UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 96-1251
UNITED STATES OF AMERICA,
Appellee,
v.
IRVIN R. MORRIS,
Defendant, Appellant.
No. 96-1252
UNITED STATES OF AMERICA,
Appellee,
v.
STUART L. SMITH,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
William Maselli for appellant Morris.
Theodore A. Barone, with whom William F. Sullivan, Sullivan
and Largey, and Perkins, Smith & Cohen were on brief, for
appellant Smith.
F. Mark Terison, Assistant United States Attorney, with whom
Jay P. McCloskey, United States Attorney, and Jonathan A. Toof,
Assistant United States Attorney, were on brief, for appellee.
November 6, 1996
SELYA, Circuit Judge. These interlocutory appeals
SELYA, Circuit Judge.
question whether the acquittal of appellants Irvin R. Morris and
Stuart L. Smith on charges of conspiracy to distribute marijuana
bars the government from now prosecuting them on charges of
conspiracy to defraud the Internal Revenue Service (IRS). The
district court answered this question in the negative.
Concluding, as we do, that neither double jeopardy nor collateral
estoppel principles preclude continued prosecution of the tax
conspiracy charge, we affirm.
I.
I.
Background
Background
In 1994, a federal grand jury returned a three-count
indictment against the appellants and seven other persons.1
Count 1 charged the appellants (and others) with conspiracy to
distribute and to possess with intent to distribute marijuana, in
violation of 21 U.S.C. 841(a)(1) & 846 (1994). Count 2 sought
criminal forfeiture of property used in or derived from the
marijuana conspiracy. See 21 U.S.C. 853 (1994). Count 3
charged the appellants (and others) with conspiracy to defraud
the IRS in the determination and collection of income taxes, in
violation of 18 U.S.C. 371 (1994).
The district court severed count 3 and proceeded to
trial on the other counts. The jury returned a "not guilty"
verdict on count 1, putting an end to that charge and also
1Because these appeals do not involve any of the seven
codefendants, we minimize further references to them in
describing the indictment and ensuing trial.
2
eviscerating count 2. The appellants then moved to dismiss count
3 on double jeopardy and collateral estoppel grounds. The
district court denied the motions. These interlocutory appeals
ensued. See Abney v. United States, 431 U.S. 651, 662 (1977)
(holding that pretrial orders rejecting double jeopardy claims
premised on successive prosecutions are immediately appealable).2
Inasmuch as the appeals challenge the district court's
application of the law rather than its factfinding, our review is
plenary.
II.
II.
Double Jeopardy
Double Jeopardy
The Double Jeopardy Clause provides that no person
shall "be subject for the same offence to be twice put in
jeopardy of life or limb . . . ." U.S. Const. amend. V. The
Clause has three aspects: it shields a defendant from a second
prosecution for the same offense after either conviction or
acquittal, and it also prohibits multiple punishments for the
same offense. See United States v. Stoller, 78 F.3d 710, 714
2Abney involved multiple prosecutions. 431 U.S. at 662.
Cases that implicate multiple punishments arguably raise
different jurisdictional concerns for appellate courts. See
United States v. Ramirez-Burgos, 44 F.3d 17, 18-19 (1st Cir.
1995) (dismissing for want of jurisdiction an interlocutory
appeal stemming from the rejection of a multiple punishments
claim asserted in connection with parallel counts contained in a
single indictment); see also United States v. Stoller, 78 F.3d
710, 715 & n.2 (1st Cir. 1996) (indicating uncertainty as to the
continued vitality of Ramirez-Burgos in light of emergent Supreme
Court precedent), petition for cert. filed, 64 U.S.L.W. 3823 (May
29, 1996) (No. 95-1936). Because these appeals, like Abney
itself, involve the successive prosecution branch of the Double
Jeopardy Clause, we have jurisdiction to hear and determine them
prior to trial.
3
(1st Cir. 1996), petition for cert. filed, 64 U.S.L.W. 3823 (May
29, 1996) (No. 95-1936); United States v. Caraballo-Cruz, 52 F.3d
390, 391 (1st Cir. 1995); United States v. Rivera-Martinez, 931
F.2d 148, 152 (1st Cir.), cert. denied, 502 U.S. 862 (1991).
Here, the appellants invoke the Clause's protection against
successive prosecutions. The resolution of their claim turns on
whether the tax conspiracy is the same offense as the marijuana
conspiracy for double jeopardy purposes.
