United States v. Marino

• Court: Court of Appeals for the First Circuit
• Decided: December 29, 1999
• Docket: 99-1618
• Status: Published

Opinion

USCA1 Opinion

                    UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT


No. 99-1618

                       UNITED STATES OF AMERICA,



                               Appellee,



                                  v.



                VINCENT M. MARINO, a/k/a GIGI PORTALLA,



                         Defendant, Appellant.


No. 99-1684



                       UNITED STATES OF AMERICA,



                               Appellee,



                                  v.



                            ANTHONY CIAMPI,



                         Defendant, Appellant.


No. 99-1955



                       UNITED STATES OF AMERICA,



                               Appellee,



                                  v.



                ROBERT F. CARROZZA, a/k/a BOBBY RUSSO,



                         Defendant, Appellant.


APPEALS FROM THE UNITED STATES DISTRICT COURT



                   FOR THE DISTRICT OF MASSACHUSETTS



            [Hon. Nathaniel M. Gorton, U.S. District Judge]


Before



                        Boudin, Circuit Judge,



                      Cyr, Senior Circuit Judge,



                       and Lynch, Circuit Judge.


Robert L. Sheketoff, with whom Sheketoff & Homan were on brief for

appellant Marino.

     John H. LaChance for appellant Carrozza.

     Kern W. Cleven for appellant Ciampi.

     Cynthia A. Young, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.


December 29, 1999

                                                       CYR, Senior Circuit Judge.  Anthony Ciampi, Robert

Carrozza, and Vincent Marino appeal from district court orders

which (i) rejected their motion to bar their retrial on certain

charges as to which the jury was unable to reach verdicts, and (ii)

rejected their collateral estoppel challenge to the introduction of

evidence relating to certain firearms.  As their retrial was

imminent, we affirmed the district court orders following oral

argument and deferred the explanation for our decision until now.

                                I

                            BACKGROUND

          Appellants and twelve codefendants were indicted in April

1997 as alleged members or associates of organized crime, namely

the New England-based Patriarca Family, for their roles in various

offenses committed between June 1989 and December 1994.  Counts 1

and 2 charged appellants with participating and conspiring to

participate in a pattern of racketeering activity in violation of

the Racketeer Influenced and Corrupt Organizations Act (RICO).  See

18 U.S.C.  1962(c)-(d).  Count 3 charged them with conspiracy to

murder fourteen individuals, including Joseph Cirame and Stephen

Rossetti, in aid of racketeering.  See id.  1959; see also count

1 (Racketeering Act A-1).  Count 4 charged them with using or

carrying firearms in connection with and furtherance of the murder

conspiracy alleged in count 3.  See id.  924(c).  The jury

acquitted Marino and Carrozza on count 4, but was unable to reach

verdicts as to appellants on counts 1, 2 and 3, or Ciampi on count

4. 

          Count 30 charged Ciampi with conspiring to distribute

narcotics, see 21 U.S.C.   846; see also count 1 (Racketeering Act

B), and count 31 charged Ciampi and Marino with using or carrying

a firearm in connection with the count 30 conspiracy to distribute

narcotics, see 18 U.S.C.  924(c).  Although the jury deadlocked on

count 30, it acquitted Ciampi and Marino on count 31.

          Finally, Ciampi was charged in counts 12 and 16,

respectively, with attempting to murder Joseph Cirame and Stephen

Rossetti, see 18 U.S.C.  1959, and in counts 13 and 17 with using

or carrying a firearm equipped with a silencer and a machine gun,

in connection with the attempted murders charged in counts 12 and

16.  The jury acquitted Ciampi on counts 13, 16 and 17, but

deadlocked on count 12.

          Appellants Carrozza and Marino later moved to dismiss

count 3, and Ciampi and Marino moved to dismiss count 30, on the

ground that their retrial on these counts was barred by the Double

Jeopardy Clause because their acquittals on counts 4 and 31 were

based on an implicit jury finding that the conspiracies charged in

counts 3 and 30 did not exist, or, if they did exist, appellants

were not members.  Ciampi submitted a separate motion in limine to

bar, at any retrial on count 4, all evidence of his use of a

firearm equipped with a silencer, or of a machine gun, as described

in counts 13 and 17, respectively, on the ground that his

acquittals on these counts must have been based on an implicit jury

finding that he neither used nor carried these particular weapons. 

