United States v. Smith

337 A.2d 499, 1975 D.C. App. LEXIS 375

Opinions

GALLAGHER, Associate Judge:

This appeal presents the question of whether the government is collaterally es-topped from a retrial of the defendant (ap-pellee) for obstruction of justice. He was originally tried by jury under an indictment containing three counts: obstruction of justice, threats to do bodily harm and bribery.¹ He was acquitted of the charges of threats to do bodily harm and bribery, and the jury “hung” on the charge of obstruction of justice. Prior to retrial on obstruction of justice, the trial court dismissed with prejudice this charge on the ground of collateral estoppel. It is this ruling which is before us. We reverse on the ground that the doctrine of collateral estoppel does not apply here.

Essentially, the trial court grounded its dismissal on its conclusion that the elements of the “threats” charged in the indictment are essential elements of proof with respect to the charge of obstruction of justice. This being so, said the trial court, by its verdict of not guilty on the “threats” charge, the jury determined the issue with respect to the identical threats alleged in the obstruction of justice charge.²

We say this is not necessarily so, fundamentally for two reasons: (a) we have here a multiple count indictment, as distinguished from a single charge, in the first trial and (b) the jury “hung” in the first trial on the very charge the government now seeks to retry.

The fundamental requirement for application of the doctrine of collateral estoppel is the ability to conclude what the jury must necessarily have determined at the prior trial. Hoag v. State of New Jersey, 356 U.S. 464, 472, 78 S.Ct. 829, 2 L. Ed.2d 913 (1958).

This case is not susceptible of this conclusion. The first obstacle is that we have here a multiple count indictment in the first trial where the jury “hung” on the very charge involved in the retrial (obstruction of justice).³ A “hung” jury determines nothing except an inability to reach a verdict. The crucial consideration is that where a jury considers a multiple count indictment one is frequently unable to discern, as required by the doctrine of collateral estoppel, what the jury must have determined factually. This is because juries commonly return inconsistent verdicts on various counts of an indictment for reasons of lenity, mistake, inadvertence, or no reason at all.⁴ “[W]hen a jury convicts upon one count and acquits upon another the conviction will stand, though there is no rational way to reconcile the two conflicting conclusions.” Robinson v. United States, 175 F.2d 4, 10 (9th Cir.), cert. denied, 338 U.S. 832, 70 S.Ct. 75, 94 L.Ed. 506 (1949), citing Seiden v. United States, 16 F.2d 197, 198 (2d Cir. 1926). “The jury may have merely exercised a clemency that is its prerogative without regard to logic.” United States v. Robinson, 154 U.S.App.D.C. 265, 272, 475 F.2d 376, 383 (1973). Such “inconsistency is immaterial.” Ross v. United States, 197 F.2d 660, 663 (6th Cir.), cert. denied 344 U.S. 832, 73 S.Ct. 40, 97 L.Ed. 648 (1952). “Juries may indulge in precisely such motives or vagaries.” United States v. Coplon, 185 F.2d 629, 633 (2d Cir.), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952), citing United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48 (1943).

In Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948), the defendant was acquitted of conspiring to defraud the United States Government. In a subsequent trial he was found guilty of the substantive offense of defrauding the United States Government. The court held that since there was only one issue involved, i. e., whether there was an agreement, the doctrine of res judicata applied.

In Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court held that the doctrine of collateral estoppel in criminal cases is embodied in the Fifth Amendment guarantee against double joepardy. In Ashe the defendant was allegedly involved in the robbery of three persons. A jury in the first trial, faced with a single count indictment, found him not guilty of robbing one of the victims, this being the only charge. In this situation the Supreme Court reasoned that collateral estoppel applied in a subsequent trial for robbing one of the other two persons noting that the state “frankly conceded” that “it treated the first trial as no more than a dry run for the second prosecution . . . Id. at 477, 90 S.Ct. at 1196. The Supreme Court further explained in Ashe, the doctrine of collateral estoppel, drawing upon its decision in Seal-fon v. United States, supra:

“Collateral estoppel” . . . means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.

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Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” The inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240.

. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impermissible.

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The question is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again. [Ashe, 397 U.S. at 433-446, 90 S.Ct. at 1194-1195; Emphasis added.]

For the purposes of distinguishing the Ashe and Sealfon doctrines in the circumstances of this case, it is necessary to recall that Ashe and Sealfon dealt with single count indictments in the first trial where the government attempted, in effect, to retry factually the same case it had just lost.

It has long been the law that the Sealfon doctrine “has no application to different counts in the same indictment or to consolidated indictments.” United States v. Petti, 168 F.2d 221, 224 (2d Cir. 1948);⁵ Ross v. United States, supra, 197 F.2d at 663. See also United States v. Marcone, 275 F.2d 205, 206 (2d Cir.), cert. denied, 362 U.S. 963, 80 S.Ct. 879, 4 L.Ed.2d 877 (1960); Robinson v. United States, supra, 175 F.2d at 10; United States v. Coplon, supra, 185 F.2d at 633; cf. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). Though there were no second trials involved in those cases, they dealt with situations where there were assertedly inconsistent acquittals and guilty findings under multiple count indictments.⁶ Here, there was not only a multiple count indictment but the jury “hung” on the identical charge which the government sought to retry and, consequently, even though appellant was acquitted of the “threats” charge, one is unable to demonstrate that the jury must have found in his favor the ultimate facts underlying the obstruction of justice charge.⁷

To illustrate, if one concludes the jury had necessarily found there were no threats made, this conclusion is undercut by the jury’s failure also to acquit on the obstruction by threats charge.⁸ It did not do so. This demonstrates there is not present here the required showing that the jury must have determined there were no threats. “Unless the record of the prior proceeding affirmatively demonstrates that an issue involved in the second trial was definitely determined in the former trial, the possibility that it may have been does not prevent the relitigation of that issue.” United States v. Haines, 485 F.2d 564, 565 (7th Cir. 1973), cert. denied, 417 U.S. 977, 94 S.Ct. 3184, 41 L.Ed.2d 1147 (1974).

