Opposition Brief — Quintero v. United States

No. 99-39 Ville OF THO BLERM

In the Supreme Court of the Anited States

FRANK QUINTERO, JR., PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

JOSEPH C, WYDERKO

Attorney

Departine nt of Justice

Washington, D.C. 20580-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether, in applying the collateral estoppel prin-

ciple of double jeopardy analysis, a court seeking to

identify the basis for the jury’s acquittal on one count

may draw inferences from the jury’s inability to agree

on a verdict on another count containing the same ele-

ment.

2. Whether, consistent with the Constitution and res

judicata principles, when a jury is unable to reach a

verdict on particular counts, the government may ob-

tain a superseding indictment that adds new counts

that arise out of the same criminal conduct.

(I)

EE

ee

TABLE OF CONTENTS

Page

SEP TIIIIIION stistininsescseisnsnnnsasdcinsetecmnasrimmmnsemmnesnstemmmmanmeanenertt 1

ITIL sdeitaiteniinanitatuamssemmanndipsbveetaneeneniviniampuremetsengmeevanseseseee l

Ea l

I laid aciacheditdiledceabeirinesdtehbivaphineedmiantmieomneiuanesedmeneaeet 7

STITT tidusitetahiatdntennutestaseptantenitioneessscsprereqperineanenrensnesserecsccesteren 20

TABLE OF AUTHORITIES

Cases:

Ashe v. Swenson, 397 U.S. 436 (1970) ......ccccccccesccessererereees 8,9

Blockburger v. United States, 284 U.S. 299 (1932) .......... 16

Brown ¥. Ohio, 482 U.S. 161 (1977) ...ccccccvsccssccsesceossesseeerens 16, 17

Dowling v. United States, 493 U.S. 342 (1990) ........... 8, 10, 12

Grady v. Corbin, 495 U.S. 508 (1990) .......cccccccesseeeeeeeeneees 17

Jeffers v. United States, 432 U.S. 137 (1977) ...cccccccceceeees 20

National Collegiate Athletic Ass'n v. Smith,

es ils, SE OE redasetnecersnnsceneeusecsrnsreresotsonseesemnenceceseeses 16

Rashad vy. Burt, 108 F.3d 677 (6th Cir. 1997),

cert. denied, 522 U.S. 1075 (1998) .....ccccccscocesscessseoreceseoseeees 17, 18

Rivet v. Regions Bank, 522 U.S. 470 (1998) ........ccccceeeeees 20

Sealfon v. United States, 332 U.S. 575 (1948) «0... 19

Standefer v. United States, 447 U.S. 10 (1980) ........cccceee 10

United States v. Aguilar-Aranceta, 957 F.2d 18

(1st Cir.), cert. denied, 506 U.S. 834 (1992) ....ccccccccsessseeen 10-11

United States v. Bailin, 977 F.2d 270 (7th Cir.

ee adiemaiaiine 10, 12, 13, 20

United States v. Corley, 824 F.2d 931 (11th Cir.

Ee 13

United States v. Deerman, 837 F.2d 684 (5th Cir.),

cert. denied, 488 U.S. 856 (1988) .........ccccssssessersrseeesssesees 1]

United States v. Dixon, 509 U.S. 688 (1993) .......ccccceeeeees 16,17

United States v. Felix, 503 U.S. 378 (1992) .....cccccceseeeeees 12

United States v. Forman, 180 F.3d 766 (6th Cir.

STIETED eucahentindadiiniaieesbbettieentneeretetenterenpererememsensenensternsernenmmensenaeeses 18

(III)

IV

Cases—Continued: Page

United States v. Frazier, 880 F.2d 878 (6th Cir.

1989), cert. denied, 493 U.S. 1083 (1990) .......ceeseseeneesees 10, 14

United States v. Maza, 983 F.2d 1004 (11th Cir.

| | cee NnCInnINe 18

United States v. Mespoulede, 597 F.2d 329 (2d Cir.

a en 12

United States v. Oppenheimer, 242 U.S. 85 (1916) .......... 19

United States v. Powell, 469 U.S. 56 (1984) .....-cccceeeeeees 10

United States v. Reed, 980 F.2d 1568 (11th Cir.),

cert. denied, 509 U.S. 9B2 (19GB) ....cccccececeeceeeeeeneenerenernnneees is

United States v. Romeo, 114 F.3d 141 (9th Cir.

DOT) ..cccccovcccccecescccsccccccecccseccccssssscrsscesoossscsosrsssossoosssonsesoessoosaess 15

United States v. Shenberg, 89 F.3d 1461 (11th Cir.