The district court rejected their motions.  United States v.

Carrozza, 59 F. Supp.2d 172 (D. Mass. 1999).

          We ordered these appeals expedited due to the imminence

of the scheduled retrial.  Shortly thereafter we rejected the

appeals from the district court orders denying the motions to

dismiss, then dismissed the appeal from the denial of Ciampi's

motion in limine for lack of appellate jurisdiction, permitting the

retrial to proceed.  We now explain our rulings.

                                II

                            DISCUSSION

A.  The Motions to Dismiss

          Appellants argue that their retrial on count 3 is barred

because the jury acquittal on count 4 must have been based on a

finding that appellants were not members of the count 3

conspiracy.  Their contention turns on the pertinent jury

instructions.

          First, the district court instructed the jury on the two

related standards of criminal liability to be applied should it

find that appellants directly participated in the use of a firearm: 

                    To find the defendant under consideration

          guilty of [count 4], you must find either that

          he knowingly used, or aided and abetted

          another in using, a firearm, or that he

          knowingly carried, or aided and abetted

          another in carrying, a firearm.  You do not

          need to find both. . . . To find the defendant

          under consideration guilty of aiding and

          abetting in this context . . . the government

          must prove beyond a reasonable doubt that that

          defendant knew to a practical certainty that

          one of the other individuals involved in

          committing the crime would be using or

          carrying a firearm." (Emphasis added.)



          Second, the court gave the Pinkerton instruction, see

Pinkerton v. United States, 328 U.S. 640 (1946), defining a third

and less direct standard of criminal liability, which was

applicable because count 3 was not a substantive offense, but a

conspiracy.  Its instruction stated:  "if [the jury were to find]

that the government ha[d] proven the defendant under consideration

guilty of conspiracy as charged in count 3 of the indictment," it

could then convict the defendant under consideration of count 4

even if that defendant did not directly use the gun or aid and abet

another person in its use, provided the jury also determined that

the government had proven four factors beyond a reasonable doubt:

(1) some member of the count 3 conspiracy (other than the defendant

under consideration) used or carried the firearm; (2) defendant's

coconspirator used the gun "during the existence or life of and in

furtherance of the goals or objectives of the conspiracy"; (3) the

coconspirator's use of that firearm was "a reasonably foreseeable

consequence of the conspiracy to the defendant," and (4) the

coconspirator's use of the firearm occurred "at the time that . .

. the defendant . . . was a member of the conspiracy." 

          Finally, in an ad hoc supplement to its jury charge, the

district court instructed:

                    Now, I will ask you to look once again briefly

          at the forms   at the verdict forms that you

          will be using.  First, with respect to the

          form for Mr. Carrozza, you will see that the

          first page, as to count 4, "Use or Carry

          Firearm in count 3."  You will not   you will

          find Mr. Carrozza guilty or not guilty [on

          count 4] only if you find first that Mr.

          Carrozza is a member of the conspiracy to

          murder and in aid of racketeering in count 3. 

          In other words, you look at that one first. 

          If you find him guilty or not guilty [on count

          3], you go on to count 4.  You then consider

          count 4 in its entirety, taking into account

          everything I've said in my instructions, and

          determine whether or not he is guilty of

          carrying   using or using a firearm.



          Under the collateral-estoppel element in the Double

Jeopardy Clause, the government may not relitigate at a second

trial an issue of ultimate fact previously determined by a valid

and final judgment.  See Ashe v. Swenson, 397 U.S. 436, 443 (1970). 

When a jury reaches a general verdict of acquittal on certain

counts, therefore, the defendant may argue that the jury must have

based its acquittal on certain factual findings favorable to him,

and that those findings bar any retrial on other counts upon which

he was not acquitted, since his conviction in the retrial

necessarily would depend on the jury at retrial reaching contrary

findings as to the same essential facts.  See id. at 444.

