ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before Gibbons and Weis, Circuit Judges, and Dumbauld,*fn* District Judge.
Robert Hubbard appeals from the denial of his application for a writ of habeas corpus. He is in custody on a mandatory term of life imprisonment and a concurrent term of twelve to fifteen years for robbery.*fn1 These sentences were imposed following his conviction in a New Jersey state court for first degree felony murder, robbery, and robbery while armed. The charges against Hubbard resulted from an incident on May 27, 1971, when Hubbard and three other men entered an apartment at 482 South 19th Street, Newark, New Jersey, as part of an alleged robbery attempt. One of the four, James Rainey, possessed a pistol and, during an altercation, the pistol was discharged, killing Robert Howard, the occupant of the apartment. All four participants in the incident were charged in a single indictment with murder,*fn2 robbery,*fn3 and armed robbery.*fn4
Because Rainey had given a statement to the police inculpating himself and the codefendants, the state successfully moved to sever Rainey's trial in order to use that statement against him while avoiding prejudice to the other defendants. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).*fn5 In early November, 1971, Rainey was tried on the indictment.*fn6 He was found guilty of second degree murder.*fn7
Thereafter, Hubbard was tried on the same indictment and convicted of felony murder, robbery and armed robbery. He presented to the New Jersey courts the contention that because Rainey was acquitted of felony murder, the Rainey jury must have found that no robbery took place during the May 27, 1971 affray. He urged that the federal constitution required the application of collateral estoppel to this finding, and therefore that the state should not have been permitted to prosecute him for robbery or for felony murder. The state courts declined so to rule,*fn8 and a federal habeas corpus petition followed. The district court concluded that the Constitution does not require application of collateral estoppel in favor of one defendant because of the outcome in the trial of another defendant.*fn9 We affirm.
The New Jersey Supreme Court sensibly recognizes that there is some place in the criminal law for the doctrine of collateral estoppel. But unlike in civil cases, where that state has joined those enlightened jurisdictions that have abandoned the requirement of mutuality for the application of estoppel by judgment, United Rental Equipment Co. v. Aetna Life & Cas. Ins. Co., 74 N.J. 92, 376 A.2d 1183 (1977), New Jersey has not entirely jettisoned in criminal cases the requirement of identity of parties. Notwithstanding Judge Conford's urging that the test of Restatement (Second) of Judgments § 68.1 (Tent. Draft No. 4, 1977) be applied in criminal as well as civil cases, New Jersey has adhered to the view that in criminal cases collateral estoppel generally requires that the individual seeking its application have been a party to the first proceeding. State v. Gonzalez, 75 N.J. 181, 380 A.2d 1128 (1977). To that rule it has carved out a narrow exception for suppression motions. "Where a defendant makes a convincing showing that he (is) unable to participate at a prior suppression hearing in which the challenged search was invalidated, . . . and the evidence adduced at both hearings is substantially the same, he should be afforded the right to claim the benefits of such a hearing." State v. Gonzalez, supra, at 1136 (footnote omitted).
The New Jersey courts in Hubbard's case declined to make any further inroad upon the requirement of identity of parties. Their determination of the estoppel effect of the judgment of Rainey's case is binding here, unless the federal Constitution requires a different result. 28 U.S.C. §§ 1738, 2241(c) (3). Hubbard suggests two constitutional provisions which may do so: the Double Jeopardy Clause of the fifth amendment and the Due Process Clause of the fourteenth.
In Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), the Supreme Court, noting that Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), had made the Double Jeopardy Clause applicable to the states, held that after a jury determined by its verdict that petitioner was not a robber the state could not try him again before another jury on that same issue. The Double Jeopardy Clause precluded such a result. In the instant case the Rainey jury may well have found that there was no robbery.*fn10 Ashe v. Swenson does not avail Hubbard, however, for it rested upon the Double Jeopardy Clause, and he was not put in jeopardy in Rainey's trial. If there is a constitutional requirement for the application of collateral estoppel in favor of a defendant not a party to the earlier trial, it must be found in the Due Process Clause.
