Paul Hill was convicted for a second time of five counts of distributing heroin. His post-trial motions contend the second trial was barred by collateral estoppel and double jeopardy, and that there was error in pre-trial and trial rulings. For the reasons which follow, his motions must be denied.
Because the facts have been discussed in my prior opinion, 481 F. Supp. 558 (E.D. Pa. 1979), reversed and remanded, 655 F.2d 512 (3d Cir. 1981),
I will only mention them briefly. Hill was employed as a clothing salesman for Krass Bros. in Philadelphia. On March 9, 1979, Hill was approached by Ian Daniels, a government informant, who inquired about purchasing heroin. Thereafter, on March 13, 1979, Hill gave Daniels a small sample of heroin. Daniels gave the sample to his superiors at the Drug Enforcement Administration (DEA) who, after chemical analysis, determined Hill had access to high quality heroin. Because heroin of such quality usually comes from someone close to the source of importation, the DEA, through Daniels and other government agents, arranged purchases of heroin from Hill and Leonard Newton on March 14, 29, April 23, June 12, and June 18, 1979. Hill and Newton were arrested during the June 18, 1979, sale.
Hill was indicted on six counts of distributing heroin and aiding and abetting in violation of Title 21, United States Code, section 841(a)(1), and Title 18, United States Code, section 2(a), and one count of conspiracy to distribute heroin.
Rather than deny the acts which constituted the offense, Hill claimed he was entrapped by government agents. In September, 1979, a jury found Hill not guilty of conspiracy (Count 1) and one distribution count relating to March 13, 1979, (Count 2), and guilty on the remaining five counts (Counts 3-7). Ruling that I had "misapprehended" the nature of an offer of proof and "applied too restrictive a view to such offered testimony," the Court of Appeals reversed and remanded the case for a new trial. United States v. Hill, 655 F.2d 512, 514 (3d Cir. 1981).
Shortly after the mandate from the Court of Appeals was filed on October 6, 1981, the Government expressed its intention to retry Hill on the five distribution counts. On February 1, 1982, literally on the eve of the second trial, Hill filed a motion to dismiss based on the doctrine of collateral estoppel as it applies to criminal cases, and double jeopardy. I denied that motion as frivolous. After an eight day trial, Hill was found guilty on all counts.
Hill first asserts I erred in ruling against his collateral estoppel contentions. His basic argument as to collateral estoppel was advanced in three ways:
First, Hill moved to dismiss the indictment maintaining that the jury's verdict of not guilty on the conspiracy count constituted a finding that he had been entrapped and remained entrapped during the time span of the alleged conspiracy which encompassed each of the distribution counts. Because of his contention that the issue of his criminal intent during the conspiracy was found in his favor at the first trial, Hill argued the second trial forced him to relitigate that issue.
Additionally, and as part of his motion to dismiss, Hill maintained that the not guilty verdict as to the conspiracy would require preclusion at trial of all evidence that tended to prove the conspiracy regardless of whether it tended to prove the five distributions, because of necessity, he had defended against that evidence successfully at the first trial.
Second, Hill made basically the same argument in objecting to the introduction of evidence at trial, contending that any evidence which would tend to show the existence of matters referred to in the conspiracy count could not be offered because of the not guilty verdict at the first trial. Preclusion of such evidence would have effectively barred reprosecution on all five distribution counts and would have led to a directed verdict for Hill at the second trial.
Third, Hill asserted that any evidence which would show there had been a conspiracy or that would show there had been a distribution on March 13, 1979, could not be received because all facts pertaining to those charges were resolved in his favor at the first trial, he was not being tried on those matters, and therefore evidence concerning them was irrelevant.
I denied his motion to dismiss and overruled his objections to the evidence, but did rule that any evidence which pertained solely to the conspiracy or solely to the distribution on March 13 could not be received.
There was no error in these rulings.
Collateral estoppel "has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation . . .." United States v. Keller, 624 F.2d 1154, 1157 (3d Cir. 1980), quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S. Ct. 645, 649, 58 L. Ed. 2d 552 (1979). In Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), the Supreme Court "found a constitutional basis for the collateral estoppel doctrine in the Fifth Amendment guarantee against double jeopardy."
United States v. Keller, supra, "As applied in criminal cases [collateral estoppel] has been used to bar not only reprosecution, . . . but also evidence of crimes of which the defendant had been acquitted in prior prosecutions." United States v. Keller, supra, 624 F.2d at 1157.
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.
Ashe v. Swenson, supra, 397 U.S. at 444, 90 S. Ct. at 1194, quoting Sealfon v. United States, 332 U.S. 575, 579, 68 S. Ct. 237, 240, 92 L. Ed. 180. Evidence introduced in the trial leading to acquittal can be reintroduced in a second trial provided the court finds the fact "which defendant sought to bar was not previously determined in defendant's favor by the acquittal verdict." United States v. Keller, supra, 624 F.2d at 1158-59 n. 4; see also United States v. Venable, supra; United States v. Castro-Castro, 464 F.2d 336 (9th Cir. 1972), cert. denied, 410 U.S. 916, 93 S. Ct. 971, 35 L. Ed. 2d 278 (1973).
