Petition — Larkin v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

79-1538

THOMAS A. LARKIN,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES M. RUSS

I. PAUL MANDELKERN

Russ & Mandelkern, P.A.

Tinker Building

18 West Pine Street

Orlando, Florida 32801

Telephone: (305) 849-6050

Attorneys for Petitioner

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REASON FOR GRANTING THE WRIT

IF LIABILITY FOR THE SUBSTANTIVE COUNTS

OF AN INDICTMENT IS PREDICATED SOLELY

UPON A CONSPIRACY CHARGED IN A SEPA-

RATE COUNT, THE DOUBLE JEOPARDY CLAUSE

OF THE FIFTH AMENDMENT BARS RETRIAL

FOR THE CONSPIRACY AFTER JURY VERDICTS

OF NOT GUILTY ON THE SUBSTANTIVE

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APPENDIX

1. Opinion of the United States Court of Appeals

for the Fifth Circuit in United States v. Thomas

A. Larkin, Case No. 78-2124, dated November

PN ha Fa ha aoe by wee a ae ae la-23a

2. Opinion of the United States Court of Appeals

for the Fifth Circuit in United States v. Thomas

A. Larkin, Case No. 78-2124, on petitions for

rehearing, dated wememene G, OUP oe cnc. cncccece. 24a-26a

(ii)

TABLE OF AUTHORITIES

Page

Cases:

Abney v. United States,

a OS te ee dt biel aya ws 6

Blockburger v. United States,

i NS i i eA dle dais 6,9

Brown v. Ohio,

ees anio eee bowen 6,9, 13

Green v. United States,

Ne oe wi 8, 13

Harris v. Oklahoma,

ee al diy d's Biase bale wade ae 6,9, 11,13

Jeffers v. United States,

Ra IRR DR Perey ee a a 6, 9, 13

Pinkerton v. United States,

a a a ai Sa ae en ee 4

Price v. Georgia,

REIRSON ea Re 8,13

United States v. Bender,

ee ee ee cco wlet ee’ bbe sowes 12

United States v. Buckley,

586 F.2d 498 (Sth Cir. 1978) .............. tip h Sl caalsniea ue wk ats 12

United States v. Michel,

a ee a éehan eeu 14

United States v. Moreno,

EE RROD Spee pr Sn eR 14

United States v. Tilton,

ne re eV eae es 14

(iii)

Whalen v. United States,

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

THOMAS A. LARKIN,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, THOMAS A. LARKIN, respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Fifth Circuit

entered on February 8, 1980, denying a petition for

rehearing directed to that Court’s written opinion dated

November 5, 1979. The initial Fifth Circuit opinion af-

firmed an order entered by a District Judge of the

United States District Court for the Middle District of

Florida in a criminal prosecution denying petitioner’s

motion to dismiss on double jeopardy grounds. The opin-

ion of the United Sates Court of Appeals for the Fifth

4

Circuit held that where criminal liability for the substan-

tive counts of an indictment is based solely upon the

defendant’s membership in a conspiracy charged in a

separate count, the defendant’s double jeopardy right is

not violated by a retrial on the conspiracy count after

acquittal on the substantive counts in the first trial. A

timely petition for rehearing was denied by the Court of

Appeals and judgment was entered. The petitioner now

prays that this Court review the judgment and opinion

of the United States Court of Appeals for the Fifth Cir-

cuit.

OPINIONS BELOW

The November 5, 1979, opinion of the United States

Court of Appeals for the Fifth Circuit is reported at 605

F.2d 1360. The slip sheet opinion is set out in the ap-

pendix to this petition. (App. 1a-23a).

The opinion of the United States Court of Appeals

for the Fifth Circuit denying petitioner’s petition for

rehearing is reported at 611 F.2d 585. The slip sheet opi-

nion is also set out in the appendix to this petition.

(App. 24a-26a).

JURISDICTION

The opinion of the Court of Appeals was entered on

November 5, 1979. The Court of Appeals denied a timely

petition for rehearing on February 8, 1980. On February

26, 1980, Mr. Justice Powell extended the time for filing

this petition to and including March 31, 1980. This Court’s

jurisdiction is invoked under 28 U.S.C. §1254(1).

QUESTION PRESENTED

If criminal liability for the substantive counts of an

indictment is predicated solely upon a conspiracy charged

in a separate count, does retrial on the conspiracy count

after jury verdicts of not guilty on the substantive

counts violate the double jeopardy clause of the Fifth

Amendment to the United States Constitution?

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Fifth Amendment:

No person shall * * * be subject for the same

offense to be twice put in jeopardy of life or

limb; * * *,

STATEMENT OF THE CASE

Petitioner is the defendant in a criminal prosecution

instituted in the United States District Court for the

Middle District of Florida. Count one of the indictment

charges that the petitioner, an attorney, and a co-

defendant, the president of a labor union local, violated

18 U.S.C. §371 by conspiring to commit five illegal acts

in violation of: 18 U.S.C. §§1503, 1510, 1622, and 29

U.S.C. §§439(c), 501(c) (R. 1-10).*

Counts two, four, and six accuse petitioner and the

co-defendant of embezzling union funds on three sepa-

rate occasions in violation of Section 501(c) (R. 10-13).

Counts three, five, and seven accuse petitioner and his

co-defendant of violating Section 439(c) by making false

entries in the union records required to be kept under 29

U.S.C. §§431(b) and 436 (R. 10-13).

*“R.” refers to the record on appeal in the lower court.

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There is a direct correlation between the substantive

offenses charged in counts two through seven and the

overt acts of the conspiracy alleged in count one. In par-

ticular, overt acts 41, 30, and 28 directly relate to the

criminal activity alleged in substantive counts two and

three; six and seven; and four and five respectively. Fur-

ther, all of the substantive offenses were allegedly com-

mitted within the time-frame of the conspiracy charged

in count one.

Since counts two through seven do not allege that

petitioner was an officer or employee of the labor union

in question or that he aided or abetted the union presi-

dent, pretrial defense pleadings were filed attacking the

indictment and questioning the prosecution’s theory of

petitioner’s criminal liability for the substantive counts

(R. 37-44, 181-184). The government’s response (R. 96-

107) made it clear that its position is that petitioner’s

criminal liability for these substantive counts rested sole-

ly upon his membership in the conspiracy charged in

count one. In its written response to petitioner’s motion

to dismiss, the government relied upon the vicarious

liability theory for co-conspirators first enunciated by

this Court in Pinkerton v. United States, 328 U.S. 640

(1946), which holds that a defendant who is a member

of a continuing conspiracy is criminally responsible for

the reasonably foreseeable substantive offenses commit-

ted by a co-conspirator in furtherance of the conspiracy

(R. 100-102). This vicarious liability theory was

reiterated by the government during oral argument at

the pretrial hearing held on the motion to dismiss (R.

591-592, 597).

The prosecutor also argued the Pinkerton theory of

vicarious criminal liability to the jury urging petitioner’s

liability for the offenses alleged in counts two through

seven during his opening and closing arguments to the

jury (R. 241-242; 514-515). (Petitioner’s pretrial motion

for a severance from the co-defendant was granted).

The jury then received extensive instructions from the

trial judge on conspiracy; and they were instructed as to

counts two through seven on the Pinkerton theory,

which was based solely upon petitioner’s alleged mem-

bership in the conspiracy charged in count one (R.

346-422; TT. 2268-2319). ** Specifically, the trial judge

instructed the jury that there were four essential

elements of the offenses alleged in counts two, four, and

six (the embezzlement counts) and three essential

elements of the offenses alleged in counts three, five,

and seven (the false record counts) (R. 394-401; TT.

2293-2302). The last element as given in the jury instruc-

tions as to each of the substantive counts was:

* * * that the defendant and [co-defendant]

were members of the conspiracy alleged in

Count One of the indictment and the alleged

[substantive offense] took place during the

course of the conspiracy and was reasonably

foreseeable by the defendant Thomas A. Lar-

kin as a necessary or natural consequence of

conspiracy and * * * was intended by [the co-

defendant] to further the purpose or purposes

of the conspiracy. (R. 396, 401; TT. 2297,

2302) (emphasis added).