Prior to Benton v. Maryland, supra, the Court in Hoag v. New Jersey, 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1958), held that a defendant who was tried and acquitted on three separate indictments for robbery of three persons on the same occasion could subsequently be tried and convicted of robbing a fourth person during the same occurrence without violating the Due Process Clause. Admittedly, Justice Harlan, who wrote the opinion of the Court in Hoag v. New Jersey, concurred in the majority in Ashe v. Swenson, 397 U.S. at 448, 90 S. Ct. at 1196. He noted, however, as did the majority, 397 U.S. at 442-43, 90 S. Ct. at 1193, 25 L. Ed. 2d 469, that the Ashe v. Swenson holding did not determine whether collateral estoppel was a due process requirement. To be sure, the result in Ashe cast some doubt upon the rule of Hoag v. New Jersey at least as to those cases in which the prior litigation, while not amounting to jeopardy, nevertheless decided an issue between the state and the same defendant.*fn11 Examples include pretrial suppression hearings and hearings on motions to dismiss indictments, both of which produce orders from which the state may appeal of right*fn12 but neither of which amount to jeopardy.*fn13 But, in terms, Ashe goes no further. It does not affirmatively adopt collateral estoppel as an incident to federal due process rights.
Of course, some contrary data can be found in the case law. In United States v. Oppenheimer, 242 U.S. 85, 37 S. Ct. 68, 61 L. Ed. 161 (1916), Justice Holmes for a unanimous Court held that a pretrial dismissal of an indictment as time barred, although not within the Double Jeopardy Clause of the fifth amendment, was nonetheless Res judicata in a subsequent prosecution for the same offense. The Holmes opinion is typically cryptic. It is not readily apparent that due process underlies the application of the bar doctrine in the case; indeed, the holding seems only to be a matter of federal common law. More recently, however, Judge Friendly found in Oppenheimer due process overtones. United States ex rel. DiGiangiemo v. Regan, 528 F.2d 1262, 1265-66 (2d Cir. 1975), Cert. denied, 426 U.S. 950, 96 S. Ct. 3172, 49 L. Ed. 2d 1187 (1976). In DiGiangiemo, appellant sought to suppress certain evidence on the ground that its introduction was barred by a prior proceeding at which he had successfully moved to suppress other evidence obtained through the same illegal search. Although he rejected appellant's contention for other reasons, 528 F.2d at 1267-70, Judge Friendly suggested that due process provides at least some estoppel protection in criminal cases:
Assuming that the state has had an opportunity for a full hearing on suppression and at least one appeal as of right, we think due process would forbid relitigation of the issue determined adversely to it, although not, of course, the prosecution . . . on the basis of other evidence.
Id. at 1266. He was careful to note that collateral estoppel is not mandated by due process in civil cases, Id.; rather, he observed that the disparity of resources between the state and a criminal defendant and the strain of a second prosecution in which the same non-jeopardy issues would be relitigated both of which render criminal prosecutions especially vexatious made a strong case for the application of collateral estoppel against the state as a matter of due process.
There is much to be said, in the criminal law context, for associating the doctrine of collateral estoppel with the principles of due process. Plainly, the appearance of evenhandedness in the administration of justice weighs heavily among our jurisprudential concerns, and estoppel is directly addressed to that appearance. For that reason thoughtful observers probably will applaud the introduction of non-mutual collateral estoppel into New Jersey criminal law. See State v. Gonzalez, supra. But there are countervailing considerations as well, to some of which Justice Pashman refers in his opinion for the Court in Gonzalez. One consideration is the adverse effect on law enforcement when the state is deprived of the use of evidence which might produce a different outcome in the later proceeding. Moreover, the goal of judicial efficiency one underpinning for the doctrine of collateral estoppel may actually be subverted if the government must appeal every adverse pretrial ruling or else risk preclusion in a subsequent case. Still another consideration, not mentioned by Justice Pashman but particularly applicable to the extension of collateral estoppel to non-parties, is the potentially inhibiting effect such a rule might have upon the grant of severance motions. In this case, for example, New Jersey may not have been so solicitous of Hubbard's Bruton rights if it knew that all matters decided adversely to it in Rainey's trial would inure to appellant's ...