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November 30, 1979


The opinion of the court was delivered by: COHILL

The deceptively narrow question before us today requires this Court to juggle the concepts of double jeopardy, conspiracy, and obscenity each a nebulous circle in itself while at the same time attempting to balance the government's interest in prosecuting alleged crimes against the constitutional rights of the defendants not "to be twice put in jeopardy." In attempting to achieve some equilibrium, we will rely heavily on the facts of record before us, which are tangible and therefore more manageable, and on the significant appellate decisions in these three areas.

Reuben Sturman and Melvin Kamins are two of six defendants charged in an indictment brought in the Western District of Pennsylvania with 15 substantive violations of 18 U.S.C. § 1462 (1976) (interstate transportation of obscene magazines and motion pictures) and one count of conspiracy to transport obscene materials interstate under 18 U.S.C. § 371 (1976). Only defendants Sturman and Kamins and only the conspiracy count are before us today. In 1978 these two defendants, among others, were tried in the United States District Court for the Northern District of Ohio on a multiple-count indictment including a charge of conspiracy to disseminate obscene materials interstate. At the conclusion of a lengthy trial, both defendants were acquitted on all counts by the jury. They have moved this Court to dismiss the current conspiracy count as to them on the basis of double jeopardy.

 Both the government and defendants have agreed that the double jeopardy motion should be isolated from the defendants' "omnibus pretrial motions" and be considered first because our ruling will be appealable prior to trial. Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); United States v. Inmon, 568 F.2d 326, 328 (3d Cir. 1977).

 Sturman and Kamins argue that the prior acquittal of conspiracy bars reprosecution on the same charge. The government responds that where a current indictment charges a separate offense than was previously adjudicated the double jeopardy protection is inapplicable. Theoretically, both parties are correct. The more precise task before us is defining the legal theory required by this set of facts. The entire transcript of the prior trial as well as the prior indictment have been made part of the record before us.

 The Fifth Amendment to the United States Constitution includes this guarantee:

(N)or shall any person be subject for the same offense to be twice put in jeopardy . . .

 This basic guarantee was imported as a part of our common law heritage. As the Supreme Court explained in an early case, "(i)f there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense." Ex parte Lange, 85 U.S. (18 Wall.) 163, 168, 21 L. Ed. 872 (1874). Defining what constitutes the "same offense" has not been an easy task for courts or commentators. *fn1"

 In 1970 the Supreme Court of the United States decided Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), holding that the civil concept of collateral estoppel issue preclusion is an inherent ingredient of the Fifth Amendment double jeopardy guarantee. There the defendant had been indicted for his alleged participation in a robbery of six men who had been playing poker. After a jury acquitted him of the robbery of one of the men, the state prosecuted him again for the robbery of another of the victims. Although disagreeing on several aspects of the definition of the "same offense" for double jeopardy purposes, *fn2" seven members of the Court agreed that the general verdict of acquittal after the first trial resolved the issue of the defendant's participation in the robbery and precluded that issue from being litigated a second time. Justice Stewart wrote for the majority:

"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply 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. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law (for) at least . . . 50 years . . . As Mr. Justice Holmes put the matter in ( United States v. Oppenheimer, 242 U.S. 85, 37 S. Ct. 68, 61 L. Ed. 161 ), "It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt."

 397 U.S. at 443, 90 S. Ct. at 1194 (citations omitted).

 Turning to the application of this rule, Justice Stewart added:

The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "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." The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.

