SALVATORE SALAMONE, PETITIONER V. UNITED STATES OF AMERICA No. 90-5791 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-9a) is reported at 902 F.2d 237. An order of this Court vacating a prior decision in this case and remanding for further consideration is reported at 110 S. Ct. 830. The prior opinion of the court of appeals (Pet. App. 10a-39a), as amended (Pet. App. 40a-41a), is reported at 869 F.2d 221. The pertinent orders of the district court (Pet. App. 42a-50a) are not reported. JURISDICTION The judgment of the court of appeals was entered on May 9, 1990. A petition for rehearing was denied on June 26, 1990 (Pet. App. 52a). The petition for a writ of certiorari was filed on September 24, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's acquittals in a prior trial on drug trafficking and RICO conspiracy charges collaterally estopped the government from introducing evidence in petitioner's subsequent trial for firearms offenses. STATEMENT Following a jury trial in the United States District Court for the Middle District of Pennsylvania, petitioner was convicted on one count of possessing an illegally made machine gun, in violation of 26 U.S.C. 5861(c); one count of possessing an unregistered machine gun, in violation of 26 U.S.C. 5861(d); one count of conspiring to falsify firearms transaction records required by federal law, in violation of 18 U.S.C. 371; and two counts of falsifying firearms transaction records, in violation of 18 U.S.C. 924(a). Petitioner was sentenced to 16 years' imprisonment and was ordered to pay $20,000 in fines. Govt. C.A. Supp. App. 1556-1557. In its initial decision on petitioner's appeal, the court of appeals reversed the convictions on the last three counts. Pet. App. 10a-41a. This Court granted the government's petition for a writ of certiorari, vacated the court of appeals' judgment, and remanded for further consideration in light of Dowling v. United States, 110 S. Ct. 668 (1990). Upon remand, the court of appeals affirmed the convictions on all counts. Pet. App. 1a-9a. The petition seeks further review of the decision on remand. /1/ 1. The questions presented concern petitioner's convictions on the count charging him with conspiring to falsify firearms records and two counts charging him with falsifying such records; these were the convictions that the court of appeals reversed in its first opinion but affirmed on remand from this Court. With respect to those counts, Daniel Jenkins, a gun shop employee who was named in the indictment as an unindicted co-conspirator, testified that petitioner ordered seven AR-15's, three Uzi's and six MAC's (semi-automatic weapons) from the gun shop. Petitioner later accepted -- and signed the requisite federal forms for -- the Uzi's, seven CAR-15's (which were substituted for the AR-15's petitioner had ordered), and an elephant gun that he added to the order. Jenkins testified, however, that petitioner refused to use his own name in filling out the federal forms for the six MAC's; consequently, Jenkins and petitioner used two fictitious names -- along with false addresses and identifying information -- on the forms for those weapons. Pet. App. 14a-15a. Petitioner's defense was that he was not the purchaser of the MAC's. Rather, he testified, he refused to buy the guns or to sign the federal forms for them because the guns were for his brother, Filippo. Id. at 16a-17a. The government introduced additional evidence, the admissibility of which is the subject of the petition, to buttress Jenkins' testimony that petitioner was the purchaser and to suggest that petitioner had a motive to falsify firearms recors that would have identified him as the purchaser of the MAC's. That evidence showed that FBI agents recovered some of the MAC's for which false paperwork had been prepared from hiding places at three locations in New Jersey. At two of those locations, the agents also found weapons that petitioner had purchased in his own name. FBI agents testified that petitioner's brother and several other persons were seen at those locations. Finally, the prosecution introduced a stipulation that various phone calls had been made between restaurants owned by petitioner, the locations from which the weapons were recovered, and the homes of some of those seen entering and leaving those locations. Pet. App. 16a, 28a-30a & n.16. This evidence, the government argued, suggested that the firearms were involved in a scheme to which petitioner wished to conceal his connection. R. 129, at 11-12; C.A. App. on Remand 82-84. See Pet. App. 31a. /2/ Before trial, petitioner filed a motion in which he argued that his acquittals on two counts in United States v. Badalamenti, No. SS 84 Cr. 236 (PNL) (S.D.N.Y.), required the dismissal of the indictment or, in the alternative, estopped the government from offering any evidence in the instant case that had previously been introduced in Badalamenti. /3/ The district court denied the motion. Pet. App. 42a-48a. 2. In its initial decision, the court of