Collateral estoppel issues arise only when the government prosecutes an acquitted defendant for having given perjurious trial testimony that led to the acquittal. If the defendant was convicted in the prior trial, or a witness who testified in that trial is now being tried for perjury, collateral estoppel does not apply because the issue of the truth or falsity of the prior testimony could not have been decided adversely to the government in the previous trial. United States v. Kramer, 73 F.3d 1067, 1073 (11th Cir.), cert. denied, 117 S.Ct. 516 (1996). When the testifying defendant was acquitted at the original trial, the test becomes whether the jury based the acquittal on the false testimony or whether it found the government's prior case deficient in some way. The determination "depends upon the facts adduced at each trial and the instructions under which the jury arrived at its verdict at the first trial." Sealfon v. United States, 332 U.S. 575, 579 (1948); Ashe v. Swenson, 397 U.S. 436, 444-45 (1970). See also, United States v. Carter, 60 F.3d 1532, 1534 (11th Cir. 1995)(jury may not have acquitted defendant because of his alibi, but because of defenses creating reasonable doubt as to elements of crime); United States v. Sarno, 596 F.2d 404, 408 (9th Cir. 1979)(perjury prosecution barred when prior acquittal based on jury accepting defendant's testimony as true). Significantly, the burden is on the defendant to establish that the verdict in the prior trial necessarily determined in the defendant's favor the issue that he or she contends should not be considered. These cases should be reviewed carefully before being brought to avoid waste of government resources or the appearance of vindictive prosecution.
[cited in JM 9-69.200]