 397 U.S. at 443-44, 90 S. Ct. at 1194 (citation omitted).

  Many decisions since Ashe have attempted to apply the collateral estoppel principle in cases where the facts have been less graphic. E. g., United States v. Venable, 585 F.2d 71 (3d Cir. 1978) (trial on a false statements count was not barred by a prior acquittal of an extortion count where the acquittal was clearly based on the government's failure to establish dates of the alleged extortion payments); United States v. Nelson, 574 F.2d 277 (5th Cir. 1978), Cert. denied, 439 U.S. 956, 99 S. Ct. 355, 58 L. Ed. 2d 347 (1979) (where a jury acquitted defendant of a charge of using a gun during the commission of a felony, he could not be retried on a charge of putting lives in jeopardy with a dangerous weapon during commission of a bank robbery); United States v. Hernandez, 572 F.2d 218 (9th Cir. 1978) (perjury trial foreclosed by prior acquittal of false statements charge where the defendant's truthfulness in the subject episode was necessarily decided by the false statements acquittal); United States v. Barket, 530 F.2d 181 (8th Cir. 1976), Cert. denied, 429 U.S. 917, 97 S. Ct. 308, 50 L. Ed. 2d 282 (1976) (bank officer's acquittal of willful misapplication of funds did not bar prosecution for violation of campaign contribution statute involving same funds where the two crimes were distinct and separate offenses). These and other cases stress that the double jeopardy decision turns not on the nature of the charges alone, but also on what actually transpired at the first trial. Courts have asked themselves whether factfindings favorable to the defendant were necessarily part of the jury's verdict or whether a first jury implicitly acquitted a defendant of later charges, Hardwick v. Doolittle, 558 F.2d 292, 298 (5th Cir. 1977), Cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978); whether previously decided facts or resolved issues are to be litigated anew, Venable, supra, 585 F.2d at 77-78; United States v. Pappas, 445 F.2d 1194 (3d Cir. 1971), Cert. denied, 404 U.S. 984, 92 S. Ct. 449, 30 L. Ed. 2d 368 (1971); United States v. Nash, 447 F.2d 1382 1384 (4th Cir. 1971); and what facts, arguments of counsel, and rulings of the trial judge influenced the earlier acquittal, Barket, supra; Hutchings v. Estelle, 564 F.2d 713 (5th Cir. 1977). But a district court has warned against conjecture about the jury's reasoning. Jones v. Blankenship, 458 F. Supp. 521, 524-25 (W.D.Va.1978).

 A Florida district court succinctly stated the rule of Ashe and its progeny in United States v. Gurney, 418 F. Supp. 1265, 1268 (M.D.Fla.1976); there Chief Judge Young wrote,

(w)hile the Government may charge, try and convict a defendant with more than one charge growing out of the same transaction, it may not in a second trial relitigate an issue of either ultimate fact or evidentiary fact upon which the defendant was acquitted in an earlier trial.

 In a thoughtful recent opinion, the Ninth Circuit adopted a three-step analysis to determine whether the collateral estoppel principle of double jeopardy applies in a given case:

(1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was "litigated" in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case.

 Hernandez, supra, 572 F.2d at 220. This analysis synthesizes the holdings we have reviewed. We will adopt this process in making our independent review.

 Several cases, including some in the Third Circuit, have placed on the defendant the burden of persuasion to convince courts that double jeopardy applies. Barket, supra, 530 F.2d at 188; United States v. Manuszak, 532 F.2d 311, 315 (3d Cir. 1976).

 Conspiracy Double Jeopardy

 The double jeopardy question here is complicated by the fact that both the prior acquittal and the instant indictment involve a charge of conspiracy. Although we find Ashe applicable, and Hernandez helpful, we cannot yet turn to the facts of this case without noting the emergence of a separate line of cases, with more specific rules, where the double jeopardy challenge attacks a count of conspiracy.

 In United States v. Inmon, 568 F.2d 326 (3d Cir. 1977), a case originating in this Court before this judge, the defendant moved to dismiss a conspiracy charge in an indictment on double jeopardy grounds. The indictment charged a conspiracy to distribute and possess with intent to distribute heroin; the defendant argued that he was being charged with the same conspiracy he had pleaded guilty to on an earlier indictment. The United States Court of Appeals for the Third Circuit held that once a defendant has presented a Prima facie, non-frivolous claim of double jeopardy, the burden of persuasion on the issue, by a preponderance of the evidence, shifts to the government. The Court reasoned that the government's greater access to proof and the prosecutorial control over the particularity of the charges justified placing the burden for differentiating the indictments on the government. See also United States v. Mallah, 503 F.2d 971 (2d Cir. 1974) Cert. denied, 420 U.S. 995, 95 S. Ct. 1425, 43 L. Ed. 2d 671 (1975). The Fifth Circuit has recently adopted the Inmon holding, stating, "(w)e agree, for similar reasons, that the burden of establishing that the indictments charge separate crimes is most equitably placed on the government when a defendant has made a nonfrivolous showing that an indictment charges the same offense as that for which he was formerly placed in jeopardy." United States v. Stricklin, 591 F.2d 1112, 1118 (5th Cir. 1979), Reh. denied, 598 F.2d 620 (5th Cir. 1979), Cert. denied, 444 U.S. 963, 100 S. Ct. 449, 62 L. Ed. 2d 375 (1979).