Under the terms of the indictment and the jury instruc-

tions given to his jury, petitioner could have been found

guilty of both the conspiracy count and all of the

substantive counts.

**“TT.” refers to the trial transcript which was part of the record

on appeal in the lower court.

Relying upon Brown, Jeffers, and Harris, petitioner

The jury returned verdicts of not guilty as to counts — :

asserted that his retrial on the lesser offense, the count

two through seven (R. 423; TT. 2321-2334, 2343), but

was “hopelessly deadlocked” as to count one and a one conspiracy, would violate the double jeopardy

mistrial was declared as to that count by the trial court clause, because he had already been tried and acquitted

(TT. 2343-2344). of the “greater offenses”, the substantive counts.

After the government informed the trial court and The Fifth Circuit seemed to accept petitioner’s legal

petitioner’s counsel by written communication that it in- argument:

tended to retry petitioner on count one (R. 425), peti-

tioner filed a motion to dismiss count one on the ground

of double jeopardy (R. 429-438). By way of this motion,

petitioner argued that a retrial of the conspiracy alleged

in count one would violate his constitutional right

against double jeopardy because this conspiracy was a

“lesser included offense” of the substantive offenses for

which he had already been tried and acquitted. This mo-

tion to dismiss was denied (R. 644). Thereafter, a timely

interlocutory appeal was taken to the Fifth Circuit under

the authority of Abney v. United States, 431 U.S. 651

Like the appellant, we find it somewhat dif-

ficult to square Pinkerton with the double

jeopardy cases discussed [Brown, Jeffers, and

Harris]. * * * Just as the intent necessary to

prove felony murder was provided by the rob-

bery with firearms charge in Harris, the intent

to establish Larkin’s liability for the act of his

co-conspirator is supplied by the conspiracy

charge. Just as Harris’ participation in a rob-

bery created his liability for the shot of his

partner, Larkin’s formation of a conspiracy

(1977), and petitioner’s retrial was stayed by an order of

the trial court (R. 646).

Petitioner’s legal argument to the Fifth Circuit was

premised upon the “same offense” test for double jeop-

ardy, enunciated by this Court in Blockburger v.

United States, 284 U.S. 299 (1932), as approved and ap-

plied to “lesser included offenses” by this Court in a trio

of recent cases: Brown v. Ohio, 432 U.S. 161 (1977);

Jeffers v. United States, 432 U.S. 137 (1977); and Harris

with [the co-conspirator] established Larkin’s

liability for [the] embezzlement of union funds

and falsification of union records. It would

therefore appear that under Harris, the con-

spiracy charge against Larkin is a lesser includ-

ed offense of the Pinkerton vicarious “ability

offenses, counts two through seven. 605 F.2d

at 1367 (App. 13a-14a) (footnote and citations

omitted).

v. Oklahoma, 433 U.S. 682 (1977). Petitioner’s legal

position was that since the existence of the conspiracy

charged in count one was the sole basis for his criminal

responsibility for the substantive counts, the count one

conspiracy became a “lesser included offense” of the

substantive counts since every element of the former

charge had to be proved to establish the latter offenses.

The Fifth Circuit also recognized that the double

jeopardy clause prohibits reprosecution of a defendant

on a lesser offense after acquittal for the greater of-

fense: ;

[T]he double jeopardy clause not only pro-

hibits the imposition of double punishment for

the same offense, but also prevenis the in-

curable injury caused a defendant who must

run the gauntlet twice for the same offense.

Re-prosecution on a lesser offense in a second

trial after an acquittal on a greater charge in

the first would seem to cause such an injury

* * * 605 F.2d at 1367-1368 n. 20 (App. 14a-

15a) (citations omitted and emphasis added).

However, the Fifth Circuit affirmed the trial court’s

order denying petitioner’s motion to dismiss because of

what it termed “the procedural posture of this case”. 605

F.2d at 1367 (App. 14a). First, the Fifth Circuit dis-

tinguished Brown, Jeffers, and Harris because the

defendants in those cases had been subjected to two in-

dependent proceedings, while the petitioner was sub-

jected to only one trial in which the lesser included of-

fense (the count one conspiracy) and the greater offenses

(the substantive counts) were tried simultaneously. The

Fifth Circuit concluded:

* * * Thus, even assuming the validity of

Larkin’s argument that the conspiracy charge is

a lesser included offense * * * , Larkin’s posi-

tion is indistinguishable from a defendant who

was tried on a murder charge and a manslaugh-

ter count in the alternative. Such simultaneous

jeopardy for greater and lesser included of-

fenses is clearly proper. 605 F.2d at 1367-1368

(App. 14a-15a) (footnote omitted and emphasis

added).

Second, the Fifth Circuit, relying upon Green v.

United States, 355 U.S. 184 (1957), and Price v.

Georgia, 398 U.S. 323 (1970), applied the concept of

“continuing jeopardy” to a lesser included offense and

ruled that an acquittal on a greater offense does not

*

preclude a retrial on a lesser offense to which “continu-

ing jeopardy” has attached due to a mistrial caused by a

deadlocked jury. 605 F.2d at 1368-1369 (App. 16a-17a).

REASON FOR GRANTING THE WRIT

IF LIABILITY FOR THE SUBSTANTIVE COUNTS

OF AN INDICTMENT IS PREDICATED SOLELY

UPON A CONSPIRACY CHARGED IN A

SEPARATE COUNT, THE DO JEOPARDY

CLAUSE OF THE FIFTH AME ENT BARS

RETRIAL FOR THE CONSPIRACY AFTER JURY

VERDICTS OF NOT GUILTY ON THE SUBSTAN-

TIVE COUNTS.

During this Court’s 1976 term, it decided a trilogy of

cases which reiterated and clarified the long-standing

rule that once a person is tried for an offense he cannot

be reprosecuted for a greater or lesser included offense.

Harris v. Oklahoma, 433 U.S. 682 (1977); Brown v.

Ohio, 432 U.S. 161 (1977); Jeffers v. United States, 432

U.S. 137 (1977). The rationale for this rule is that, for

double jeopardy purposes, the lesser included offense is

the “same offense” as the greater offense and vice-versa.

In Brown, a majority of this Court reversed the

defendant’s conviction for auto theft after he had earlier

plead guilty to the charge of joyriding arising from the

illegal taking of the same automobile. This Court ap-

plied the test enunciated in Blockburger v. United

States, 284 U.S. 299 (1932), to determine whether the

two offenses were sufficiently distinguishable to permit

successive prosecutions. Mr. Justice Powell, writing for

the majority, expressed the lesser included offense prin-

ciple of double jeopardy:

As is invariably true of a greater and lesser in-

cluded ofense, the lesser offense — joy-riding

10

— requires no proof beyond that which is re-

quired for conviction of the greater — auto

theft. The greater offense is therefore by

definition the “same” for purposes of double

jeopardy as any lesser offense included in it.

432 U.S. at 168.

The rationale of the Brown decision was reaffirmed

by this Court in Jeffers. Two separate indictments were

returned against Jeffers. The first chargea him with

committing a conspiracy in violation of 21 U.S.C. §846

and the second charged him with conducting a continu-

ing criminal enterprise to violate the drug laws in viola-

tion of 21 U.S.C. §848 during the same time period

specified in the conspiracy indictment. He successfully

opposed the prosecution’s motion to try both cases

together and was tried and convicted on the conspiracy

charge. Subsequently, in a separate trial, he was found

guilty of engaging in a continuing criminal enterprise.

Jeffers received the maximum sentence for each convic-

tion, the second sentence to run consecutive with the

first sentence.

A plurality of this Court, after assuming that Section

848 requires proof of an agreement among the persons

involved in the continuing criminal enterprise, found

that Section 846 was a lesser included offense of Section

848. Nevertheless, the plurality held that Jeffers’ consti-

tutional right against double jeopardy had not been

violated by his successive prosecutions for a greater and

lesser included offense because he had waived this right

by opposing the prosecutor’s joinder motion. The

plurality did hold that, since the two offenses were the

same for double jeopardy purposes, the Fifth Amend-

ment barred consecutive sentences. 432 U.S. at 154-158.