appeals upheld the district court's determination that petitioner's acquittals on two counts in Badalameni did not require dismissal of the indictment and did not foreclose the introduction of all of the evidence in dispute. Pet. App. 24a, 27a. The court concluded, however, that the government was estopped from offering some of that evidence -- evidence showing that petitioner's brother and others had been at the locations from which some of the MAC's were recovered and that calls had been placed among those individuals and those locations. Id. at 28a-36a. The court explained that the Badalamenti jury "necessarily decided that (petitioner) was not a member of the narcotics conspiracy at issue in Badalamenti" and that the government was effectively attempting in this case to relitigate the existence of the same conspiracy. Pet. App. 33a. Even if the facts the government sought to prove were not necessarily rejected by the jury in Badalamenti, the panel continued, "the inference that the government sought the jury to draw from those facts -- that (petitioner) purchased various weapons as a participant in a conspiracy -- already had been decided in (petitioner's) favor by a prior jury." Id. at 35a. /4/ Finding that the admission of the evidence was not harmless error, the court reversed petitioner's convictions on the conspiracy count and the firearm record falsification counts. Id. at 36a, 39a. 3. The government petitioned for a writ of certiorari, requesting that the case be held pending the Court's decision in Dowling v. United States, No. 88-6025, another case in which the Third Circuit had held that the doctrine of collateral estoppel foreclosed the admission of evidence in a criminal trial. The petition noted that the court of appeals' decision in the instant case raised the same questions that were before the Court in Dowling. No. 88-2092 Pet. 7-9. /5/ In Dowling, this Court held that Dowling's acquittal on charges arising from an attempted robbery did not estop the government from introducing evidence of the incident in a subsequent prosecution in which he was charged with a different offense. 110 S. Ct. 668 (1990). The Court noted that Dowling's acquittal established only that there was a reasonable doubt as to whether he had participated in the attempted robbery and that evidence of his participation in the bank robbery was admissible in the second prosecution under a lower standard of proof. For that reason, the Court held, neither the collateral estoppel component of the Double Jeopardy Clause nor the common-law conception of collateral estoppel barred the introduction of the evidence. Id. at 672-673. In the alternative, the Court held that Dowling had not carried his burden of establishing a necessary predicate for collateral stoppel -- i.e., that his acquittals had rested on the issue that the government sought to relitigate in the bank robbery trial. Id. at 673-674. A week after issuing its decision in Dowling, this Court granted the government's petition in the instant case, vacated the court of appeals' judgment, and remanded for further consideration in light of Dowling. 110 S. Ct. 830 (1990). 4. On remand, the court of appeals reversed its earlier decision and affirmed petitioner's convictions on all counts. Pet. App. 1a-9a. The court concluded that its prior decision "cannot be reconciled with Dowling" because the decision "suffered from the very flaw" that rendered "both constitutional and doctrinal collateral estoppel inapplicable in that case." Id. at 7a; see id. at 8a-9a. In the instant case, the court of appeals explained, the government was not required to establish the veracity of the disputed evidence beyond a reasonable doubt. Thus, "under Dowling, there was no reason why (the jury in this case) could not draw inferences from the testimony and conclude that (petitioner) was in fact a member of the conspiracy, even though the government had been unable to establish that point beyond a reasonable doubt at the Badalamenti trial." Id. at 7a. As in Dowling, the court of appeals continued, "it cannot be said that the acquittal in Badalamenti determined an ultimate issue in this case." Id. at 8a. Thus, the court concluded, "our conclusion on the prior appeal, that the verdict in Badalamenti established that (petitioner) 'was not a member of the narcotics conspiracy at issue,' * * * though perhaps satisfying the identity of issues component of Dowling, is no help to (petitioner)." Id. at 8a-9a. /6/ ARGUMENT As the court of appeals recognized, this Court's decision in Dowling forecloses petitioner's contention that his acquittals in Badalamenti estopped the government from introducing the evidence at issue here. Those acquittals established that there was a reasonable doubt as to whether petitioner participated in the drug trafficking and RICO conspiracies that were charged in Badalamenti. To demonstrate that petitioner was guilty of the offenses charged in the instant case, the government was not required to prove petitioner's