The Supreme Court has authored a black-letter rule for
use in determining when double jeopardy principles prohibit
prosecution under two distinct statutory provisions: "where the
same act or transaction constitutes a violation of [both]
statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not." Blockburger
v. United States, 284 U.S. 299, 304 (1932). If the crimes
charged are discrete offenses within the contemplation of
Blockburger, the defendant may be prosecuted consecutively for
them, even if the crimes arise out of the same conduct or nucleus
of operative facts. See United States v. Parrilla-Tirado, 22
F.3d 368, 372 (1st Cir. 1994). Thus, the Blockburger rule
depends on statutory analysis, not on evidentiary comparisons.
Having carefully examined the record, we conclude, as
did the court below, that the tax conspiracy and the marijuana
conspiracy are separate offenses. To establish the tax
conspiracy, the government must prove that the conspiracy
4
existed, that the defendants agreed to participate in it, and
that at least one overt act was perpetrated in furtherance of the
goal of defrauding the United States. See United States v.
Cambara, 902 F.2d 144, 146-47 (1st Cir. 1990). To establish the
marijuana conspiracy, the government had to prove that the
conspiracy existed, that the defendants agreed to participate in
it, and that they intended to possess and distribute marijuana.
See United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir.
1993), cert. denied, 114 S. Ct. 2714 (1994). Thus, the primary
objects of the two conspiracies are different, and each of the
charged crimes includes an element that the other does not.
These differences are brought home by parsing the
indictment in this case. In respect to count 3, the government
needs to prove at trial that the appellants specifically intended
to defraud the IRS and that they undertook at least one overt act
in furtherance of that conspiracy proof that is extraneous to
establishing the marijuana conspiracy. In respect to count 1,
however, the government needed to prove at trial that the
appellants intended to distribute marijuana proof that is
extraneous to establishing the tax conspiracy. On this basis,
the two charges constitute distinct offenses under Blockburger.
See, e.g., United States v. Gomez-Pabon, 911 F.2d 847, 861-62
(1st Cir. 1990) (holding that a conspiracy to import cocaine and
a conspiracy to possess cocaine with intent to distribute are
distinct offenses because they differ "in what they specify as
the proscribed object of the conspiracy"), cert. denied, 498 U.S.
5
1074 (1991); United States v. Rodriguez, 858 F.2d 809, 817 (1st
Cir. 1988) (holding that conspiracy to distribute cocaine and
aiding and abetting the possession of cocaine with intent to
distribute are distinct offenses and may be charged separately
even if both arise out of the same transaction because each
requires proof of an element that the other does not). Hence,
trying the appellants on count 3 will not violate the Double
Jeopardy Clause.
The appellants decry this analysis as excessively
technical. They hawk three separate, but related, rejoinders:
(1) that the government will introduce at a future trial much the
same evidence which it used in the previous trial; (2) that
despite the proliferation of counts the government in fact
alleged only a single conspiracy involving distribution of
marijuana and concealment of the profits derived therefrom; and
(3) that the district court misapplied this court's gloss on the
test for determining when two separately charged conspiracies are
deemed synonymous for double jeopardy purposes. These
asseverations lack force.
1. Same Evidence. The Supreme Court has never
1. Same Evidence.
endorsed a blanket rule prohibiting the government from using the
same evidence to prove two different offenses against a single
defendant. To be sure, at the high-water mark for double
jeopardy protection the Court briefly adopted a "same conduct"
test. See Grady v. Corbin, 495 U.S. 508, 521 (1990). But the
Court laid waste to Grady in fairly short order and confirmed
6
that the performance of a Blockburger analysis completes the
judicial task in a successive prosecution case. See United
States v. Dixon, 509 U.S. 688, 712 (1993) (overruling Grady).
Consequently, the appellants' "same evidence" argument fails.
2. Singularity of the Conspiracy. The appellants'
2. Singularity of the Conspiracy.
assertion that the government alleged only one overarching
conspiracy is no more than a play on words. Even if the
transactions on which the charges rest are intertwined the
"best case" assumption for the appellants, and a matter on which
we need not opine this datum would not alter the outcome of a
Blockburger inquiry. "It is well settled that a single
transaction can give rise to distinct offenses under separate
statutes without violating the Double Jeopardy Clause," and this
tenet "is true even though the `single transaction' is an
agreement or conspiracy." Albernaz v. United States, 450 U.S.
333, 344 n.3 (1981).
Whether a particular course of conduct involves one or
more distinct offenses depends on congressional choice, and the
Double Jeopardy Clause offers little limitation on that choice.
See Sanabria v. United States, 437 U.S. 54, 69-70 (1978). This
principle readily disposes of the appellants' argument. As we
already have shown, Congress defined the tax conspiracy and the
marijuana conspiracy such that each requires proof of a fact that
the other does not.