          Appellants argue that the jury could have acquitted on

count 4 only if it found that the government failed to prove all

three standards of criminal liability: actual use, aiding and

abetting, and Pinkerton ("coconspirator") liability.  Therefore,

appellants reason, in considering the Pinkerton standard the jury

must have found that at least one of four factors had not been

proven:  (1) the existence of the count 3 conspiracy; (2)

defendant's coconspirator's use of the firearm "in furtherance" of

that conspiracy; (3) defendant's ability reasonably to foresee his

coconspirator's firearm use; or (4) defendant's membership in the

conspiracy at the time the firearm was used.

          Appellants point out that the government adduced

overwhelming evidence that the count 3 conspiracy involved plans to

murder fourteen persons, and that those persons were in fact fired

upon.  Thus, they argue, no rational jury could have acquitted them

on count 4 due to the government's failure to prove factors two and

three, since the government's evidence compelled an inference that

the use of the firearm was both foreseeable and in furtherance of

the count 3 conspiracy as actually executed.

          Accordingly, appellants contend, the jury must have

acquitted on count 4 because it found that either (1) the count 3

conspiracy did not exist; or (2) appellants were not members of

that conspiracy.  Thus, either of these factual findings would bar

their retrial on count 3 under the doctrine of collateral estoppel.

          The applicability of the collateral estoppel doctrine is

reviewed de novo, see United States v. Lanoue, 137 F.3d 656, 661

(1st Cir. 1998), by "'examin[ing] [the] record of [the] prior

proceeding, taking into account the pleadings, evidence, charge,

and other relevant matter[s], and conclud[ing] 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 (citation omitted).  Although appellants need not

meet "a standard of absolute certainty," and "[our] approach must

be pragmatic in order to prevent the rejection of a collateral

estoppel defense in every case in which the prior judgment was

based on a general verdict of acquittal," United States v. Morris,

99 F.3d 476, 481 (1st Cir. 1996), ultimately it is their burden to

prove "unequivocal[ly]" that the jury verdict on count 4

necessarily included an implicit factual finding that either the

count 3 conspiracy did not exist or appellants were not members.

United States v. Aguilar-Aranceta, 957 F.2d 18, 25 (1st Cir. 1992). 

          Appellants cannot carry their burden.  Unlike the

relatively straightforward jury instructions in the cases cited by

appellants, see, e.g., United States v. Romeo, 114 F.3d 141 (9th

Cir. 1997), their jury charge contained considerable ambiguity. 

Moreover, since appellants did not object to the instructions

below, the latent ambiguities may not be challenged on appeal.  See

United States v. Ellis, 168 F.3d 558, 561 (1st Cir. 1999).  While

normally we presume juries follow their instructions, see United

States v. Awon, 135 F.3d 96, 103 (1st Cir. 1998), the more

tenebrous those instructions, the more difficult it may be for

defendants to demonstrate unequivocally on appeal that the jury

necessarily predicated its verdict on a particular finding.  So it

is here, since we cannot determine with any reasonable degree of

reliability that the jury interpreted the pertinent aspects of its

charge in the manner asserted by appellants.

          The district court instructed the jury not to reach a

verdict on count 4 until it had reached a verdict on count 3:

"[Y]ou will find Mr. Carrozza guilty or not guilty [of count 4]

only if you find first that Mr. Carrozza is a member of the

conspiracy to murder and in aid of racketeering in count 3.  In

other words, you look at [count 3] first.  If you find him guilty

or not guilty, you go on to count 4."  (Emphasis added.)  Since

the jury found the defendant neither guilty nor not guilty on count

3, but deadlocked instead, we are left to divine an interpretation

of the charge which might explain its rationale.

          The government offers a plausible explanation:  Since the

instruction   that the jury not consider count 4 prior to count 3

  was given immediately after the Pinkerton instruction, the jury

may have understood (mistakenly) that the prohibition (against

considering count 4 before count 3) applied only to its

consideration of the Pinkerton criminal liability theory, not its

consideration of the earlier "direct" liability or "aiding and

abetting" theories.  After deadlocking on count 3, however, the

jury may have proceeded to count 4   presuming that it need not

consider whether the government had proven Pinkerton coconspirator

liability   and then determined that the government had not proven

either direct liability or aiding and abetting beyond a reasonable

doubt.  In other words, the jury may have acquitted simply because

it found that a codefendant (i.e., not the defendant under

consideration) had used or carried the firearm, or because the

defendant under consideration had not known to a "practical

certainty" that a codefendant was using a gun. 