As I previously noted, Hill first moved to dismiss the indictment and when that motion was denied, moved to preclude the introduction of all evidence, advancing what was essentially the same collateral estoppel argument in support of both motions. In essence, he contended that the not guilty verdict on the conspiracy count proved he had been entrapped during the entire time period of the conspiracy which encompassed the distributions subject to retrial because each of them was alleged as an overt act in the conspiracy count. Thus, Hill argued, no evidence could be received as to his criminal intent on the five distribution counts for which he was being tried because all issues pertaining to the conspiracy had been resolved in his favor by the jury at his first trial. Of course, Hill made this argument despite the fact that the jury had also found him guilty as to these same five distribution counts.
In view of Hill's assertion that collateral estoppel precludes the introduction of evidence as to matters decided at the first trial, I must examine the "pleadings, evidence, charge, and other relevant matter" to determine exactly what was decided there. If a rational jury at the first trial could have grounded its verdict upon an issue other than the one that Hill sought to foreclose at his second trial, that issue should not have been foreclosed. Ashe v. Swenson, supra. It is apparent that an articulation of Hill's argument demonstrates its fallacy. Hill wanted me to foreclose all evidence at the second trial, not just evidence as to those issues decided in his favor. What was foreclosed by the jury's verdict on the conspiracy count and the March 13, 1979, distribution count was a retrial of the essential elements of each. But that is all. The same jury which said he was not guilty on those two counts said he was guilty on the other five. Although it is true that entrapment was the sole basis of Hill's defense at the first trial, the not guilty verdicts on counts I and II did not establish that he was entrapped and thus foreclose that issue from consideration at retrial. First, I charged as to the essential elements of conspiracy and distribution, telling the jury it had to be satisfied as to the proof of each element of each offense beyond a reasonable doubt if there was to be a conviction. Thus, the jury may simply have decided one or more elements of these two offenses had not been established. See e.g. United States v. Venable, supra, 585 F.2d at 78. Secondly, the jury may have simply reached a compromise to resolve conflicting viewpoints in the jury room. Thirdly, it is quite possible that the jury concluded it would be unfair to convict Hill of a serious crime in view of the fact that only a small amount of heroin was given to Daniels on March 13 and no money was exchanged. The fourth possibility is that the jury concluded Hill was entrapped on March 13 simply because Daniels was the first to bring up the subject of heroin. The point is that it is impossible to say the jury's verdicts established Hill must have been entrapped as to Counts I and II -- much less can they form the basis for an extension of those verdicts to the other five counts. Therefore, no issue-preclusion at the second trial would have been warranted.
Hill embroiders his collateral estoppel argument with a "once entrapped always entrapped" theory, that is, because the jury found him not guilty of distribution as to March 13, and because his only defense was entrapment, as a matter of law he could not be guilty of the subsequent distributions because the taint of the March 13 indictment carried over to them and meant he was entrapped on these subsequent incidents. No case was cited to support the theory nor did my research uncover any such ruling. Hill advances this argument in the face of the fact that in the first trial I specifically charged the jury that if it found entrapment as to one or more counts, it could consider whether that entrapment carried forward to subsequent dates. The guilty verdicts show the jury rejected Hill's "once entrapped, always entrapped" theory.
In United States v. Nelson, 599 F.2d 714 (5th Cir. 1979), a trial for aiding and abetting, the Government was precluded from introducing evidence indicating defendant's participation in a conspiracy of which previously he was acquitted. Similarly, in United States v. Keller, supra, the Government was precluded from introducing evidence of subsequent crimes to prove prior predisposition to rebut defendant's anticipated entrapment defense where defendant had been acquitted of the subsequent crimes. In both cases, admission of such evidence was deemed to eviscerate the prior jury verdict and force re-litigation of issues determined favorable to the defendant. Keller, supra, 624 at 1159-60; Nelson, supra, 599 F.2d at 717. That is simply not the case here. In his first trial, Hill was found guilty of the five counts subject to retrial. Allowing evidence in support of these five counts on retrial did not eviscerate the prior jury verdicts as Hill contends. Accordingly, it was not error to allow evidence tending to prove them to be introduced in the second trial.
See United States v. Keller, supra; United States v. Venable, supra; United States v. Castro-Castro, supra.
Next, Hill argues that because he was acquitted of the March 13, 1979, distribution based on entrapment, the collateral estoppel doctrine prohibited the introduction of all evidence at the second trial of the events prior to March 14, 1979, the date of the first distribution count at issue. Because I have determined that it is mere speculation to conclude the acquittal was based on entrapment, Hill's position has no merit. The only thing as to which evidence was admitted at the second trial which might have been resolved in Hill's favor at the first trial was the fact that he handed heroin to Daniels on March 13 -- and at his first trial, Hill admitted he had done that. Even though the jury at the second trial did not have before it a count in the bill of indictment relating to March 13, Hill's actions and his delivery of heroin on that date were relevant to the five counts which were before the jury. Federal Rule of Evidence 404(b) permits evidence of other acts to show, inter alia, preparation, plan, and intent. The March 13, 1979, distribution tended to show Hill's preparation for the larger distribution of March 14, 1979, and for that matter, all subsequent larger distributions. It also tended to show a plan or scheme, that a person selling heroin in large quantities first offers a sample of his goods to a prospective purchaser. It was for these reasons that the March 13, 1979, distribution was admitted. If it was error to admit the fact of the March 13, 1979, distribution, of which Hill was acquitted, it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). First, there was evidence, in the record, viewed in a light most favorable to the Government, to prove Hill's predisposition.