3. Segregating Distinct Conspiracies. Finally, the
3. Segregating Distinct Conspiracies.
appellants urge us to find that they are shielded from
7
prosecution for the tax conspiracy because of the imbrication
between it and the marijuana conspiracy. In framing this
exhortation the appellants pin their hopes on United States v.
Booth, 673 F.2d 27, 29 (1st Cir.), cert. denied, 456 U.S. 978
(1982), in which we set out a five-part test for determining
whether two conspiracies are synonymous for double jeopardy
purposes. Here, four-fifths of the test falls neatly into place:
it is undisputed that the tax and marijuana conspiracies took
place contemporaneously (or nearly so); that they involved
essentially the same personnel; that they occurred at much the
same places; and that most of the evidence that the government
introduced in its failed effort to prove the marijuana conspiracy
will be offered anew in a future endeavor to prove the tax
conspiracy. Nevertheless, there is a missing link; the
appellants cannot pass the fifth part of the test because the two
conspiracies are premised on separate statutory provisions.
This divagation is fatal to the appellants' contention.
The rationale underlying Booth stems from a recognition of the
danger that, in conspiracy cases, the government might comply
with the letter of Blockburger while evading its spirit by
partitioning a single conspiracy into separate prosecutions. See
id. The Booth test is thus aimed at limiting prosecutorial
abuse, not at circumscribing congressional power to define
multiple offenses that occur during a single course of conduct.
Because separate statutory provisions are involved in the two
conspiracies limned in this case, a subsequent prosecution on
8
count 3 will not offend the Double Jeopardy Clause. See Gomez-
Pabon, 911 F.2d at 861-62.
III.
III.
Collateral Estoppel
Collateral Estoppel
It is settled beyond cavil that the Double Jeopardy
Clause encompasses the doctrine of collateral estoppel. See Ashe
v. Swenson, 397 U.S. 436, 444-45 (1970); United States v. Dray,
901 F.2d 1132, 1135 (1st Cir.), cert. denied, 498 U.S. 895
(1990). This doctrine ensures that "when an issue of ultimate
fact has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in any
future lawsuit." Ashe, 397 U.S. at 443. In a criminal case, a
defendant who wishes to wield this doctrinal weapon against the
government bears the burden of demonstrating that the issue he
seeks to foreclose was in fact settled by the first proceeding.
See Dowling v. United States, 493 U.S. 342, 350-51 (1990).
The appellants thus face a formidable task: they must
show that the first trial necessarily decided that they were not
involved in the tax conspiracy. See Schiro v. Farley, 510 U.S.
222, 236 (1994). Of course, we must interpret this statement of
the appellants' task in a practical manner: a criminal defendant
who raises a potential collateral estoppel bar should not be
and is not held to a standard of absolute certainty. A court's
approach must be pragmatic in order to prevent the rejection of a
collateral estoppel defense in every case in which the prior
judgment was based on a general verdict of acquittal. See Ashe,
9
397 U.S. at 444 (warning against courts being too "technically
restrictive"). If all proffered explanations for why a jury's
verdict does not decide an issue are frankly implausible,
collateral estoppel ought to bar relitigation of the issue. See
Dray, 901 F.2d at 1137.
It is against this legal backdrop that we inspect the
particulars of the case at bar. To determine whether the
appellants can clear the collateral estoppel hurdle, we must
undertake whole-record review. See, e.g., Rossetti v. Curran, 80
F.3d 1, 4 (1st Cir. 1996). After all, collateral estoppel cases
necessarily "require an examination of the entire record to
determine whether the jury could have `grounded its verdict upon
an issue other than that which the defendant seeks to foreclose
from consideration.'" Schiro, 510 U.S. at 236 (quoting Ashe).
The appellants argue vehemently that the jury at the
first trial must have determined that they were not involved in
the conspiracy described in count 1 a conspiracy which they
visualize as encompassing three facets: obtaining marijuana,
distributing it, and hiding the proceeds from the government. We
think that this characterization misstates the conspiracy that
the government alleged. We explain briefly.