The four dissenting Justices argued that a waiver had

1]

not taken place, and the double jeopardy clause had

been violated by two successive “same offense” prosecu-

tions. These Justices also agreed that cumulative punish-

ment was impermissible. 432 U.S. at 158-160.

In the third decision in this trilogy, Harris v.

Oklahoma, the defendant was first convicted of a

murder committed by his accomplice in the course of a

robbery under the felony-murder rule. He was subse-

quently tried and convicted on a separate information

charging the robbery. Relying on a state court finding

that, in a felony-murder case, the proof of the underly-

ing felony (robbery) is needed to prove the intent

necessary for a felony-murder conviction, this Court

held that the second prosecution violated the prohibition

against double jeopardy:

When, as here, convictiv.: for a greater

crime, murder, cannot be had without convic-

tion for the lesser crime, robbery with firearms,

the Double Jeopardy Clause bars prosecution

for the lesser crime after conviction for the

greater one. 433 U.S. at 682-683 (per curiam)

(footnote omitted).

When Brown, Jeffers, and Harris are read in conjunc-

tion it is clear that all nine Justices of this Court agree

on the fundamental principle that double jeopardy bars

a prosecution for a lesser included offense after trial for

the greater offense.

Whatever the sequence may be, the Fifth

Amendment forbids successive prosecution

* * * for a greater and lesser included offense.

Brown v. Ohio, supra at 169 (footnote

omitted).

1?

_

Rather than basing the petitioner’s liability for the

substantive offenses upon a distinct conspiracy, the

government chose to allege one massive conspiracy with

multiple objectives in count one and then use the same

conspiracy to enlarge the petitioner’s liability under

Pinkerton. The government alleged and consistently

argued that a single conspiracy existed. The trial court

held that the count one conspiracy was the same con-

spiracy upon which the petitioner’s liability for the

substantive offenses was based, and instructed the jury

that the proof required to convict the petitioner of the

substantive offenses included proof of his membership

in “the conspiracy alleged in Count One” (R. 396, 401:

TT. 2297, 2302).

Therefore, in proving the substantive offenses, the

Government necessarily was required to prove the count

one conspiracy. Applying the Blockburger test, the

count one conspiracy and the substantive offenses are

the “same offense” for double jeopardy purposes be-

cause each offense did not require proof of an addi-

tional fact which the other did not. Following the

teachings of this Court in Brown, Jeffers, and Harris,

the petitioner’s acquittals for the greater offenses charg-

ed in cofints two through seven bar his retrial on the

lesser included count one conspiracy.

The Fifth Circuit, instead of correctly applying this

Court’s lesser included double jeopardy trilogy, created

an erroneous artificial exception because the petitioner

had not been subjected to two independent prosecutions.

605 F.2d at 1367 (App. 14a-i5a). This distinction is

meaningless because the Brown-Jeffers-Harris principle

applies where greater and lesser included offenses are

charged in a single indictment. United States v. Bender,

606 F.2d 897 (9th Cir. 1979); United States v. Buckley,

13

586 F.2d 498 (Sth Cir. 1978), cert. denied, 440 U.S. 982

(1979). Furthermore, like the defendants in Brown, Jef-

Jers and Harris, the petitioner was subject to guilty con-

victions for all seven offenses — the lesser included

count one conspiracy and the greater substantive of-

fenses charged in counts two through seven. The peti-

tioner’s legal position was therefore distinguishable from

a defendant “who was tried on a murder charge and a

manslaughter count in the alternative.” 605 F.2d at 1368

(App. 15a). The decision of the Fifth Circuit thus

necessarily conflicts with the decisions of this Court in

Brown v. Ohio, Jeffers v. United States, and Harris v.

Oklahoma and with the decisions of the lower federal

courts cited above.

The Fifth Circuit has also misinterpreted this Court’s

opinions in Price v. Georgia, 398 U.S. 323 (1970), and

Green v. United States, 355 U.S. 184 (1957). In each of

those cases, this Court ruled that when a defendant is

acquitted of a greater offense but convicted on a lesser

offense and successfully appeals that conviction, he may

be retried for the lesser offense but not the greater.

“(T]his Court has consistently refused to rule that

jeopardy for an offense continues after an acquittal * *

* when the jury was given a full opportunity to return a

verdict on the greater charge.” Price v. Georgia, supra

at 329 (footnote omitted).

Likewise, once the petitioner was acquitted of the

greater offenses his jeopardy for the lesser included of-

fense terminated. The Fifth Circuit’s contention that the

petitioner “stands in a position identical to the defen-

dant in Price”, 605 F.2d at 1368 (App. 17a), turns that

decision on its head and ignores the Brown-Jeffers-

Harris lesser included double jeopardy principle.

14

In view of the failure of the Fifth Circuit to correctly

apply the Brown-Jeffers-Harris doctrine, it is necessary

for this Court to grant certiorari in this case so as to

reexamine the Pinkerton theory of vicarious criminal

liability in the light of these cases and to resolve the

double jeopardy issues presented here. A significant

number of federal prosecutions involve vicarious liability

based upon the Pinkerton theory. See, e.g., United

States v. Tilton, 610 F.2d 302, 309 (5th Cir. 1980);

United States v. Michel, 588 F.2d 986, 999 (Sth Cir.

1979), cert. denied, ___ U.S. ___., 100 S.Ct. 47 (1979);

United States v. Moreno, 588 F.2d 490, 493 (Sth Cir.

1979), cert. denied, 441 U.S. 936 (1979).

Under the Pinkerton theory, criminal liability radiates

out from the focal point or apex of the conspiracy like a

cone. The legal question of double jeopardy requires a

mirror-image or reverse consideration of Pinkerton: as

criminal liability radiates out from the conspiracy,

jeopardy focuses back to the conspiracy focal point or

apex. Fairness and logic dictate that the accused, having

been tried and acquitted on the substantive offense, can-

not be retried for the conspiracy which is the focal point

of the liability cone. An analogous legal question is

presently pending before this Court in Whalen v. United

States, Case No. 78-5471. In that case, this Court is faced

with the question of whether imposition of consecutive

sentences for a felony-murder and for the underlying

felony, following a single trial, violates double jeopardy.

The same considerations which warranted granting cer-

tiorari in that case militate in favor of granting cer-

tiorari in this case.

The Fifth Circuit’s decision here forces the petitioner

to “run the gauntlet twice” for the same offense.

15

Therefore, this Court must grant certiorari in this case

and, after further briefing and oral argument, reverse

the decision of the lower court so as to resolve any

doubt that when liability for the substantive counts of

an indictment is predicated solely upon a conspiracy

charged in a separate count, double jeopardy prohibits

retrial for the conspiracy after acquittal on the substan-

tive counts.

CONCLUSION

In view of the vital importance of the question

presented and the considerations set forth above, this

Court must grant this petition for writ of certiorari.

Respectfully submitted,

JAMES M. RUSS

Il. PAUL MANDELKERN

Russ & Mandelkern, P.A.

Tinker Building

18 West Pine Street

Orlando, Florida 32801

Telephone: (305) 849-6050

la

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Thomas 4. LARKIN,

Defendant-Appellant

No. 78-2124.

United States Court of Appeals,

Fifth Circuit.

Nov. 5, 1979.

Appeal from the United States District Court

for the Middle District of Flerida.

Before THORNBERRY, GOLDBERG and GEE,

Circuit Judges.

GOLDBERG, Circuit Judge:

This case involving the arcane principles of double

jeopardy and collateral estoppel is not susceptible of

bright-letter law or black-letter law; the areas are most

often gray, and dimly to be seen. Needless to say, one

entering this field must do so with trepidation.