participation in the same conspiracies at all, let alone beyond a reasonable doubt. A lower standard of proof was applicable to the evidence at issue. That evidence was admissible based solely upon showings that it had a tendency to make the existence of a fact of consequence to the action -- here, the fact that petitioner was the purchaser of the MAC's -- more probable than it would have been without the evidence (Fed. R. Evid. 401) and, to the extent relevance was dependent upon a conditional fact, that the jury could reasonably find that fact by a preponderance of the evidence (Fed. R. Evid. 104(b)). See Huddleston v. United States, 485 U.S. 681, 690 (1988). For the reasons stated in Dowling, the acquittals in Badalamenti did not estop the government from making the showing required to introduce its evidence. /7/ Petitioner's attempts to limit or distinguish Dowling are without merit. Contrary to petitioner's suggestion (Pet. 16-17, 21-22), this Court squarely held in Dowling that neither the collateral estoppel component of the Double Jeopardy Clause, see Ashe v. Swenson, 397 U.S. 436 (1970), nor common law principles of collateral estoppel barred admission of evidence in the situation present here. The Court concluded that the government was not "constitutionally barred" from introducing in Dowling's bank robbery trial evidence of the offenses of which he had been acquitted in his earlier trial, and the Court "(found) no merit in the Third Circuit's holding that the common-law doctrine of collateral estoppel bars the later use of evidence relating to prior conduct which the government failed to prove violated a criminal law." 110 S. Ct. at 673. /8/ To the extent that some of the court of appeals cases cited in the petition suggest otherwise (Pet. 17-22), they are no longer good law. /9/ Nor is there any material factual distinction between this case and Dowling. The standards of proof that applied in petitioner's trials were identical to the corresponding standards in Dowling's trials. Dowling's analysis did not turn, as petitioner suggests (Pet. 15, 22), on the fact that the trial court in Dowling delivered a limiting instruction. Dowling makes clear that courts may employ limiting instructions to protect defendants against prejudice arising from evidence that collateral estoppel does not preclude, but it did not suggest that the absence of such an instruction operates to reinstate collateral estoppel in situations where that doctrine would not otherwise apply. /10/ Finally, this Court's decision in Grady v. Corbin, 110 S.Ct. 2084 (1990), has no bearing on the issues presented by the petition. Grady presented only the question whether successive prosecutions for crimes arising out of an automobile collision involved the "same offense" within the meaning of the Double Jeopardy Clause. Thus, in its decision in Grady, the Court had no occasion to consider the constitutional or common-law implications of collateral estoppel. Grady is irrelevant to the questions presented by the instant petition -- which challenges only the court of appeals' application of collateral estoppel as construed in Dowling. /11/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General KAREN SKRIVSETH Attorney NOVEMBER 1990 /1/ This case has a lengthy procedural background. In 1984, petitioner was indicted in two cases, the instant case and United States v. Badalamenti, No. SS 84 Cr. 236 (PNL) (S.D.N.Y.). Petitioner went to trial on the indictment in the instant case first, and was convicted on six counts of a seven-count indictment charging various firearms offenses. The court of appeals reversed, however, holding that the district court had committed error during voir dire. 800 F.2d 1216 (1986). Before petitioner was retried in this case, he was tried on the indictment in Badalamenti. In that case, petitioner was convicted of participating in a money laundering conspiracy and various substantive money laundering offenses, and was acquitted on counts charging him with participating in conspiracies to traffick in narcotics and to violate the RICO statute. The Second Circuit has affirmed petitioner's convictions in that case. United States v. Casamento, 887 F.2d 1141 (2d Cir. 1989), cert. denied, 110 S. Ct. 1138 (1990). The petition presents questions arising from petitioner's second trial on the indictment in the instant case. After the Badalamenti trial, petitioner was retried on the six counts on which he had previously been convicted in this case. The jury returned guilty verdicts on five of the six counts. Petitioner's appeal from those convictions resulted in two decisions by the court of appeals, the second of which is the subject of this petition. /2/ The government did not dispute that comparable evidence was introduced in the Badalamenti case. Pet. App. 30a. In the instant case, however, the government did not suggest that petitioner or others to whom the government's evidence referred were part of a narcotics conspiracy or racketeering enterprise of the sort