1996), cert. denied, 519 U.S. 1117 (1997) ....-eccceceesenenerenenes 13

United States v. White, 936 F.2d 1326 (D.C. Cir.),

cert. denied, 502 U.S. G42 (1991) ...ccccccceeseeeeereeeeseeernsennencnes 1]

United States v. Williams, 155 F.3d 418 (4th Cir.),

cert. denied, 119 S. Ct. 626 (1998) ......ccccccceeeeeeeneenseneneernenens 1s

Wisniewski v. United States, 353 U.S. 901 (1957) ........... 13

Constitution and Statutes:

U.S. Const.:

Amend. V:

Double Jeopardy Clause .......ssseseeee 2,5, 6,8, 16, 17, 18

Due Process Clause .......ccccccccssecsorssscssrsessessenssessesnessrsnsrnees 16

Racketeer Influenced and Corrupt Organizations Act,

18 U.S.C. 1961 et seq:

1B U.S.C. 19B1(1) .-.cccccocccocccesesessseescovssovssovsesesseevesossresssouees 13

BS U.S.C. 19B1(B) ...ccrcceccccccoccvecsseccseovesessvesvesevessessesenessesers 13

18 U.S.C. 1956 (aC) ...cccccccccsccvccsssesseceseeecsesssceeesneres 2, 3, 4, 6, 7,8,9

18 U.S.C. 1956(a) 1 (ADV) ...cccceccccecersereeeeeereeeneseeeneennenensnensenenens 2,4

18 U.S.C. 1956 (aK ECB) oo... ccccccceserecsereesensennensseennssnensnennennenens 2,4

18 U.S.C. 195G6(a)(2) ...ccccccccccsscesceccssvssseresenesenssnssvsesssnsensensnnennes 2,4

18 U.S.C. 1956(aM 2) A) .....ccccesccecsesesersersersenesseseesenerseeneenenens 3,4

18 U.S.C. 1956a)(2)( BG) .....ccccsccccccreesereeeeesneneneseeneseeneenenennenens 3

18 U.S.C. 1956) ....cccccccscesceccescercessscsesssseeresenseonserssnensesseensnsesees 2,3

BS U.S.C. GBT .ccececreccseccccsesecsscnsersessorsersessesecovovernnonsossevsscseseessenes 2, 4,5

Statutes—Continued: Page

LE Cee | | | 6

D1 U.S.C. BAG caeccereeseernecoveseesenseoornnnrernnnernnesennsnennsnnesnnnneeeet 2

SL. 2,3

Jn the Supreme Court of the Gnited States

No. 99-39

FRANK QUINTERO, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A13) is reported at 165 F.3d 831. The opinion of the

district court (Pet. App. C1-C16) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 22, 1999. A petition for rehearing was denied

on April 2, 1999 (Pet. App. B1-B2). The petition for a

writ of certiorari was filed on July 1, 1999. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

A grand jury sitting in the Southern District of

Florida returned a third superseding indictment charg-

ing petitioner with conspiracy to import cocaine, in

(1)

2

violation of 21 U.S.C. 963; conspiracy to engage in

money laundering, in violation of 18 U.S.C. 1956(h);

eight counts of money laundering, in violation of 18

U.S.C. 1956(a)(1)(B)(i); six counts of money laundering,

in violation of 18 U.S.C. 1956(a)(1)(A)(i); and one count

of money laundering, in violation of 18 U.S.C. 1957.

Petitioner moved to dismiss the indictment on the

ground, inter alia, that the collateral estoppel aspect of

the Fifth Amendment’s Double Jeopardy Clause barred

the prosecution. The district court granted the motion

in part and denied it in part. Pet. App. C1-C15. On

cross-appeals by petitioner and the government, the

court of appeals affirmed in part, vacated in part, and

remanded for further proceedings. /d. at Al-A13.

1. In December 1995, the grand jury returned a

second superseding indictment charging petitioner and

13 co-defendants with conspiracy to import and distrib-

ute cocaine and to launder the proceeds through a

series of financial transactions. The indictment alleged

that petitioner, a criminal defense attorney, assisted

the drug traffickers by forming front corporations,

opening Swiss bank accounts for transfers of money to

and from the United States, and traveling to Switzer-

land to make deposits into those accounts. Pet. App.

A2-A3; id. at C2.

Count 2 charged petitioner with conspiracy to import

cocaine, in violation of 21 U.S.C. 963, and Count 3

charged him with conspiracy to possess cocaine with

intent to distribute it, in violation of 21 U.S.C. 846.

Count 18 charged him with conspiracy to violate three

substantive provisions of the money-laundering stat-

utes: Count 18(a) alleged that he conspired to violate 18

U.S.C. 1956(a)(1), Count 18(b) alleged that he conspired

to violate 18 U.S.C. 1956(a)(2), and Count 18(c) alleged

that he conspired to violate 18 U.S.C. 1957. He was also

el

3

charged with seven substantive counts of money laun-

dering (Counts 19, 21, 22, 23, 24, 25, and 26), in violation

of 18 U.S.C. 1956(a)(1). Pet. App. A3.

Petitioner stood trial alone. The jury acquitted him

on Counts 3, 18(a), and 21 through 26. After the jury

failed to reach a verdict on Counts 2, 1&(b), 18(c), and

19, the district court declared a mistrial as to those

counts. Pet. App. A3.