As a result, the battles in these areas are pockmarked

by assaults, retreats, and advances. In both fields we

look for terrain that has been fought over, and cast our

eyes about for tactical maneuvers in order to discover

some grand design which really and in fact can fit the

particular case before us for judgment and disposition.

But we find no classic to compare to the Clausewitz of

military fame. We too are thus hesitant to enter the

2a

field, but we shall do so bravely. And, at analysis’ end,

we are confident that contemporary jurisprudence jus-

tifies our conclusion.

This action arose out of the bombing of a trucking

firm by members of a teamsters’ local which was engag-

ed in a labor dispute with the company. Appellant

Larkin was tried under an indictment which charged, in

essence, that Larkin and his co-conspirator, Parker, who

was president of the local, conspired to cover up

Parker’s involvement in the bombing.

The indictment consisted of thirteen counts, seven of

which are relevant to this appeal. Count one alleged that

Larkin and Parker violated 18 U.S.C.A. § 371' by con-

spiring to commit five illegal acts.? It charged that the

co-conspirators agreed to obstruct a criminal investiga-

'18 U.S.C.A. § 371 (West 1966), in pertinent part, provides the

following:

If two or more persons conspire either to commit any of-

fense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to ef-

fect the object of the conspiracy, each shall be fined not

ae — $10,000 or imprisoned not more than five years,

or Doth.

?Count one of the indictment is less than artfully drawn. It seems to

charge the formation of a conspiracy with three objects and allege the

commission of two crimes by the members of that conspiracy.

However, the parties have consistently treated the indictment as one

alleging a conspiracy with five objects. Moreover, our examination of

the record indicates that the trial court concurred in this interpreta-

tion. In light of this conduct by the court and the parties, and in the

absence of any claim by the defendant of prejudice created by the am-

biguity, we treat the indictment as alleging a conspiracy with five ob-

jects.

3a

tion in violation of 18 U.S.C.A. § 1510,3 to obstruct the

due administration of justice in violation of 18

U.S.C.A. § 1503,4 to suborn perjury in violation of 18

318 U.S.C.A. § 1510 (West Supp.1979) provides the following:

(a) Whoever willfully endeavors by means of bribergy,

misrepresentation, intimidation, or force or threats therof

to obstruct, delay, or prevent the communication of infor-

mation relating to a violation of any criminal statute of the

United States by any person to a criminal investigator; or

Whoever injures any person in his person or property on

account of the giving by such person or by any other per-

son of any such information to any criminal investigator —

Shall be fined not more than $5,000, or imprisoned not

more than five years, or both.

(b) As used in this section, the term “criminal in-

vestigator” means any individual duly authorized by a

department, agency, or armed force of the United States to

conduct or engage in investigations of or prosecutions for

violations of the criminal laws of the United States.

*18 U.S.C.A. § 1503 (West 1966) provides the following:

Whoever corruptly, or by threats of force, or by any

threatening letter or communication, endeavors to in-

- fluence, intimidate, or impede any witness, in any court of

the United States or before any United States commis-

sioner or other committing magistrate, or any grand or

petit juror, or officer in or of any court of the United

States, or officer who may be serving at any examination

or other proceeding before any United States commis-

sioner or other committing magistrate, in the discharge of

his duty, or injures any party or witness in his person or

property on account of his attending or having attended

such court or examination before such officer, commis-

sioner, or other committing magistrate, or on account of

his testifying or having testified to any matter pending

therein, or injures any such grand or petit juror in his per-

son or property on account of any verdict or indictment

assented to by him, or on account of his being or having

been such juror, or injures any such officer, commissioner,

or other committing magistrate in his person or property

on account of the performance of his official duties, or

da

U.S.C.A. § 1622,5 to embezzle funds of a labor

organization in violation of 29 U.S.C.A. § 501(c),® and

to falsify the records of a labor organization in violation

of 29 U.S.C.A. § 439(c).? Counts two through seven

alleged that Larkin and Parker committed the substan-

tive crimes of embezzling union funds and falsifying

union records. Larkin’s criminal responsibility under

these counts, however, was not based upon any actual

participation in the commission of the crimes, but was

instead premised upon the vicarious liability theory of

Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180,

90 L.Ed. 1489 (1946).8

corruptly or by threats or force, or by any threatening let-

ter or communication, influences, obstructs, or impedes,

or endeavors to influence, obstruct, or impede, the due ad-

ministration of justice, shall be fined not more than $5,000

or imprisoned not more than five years, or both.

°18U.S.C.A. § 1622 (West 1966) provides that “[W]hoever procures

another to commit any perjury is guilty of subornation of perjury, and

shall be fined no more than $2,000 or imprisoned not more than five

years, or both.”

°18 U.S.C.A. § 501(c) (West 1975) provides the following:

(c) Any person who embezzles, steals, or unlawfully and

willfully abstracts or converts to his own use, or the use of

another, any of the moneys, funds, securities, property, or

other assets of a labor organization of which he is an of-

ficer, or by which he is employed, directly or indirectly,

shall be fined not more than $10,000 or imprisoned for not

‘more than five years, or both.

729 U.S.C.A. § 439(c) (West 1975) provides that “[aJny person who

willfully makes a false entry in or willfully conceals, withholds, or

destroys any books, records, reports, or statements required to be

kept by any provision of this subchapter shall be fined not more than

$10,000 or imprisoned for not more than one year, or both.”

*The indictment on its face does not indicate that Larkin’s liability

under counts two through seven is vicarious. However, the Govern-

ment concedes that these charges are based on Pinkerton v. United

States, supra, which held that a conspirator is liable for the criminal

Sa

From the Government’s standpoint, the trial was less

than successful. Larkin was acquitted by the jury on

counts two through seven. As to Larkin’s culpability

under count one, the jury was “hopelessly deadlocked”

and, as a result, the trial court sua sponte declared a

mistrial as to this count without objection by either

party.

Subsequently, the Government notified the court

and Larkin that it intended to retry the defendants

under count one. In response to this notice, Larkin fil-

ed a motion to dismiss, claiming that a retrial on the

conspiracy charge would constitute double jeopardy in

light of his acquittal on ccounts two through seven, the

Pinkerton vicarious liability counts. From the trial

court’s denial of this motion, Larkin appeals. '°

In support of his double jeopardy claim, the appellant

presses two contentions. First, he contends that the con-

spiracy charged in count one is a lesser included offense

of counts two through seven, the counts predicated

upon vicarious liability. Accordingly, he argues, his ac-

acts Of his co-conspirator it those acts are committed during the

course of, and in furtherance of the conspiracy, and are reasonably

foreseeable as a necessary or natural consequence of the conspiracy.

Moreover, it is evident from the record that the district court tried

these counts under this theory. Accordingly, we treat them as Pinker-

ton, vicarious liability charges.

*Three other counts of the indictment charged Larkin with liability

as a principal under 18 U.S.C.A. § 2 for the crimes of embezzlement

of union funds and falsification of union records. The jury was also

deadlocked as to these counts. Although the Government intends to

retry Larkin under these charges also, they are not pertinent to this ap-

peal, for Larkin does not raise any double jeopardy claim with respect

to them.

'°We have jurisdiction under Abney v. United States, 431 U.S. 651,

97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), which allows an interlocutory

appeal from a trial court order denying a defendant’s double jeopardy

claim.

6a

quittal on the greater charges precludes his retrial on the

lesser charge. Second, Larkin argues that the collateral

estoppel principles engrafted upon the double jeopardy

clause by Ashe v. Swenson, 397 U.S. 436, 90 S.Ct.

1189, 25 L.Ed.2d 469 (1970), prevents the retrial of the

conspiracy count because, in acquitting him of the

Pinkerton vicarious liability charges, the jury must have

found that the defendant was not a member of a con-

spiracy with Parker. We address each contention in

turn.

I

Larkin argues that the conspiracy charged in count

one of the indictment is a lesser included offense of the

offenses charged in counts two through seven, the

Pinkerton vicarious liability counts. As a result of his

acquittal on the greater charges, the Pinkerton counts,

Larking contends that he may not be retried on the con-

spiracy count, the lesser included offense. To establish

the validity of this argument, Larkin asks us to compare

a trio of recent Supreme Court double jeopardy cases —

Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53

L.Ed.2d 187 (1977); Jeffers v. United States, 432 U.S.