alleged in Badalamenti. /3/ In Badalamenti, petitioner was charged with conspiracy to import and distribute narcotics, conspiracy to violate the RICO statute, participation in a money laundering conspiracy, and various substantive money laundering offenses. See Pet. App. 11a-12a. The narcotics conspiracy count alleged that petitioner "obtained, possessed, stored, concealed, transported and otherwise utilized firearms" in order to further the conspiracy, and it listed as overt acts some of the firearms transactions involved in this case. Gov't C.A. Supp. App. 1511-1512, 1520-1521. The RICO conspiracy count in Badalamenti incorporated those allegations by reference. Id. at 1535. After a trial to a jury, petitioner was convicted in Badalamenti on the money laundering counts, but he was acquitted on the narcotics and RICO conspiracy counts. See Pet. App. 12a. Both lower courts held that the acquittals in Badalamenti were based upon a determination -- that there was insufficent evidence that petitioner participated in the conspiracies charged in Badalamenti -- that did not altogether bar prosecutions for the firearms offenses charged in the instant case. Id. at 22a-26a, 44a-48a. The petition does not seek further review of that determination. /4/ The court held that the prior verdict did not foreclose the admission of evidence of the recovery of the MAC's from the three New Jersey locations or phone calls between petitioner's restaurant and one of those locations. Pet. App. 36a-38a. /5/ Petitioner filed a cross-petition, which was denied. 110 S. Ct. 246 (1989). /6/ The court also rejected other contentions petitoner had advanced. Pet. App. 9a n.3. The petition does not seek further review of those issues. /7/ Although the court of appeals ruled otherwise in its first decision, it is our position that petitioner also failed to carry his burden of demonstrating that the issue as to which the disputed evidence was introduced in this case was the "same issue," for purposes of collateral estoppel, that was resolved in his favor in Badalamenti. See No. 88-2092 Pet. 8-9. This would furnish an alternative basis for affirming the court of appeals' judgment even if there were some merit to the assertion that Dowling's first holding does not control this case. /8/ The Third Circuit's first decision held that petitioner was entitled to relief under "doctrinal" collateral estoppel principles it had enunciated in United States v. Keller, 624 F.2d 1154 (3d Cir. 1980). In Dowling, this Court rejected that analysis. As the Third Circuit recognized, its first decision in this case cannot survive Dowling. /9/ The Court cited some of the cases referred to in the petition, but only for the proposition that the defendant has the burden of demonstrating "that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding." 110 S. Ct. at 673. In so doing, this Court did not approve any statements in those decisions that contradicted its other holding, which was that collateral estoppel does not bar relitigation of an issue when the issue is subject to a lower standard of proof in the second trial than it was in the first. Petitioner's reliance (Pet. 20) on United States v. Dray, 901 F.2d 1132, 1138 (1st Cir.), cert. denied, 111 S. Ct. 245 (1990), a post-Dowling decision, is misplaced. In Dray, the defendant argued that acquittals on certain counts of an indictment estopped the government from retrying him on other counts, since the retrial would require the government to prove beyond a reasonable doubt an issue resolved in his favor in the first trial. The First Circuit rejected that contention, concluding that the acquittals were based on an issue -- whether certain documents had actually been mailed -- that was not necessary for convictions of the offenses remaining for retrial. In reaching that conclusion, the court distinguished the Third Circuit's initial decision in the instant case, which had held that the government was seeking to relitigate an issue resolved in petitioner's favor. Nothing in Dray supports petitioner's attempt to limit Dowling. Indeed, the First Circuit recognized in Dray, 901 F.2d at 1138 n.3, that Dowling had undercut one of its decisions, United States v. Gonzalez-Sanchez, 825 F.2d 572 (1st Cir.), cert. denied, 484 U.S. 989 (1987), on which petitioner relies here (Pet. 17). /10/ In this case, the district court considered and rejected petitioner's contention that the evidence at issue was inadmissible under Fed. R. Evid. 403. C.A. App. on Remand 86-87. The court of appeals sustained that ruling. Pet. App. 9a n.3. The petition does not seek further review of that question, and petitioner does not claim to have requested a limiting instruction. /11/ In his earlier cross-petition, petitioner presented the question whether Badalamenti and this case involved the "same offense" within the meaning of the Double Jeopardy Clause. 89-5252 Pet. i. This Court denied the petition. 110 S. Ct. 246 (1989). The instant petition does not seek review of that question. Pet. i.