Petitioner moved for a judgment of acquittal on each

of the mistried counts. The district court granted the

motion with respect to Count 2, ruling that the govern-

ment had failed to prove that petitioner knowingly

participated in the conspiracy to import cocaine. The

court denied the motion with respect to the money-

laundering conspiracies charged in Counts 18(b) and

18(c) and the substantive money-laundering offense

charged in Count 19. Pet. App. A3-A4; id. at C2.

2. In May 1997, the grand jury returned a third

superseding indictment against petitioner. Pet. App.

A4; id. at C3.

Count 2 of the third superseding indictment charged

petitioner with conspiracy to import cocaine, in vio-

lation of 21 U.S.C. 963. Count 18, which charged peti-

tioner under 18 U.S.C. 1956(h) with conspiracy to

engage in money laundering, was divided into three

parts. Count 1&8(a) alleged that petitioner conspired to

violate 18 U.S.C. 1956(a)(2)(A), which prohibits trans-

porting funds out of the United States with the intent

to promote an unlawful activity. Count 1&8(b) alleged

that petitioner conspired to violate 18 U.S.C. 1956(a)(2)

(B)G), which prohibits transporting funds out of the

United States, knowing that the funds are the proceeds

of unlawful activity and that the transportation is

designed to conceal the nature, location, source, owner-

ship, or control of the funds. Count 18(c) alleged that

4

petitioner conspired to violate 18 U.S.C. 1957, which

prohibits “knowingly engag|ing] * * * in a monetary

transaction in criminally derived property of a value

greater than $10,000.” Petitioner was also charged

with 15 substantive counts of money laundering: eight

counts under 18 U.S.C. 1956(a)(1)(B)(i) (Counts 19, 23,

25, 27, 30, 31, 33, and 34), six counts under 18 U.S.C.

1956(a)(1)(A)(i) (Counts 20, 24, 26, 29, 32, and 35), and

one count under 18 U.S.C. 1957 (Count 28). Pet. App.

A4 & n.5; Third Superseding Indictment 2-5, 16-19, 21-

32.

Petitioner moved to dismiss the indictment on, inter

alia, double jeopardy grounds. The district court held

that the collateral estoppel rule of double jeopardy

analysis did not bar prosecution of the money-launder-

ing conspiracies charged in Counts 18(b) and 18(c) and

the substantive money-laundering offense charged in

Count 19. Pet. App. C3-C4. Noting that those counts

were “based on the identical conduct that formed the

basis of the three charges that resulted in a hung jury”

at the first trial, the court concluded that “[njeither the

Double Jeopardy Clause nor the collateral estoppel doc-

trine prevents the Government from retrying a de-

fendant on mistried charges.” Jd. at C4.'

' Count 18(b) of the second superseding indictment, which

charged a conspiracy to commit money laundering in violation of 18

U.S.C. 1956(a)(2), was divided in the third superseding indictment

into Count 18(a), which charged a conspiracy to violate Section

1956(a)(2)(A), and Count 18(b), which charged a conspiracy to

violate Section 1956(a)(2)(B)\(i). Count 18(c) charged a conspiracy

to violate 18 U.S.C. 1957 in both the second and third superseding

indictments. Count 19 charged the same substantive money laun-

dering offense under 18 U.S.C. 1956(a)(1) in both the second and

third superseding indictments. Pet. App. A4 & n.5.

5

The district court held that collateral estoppel did,

however, bar prosecution of the money-laundering con-

spiracy charged in Count 18(a) and the substantive

money-laundering offenses charged in Counts 23

through 27 and Counts 29 through 35. Pet. App. C4-C7.

The court reasoned that the jury’s verdicts of acquittal

at the first trial—on one of the three money-laundering

conspiracy charges and six of the seven substantive

money-laundering charges—must have been based on

the jury’s finding that petitioner lacked the requisite

criminal intent. Jd. at C6. The court concluded that,

because “the acquittals in the first trial established for

all time [petitioner’s] lack of intent to break the law

while committing the acts in question,” the government

was precluded from establishing the essential intent

elements of Counts 18(a), 23 through 27, and 29 through

35. Id. at C6-C7.

Petitioner appealed the denial of his motion to dis-

miss Counts 18(b), 18(c), and 19, and the government

cross-appealed the dismissals of Counts 18(a), 25, 27, 30,

31, 33, and 34. Pet. App. A4-A5.

4. The court of appeals affirmed in part, vacated in

part, and remanded for further proceedings. Pet. App.

A1-A13.

First, the court of appeals held, although for different

reasons than those stated by the district court, that the

2 The court dismissed Counts 2, 20, and 28 on other grounds.

The court concluded that Count 2 violated the Double Jeopardy

Clause because it was identical to the previous Count 2 on which

the court had granted a judgment of acquittal. Pet. App. C3 & n.2.

The court concluded that Counts 19 and 20 charged the same

offense twice and dismissed Count 20 as multiplicitous. Jd. at C7-

C9. The court dismissed Count 28 for failure to state an offense

under 18 U.S.C. 1957. Pet. App. C9-C10. The government did not

challenge those rulings on appeal.