137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); and Harris

v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d

1054 (1977) — with Pinkerton v. United States, 328

U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the case

which established the purported relationship between the

conspiracy and vicarious liability counts. Accordingly,

we now turn to an examination of this precedent.

In Brown, supra, the defendant’s double. jeopardy

claim derived from the fact that he was twice prosecuted

for stealing a car from a parking lot in East Cleveland,

Ohio. In the first prosecution, the defendant pleaded

~

/a

guilty to the crime of joyriding,'' and was sentenced to

thirty days in jail and fined one hundred dollars. Subse-

quently, the defendant was prosecuted and convicted of

auto theft.'? The Supreme Court was confronted with

the defendant’s claim that this second prosecution

violated the fifth amendment prohibition against double

jeopardy.

The Court’s disposition of this double jeopardy con-

tention depended upon the answer to the threshold ques-

tion whether Brown’s separate trials, arising out of the

single auto theft, constituted successive proceedings

against him “for the same offense” within the meaning

of the double jeopardy clause.'? To determine whether

the two offenses, joyriding and auto theft, were suffi-

ciently distinguishable to permit successive prosecutions,

the Court applied the Blockburger test: '4

''The crime of joyriding was established by Ohio Rev.Code Ann. §

4549.04(D) (1973) which provided that “[nJo person shall purposely

take, operate, or keep any motor vehicle without the consent of its

owner.” Brown, supra, 432 U.S. at 162 n. 1, 97 S.Ct. at 2223 n. l.

'?This prosecution was conducted under Ohio Rev.Code Ann. §

4549.04(A) (1973) which provided that “[nJo person shall steal any

motor vehicle.” Brown, supra, 432 U.S. at 163, n. 2, 97 S.Ct. at

2224 n. 2.

''The double jeopardy clause of the fifth amendment provides that

no person shall “be subject for the same offence to be twice put in

jeopardy of life or limb.” It is applicable to the states through the

fourteenth amendment. Benton y. Maryland, 395 U.S. 784, 89 S.Ct.

2056, 23 L.Ed.2d 707 (1969).

'*The Blockburger test derives from Blockburger v. United States,

284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), a case in which a

potential double jeopardy violation was created by the imposition of

cumulative punishments for one criminal occurrence. The Court in

Brown made it clear that the Block burger test is applicable also to suc-

cessive prosecutions:

If two offenses are the same under this test for purposes

of barring consecutive sentences at a single trial, they

8a

“The applicable rule is that where the same act

or transaction constitutes a violation of two

distinct statutory provisions, the test to be ap-

plied to determine whether there are two of-

fenses or only one, is whether each provision

requires proof of a fact which the other does

we 6c:

Brown, supra, 432 U.S. at 166, 97 S.Ct. at 2225,

quoting Blockburger v. United States, 284 U.S. 299,

304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Examining the

elements of the two crimes, the Court concluded that

joyriding and auto theft were the’“same offence” for the

purposes of the double jeopardy clause:

As is invariably true of a greater and lesser in-

cluded offense, the lesser offense — joyriding

— requires no proof beyond that which is re-

quired for conviction of the greater — auto

theft. The greater offense is therefore by

definition the “same” for purposes of double

jeopardy as any lesser offense included in it.

Id. at 168, 97 S.Ct. at 2226. Since the crimes constituted

a single offense for double jeopardy analysis, the defen-

dant’s second prosecution and conviction were pro-

hibited. '5

necessarily will be the same for purposes of barring suc-

cessive prosecutions. . . . Where the judge is forbidden to

impose cumulative punishment for two crimes at the end

of a single proceeding, the prosecutor is forbidden to strive

for the same result in successive proceedings.

Brown, supra, 432 U.S. at 166, 97 S.Ct. at 2225-26.

'SThe Court considered it to be of no import that the defendant had

been convicted of the lesser offense: “Whatever the sequence may be,

the Fifth Amendment forbids successive prosecution and cumulative

punishment for a greater and lesser included offense.” Brown, supra,

432 U.S. at 169, 97 S.Ct. at 2227 (footnote omitted); see Jeffers,

supra, 432 U.S. at 151, 97 S.Ct. 2207 (plurality opinion).

9a

The applicability of the Blockburger test to multiple

prosecutions was reaffirmed by the Court’s analysis in

Jeffers, supra. The two proceedings in Jeffers arose

from the defendant’s leadership of a massive narcotics

distribution network in Gary, Indiana. The first indict-

ment returned against the defendant charged a con-

spiracy to distribute heroin and cocaine in violation of

21 U.S.C.A. § 846.'* In a second and separate indict-

ment, the defendant was charged with conducting a con-

tinuing criminal enterprise to violate the drug laws in

violation of 21 U.S.C.A. § 848.'7 Prior to trial, the

Government sought joinder of the charges under

‘621 U.S.C.A. § 846 (West 1972) provides that “[aJny person who

attempts or conspires to commit any offense defined in this sub-

chapter is punishable by imprisonment or fine or both which may not

exceed the maximum punishment prescribed for the offense, the com-

mission of which was the object of the attempt or conspiracy.”

'721 U.S.C.A. § 848 (West 1972) provides, in pertinent part, the

following:

(a)(1) Any person who engages in a continuing criminal

enterprise shall be sentenced to a term of imprisonment

which may not be less than 10 years and which may be up

to life imprisonment, to a fine of not more than $100,000,

and to the forfeiture prescribed in paragraph (2).

(b) For purposes of subsection (a) of this section, a per-

son is engaged in a continuing criminal enterprise if—.

(1) he violates any provision of this subchapter of sub-

chapter II of this chapter the punishment for which is a

felony, and,

(2) such violation is a part of a continuing series of viola-

tions of this subchapter of subchapter II of this chapter —

(A) which are undertaken by such person in concert with

five or more other persons with respect to whom such per-

son occupies a position of organizer, a supervisory posi-

tion, or any other position of management, and,

(B) from which such person obtains substantial income

or resources.

10a

Fed.R.Crim.P. 8. Because the defendant successfully op-

posed this joinder, the two indictments were tried in dif-

ferent proceedings. At the first trial, the defendant was

found guilty on the section 846 charge, and at the sec-

ond trial, he was convicted of the section 848 offense.

Contending that the section 846 conspiracy was a lesser

included offense of section 848, the defendant asserted

that this second prosecution violated the doubie jeopar-

dy clause.

In analyzing this claim, the Court assumed, “arguen-

do, that § 848 does require proof of an agreement

among the persons involved in the continuing criminal

enterprise.” Jeffers, supra, 432 U.S. at 149-50, 97 S.Ct.

at 2216 (footnote omitted (plurality opinion). The Court

then applied the Blockburger test and found that section

846 was a lesser included offense of section 848 because

of the requirement in section 848(b)(2)(A) of action in

concert: “So construed, § 846 is a lesser included offense

of § 848, because § 848 requires proof of every fact

necessary to show a violation under § 846 as well as

proof of several additional elements.” /d. at 150, 97

S.Ct. at 2216 (plurality opinion). Despite this finding,

however, the Court refused to reverse the defendant’s se-

cond conviction. Instead, it held that the defendant’s op-

position to the Government’s joinder motion constituted

a waiver of his normal entitlement “to have charges on a

greater and a lesser offense resolved in one proceeding .

.. +” dd. at 152, 97 S.Ct. at 2217 (plurality opinion).