          Further, appellants   not the government   must bear the

burden of persuasion, see Morris, 99 F.3d at 480, by explaining in

a  convincing manner why the jury   if it did agree when it

acquitted on count 4 that the count 3 conspiracy did not exist  

did not then acquit on count 3.  Instead, at best appellants simply

offer a plausible competing theory.  See supra.  But even though

"'[t]he mere possibility that the jury acted irrationally, without

more, will not negate the collateral estoppel effects of a prior

verdict if a rational interpretation of the verdict as a whole is

possible,'" Romeo, 114 F.3d at 144 (emphasis added; citation

omitted), appellants were confronted with "more":  that is, the

government's plausible interpretation of the ambiguous jury

instructions and the apparent irrationality of the jury verdicts. 

Accordingly, since each collateral estoppel claim is to be

evaluated on its own peculiar facts, the idiosyncratic record in

the present case leads us to conclude that the district court

correctly denied the motion to dismiss.

     B.   Motion in Limine

          Ciampi claims that the acquittals on count 13 (use of

handgun equipped with silencer, under count 12, in attempted murder

of Cirame) and count 17 (use of machine gun, under count 16, in

attempted murder of Stephen Rossetti) bar the government from

introducing evidence of Ciampi's use of those particular firearms

at any retrial on count 4, which charges him with using firearms to

further a conspiracy to murder fourteen persons, including Cirame

and Rossetti.  As explained below, we lack jurisdiction to

entertain the Ciampi appeal.

          Unlike appellants' joint collateral-estoppel claim, see

supra Section II.A, not even a successful appeal from the denial of

Ciampi's motion in limine would preclude his retrial on count 4. 

Since count 4 alleges that Ciampi used firearms in connection with

a broader conspiracy, a successful appeal would merely restrict the

evidence the government could introduce on retrial.  It would not

necessitate a dismissal of count 4.

          Normally, a double-jeopardy appeal is encompassed within

the Cohen exception to the final judgment rule precisely because,

absent an immediate appeal, the core relief conferred by the Double

Jeopardy Clause is irretrievably lost to the would-be appellant;

that is, insulation from the burdens of an improper retrial.  See

Abney v. United States, 431 U.S. 651, 659-62 (1977).  In contrast,

even if the Ciampi motion in limine had been granted by the

district court, a retrial on count 4 still would have been

necessary.  Moreover, rulings on motions in limine normally are

considered provisional, in the sense that the trial court may

revisit its pretrial evidentiary rulings at retrial when an

evidentiary proffer may be more accurately assessed in the context

of the government's other evidence.  See United States v. Smith, 46

F.3d 1223, 1233 (1st Cir. 1995).  Thus, the Ciampi challenge is not

ripe for appellate review, nor will its postponement irretrievably

deprive him of any right protected by the Double Jeopardy Clause.

          Although other circuits are unanimous in holding, on

collateral estoppel grounds, that no immediate appeal will lie from

pretrial evidentiary rulings of this type, Ciampi contends that

First Circuit precedent is to the contrary. See United States v.

Royal, 174 F.3d 1, 9 (1st Cir. 1999) ("'[I]n a multipanel circuit,

newly constituted panels are, for the most part, bound by prior

panel decisions closely on point.'") (citation omitted).  However,

the authorities relied on by Ciampi   principally United States v.

DeVincent, 632 F.2d 155 (1st Cir. 1980)   did not reach the

jurisdictional issue presented here.

          In DeVincent we simply pointed out that collateral

estoppel "is separate from the application of the Blockburger rule

or from the core concept of double jeopardy, as well as the

comparison of the statutory elements of the two crimes," in that

"[c]ollateral estoppel need not apply to a whole count but instead

can control a single element of a count or trial."  United States

v. DeVincent, 632 F.2d 155, 160 (1st Cir. 1980).  We did so only

after completing the Blockburger analysis, and before turning to

the distinct collateral-estoppel claim asserted by DeVincent. 