6

Double Jeopardy Clause does not bar prosecution of

the money-laundering conspiracies charged in Counts

18(b) and 18(c), and the substantive money-laundering

offense charged in Count 19. Pet. App. A6-A10. The

court did not conclude that the government may always

retry a mistried count, notwithstanding the jury’s ac-

quittals on other counts. But the court found that the

government could retry the three counts on which the

jury failed to reach a verdict in this case, because the

jury (and the district court in granting the judgment of

acquittal on the deadlocked drug conspiracy count) did

not necessarily find an essential element of any of those

counts against the government. /d. at A8-A9.

The court of appeals rejected as “clearly erroneous”

the district court’s determination that the jury ac-

quitted petitioner on certain of the money-laundering

counts because the jury found that “he did not have the

requisite criminal intent.” Pet. App. A9. “If a lack

of intent had been the reason for [petitioner’s] ac-

quittals,” the court explained, “the jury should also

have acquitted him of the substantive money laun-

dering charge (Count 19),” but, instead, the jury failed

to reach a verdict on that count. Jbid. The court

concluded, based on the district court’s jury instruc-

tions and the jury’s failure to reach a verdict on Count

19, that the jury must have had a different reason for

acquitting petitioner of conspiracy to engage in money

laundering in violation of 18 U.S.C. 1958(a)(1)—-namely,

“the government’s failure to prove that [petitioner]

knowingly entered into an agreement to violate

§ 1956(a)(1) as charged in the second superseding

indictment.” Ibid. Accordingly, because an agreement

to violate Section 1956(a)(1) is not an essential element

or an “ultimate fact” of the offenses charged in Counts

18(b), 18(c), and 19 of the third superseding indictment,

7

the court held that the government is not precluded

from prosecuting those counts. Jd. at A10.

Second, the court of appeals held, for similar reasons,

that the government is not precluded from prosecuting

the seven counts charged for the first time in the third

superseding indictment, i.e., the money-laundering con-

spiracy charged in Count 18(a) and the substantive

money-laundering offenses charged in Counts 25, 27, 30,

31, 33, and 34. Pet. App. Al0-A13. The court noted

that the substantive money-laundering offenses in the

third superseding indictment involve different acts

(e.g., different financial transactions) than did the

substantive money-laundering offenses in the second

superseding indictment. “Thus,” the court explained,

“there was no issue or fact in these added counts which

was necessarily decided in [petitioner’s] favor in the

first trial.” Jd. at Al2. The court also concluded that

the jury’s determination that petitioner did not agree

to participate in the conspiracy to violate 18 U.S.C.

1956(a)(1) does not bar his prosecution on the newly

added counts, because such an agreement “is not an

ultimate fact or element of a conspiracy to violate

§ 1956(a)(2)(A),” the conspiracy charged in Count

18(a), or of the substantive Section 1956(a)(1) offenses

charged in the six remaining counts. Pet. App. A13.

ARGUMENT

1. Petitioner contends (Pet. 6-13) that the doctrine

of collateral estoppel bars his prosecution for the

money-laundering conspiracies charged in Count 18 and

the substantive money-laundering offenses charged in

Counts 19, 25, 27, 30, 31, 33, and 34 of the third super-

seding indictment. He further argues that the circuits

are in conflict over whether a court may consider a

jury’s failure to reach a verdict on one count in deter-

Ss

mining the basis for the jury’s acquittal on a related

count. Those claims lack merit, and this Court’s review

is not warranted.

a. The Double Jeopardy Clause of the Fifth Amend-

ment incorporates the doctrine of collateral estoppel, or

issue preclusion, which bars a prosecution that would

require the relitigation of ultimate factual issues that

were resolved against the government in an earlier

prosecution. Ashe v. Swenson, 397 U.S. 436, 445 (1970).

A jury’s acquittal of a defendant on one charge pre-

cludes the government from proceeding against him on

a second charge, however, only if the jury necessarily

found a fact in the defendant’s favor that is an essential

element of the second charge (7.e., a fact that the gov-

ernment must prove beyond a reasonable doubt). See

Ashe, 397 U.S. at 443-445; Dowling v. United States,

493 U.S. 342, 347-348, 350-352 (1990). The defendant

bears the burden of identifying the factual issue neces-

sarily decided at the first trial that precludes a second

trial. Dowling, 493 U.S. at 350-351.

Here, the court of appeals correctly concluded that

the jury at petitioner’s trial on the second superseding

indictment did not necessarily find any fact in peti-

tioner’s favor that is an essential element of the of-

fenses charged in Counts 18, 19, 25, 27, 30, 31, 33, and 34

of the third superseding indictment. The court, rec-

ognizing that the jury had acquitted petitioner on some.

counts but had failed to reach verdicts on other counts,

sought to ascertain the basis for the verdicts of

acquittal. Pet. App. A6, A8-A9, All. The court

determined that “the only logical conclusion which

reconciles the jury’s acquittal on Count 18(a) [con-

spiracy to engage in money laundering, in violation of

18 U.S.C. 1956(a)(1)] with the jury’s failure to reach a

verdict on Count 19 [substantive money laundering, in

9

violation of 18 U.S.C. 1956(a)(1)|” was that “the jury

must have based its acquittal on the § 1956(a)(1) con-

spiracy charge (Count 18(a)) on the government’s fail-

ure to prove that [petitioner] knowingly entered into an

agreement to violate § 1956(a)(1).” Pet. App. AY. Ac-

cordingly, because an agreement to violate Section

1956(a)(1) is not an essential element of the offenses

charged in Counts 18, 19, 25, 27, 30, 31, 33, and 34 of the

third superseding indictment, the doctrine of issue

preclusion does not bar the prosecution of those counts.

