The
15
evidence of his sexual battery was relevant to the aggravated
kidnaping charges, as the victim’s consent to at least the second
act of intercourse was a “thing of value” that Neal extracted in
exchange for her release. To the extent that the victim’s
submission to the first sexual battery was not motivated by a
promise to release her, the state’s evidence of the battery formed
part of the res gestae of the aggravated kidnaping, as it
constituted a portion of the “full story” of the crime. See State
v. Haarala, 398 So. 2d 1093, 1097 (La. 1981) (permitting
introduction of “other crimes evidence when it is related and
intertwined with the charged offense to such extent that the state
could not have accurately presented its case without reference to
it”).
Finally, Neal claims that he received ineffective assistance
of counsel. Neal complains that his trial counsel: 1) failed to
move to quash the indictment on double jeopardy grounds; 2) failed
to raise the issue of prosecutorial vindictiveness; and 3) failed
to pursue an appeal under Abney v. United States, 431 U.S. 651
(1977), from the denial of his pretrial double jeopardy motion. To
demonstrate ineffective assistance of counsel, however, Neal must
prove that his counsel’s errors were prejudicial, in that they had
an adverse effect on his defense. See Strickland v. Washington,
466 U.S. 668, 687 (1984). Neal’s double jeopardy argument and his
prosecutorial vindictiveness claim are both without merit.
Accordingly, his counsel’s purported failure to press both issues
was not prejudicial.
16
IV.
We AFFIRM the district court’s denial of Neal’s petition.
17