Harris, supra, presented a factual pattern similar to

those of Brown and Jeffers. During a robbery, the

defendant’s co-felon shot and killed a grocery store

clerk. Subsequent to the defendant’s conviction of

felony-murder for his participation in the robbery and

lla

the resulting slaying, the defendant was convicted of

robbery with firearms. Relying on a state court finding

that “ ‘{iJn a felony murder case, the proof of the

uhderlying felony [here robbery with firearms] is needed

to prove the intent necessary for a felony murder con-

viction,’ ” id., 433 U.S. at 682, 97 S.Ct. at 2912 (per

curiam), the Court held that the second prosecution

violated the prohibition against double jeopardy: “When

as here, conviction of a greater crime, murder, cannot

be had without conviction of the lesser crime, robbery

with firearms, the Double Jeopardy Clause bars pro-

secution for the lesser crime after conviction of the

greater one.” /d. (footnote omitted) (per curiam).

Against this background of double jeopardy prece-

dent, the appellant asks us to examine the relationship

between a conspiracy charge and an accompany-

ingPinkerton vicarious liability charge. We thus turn our

attention to Pinkerton v, United States, 328 U.S. 640,

66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

Walter and Daniel Pinkerton, brothers and co-con-

spirators in crime, were indicted for violations of the In-

ternal Revenue Code. The indictment consisted of one

conspiracy and ten substantive counts. Each brother was

convicted under the conspiracy count and some of the

substantive counts.

On appeal the defendants argued that these dual con-

victions constituted double jeopardy because some of

the overt acts alleged in the conspiracy count were the

substantive crimes of which they had been convicted.

The defendants therefore contended that the substantive

counts became merged in the conspiracy count. Rejec-

ting this contention, the Court stated that “[i]t has been

long and consistently recognized by the Court that the

12a

commission of the substantive offense and a conspiracy

to commit are separate distinct offense.” Pinkerton,

supra, 328 U.S. at 643, 66 S.Ct. at 1182. Thus, “[a] con-

viction for the conspiracy may be had though the

substantive offense was completed. . . . And the plea of

double jeopardy is no defense to a conviction for both

offenses.” /d. The Court further observed that “{i]t is

not material that overt acts charged in the conspiracy

counts were also charged and proved as substantive of-

fenses. . . The agreement to do an unlawful act is even

then distinct from the doing of the act.” /d. at 644, 66

S.Ct. at 1182 (footnote omitted).

Daniel Pinkerton also contended that he could not be

convicted of the substantive crimes since those acts were

committed by Walter only.'* The Court rejected this

claim too:

The criminal intent to do the act is established

by the formation of the conspiracy. Each con-

spirator instigated the commission of the crime.

The unlawful agreement contemplated precisely

what was done. It was formed for the purpose.

The act done was in execution of the enter-

prise.

Id. at 647, 66 S.Ct. at 1184. Thus, Daniel was held to

be vicariously liable for the acts of his brother, Walter.

Appellant Larkin examines the relationship between a

conspiracy count and a Pinkerton vicarious liability

count in terms of the Blockburger test as approved and

applied in Brown, Jeffers, and Harris. He notes that the

existence of the conspiracy between him and Parker is a

sine qua non to a finding of liability under the vicarious

liability counts. From this fact, he argues that the count

'$Daniel was in prison at the time of Walter’s commission of the

crimes. Pinkerton, supra, 328 U.S. at 648, 66 S.Ct. 1180 (dissenting

opinion).

13a

One conspiracy offense is a lesser included offense of the

substantive counts since every element of the former

charge must be proved to establish the latter offense.

Given this relationship between the counts, he argues

that a retrial on the lesser offense, the conspiracy

charge, would violate the double jeopardy clause,

because he has already been tried and acquitted of the

greater offense, the Pinkerton vicarious liability counts.

Like the appellant, we find it somewhat difficult to

square Pinkerton with the double jeopardy cases discuss-

ed supra.'® The most difficult task of reconciling these

'9There are three facets of Pinkerton which might bear double

jeopardy analysis. First, there is the proposition that a conspiracy to

commit an act and the commission of that illegal act are distinct

crimes, and, as a result, cumulative punishment imposed on the con-

spirator who committed the act is not improper under the double

jeopardy clause. The argument that the double jeopardy holding of

Pinkerton related solely to this Proposition is supported by much of

the opinion’s language, see Slip op. pp. 912-913, pp. :

supra, and by the Supreme Court’s characterization of the Pinkerton

double jeopardy holding in Jannelli v. United States, 420 U.S. 770, 95

S.Ct. 1284, 43 L.Ed.2d 616 (1975):

[t]he conspiracy to commit an offense and the subsequent

commission of that crime normally do not merge into a

single punishable act. Pinkerton v.:United States, supra,

328 U.S., at 643, 66 S.Ct., at 1181. Thus, it is well

recognized that in most cases separate sentences can be im-

posed for the conspiracy to do an act and for the subse-

quent accomplishment of that end.

Id. at 777-78, 95 S.Ct. at 1290; see id. at 781-82, 95 S.Ct. 1284.

Second, there is the principle that a conspirator’s agreement to com-

mit a crime renders him liable for his co-conspirator’s commission of

that crime. Third, there is the rule that a conspirator who agrees to

commit crime X may sometimes be held liable for crime Y committed

by his co-conspirator. It is unclear to what extent the double jeopardy

language in Pinkerton applies to these two vicarious liability situa-

tions. Moreover, Harris, supra, may necessitate a reexamination of

Pinkerton’s double jeopardy reasoning. In view of our disposition of

this case, see infra, we need not examine the scope of Pinkerton’s

holding, or the extent, if any, to which Pinkerton has been modified

by Harris.

c

ee ESE SEE nS OT SS A ee ee eee eee

14a

cases is presented by Harris, supra, for the relationship

between its felony murder count and the underlying

charge, robbery with firearms, seems to be quite

analogous to the connection between a Pinkerton

vicarious liability count and the underlying conspiracv

charge. Just as the intent necessary to prove felony

murder was provided by the robbery with firearms

charge in Harris, see 433 U.S. at 682, 97 S.Ct. 2912, the

intent to establish Larkin’s liability for the acts of his

co-conspirator is supplied by the conspiracy charge. See

Pinkerton, supra, 328 U.S. at 647, 66 S.Ct. 1180. Just

as Harris’s participation in a robbery created his liability

for the shot of his partner, Larkin’s formation of a con-

spiracy with Parker established Larkin’s liability for

Parker’s embezzlement of union funds and falsification

of union records. It would therefore appear that under

Harris, the conspiracy charged against Larkin is a lesser

included offense of the Pinkerton vicarious liability of-

fenses, counts two through seven.

However, because of the procedural posture of

this case, we need not make such a determination. Even

if we assume that the conspiracy charge is contained in

the vicarious liability counts, Larkin’s double jeopardy

right will not be violated by the retrial of the conspiracy

count.

In Brown, Jeffers, and Harris, the defendants had

been subjected to two independent proceedings. In each

cases, trial on either the greater or the lesser charge was

followed by a prosecution of the other offense in a

separate proceeding. In contrast, Larkin was subjected

to only one trial in which the conspiracy and vicarious

liability counts were tried simultaneously.2° Thus, even

20The Government argues that Brown, Jeffers, and Harris are

distinguishable from the instant case because in each of those cases a

retrial on either the greeter or the lesser offense followed a conviction

15a

assuming the validity of Larkin’s argument that the con-

spiracy charge is a lesser included offense of the Pinker-

ton vicarious liability counts, Larkin’s position is in-

distinguishable from a defendant who was tried on a

murder charge and a manslaughter count in the alter-

native. Such simultaneous jeopardy for greater and

lesser included offenses is clearly proper.?' See Jeffers,

supra, 432 U.S. at 152 & n. 20, 97 S.Ct. at 2217 & n. 20

(“a defendant is normally entitled to have charges on a

greater and a lesser offense resolved in one proceeding”)

(plurality opinion).

on the other charge, whereas in this case there was a judgment of ac-

quittal on the purported greater offense.