There is no merit to petitioner’s claim (Pet. 6-7) that

the court of appeals erred by taking into account the

jury’s failure to reach verdicts on certain counts, as well

as the jury’s acquittals on other counts, in ascertaining

what facts the jury necessarily found in petitioner’s

favor. As this Court has explained, to determine

whether a defendant’s prosecution is barred by col-

lateral estoppel, a court must “examine the record of

[the] prior proceeding, taking into account the plead-

ings, 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,

397 U.S. at 444. The court’s “inquiry must be set in a

practical frame and viewed with an eye to all the cir-

cumstances of the proceedings.” Jbid. (internal

quotation marks omitted). A jury’s failure to reach a

verdict on certain counts, while acquitting the de-

fendant on other counts, is among the “relevant matter”

that a court may consider in determining what facts the

jury necessarily found in the defendant’s favor. Other-

wise, the courts in many cases, such as this one, would

be required to assume that the jury acted irrationally in

reaching a mixed verdict, contrary to this Court’s re-

cognition that collateral estoppel is “predicated on the

10

assumption that the jury acted rationally.” United

States v. Powell, 469 U.S. 56, 68 (1984).’

The Eleventh Circuit’s approach to the issue pre-

clusion question in this case is similar to the approach

taken by the First and D.C. Circuits. See United States

v. Aguilar-Aranceta, 957 F.2d 18, 24-25 (1st Cir.), cert.

% In our view, that analysis indicates that collateral estoppel

should never bar the government from retrying a defendant on a

count on which a jury was unable to reach a verdict when the same

jury acquitted him on another count. There are only two possible

explanations for such a mixed verdict. First, the jury may have

found that the government failed to prove a fact that, while

essential for conviction on the count on which the defendant was

acquitted, was not essential for conviction on the count on which

the jury was deadlocked. As explained above, if the jury did not

find an essential fact in the defendant’s favor on the acquitted

count that would have to be proved in retrying the defendant on

the “hung” count, collateral estoppel does not bar retrial on the

latter count. See Dowling, 493 U.S. at 347-348. Second, the jury

may have found that the government failed to prove a fact that

was essential for conviction on both counts. In that case, the jury’s

failure to acquit on one count would be inconsistent with the jury’s

acquittal on the other count. As this Court has recognized,

“principles of collateral estoppel—which are predicated on the

assumption that the jury acted rationally and found certain facts in

reaching its verdict—are no longer useful” when the jury’s verdict

is inconsistent. Powell, 469 U.S. at 68; see Standefer v. United

States, 447 U.S. 10, 23 n.17 (1980) (inconsistency in jury verdicts “is

reason, in itself, for not giving preclusive effect to the acquittals”).

Accordingly, under either explanation for the jury’s verdict of

acquittal on one count, the government would not be precluded

from retrying the defendant on another count on which the jury

was deadlocked. To date, the courts of appeals have not agreed

with that analysis. See, e.g., United States v. Bailin, 977 F.2d 270,

275-280, 282-283 (7th Cir. 1992); United States v. Frazier, 880 F.2d

878, 882-883 (6th Cir. 1989), cert. denied, 493 U.S. 1083 (1990). Ac-

ceptance of that analysis, however, is not essential to the judgment

in this case.

1]

denied, 506 U.S. 834 (1992); United States v. White, 936

F.2d 1326, 1328-1329 (D.C. Cir.), cert. denied, 502 U.S.

942 (1991). In those cases, the defendant was charged

with multiple counts that involved a common issue,

such as the defendant’s knowledge or intent. The jury

acquitted the defendant on one count and deadlocked on

another count. The courts of appeals, taking into

account both the jury’s verdict of acquittal on one count

and the jury’s failure to reach a verdict on the other

count, declined to hold that the verdict of acquittal

rested on a finding in the defendant’s favor on the com-

mon issue. The courts instead reasoned that the verdict

of acquittal could more rationally be explained as

resting on the jury’s finding on an issue that was not

common to both counts. Aguilar-Aranceta, 957 F.2d at

24-25; White, 936 F.2d at 1329; accord United States v.

Deerman, 837 F.2d 684, 690-691 (5th Cir.) (in econ-

sidering whether the government was precluded

from prosecuting the defendants on drug importation

charges, the court considered both the jury’s verdicts of

acquittal on drug possession charges and the jury’s

failure to reach verdicts on drug importation charges),

cert. denied, 488 U.S. 856 (1988).

b. Petitioner contends (Pet. 7-11) that the decision

below conflicts with the decisions of four other circuits.