Our explanation starts with an acknowledgement that the
premise implicit in the appellants' argument is sound. Under an
indictment alleging that a defendant's role in the marijuana
conspiracy was to conceal the proceeds, that defendant
potentially could be found guilty of conspiracy to distribute and
10
possess with intent to distribute marijuana even though he did
not personally deal drugs. See generally United States v. David,
940 F.2d 722, 735 (1st Cir.) (noting that, in a chain conspiracy,
the law holds a conspirator "accountable for the earlier acts of
his coconspirators in furtherance of the conspiracy"), cert.
denied, 502 U.S. 989 (1991); United States v. Baines, 812 F.2d
41, 42 (1st Cir. 1987) (similar). But count 1 of the indictment
in this case is too narrowly drawn to animate that premise it
alleged in effect that Smith and Morris were directly involved in
marijuana distribution and the trial judge instructed the jury
that the government must prove "the conspiracy described in the
indictment." Thus, the jury would have been bound under count 1
and the district court's elucidation of it to acquit a defendant
whose only involvement was to launder the funds generated by the
principals' operation of the marijuana conspiracy.
Equally as important, count 1 of the indictment sets
out a conspiracy to distribute and possess with intent to
distribute marijuana, not a conspiracy to defraud the IRS. In
it, the government avers that the appellants "consigned,
entrusted, and distributed marijuana," but the count nowhere
attempts to describe how the conspirators concealed the proceeds
of the marijuana distribution from prying eyes.3 This lack of
3The closest count 1 comes to stating that the appellants
conspired to defraud the IRS is its averment that they "used
cash, bank checks, and money orders to further the objectives of
the conspiracy, to wit, the acquisition, receipt, storage,
consignment and distribution of large amounts of marijuana,
thereby deriving substantial cash proceeds." But this allegation
falls far short of specifying whether (and if so, how) the
11
connectedness is critical, for, as we mentioned earlier, the
district court instructed the jury that the government had to
prove beyond a reasonable doubt "that the conspiracy described in
[count 1] was willfully formed and was existing at on or about
the time alleged in the indictment." Hence, the jury's decision
that the appellants were not guilty of the conduct described in
count 1 does not rule out the possibility that the appellants
nonetheless may have conspired to defraud the IRS as alleged in
count 3.4 Because the record as a whole (i.e., the indictment,
the evidence, the arguments of counsel, and the jury
instructions) reveals more than one plausible basis for the
appellants conspired to launder drug proceeds and deprive the
government of tax revenue.
4This point is driven home by a reading of count 3 of the
indictment, which discusses in detail the conspirators' actions
to hide the income that flowed their way, alleging, for example,
that Morris and Smith used marijuana-generated cash to renovate
and improve real property (a specie of money laundering that is
not mentioned in count 1).
In fairness, we also note that count 3 contains some
allegations tending to blur the distinction between the marijuana
conspiracy and the tax conspiracy. Thus, Count 3 accuses Morris
and Smith of "earn[ing] income by acquiring, receiving,
possessing, storing, repackaging, transporting, consigning,
entrusting, and distributing marijuana, and fail[ing] to report
such sums to the Internal Revenue Service." To the extent that
such evidence is probative of the appellants' participation in
the tax conspiracy, the government is free to introduce it in a
subsequent trial, despite the previous acquittal. See Dowling,
493 U.S. at 348 (declining to extend the doctrine of collateral
estoppel to require exclusion of relevant evidence "simply
because it relates to alleged criminal conduct for which a
defendant has been acquitted"). However, nothing in this opinion
is intended to circumscribe the district court's discretion
either in making in limine orders or in fashioning appropriate
limiting instructions regarding how (if at all) evidence of the
appellants' putative involvement in the marijuana conspiracy may
now be used. See Dray, 901 F.2d at 1141.
12
acquittals, we must reject the appellants' collateral estoppel
claim. See Dray, 901 F.2d at 1139 (explaining that there is no
collateral estoppel if an inquiring court is "left with a choice
among a variety of plausible theories" as to why the jury
acquitted at an earlier trial).
To put some meat on the bare bones of this conclusion,
we sketch the scenarios that in our judgment suffice to leave
open the possibility that the appellants may yet be found guilty
of conspiracy to defraud the IRS without doing violence to their
earlier acquittals on drug-related charges. In the course of
this exercise, we treat Smith and Morris separately.
1. Smith's Collateral Estoppel Claim. The district
1. Smith's Collateral Estoppel Claim.
court properly instructed the jury that the government must prove
"the specific offense charged in the indictment," and, thus, that
Smith had the specific intent to further the distribution or
possession of marijuana. The record leaves room for at least one
substantial possibility consistent with permitting Smith to be
tried on the tax conspiracy charge.
The proof showed that Smith engaged in a variety of
entrepreneurial ventures, including buying and selling coins,
antiques, posters, prints, stamps, collectibles, and real estate.