Although the quoted language was intended to contrast core double-

jeopardy claims with collateral-estoppel claims, both of which come

under the umbrella of the Double Jeopardy Clause, we did not

remotely suggest that all collateral-estoppel claims are alike for

all purposes, let alone imply that an interlocutory appeal would

lie in relation to any and all collateral-estoppel claims.  Rather,

collateral-estoppel claims fall into two distinct categories: those

involving factual findings which will preclude retrial, and those

which merely delimit the scope of the government's evidence on

retrial.  DeVincent, Morris, and Aguilar-Aranceta each involved the

former variety.  Thus, adoption of the sound jurisdictional rule

endorsed by our sister circuits is not precluded under our

precedents.

          Finally, Ciampi suggests that since there can be no

question that we possess jurisdiction of the joint appeal from the

denial of appellants' motion to dismiss, see supra Section II.A,

the interests of judicial efficiency would be served were we to

invoke our pendant jurisdiction over Ciampi's interlocutory appeal

from the denial of his motion in limine.  This approach is

foreclosed as well.

          In  Swint v. Chambers County Commission, 514 U.S. 35

(1995), the Supreme Court placed severe constraints on the exercise

of this type of pendant jurisdiction.  See id. at 44 n.2 (citing

Roque-Rodriguez v. Lema Moya, 926 F.2d 103, 105 n.2 (1st Cir.

1991)).  Where appealable and nonappealable claims are not

"inextricably intertwined," "a rule loosely allowing pendant

appellate jurisdiction would encourage parties to parlay Cohen-type

collateral orders into multi-issue interlocutory appeal tickets." 

Id. at 49-50 (specifically noting that Abney found "special

considerations" justifying immediate appeals from core Double

Jeopardy claims).  As the Ciampi appeal from the denial of the

motion in limine is not intertwined with appellants' joint appeal,

we discern no sound basis for exercising pendant jurisdiction.

          Accordingly, we affirm the district court order denying

appellants' motion to dismiss and dismiss the appeal from the

denial of Ciampi's motion in limine for want of appellate

jurisdiction.                             APPENDIX



               A member of a conspiracy who commits another crime

     during the existence or life of a conspiracy and commits

     another crime in order to further or somehow advance the

     goals or objectives of the conspiracy may be found by you

     to be acting as the agent of the other members of the

     conspiracy.  The illegal actions of that person in

     committing that other crime may be attributed to other

     individuals who are then members of that conspiracy and

     who are also charged with that substantive crime.  Under

     certain conditions, therefore, a defendant may be found

     guilty of the other crime even though he or she did not

     participate directly in the acts constituting the

     offense.

               If you find that the government has proven the

     defendant under consideration guilty of conspiracy as

     charged in count 3 of the indictment beyond a reasonable

     doubt, you may also find that defendant guilty of any

     substantive crimes alleged in counts 4 through 10 and

     counts 12 through 18, with which he is charged, provided

     you find that the essential elements of those counts as

     defined in these instructions have been established

     beyond a reasonable doubt and, provided further, you also

     find that each of the following four elements have [sic]

     been proven beyond a reasonable doubt:



                              One, that the specific substantive

               offense at issue   of murder,

               attempted murder, or assault with a

               dangerous weapon in aid of

               racketeering, or of using or

               carrying a firearm during and in

               relation to a crime of violence, as

               described in any of the counts 4

               through 10, and counts 12 through 18

               of the indictment, was committed by

               a member of the conspiracy as

               detailed in count 3 of the

               indictment;



                              Two, that the substantive crime was

               committed during the existence or

               life of and in furtherance of the

               goals or objectives of the

               conspiracy;



                              Three, that the substantive crime

               was a reasonably foreseeable

               consequence of the conspiracy  

               reasonably foreseeable to the

               defendant then under consideration;

               and



                              Four, that at the time that the

               substantive crime was committed, the

               defendant under consideration was a

               member of the conspiracy.