We have serious doubts about the validity of the Government’s con-

clusion. In Brown and Jeffers the Court stated that the order of the

two trials on the greater and lesser offenses was irrelevant for double

jeopardy purposes. See n. 15 supra. In reaching this conclusion, the

Court placed great stress on the fact that the double jeopardy clause

not only prohibits the imposition of double punishment for the same

offense, but also prevents the incurable injury caused a defendant who

must run the gauntlet twice for the same offense. See Jeffers, supra,

432 U.S. 150-51 & nn. 17 & 18, 97 S.Ct. 2207; Brown, supra, 432 U.S.

at 165-66, 97 S.Ct. 2221. Reprosecution on a lesser offense in a second

trial after an acquittal on the greater charge in the first would seem to

cause such an injury because “[t]he risk of conviction on the greater

means nothing more than a risk of conviction upon proof of all the

elements of the lesser plus proof of the additional elements needed for

the greater.” Jeffers, supra, 432 U.S. at 151 n. 17, 97 S.Ct. at 2216 n.

17; accord, United States v. Tsanas, 572 F.2d 340, 345 n. 6 (2d Cir.),

cert. denied, 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84 (1978). In

any event, due to our disposition of this case, we leave consideration

of this issue to another day.

2\If Larkin had been convicted of the conspiracy count and the

vicarious liability charges, and cumulative sentences had been impos-

ed, or if he had requested, and had been denied, a jury instruction on

lesser included offenses, we would be forced to reach the question

whether the conspiracy charge was a lesser included offense of the

Pinkerton vicarious liability offenses. See Jeffers, supra, 432 U.S. at

153-55, 97 S.Ct. 2207. Since neither event occurred, however, the issue

is not properly before us.

l6a

Furthermore, the fact that the jury in Larkin’s trial

acquitted him of the Pinkerton counts and hung on the

conspiracy charge, thereby causing a mistrial as to the

latter count and allowing the Government to retry the

conspiracy charge, does not dictate a different result. It

is of course axiomatic that Larkin may not be retried on

the charges of which he was acquitted. See Price y.

Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300

(1970); Green v. United States, 355 U.S. 184, 78 S.Ct.

221, 2 L.Ed.2d 199 (1957). However, it is equally well

settled that a defendant may be retried on a lesser of-

fense, of which he was convicted at an initial trial, after

that conviction was reversed on appeal; and that that

result obtains even though the first trial also resulted in

a verdict of acquittal on a greater offense. ‘See Price,

supra, 398 U.S. at 326-27, 90 S.Ct. 1757. In Price the

defendant had been tried simultaneously on murder and

manslaughter charges and had been convicted of the

lesser offense. The defendant successfully appealed that

conviction, and the judgment was reversed. In reversing

a murder conviction obtained in a second trial, on the

ground that the acquittal on that charge in the first trial

barred its reprosecution, the Court made it clear that a

retrial on the manslaughter charge was proper:

[A] concept of continuing jeopardy . . . has ap-

plication where criminal proceedings against an

accused have not run their full course. . .

The continuing jeopardy principle necessarily

is applicabie to this case. Petitioner sought and

obtained the reversal of his initial conviction

for voluntary manslaughter by taking an ap-

peal. Accordingly, no aspect of the bar on dou-

ble jeopardy prevented his retrial for. that

crime.

OO rt

17a

Larkin stands in a position identical to the de-

fendant in Price. tt is clear that the concept of contin-

uing jeopardy normally applies to a mistrial caused by

a deadlocked jury.?? See, e.g., United States v. Sanford,

429 U.S. 514, 97 S.Ct. 20, 50 L.Ed.2d 17 (per curiam);

Downum yv. United States, 372 U.S. 734, 736, 83 S.Ct.

1033, 10 L.Ed.2d 100 (1963); Green, supra, 355 U.S. at

188, 78 S.Ct. 221. Furthermore, an acquittal on a

greater offense does not preclude a retrial on a lesser of-

fense to which continuing jeopardy has attached, and

this result obtains whether the applicability of continu-

ing jeopardy results from an appellate reversal of a con-

viction as in Price or from a mistrial caused by a

deadlocked jury. Accord, United States v. Scott, 150

U.S.App.D.C. 323, 464 F.2d 832 (D.C.Cir.1972);

Forsberg v. United States, 351 F.2d 242 (9th Cir. 1965),

cert. denied, 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d

212 (1966). Therefore, Larkin may be retried on the

conspiracy charge unless the principles of collateral

estoppel dictate a different result, an issue to which we

now turn our attention. 23

?2The appellant does not contend that prosecutorial abuse created

the mistrial. Nor does he argue that the mistrial was declared by the

trial court under an aberrant procedure. Therefore, cases such as

United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543

(1971); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10

L.Ed.2d 100 (1963); United States v. Gordy, 526 F.2d 631 (Sth Cir.

1976); and Webb v. Court, 516 F.2d 1034 (3d Cir. 1975), are inap-

posite.

?3The protection afforded a defendant by the collateral estoppel

principles of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25

L.Ed.2d 469 (1970) is additional to that accorded by the Blockburger

test. See Brown, supra, 432 U.S. at 166 n. 6, 97 S.Ct. 2221.

18a

Il

Collateral estoppel does not have the surgical pre-

cision found in double jeopardy, for its basics are

founded in equity and therefore command some flex-

ibility. Collateral estoppel need not be composite or

synoptic in application, but instead can apply to a single

element of a trial.

Since collateral estoppel can apply to a phase, an issue

of fact, or congeries of fact with respect to a second

trial, to determine its applicability to this multi-count,

multi-issued criminal trial, we must examine the many

parts, while we keep in view the whole. The intelligent

application of collateral estoppel requires that we

atomize the charges; we must examine the various

counts, the testimony, the jury’s verdict. Each requires a

parsing in comparison with the other in order to come

to a conclusion whether or not collateral estoppel is ap-

plicable to one or more of the issues which are to be

covered in the second trial.

The complicating factors here are the multicount in-

dictment in the first trial, the inability of the jury to

agree, and the findings by the jury of not guilty with

respect to some aspects of the charges. But these com-

plicating elements and components do not relieve us of

our judicial duty to determine whether collateral estop-

pel is applicable to one or more of the components in-

volved. 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. The

geodetics required of us is not an easy one; we must ex-

amine the record with great care.

Larkin contends that the collateral estoppel principles

enunciated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct.

On A CN Os Tt i te

REESE eee ee SE ERS REN ETON TRE NG OMEN See or rep mee me eT

19a

1189, 25 L.Ed.2d 469 (1970), prevent the retrial of the

count one conspiracy charge. He argues that the jury’s

judgment of acquittal on counts two through seven, the

Pinkerton vicarious liability counts, necessarily rested on

its finding that Larkin was not the member of a con-

spiracy with Parker. Since that fact has been determined

adversely to the Government, he argues, the prosecution

may not retry count one. We agree with him only to the

extent that count one charges a conspiracy to embezzle

union funds and falsify union records.

In Ashe, supra, the Supreme Court held that the

double jeopardy clause embodies principles of collateral

estoppel, and, as a result, the Government may not

relitigate issues of fact that had been decided in the

defendant’s favor in a previous prosecution. The Court

stated that the double jeopardy clause mandates the

following inquiry:

Where a previous judgment of acquittal was

based on a general verdict as is usually the case,

this approach requires a court “to examine the

record of a prior proceeding, taking into ac-

count 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 defen-

dant 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.”

Id. at 444, 90 S.Ct. at 1194 (footnote Omitted).

Larkin wishes to foreclose from consideration in a se-

cond trial the issue whether he was a member of a con-

20a

spiracy with Parker.?* We need not engage in an exten-

sive search to determine whether the jury’s verdict of ac-

quittal on the vicarious liability counts necessarily rested

on its conclusion that Larkin was not the member of a

conspiracy with Parker, for the jury that rendered this

judgment also hung on count one, the conspiracy count.

No rational jury could have absolved Larkin of liability

for Parker’s crimes because of the absence of a con-

spiracy between the two, while it simultaneously failed

to acquit Larkin on the conspiracy charge itself. The

jury’s verdict must have rested elsewhere.?5 Accord,

United States v. Scott, 150 U.S.App.D.C. 323, 464 F.2d

832 (D.C.Cir.1972) (jury’s deadlock on robbery count

indicates that judgment of acquittal on armed robbery

count was not based on finding that defendant was not

a robber).