While there is some tension between the approach of

the court of appeals in this case, which sought to

reconcile the jury’s acquittals on some counts with its

failure to reach verdicts on other counts, and the rea-

soning applied in some other circuits, which have de-

clined to consider whether a determination that a jury’s

acquittal on one count rested on a particular ground

would be consistent with the jury’s failure to reach a

verdict on a related count, there is not at this time a

12

square conflict in the circuits on the proper collateral

estoppel analysis in such cases.

The earliest case cited by petitioner, United States v.

Mespoulede, 597 F.2d 329 (2d Cir. 1979), is not on point.

In that case, the jury acquitted the defendant on a drug

possession charge, but failed to reach a verdict on a

drug conspiracy charge. The government retried the

defendant on the conspiracy charge, presenting evi-

dence of his drug possession as proof of the conspiracy,

and the jury found the defendant guilty of that charge.

- The court of appeals reversed the conviction, holding

that the government was precluded from seeking to

prove the conspiracy charge with evidence that the

defendant possessed the drug, because the jury’s ac-

quittal on the drug possession charge at the first trial

necessarily determined that he did not. Jd. at 332-336.

Contrary to petitioner’s assertion (Pet. 7), Mespoulede

did not “rule[] that the government was estopped from

retrying the defendant on the conspiracy count.” It

determined instead what evidence was admissible at an

undisputably permissible retrial. Cf. United States v.

Felix, 503 U.S. 378, 389 (1992) (double jeopardy does

not bar prosecution of a conspiracy charge after pre-

vious prosecution for related substantive offenses). In

any event, Mespoulede has been effectively overruled

by this Court’s decision in Dowling, which held that

collateral estoppel does not bar the admission of evi-

dence of a fact resolved in a defendant’s favor at the

first trial, provided that the government is not seeking

to prove that fact beyond a reasonable doubt at the

second trial. Compare Dowling, 493 U.S. at 347-350,

with Mespoulede, 597 F.2d at 334-335; see also United

States v. Bailin, 977 F.2d 270, 277 n.9 (7th Cir. 1992)

(noting that “Mespoulede, insofar as it held that issue

13

preclusion applies to evidentiary as well as ultimate

facts, has been partially overruled by Dowling”).'

In Bailin, the jury was unable to reach a verdict

on the counts charging violations of the Racketeer

Influenced and Corrupt Organizations Act (RICO), but

it acquitted the defendant on some of the other counts,

which charged offenses that were also among the pre-

dicate racketeering acts alleged in the RICO counts.

See 18 U.S.C. 1961(1) and (5) (defining “racketeering

activity” and “pattern of racketeering activity” under

RICO). The Seventh Circuit held that, although the

government could retry the defendant on the RICO

counts (and other counts on which the jury had dead-

locked), the government could not base the RICO

counts on predicate acts of which the defendant was

acquitted. 977 F.2d at 275-283. In so holding, the

Seventh Circuit, consistent with the Eleventh Circuit

here, recognized that the government is not precluded

from retrying a defendant on a count on which the jury

failed to reach a verdict, unless the defendant has met

the “extremely difficult” burden of establishing that, in

4 Petitioner also asserts (Pet. 10) that the decision below

conflicts with United States v. Corley, 824 F.2d 931 (11th Cir.

1987). An intracircuit conflict does not, however, warrant this

Court’s review. See Wisniewski v. United States, 353 U.S. 901, 902

(1957) (per curiam). Nor does any such conflict exist. Like

Mespoulede, Corley involved the exclusion of evidence, which

related to a count on which the defendant had been acquitted, at a

retrial on another count on which the jury had failed to reach a

verdict. And like Mespoulede, Corley has been effectively over-

ruled by Dowling. See also United States v. Shenberg, 89 F.3d

1461, 1480 n.23 (11th Cir. 1996) (circuit precedent “hold[ing] that

the doctrine of collateral estoppel bars the government from intro-

ducing the underlying evidence of acquitted substantive counts in

the retrial of the mistried conspiracy” “no longer constitutes good

law” after Dowling), cert. denied, 519 U.S. 1117 (1997).

14

rendering an acquittal on a different count, the jury

“necessarily determined” an essential element of the

count to be retried. /d. at 282. The government did not

dispute that the jury, in acquitting the defendant on

certain counts that doubled as RICO predicate acts,

necessarily decided that the defendant did not commit

those acts. While the court rejected the government’s

argument that collateral estoppel never applies to a

retrial of counts on which the jury failed to reach a

verdict, and expressed the view that the jury’s failure

to agree on a verdict is “too inconclusive” to support an

argument that hung counts are necessarily “incon-

sistent” with acquitted counts, see id. at 275-280, 282-

283; note 3, supra, the court was not required in Bailin,

as in this case, to ascertain the ground on which the

jury acquitted the defendant on certain counts of an

indictment. No conflict thus exists between this case

and Bailin.

In United States v. Frazier, 880 F.2d 878 (6th Cir.