For example, Ian Daniels testified he witnessed Hill distribute cocaine on two prior occasions. N.T. 3-41 to 43; 4-35 to 39; 4-56 to 64. Additionally, Hill's use of drug culture terminology and the split responsibilities of Hill and Newton in selling the heroin (one handled only money and the other only heroin) tended to prove Hill's prior involvement in the distribution of heroin.
Second, to exclude the March 13, 1979, distribution and the events leading up to it, would have mislead the jury. The only evidence before the jury would have been admission of a casual acquaintance relationship between Hill and Daniels followed by the distribution of one ounce of heroin worth $6000. For these reasons, Hill's post-trial motions on the collateral estoppel grounds are meritless.
Hill also seeks judgment of acquittal or a new trial based on my refusal to allow inquiry into charges of misconduct against Agent Richard Fekete of DEA, who directed the Hill investigation. Evidently, Agent Fekete's conduct in an investigation unrelated to Hill was challenged, and intra-agency (DEA) and criminal charges were lodged against him. Although Agent Fekete was cleared of all wrongdoing, Hill argued that the charges of misconduct were relevant to Fekete's credibility. Contrariwise, the Government argued the nature of the charges said nothing about Agent Fekete's character for truthfulness or untruthfulness, particularly because the charges had been dropped or the issue resolved in Fekete's favor. Thus, the evidence was irrelevant. Rather than rely on the Government's representations, I permitted Hill to cross examine Agent Fekete regarding the charges outside the presence of the jury.
N.T. 6-31 to 6-36. Agent Fekete testified he was charged with unprofessional conduct by the DEA in November, 1979. Regarding the same incident, he was criminally charged with disorderly person, trespass, and false imprisonment. Fekete further testified that he "was acquitted . . . [of the criminal charges] and . . . completely reinstated by the Merit System Protection Board and found to have been the subject of improper prosecution by the Drug Enforcement Administration." N.T. 6-33. Having determined the evidence was not probative of Agent Fekete's credibility, I excluded it. N.T. 6-37. My ruling was correct.
Federal Rule of Evidence 608(b) states in pertinent part:
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, . . .
The first step in a 608(b) analysis is whether the specific conduct is probative of the witness' character for truthfulness or untruthfulness. Next, the court must decide whether the probative value of the evidence is substantially outweighed by unfair prejudice. See Fed. R. Evid. 403 (1981). United States v. Bocra, 623 F.2d 281, 288 (3d Cir.), cert. denied, 449 U.S. 875, 101 S. Ct. 217, 66 L. Ed. 2d 96 (1980); United States v. Rios Ruiz, 579 F.2d 670, 674 (1st Cir. 1978). Because "rule 608(b) is intended to be restrictive . . . the inquiry on cross-examination should be limited to . . . specific modes of conduct which are generally agreed to indicate a lack of truthfulness." United States v. Bocra, supra, quoting 3 Weinstein's Evidence P 608  at 608-28 (1979). Acts of assault, force, or intimidation do not directly indicate an impairment of a witness' character for veracity. 3 Weinstein's Evidence P 608  at 608-33 (1979). See Gordon v. United States, 127 U.S. App. D.C. 343, 383 F.2d 936, 940 (D.C. Cir.), cert. denied, 390 U.S. 1029, 88 S. Ct. 1421, 20 L. Ed. 2d 287 (1968).
The charges against Agent Fekete were disorderly person, trespass, and false imprisonment. Simply stated, they are in no way probative of Agent Fekete's character for truthfulness or untruthfulness and therefore, do not fall within rule 608(b). Furthermore, because Fekete was acquitted, undoubtedly I would have found the probativeness of the evidence substantially outweighed by its prejudice to the Government.
Accordingly, Hill's motions on this ground are meritless.
As yet another ground for acquittal or a new trial, Hill claims I coerced the jury by directing them to deliberate further after one juror, while announcing her verdict, stated Hill was not guilty on four of the five distribution counts. After a few minutes of further deliberation, the jury returned a verdict of guilty on all counts. Hill contends I should have allowed the deputy clerk to continue polling the jury, and then declared a mistrial. I disagree.
After approximately 2 1/2 hours of deliberation, the jury notified the marshall it had reached a verdict. The foreman announced the jury's verdict as guilty on all counts. During the jury poll, however, Juror 4 stated Hill was not guilty on four of the five distribution counts. The colloquy with Juror 4 was as follows:
As to March the 14th, 1979, do you find the defendant guilty or not guilty?
JUROR JAMES: Guilty.