At trial, his own counsel described him as "a hustler." Smith
conducted his affairs largely in cash and kept no records. Of
particular pertinence for present purposes, he had close business
connections with Gary Dethlefs, a central figure in the marijuana
conspiracy.
13
Both the evidence and the jury's verdict are consistent
with a finding that Dethlefs made enormous profits buying and
selling marijuana. Smith worked as the general manager of G & A
Development Corporation, a construction company owned by
Dethlefs. Smith had direct responsibility for the firm's land
acquisitions. He also teamed with Dethlefs to acquire
restaurants, and he joined Dethlefs on at least one sojourn to
Los Angeles in regard to a venture in the music recording
industry.
In his trial testimony, Smith swore that his
involvement with Dethlefs extended only to legitimate businesses
and that he had no knowledge that Dethlefs' seemingly
inexhaustible wealth came from drugs. He stated that he
solicited Dethlefs to back his investments because Dethlefs "had
money." Given the magnitude of Dethlefs' drug dealing and
Smith's close ties with him, the jury certainly could have
believed that marijuana trafficking kept Dethlefs' coffers full
and that Smith knew as much. The jury, however, also could have
concluded that Smith was not involved in trafficking per se, but
simply helped to launder the proceeds of Dethlefs' operation.5
Such a conclusion would be consistent with both an acquittal on
count 1 and a subsequent conviction on count 3.
Of course, the record does not conclusively establish
5Smith's track record as a wheeler-dealer tends to fortify
such a conclusion; the evidence introduced at the first trial
showed that he had an entrepreneurial background in business and
real estate which included other relevant experience in hiding
income from the government.
14
that Smith intended to defraud the United States, but that is not
the issue today. What matters now is that, giving full effect to
the jury's verdict, the record does not foreclose the scenario
spelled out above. Moreover, though the line for determining
whether theories explaining a jury's acquittal are too farfetched
to be given weight in the collateral estoppel calculus is
inherently tenebrous, that imprecision poses no problem where, as
here, the proffered explanation is a plausible one. Much
evidence in the record is consistent with both the jury's verdict
and the appellants' participation in a conspiracy to defraud the
IRS. Smith's collateral estoppel claim therefore founders.
2. Morris' Collateral Estoppel Claim. We are
2. Morris' Collateral Estoppel Claim.
satisfied that Morris, too, failed to carry the burden of showing
that his acquittal on the marijuana conspiracy charge necessarily
decided his lack of involvement in the tax conspiracy. The
record leaves open the realistic possibility of a jury finding
that he did not intend to distribute marijuana.
Morris claims that he does construction work for a
living. He frequently works "under the table"; he accepts
payment in cash for services rendered and does not report the
income. One witness testified that, between 1985 and 1992, he
alone paid Morris $21,000 in cash for work done off the books.
William Hesketh cooperated with the prosecution and
testified at the first trial. He admitted dealing drugs from
1985 through 1988. During that period he bought large quantities
of marijuana (as much as 100 pounds at a time) from Dethlefs. He
15
also testified that he both gave and sold marijuana to Morris
(who worked for him on virtually a full-time basis in 1987 and
1988). Morris built a chimney for Hesketh, remodeled the upper
story of Hesketh's home, and constructed two buildings for D and
S Moulding Company (a business that Hesketh controlled). Hesketh
always paid Morris in cash. While the verdict indicates that the
jurors turned down the government's theory that Morris purchased
marijuana from Hesketh for resale, they nonetheless could have
inferred knowledge on Morris' part that Hesketh's money came from
marijuana sales.
Thus, if the jury thought that Morris, though aware of
the source of Hesketh's funds, had no stake in the success of the
marijuana-purveying enterprise, it would be obliged to return a
"not guilty" verdict on count 1 of the indictment as drawn but
that verdict would not tell us anything of consequence about
Morris' guilt or innocence vis- -vis the tax conspiracy. In all
events, this scenario is sufficient (and sufficiently plausible)
to overcome Morris' argument that collateral estoppel now
prevents his trial on a charge of conspiracy to defraud the IRS.6
IV.
IV.
Conclusion
Conclusion
We need go no further. For the reasons we have
discussed, neither double jeopardy nor collateral estoppel
6If more were needed and we do not think that it is we
note that only count 3 (the tax conspiracy charge), not count 1
(the marijuana conspiracy charge), alleges that Morris renovated
and improved real and personal property with cash.
16
preclude the government from prosecuting the appellants on
charges of conspiracy to defraud the United States in the
determination and collection of income taxes. Consequently, the
district court did not err in refusing to dismiss count 3 of the
indictment.
Affirmed.
17