 Both Inmon and Stricklin have held that the government's burden in overlapping conspiracy cases is to establish by a preponderance of the evidence to the satisfaction of the Court that the crime presently charged is not the crime in the previous indictment which resulted in a guilty plea or a conviction. 568 F.2d at 332, 591 F.2d 1118, 1121. The Stricklin court noted the difficulty of applying double jeopardy principles where the crimes charged are "complicated or far-reaching conspiracies," 591 F.2d at 1117, and noted how the parties would be likely to reverse their normal trial stances for the double jeopardy claim:

In the double jeopardy context, the position of the parties is reversed from that usually taken in trials of conspiracy cases. In the latter, it is usually the government's position that all similar conduct proven is part of one far-reaching conspiracy. The defendant generally asserts that, if conspiracy be shown at all, his activity was separate from, and not connected with, the conspiracy charged.
In the dispute over double jeopardy, however, it is the defendant who asserts that the earlier indictment was sufficiently broad to encompass all of his conduct, and the government asserts the narrow, limited scope of its earlier indictment. . . . This conflict sufficiently demonstrates the need for care and definition in the drawing of indictments in conspiracy cases.

 591 F.2d at 1121.

 Several very recent circuit opinions have scrutinized conspiracies to determine if "the same offense" rationale of the double jeopardy provision was logically applicable. These decisions have stressed the nature of the offense an unlawful agreement and have attempted to draw the factual boundaries of the agreement by reference to the indictment and the evidence adduced before the grand jury or at trial. In United States v. DeFillipo, 590 F.2d 1228 (2d Cir. 1979), cert. denied, 442 U.S. 920, 99 S. Ct. 2844, 61 L. Ed. 2d 288 (1979), the Second Circuit considered the double jeopardy claim of two defendants who were convicted of a 1974 conspiracy to possess stolen suits and then later convicted of a 1975 conspiracy to possess stolen shaving products. Because both criminal episodes involved hijackings of trailer trucks and because the government requested the admission at the second trial of the prior conviction as evidence of a common scheme or plan, the defendants argued that the second offense was part of a continuing conspiracy that had been the subject of the first trial. The Second Circuit rejected this assertion, finding that the government's charges were narrowly drawn ("carefully limited in time and place"), that there was no overlap of dates, and that there was no indication in the record of a continuing conspiracy to commit separate hijackings. The Court also noted a difference between the offense in this case, conspiring to receive stolen goods via an interstate hijacking, and the type of conspiracy involved in a narcotics case; in the latter, the nature of the enterprise is "continuous." Since there was no evidence of direction by a "criminal syndicate" in DeFillipo, the court concluded that there had been one agreement to hijack one truck followed by a separate agreement to hijack another. 590 F.2d at 1235.

 The DeFillipo court thus distinguished the oftcited case of United States v. Mallah, 503 F.2d 971 (2d Cir. 1974), Cert. denied, 420 U.S. 995, 95 S. Ct. 1425, 43 L. Ed. 2d 671 (1975), where the Second Circuit overturned on double jeopardy grounds a conviction of conspiracy to distribute narcotics. The Mallah court took notice that a drug conspiracy is often structurally much like a large business venture. The court thus rejected the "same evidence" test which would have required it to examine and compare the overt acts of the indictment:

The essence of the charge is the criminal agreement to merchandise narcotics. The same agreement may be established by different aggregations of proof . . . because there are no doubt many overt acts which the government might have charged, a test measuring only overt acts provides no protection against carving one larger conspiracy into smaller separate agreements.

 503 F.2d at 985. After reviewing essential facts of the two conspiracies the same general locale and time frame, personnel, methods, and purposes and the failure of the government to define in either instance the geographical scope of the conspiracies, the court concluded that the government had failed to rebut the presumption raised by the defendant that there was one conspiracy. "(G)iven the broad definition of narcotics conspiracy adopted in our cases, and recognizing that the task of defining the scope of these ...

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