If in a situation such as this, one were to view the acquittal on the “threats” charge in a vacuum this approach might lead eventually to the point where in some multiple charge trials jurors would be instructed to render “an all-or-nothing verdict”,⁹ and in our view this could have consequences undesirable to the administration of criminal justice.

The rationale of the multiple count exception to the Sealfon doctrine emanates from “the judicially recognized fact that juries frequently convict on some counts but acquit on others, not because they are unconvinced of guilt, but simply because of compassion or compromise.” United States v. Fox, 140 U.S.App.D.C. 129, 132 n. 22, 433 F.2d 1235, 1238 n. 22 (1970).¹⁰ “The vogue for repetitious multiple count indictments may well produce an increase in seemingly inconsistent jury verdicts, where in fact the jury is using its power to prevent the punishment from getting too far out of line with the crime.” United States v. Maybury, 274 F.2d 899, 902 (2d Cir. 1960). This is why inconsistent and seemingly irrational jury verdicts are commonplace with multiple count indictments.

If appellant had been first tried on one charge (threats), with a general verdict being returned, as in Ashe v. Swenson, supra, and Sealfon v. United States, supra, one might well be in a position to ascertain what the jury must have determined factually. However, the examination¹¹ encouraged in Ashe is unavailing here.

We conclude the doctrine of collateral estoppel does not apply in this instance and we reverse with instructions to reinstate the indictment as it relates to the charge of obstruction of justice.

So ordered.

1 . D.C.Code 1973, §§ 22-703, 22-2307 and 22-701, respectively.

2 . In the original trial of this case the trial judge gave the following instructions:

(1) On threatening to injure a person— “In order to find the defendant guilty as charged, the Government must prove, beyond a reasonable doubt, that the defendant, within the District of Columbia, threatened to injure the person of another, namely, William W. Johnson.” (.TR. 136)

(2) On obstruction of justice — “[T]he Government must establish the following elements of the offense, beyond a reasonable doubt, as follows:

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3.) That the defendant, by threats endeavored to influence, or intimidate, or impede a complaining witness — again, Officer Johnson — in the discharge of his duties, that is giving testimony in a proceeding in which he was to be a witness.” (TR 134, 135)

(3) On intent — “[Gjeneral intent only is required for the threats, but specific intent is required for the bribery and the obstruction of justice.” (TR 131)

(4) On the multiple counts — “A separate offense is charged in each of the counts in this indictment. Three separate offenses; threats, obstructing, bribery. Three distinct charges. Each offense, and the evidence applicable thereto, should be considered separately. The fact that you may find the defendant guilty, or not guilty, on any one count in the indictment, does not control or influence your deliberations, or your verdict, with respect to the other counts in the indictment. Example, you can’t say ‘He’s guilty of one, find him guilty of the other two.’ You don’t do it that way. ‘He’s not guilty of the first one, so he’s not guilty of the other two.’ You have to deliberate on each one; take a look at each one individually, because they’re all separate counts. It may be part of an overall picture with respect to the offense when it was committed, if you believe it was committed, but when you look at the total picture, you’ve got to separate it. You consider one, decide it, and then consider the next and so on. You don’t take your verdict based on what you decide on one and apply it to the others. You must decide each one separately." (TR 130-131) (Emphasis added.)

3 . It would hardly be contended post-trial that if the jury had convicted on the obstruction charge, this course was not open to it since it acquitted on the threats charge.

4 . If in the first trial there had been only a single count under the threats charge with an acquittal resulting and the government sought a second trial on a new charge of obstruction of justice, we might possibly have been faced with a different question.

5 . Remanded for a new trial on another issue, 336 U.S. 916, 69 S.Ct. 639, 93 L.Ed. 1079 (1949).

6 . For a circuit by circuit recitation of eases involving this factual situation, all circuits being in agreement, see United States v. Pox, 140 U.S.App.D.C. 129, 132 n. 21, 433 F.2d 1236, 1238 n. 21 (1970).

7 .We do not have here the seemingly oppressive and confusing array of charges found in Cosgrove v. United States, 224 F.2d 146 (9th Cir. 1954), which we gather gave rise to that decision.

8 . “Threats” as used in both statutes means only that the words had “a reasonable tendency to intimidate.” United States v. De Stefano, 476 F.2d 324, 330 (7th Cir. 1973). “The gist of the crime [threats to do bodily harm] is that the words used are of such a nature as to convey a menace or fear of bodily harm to the ordinary hearer.” Postell v. United States, D.C.App., 282 A.2d 551, 553 (1971).

9 . Bickel, Judge and Jury — Inconsistent Verdicts In The Federal Courts, 63 Harv.D.Rev. 649, 652 (1950).

10 . If the trial court ruling on this question were to be approved, one would be led to inquire whether if, after acquitting on the “threats” charge, the jury had convicted on the obstruction of justice charge, the latter conviction should be set aside as prohibited to the jury due to the asserted factual findings by the jury on the “threats” charge. Needless to say, under the decisions establishing the permissibility of inconsistent verdicts by juries, supra, a conviction under the obstruction of justice charge was decidedly open to the jury notwithstanding the acquittal of the “threats” charge.

11 .Ashe would require an examination of “the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, [to] conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194.