This obvious interpretation of the jury’s verdicts

on the various counts does not end our task, however,

for the Government wishes to retry Larkin on count one

which still charges him with conspiring to embezzle

union funds and falsify union records. The Government

proposes this reprosecution despite the first jury’s

refusal to find that Larkin was vicariously liable for the

commission of those crimes. We must determine

24Larkin contends that count one in toto cannot be retried, and thus

we discuss here the foreclosure of retrial on that count insofar as it

alleges any conspiracy with Parker — one entered into to accomplish

any of the five purposes listed in count one. The fact that the con-

spiracy count charges a conspiracy specifically to embezzle union

funds and falsify union records deserves distinctive treatment, and we

therefore focus particularly on those objects infra.

25We note that the record is almost totally devoid of evidence link-

ing Larkin in any way to the embezzlement and subsequent coverup in

the union’s records and that, most likely, the acquittal occurred

because of this insufficiency of evidence.

ee AUR ree RD ates one

IAT ee BEE CE IOP RES TOL ce lo mt I owe

2la

whether the jury’s not guilty verdict on counts two

through seven precludes Larkin’s retrial on the theory

that he conspired to commit these crimes.?°

Our first task under Ashe, supra, is to pinpoint the

issues which the jury deliberated in judging Larkin’s

culpability under counts two through seven. Then we

must determine the issue or issues upon which the jury

could rationally have rested its verdict of acquittal.

Our examination of the record, with particular

reliance upon the indictment and the charge to the jury,

leads us to discern four potential bases for the jury’s

conclusion. The jury might have found that Larkin did

not conspire with Parker; that Parker did not commit

the crimes of embezzlement or ecord falsification during

the existence of the conspiracy; that Parker did not

commit those crimes in furtherance of the alleged con-

spiracy with Larkin; or that Larkin did not foresee that

Parker would commit those crimes as a necessary or

natural result of the conspiracy between the two.

We have shown supra that the jury did not acquit on

the vicarious liability charges because of a finding that

Larkin and Parker did not conspire.?’? Furthermore, the

fact that Parker committed the crimes during the course

of the alleged conspiracy was amply established by ex-

26Collateral estoppel may be applied to one count of a multi-count

indictment, or to one part of a single count. See United States v.

Mespoulede, 597 F.2d 329, 334-35, 336-37 (2d Cir. 1979); cf.

Blackburn v. Cross, 510 F.2d 1014 (5th Cir. 1975) (application of col-

lateral estoppel to evidentiary fact of prior convictions); Wingate v.

Wainwright, 464 F.2d 209, 212-15 (Sth Cir. 1972) (same).

27We observe again that here we are discussing the existence of a

conspiracy vel non, entered into for any of the five purposes listed in

count one, as distinguished from a conspiracy with the particular ob-

jects of embezzlement and falsifying union records.

22a

tensive direct testimony and documentary evidence none

of which was controverted by the appellant. No rational

jury could have reached a verdict of acquittal on this

basis either. See Ashe, supra, 397 U.S. at 438, 444-45 &

n. 9, 90 S.Ct. 1189.28 Accordingly, the jury must have

believed either that Parker did not commit the crimes of

embezzlement and record falsification in furtherance of

a conspiracy with Larkin, or that Larkin did not foresee

that Parker would embezzle and falsify records.

Under either of these alternative grounds for the

jury’s verdict of acquittal on counts two through seven,

retrial of a conspiracy to embezzle funds or falsify

union records is foreclosed. At the proposed second

trial, the Government would have to show that Larkin

and Parker agreed to embezzle union funds and to

falsify union records. If Larkin and Parker agreed to

commit those acts, it must necessarily be true both that

the commission of those crimes would b e foreseeable to

Larkin and that the crimes were committed by Parker in

furtherance of a conspiracy between him and Larkin.

However, the first jury’s acquittal necessarily means that

at least one of those factual propositions has been de-

cided adversely to the Government. Accordingly, Larkin

28The Court approvingly quoted the following statement:

“If a later court is permitted to state that the jury may have

disbelieved substantial and uncontradicted evidence of the

prosecution on a point the defendant did not contest, the

possible multiplicity of prosecutions is staggering. * * * In

fact, such a restrictive definition of ‘determined’ amounts

simply to a rejection of collateral estoppel, since it is im-

possible to imagine a statutory offense in which the gov-

ernment has to prove only one element or issue to sustain a

conviction.”

Ashe, supra, 397 U.S. at 444 n. 9, 90 S.Ct. at 1194-95 n. 9, quoting

Mayers & Yarborough, Bis Vexari: New Trials and Successive Pro-

secutions, 74 Harv.L.Rev. 1, 38-39 (1960).

ee ee

23a

may not be retried for conspiring to embezzle union

funds or to falsify union records. The district court is

directed to strike from the indictment that portion of

count one which charges Larkin with conspiring to at-

tain those purposes.

AFFIRMED in PART: REVERSED in PART.

24a

APPENDIX B

UNITED STATES of America,

Plaintiff-Appellee,

v.

Thomas A. LARKIN,

Defendant-Appellant.

No. 78-2124.

United States Court of Appeals,

Fifth Circuit.

Feb. 8, 1980.

Appeal from the United States District Court

for the Middle District of Florida

ON PETITION FOR REHEARING

AND PETITION FOR REHEARING

EN BANC

(Opinion November 5, 1979, 5 Cir.,

1979, 605 F.2d 1360).

_ Before THORNBERRY, GOLDBERG and GEE,

Circuit Judges.

GOLDBERG, Circuit Judge.

The appellant’s petition for rehearing is denied. The

appellee’s petition for rehearing is granted.

In our initial opinion, reported at 605 F.2d 1360, we

held that Larkin could not be retried under count one

for conspiring to embezzle union funds and falsify

union records because his acquittal under counts two

25a

through seven precluded such a retrial. Rather belatedly,

the Government has designed to inform the court that

Larkin’s potential criminal liability for conspiring to

embezzle union funds and falsify union records rests not

only on the acts that form the premise of counts two

through seven, but also on the acts that constitute the

basis for counts eight through ten. After again carefully

reviewing the massive record of this case, we conclude

that the Government’s argument is sound.

f

In counts two through seven the Government charged

that Parker paid union funds to two union members,

Johnson and Wright, for work not actually performed.

Larkin was charged, and acquitted, of vicarious liability

for the payment and hiding of these monies. In contrast,

in counts eight through ten Larkin was charged with

responsibility for the issuance of checks drawn against

union funds for legal services not performed. Because

the jury failed to reach a verdict on these counts, Larkin

can be retried under them. As our initial opinion

discussed, the jury’s acquittal on counts two through ,

seven precludes retrial of Larkin for conspiring to

embezzle union funds and falsify union records in the

manner alleged in counts two through seven. However,

the jury’s deadlock on counts eight through ten does not

preclude retrial of Larkin for conspiring to embezzle

union funds and falsify union records in the manner

alleged in counts eight through ten. Accordingly, we

withdraw the last two sentences of our opinion and

substitute the following:

“Accordingly, Larkin may not be retried for conspiring

to embezzle union funds or to falsify union records by

means of the scheme which forms the basis for counts

two through seven. The district court is directed to

strike from the indictment that portion of count one

26a

which charges Larkin with conspiring to attain those

purposes. Specifically, the district court is directed to

strike overt acts 28, 29, 30, 31, and 41 from count one

of the complaint. The district court is further directed

to determine whether any of the other overt acts alleged

in count one relate to the actions forming the basis for

counts two through seven. The district court should

focus particularly, but not exclusively, on overt acts 16,

17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27. Any overt

acts which relate to counts two through seven are also to

be stricken from the complaint.”

No member of this panel nor Judge in regular active

service on the Court having requested that the Court be

polled on rehearing-en banc, (Rule 35 Federal Rules of

Appellate Procedure; Local Fifth Circuit Rule 12) the

Petition for Rehearing En Banc is DENIED.

AFFIRMED in PART, REVERSED in PART.