1989), cert. denied, 493 U.S. 1083 (1990), the court held,

among other things, that the defendants could not be

retried on a charge of making false entries with respect

to one loan, on which the jury had deadlocked, because

the jury had acquitted the defendants on a charge of

misapplication of bank funds with respect to the same

loan. The court reasoned that the only disputed evi-

dence on the misapplication count related to the issue of

intent to defraud, and that a jury could not find that the

defendants lacked the requisite intent on the mis-

application count without also finding that they lacked

the requisite intent on the related false entries count.

Id. at 886. No similar circumstances, in which the jury’s

verdict of acquittal on one count could be explained

only on a ground inconsistent with the jury’s failure to

reach a verdict on another count, exist in this case.

15

Finally, in United States v. Romeo, 114 F.3d 141 (9th

Cir. 1997), the court of appeals held that the defendant's

acquittal on a drug possession count barred his retrial

on a drug importation count on which the jury failed to

reach a verdict. The court concluded that “a rational

jury could [not] have grounded its verdict upon an issue

other than that which the defendant seeks to foreclose

from consideration,” i.e., that the defendant did not

know that marijuana was in the trunk of the car that he

drove from Mexico to the United States. Jd. at 143.

The court rejected the dissent’s argument that the

verdict of acquittal must have rested on another

ground—that the defendant lacked intent to distribute

marijuana—because the jury should have acquitted on

both counts if it found that the defendant lacked

knowledge of the marijuana. The court reasoned that

its interpretation of the jury’s verdict of acquittal

“attributes much less irrationality to the jury than does

the dissent’s reading,” because a “necessary corollary”

of the dissent’s interpretation was that, “although [the

defendant] knowingly possessed the marijuana, he pos-

sessed the 188 pounds of marijuana without the intent

to distribute it.” Jd. at 144.

This case is distinguishable from Romeo. The

Eleventh Circuit’s reading of the jury’s verdict of

acquittal as resting on the absence of an agreement to

engage in money laundering does not imply that the

jury irrationally rejected inferences from the evidence.

It is true that the Ninth Circuit’s statement in Romeo

that “[t]he inquiry under Ashe is what the jury actually

decided when it reached its verdict, not on why the jury

could not agree on the deadlocked count,” 114 F.3d at

144, is in tension with the Eleventh Circuit's approach

here in assessing the basis for the jury’s verdict of

acquittal. But neither Romeo nor any other case cited

16

by petitioner holds that a jury’s failure to reach a ver-

dict on one count is always irrelevant in determining

what facts the jury necessarily found in acquitting the

defendant on another count. Accordingly, because no

square conflict has yet arisen among the circuits with

respect to the application of collateral estoppel in cases

involving mixed verdicts, this Court’s review is not

warranted.

2. Petitioner also contends (Pet. 14-24) that the new

counts included in the third superseding indictment

(Counts 25, 27, 30, 31, 33, and 34) are barred by the

Double Jeopardy Clause, the Due Process Clause, and

res judicata. The Eleventh Circuit did not address

those contentions, as petitioner concedes (Pet. 6). This

Court ordinarily does not consider arguments not ex-

pressly ruled upon by the courts below. See, ¢.g.,

National Collegiate Athletic Ass’n v. Smith, 1198S. Ct.

924, 930 (1999) (citing additional cases). In any event,

petitioner’s contentions lack merit.

Petitioner’s double jeopardy claim is foreclosed by

lnited States v. Dixon, 509 U.S. 688, 703-704 (1993).

The Court held in Dixon that the sole test for deter-

mining whether two offenses are separate for double

jeopardy purposes is that set forth in Blockburger v.

United States, 284 U.S. 299, 304 (1932), 7.e., “whether

each offense contains an element not contained in the

other.” Dixon, 509 U.S. at 696. Because petitioner does

not, and cannot, contend that any of the new counts are

not separate offenses under the Blockburger test, his

double jeopardy claim necessarily fails.

Relying on Brown v. Ohio, 432 U.S. 161 (1977), peti-

tioner nonetheless argues (Pet. 16-17) that the Double

Jeopardy Clause and the Due Process Clause bar a

successive prosecution when the government could

have brought all the charges in a single prosecution by

17

exercising “due diligence.” That argument rests on a

misreading of Brown. Applying the Blockburger test,

the Court held in Brown that the Double Jeopardy

Clause “forbids successive prosecution and cumulative

punishment for a greater and lesser included offense.”

432 U.S. at 169. The Court then noted that “{aln ex-

ception may exist where the State is unable to proceed

on the more serious charge at the outset because the

additional facts necessary to sustain that charge have

not occurred or have not been discovered despite the

exercise of due diligence.” /d. at 169 n.7. Petitioner's

argument would turn that exception on its head by

imposing a “due diligence” requirement on the govern-

ment’s ability to bring a second prosecution otherwise

permitted by Blockburger. That rule would simply

reformulate the “same conduct” test of Grady v. Cor-

bin, 495 U.S. 508 (1990), which was explicitly overruled

in Dixon. See Dixon, 509 U.S. at 705 (recognizing that

the Double Jeopardy Clause leaves the government

“entirely free to bring [its prosecutions] separately”).

Petitioner claims support for his reading of Brown

in Rashad vy. Burt, 108 F.3d 677 (6th Cir. 1997), cert.

denied, 522 U.S. 1075 (1998), a decision that is incon-

sistent with this Court’s precedents, that has been

severely limited by the Sixth Circuit itself, and that is

distinguishable from the present case. In Rashad, the

defendant was successively prosecuted for possession

with intent to deliver two quantities of cocaine that

were seized at the same time from his house and his car.

In holding that the second prosecution, which involved

the cocaine found in the car, was barred by the Double

Jeopardy Clause, the Sixth Circuit purported to state

“(t]he proper standard for determining * * * if the

two prosecutions violate double jeopardy”: “whether

the actual evidence needed to convict the defendant in

18

the first trial is the same as the evidence needed to

obtain the second conviction * * * irrespective of

whether the convictions are under statutes that satisfy

Blockburger’s ‘same elements’ test.” 108 F.3d at 680.

The court did not acknowledge or discuss this Court’s

decision in Dixon, which overruled Grady’s “same con-

duct” test for successive prosecutions and held that the

only applicable test was that set forth in Blockburger.

See United States v. Williams, 155 F.3d 418, 421 (4th

Cir.) (rejecting Rashad as “inconsistent with a wealth

of Supreme Court authority” including Dixon), cert.

denied, 119 S. Ct. 626 (1998). The Sixth Circuit has

since “narrowly” read Rashad as applying only “to cir-

cumstances such as were present in that case,” 7e.,

“where the concern is whether the prosecution has

impermissibly divided the defendant’s conduct so that it

may bring repeated prosecutions under the same

statute.” United States v. Forman, 180 F.3d 766, 770

(1999). This case does not involve those particular con-

cerns.”

Nor is there any merit to petitioner’s claim that res

judicata requires the government to bring all related

charges against a defendant in a single proceeding. In

criminal cases, the doctrine of res judicata, or claim

* Petitioner also relies on the Eleventh Circuit’s own decision

in United States v. Reed, 980 F.2d 1568, cert. denied, 509 U.S. 932

(1993). In that case, after holding that the Double Jeopardy Clause

barred the defendant’s prosecution on a continuing criminal enter-

prise charge, the court stated in dicta that the prosecution would

also have been barred by a due diligence requirement, because the

government knew or should have known of the facts underlying

that charge at the time of the defendant’s prior prosecution. Jd. at

1580-1581. The Eleventh Circuit, however, has since made clear

that Brown imposes no such due diligence requirement. United

States v. Maza, 983 F.2d 1004, 1008 & n.8 (1993).

19

preclusion, has been said to mean that, “[wJhere a

criminal charge has been adjudicated upon by a court

having jurisdiction to hear and determine it, that

adjudication * * * jig final as to the matter so

adjudicated upon, and may be pleaded in bar to any

subsequent prosecution for the same offense.” United

States v. Oppenheimer, 242 U.S. 85, 88 (1916); see

Sealfon v. United States, 332 U.S. 575, 578 (1948).°

Petitioner offers no authority applying res judicata in

the criminal context to preclude a defendant’s subse-

quent prosecution not only for an offense that was

charged in a previous prosecution but also for a

separate offense that could have been charged but was

not. Such a rule would effectively resurrect Grad y

under the rubric of res judicata. Nor would such a rule

necessarily benefit petitioner in any event. Res

judicata applies in the civil context only after a case has

° In Oppenheimer, the Court held that an indictment for

conspiracy to conceal assets from a bankruptcy trustee was barred

by res judicata because a previous indictment for the same offense

had been dismissed on statute of limitation grounds. 242 USS. at

87-88. The Court explained that “{a] plea of the statute of limita-

tions is a plea to the merits, * * * and however the issue was

raised in the former case, after judgment upon it, it could not be

reopened in a later prosecution.” Jbid. In Sealfon, the Court held

that the defendant’s acquittal on a conspiracy charge at his first

trial required reversal of his conviction for aiding and abetting at

his second trial, because both prosecutions were based on proof of

an agreement between the defendant and a co-defendant that “was

necessarily adjudicated in the former trial to be non-existent.” 332

U.S. at 580. Sealfon thus involved an application of issue pre-

clusion. Although the Court in Sealfon stated that res judicata

“operate[d] to conclude those matters in issue which the verdict

determined though the offenses be different,” id. at 578, the Court

was obviously using the term “res judicata” to include issue, as

well as claim, preclusion.

20

been fully and finally adjudicated. Rivet v. Regions

Bank, 522 U.S. 470, 476 (1998). This case does not

invclve a second separate prosecution of petitioner, but

rather a continuation of his first prosecution, which has

not yet been fully and finally adjudicated. Cf. Bailin,

977 F.2d at 276 (recognizing that a retrial on a dead-

locked count is, for double jeopardy purposes, viewed as

“a ‘continuation’ of the first trial”) (citing Jeffers v.

United States, 432 U.S. 137, 152 (1977)).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JAMES K. ROBINSON

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

OCTOBER 1999

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