GARY M. SILVERS, PETITIONER V. UNITED STATES OF AMERICA No. 89-7414 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 Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A8) is not reported. JURISDICTION The judgment of the court of appeals was entered on November 17, 1989. A petition for rehearing was denied on January 31, 1990. The petition for a writ of certiorari was filed on April 27, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Double Jeopardy Clause barred prosecution of petitioner on charges relating to his role in a cocaine transaction in Maryland after he was acquitted of charges relating to his role in a cocaine transaction in Virginia. 2. Whether the doctrine of collateral estoppel precluded petitioner's conviction on the Maryland charges. STATEMENT Following a jury trial in the United States District Court for the District of Maryland, petitioner was convicted of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. 846; distribution of cocaine, in violation of 21 U.S.C. 841(a)(1); and interstate travel in aid of a racketeering enterprise, in violation of 18 U.S.C. 1952(a)(3). He was sentenced to ten years' imprisonment. Pet. App. E1. 1. During its June 1987 term, a federal grand jury in the Eastern District of Virginia returned a 30-count indictment against petitioner and nine co-defendants. C.A. App. 73-112. Petitioner was charged in two counts that centered on an alleged delivery of cocaine by petitioner and his brother to Raymond Carnahan in Fairfax County, Virginia. /1/ Count 2 charged that petitioner traveled from Florida to Virginia on July 7, 1982, to deliver 396.5 grams of cocaine in aid of a racketeering enterprise, in violation of 18 U.S.C. 1952(a)(3). Pet. App. D; C.A. App. 91-92. Count 17 charged that petitioner possessed with intent to distribute 396.5 grams of cocaine on July 7, 1982, in Fairfax County, Virginia, in violation of 21 U.S.C. 841(a). Pet. App. D; C.A. App. 96. After a bench trial, the district court acquitted petitioner on both counts on September 28, 1987. 2. In the meantime, on September 16, 1987, a federal grand jury in the District of Maryland returned a 19-count superseding indictment against petitioner and seven co-defendants. Petitioner was charged in three counts of the Maryland indictment. Count 1 charged petitioner, along with the seven co-defendants, with conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. 846. Pet. App. C. Count 4 charged that petitioner distributed one pound of cocaine on July 7, 1982, in Maryland, in violation of 21 U.S.C. 841(a). Pet. App. C. Count 12 charged that petitioner traveled in interstate commerce in Maryland on July 7, 1982, in aid of a racketeering enterprise, in violation of 18 U.S.C. 1952(a)(3). Pet. App. L. 3. Following his acquittal at the Virginia trial, petitioner moved to dismiss the Maryland indictment on double jeopardy and collateral estoppel grounds. C.A. App. 67-118. With respect to Count 4 of the Maryland indictment, petitioner contended that the government's only evidence was the evidence that petitioner had participated in the distribution of cocaine in Virginia, as alleged in Count 17 of the Virginia indictment. C.A. App. 116-117. With respect to Count 12 of the Maryland indictment, petitioner contended that the government ought not be permitted to prove interstate travel on July 7, 1982, to aid a racketeering enterprise in Maryland if such proof would in fact show that he had traveled on that date from Florida to Maryland and then to Virginia; according to petitioner, the acquittal on Count 2 of the Virginia indictment established that he had not so traveled. C.A. App. 113-114. Finally, with respect to Count 1, the conspiracy count of the Maryland indictment, petitioner contended that overt act number 36, alleging that petitioner had distributed cocaine to and/or picked up cocaine from individuals in Virginia, had to be stricken. Petitioner's essential argument with respect to this Count was that his acquittal on Counts 2 and 17 of the Virginia indictment collaterally estopped the government from relitigating the allegation concerning overt act number 36 in the Maryland prosecution. C.A. App. 114-116. At a pretrial hearing, the district court denied petitioner's motion to dismiss Count 4 of the Maryland indictment because "Count Seventeen of the Virginia indictment alleged an entirely different offense." C.A. App. 160. Before ruling on the balance of petitioner's motion, the court decided to hold an ex parte, in camera hearing so that the government could disclose what evidence it would offer at trial. /2/ C.A. App. 162-180. At the hearing, the government stated that it would introduce evidence that petitioner and his brother, Steven Silvers, traveled from Virginia to Maryland on July 7, 1982 to deliver cocaine to coconspirator Clarence "Tuck" Koontz in Hagerstown, Maryland. C.A. App. 163-167. Based on that representation, the court concluded that petitioner's acquittal on Count 2 of the Virginia indictment did not bar Count 12 of the Maryland indictment because there were "two discrete acts." C.A. App. 167. The court indicated, however, that the Virginia acquittal might collaterally estop the government from introducing evidence relating to some issues in the Maryland case. C.A. App. 172-177, 181. On the first day of trial, the court rejected petitioner's renewed contention that the doctrine of collateral estoppel barred his trial on Count 12 of the Maryland indictment. After reviewing the transcript of the ruling acquitting petitioner at the Virginia trial, the court found that "the record at best is rather murky," but the court stated that it did not "believe (that) the judge (who acquitted petitioner in the Virginia prosecution) made a specific finding" that would bar the current prosecution. C.A. App. 193-194. The government had conceded, however, that it would be precluded from introducing evidence that on July 7, 1982, petitioner was with his brother when his brother turned over 396.5 grams of cocaine in Virginia. C.A. App. 194-195. As a result, the government agreed to strike the allegations of overt act number 36 with respect to petitioner. C.A. App. 197. After a six-week trial, the jury convicted petitioner on all three counts with which he was charged. 4. The court of appeals affirmed. Pet. App. A1-A8. It rejected petitioner's claim that Counts 4 and 12 of the Maryland indictment should have been dismissed on double jeopardy and collateral estoppel grounds. The court first concluded that Counts 2 and 17 of the Virginia indictment were not "the same offenses" as Counts 4 and 12 of the Maryland indictment because each pair of counts arose from different "factual circumstances." Id. at A6. The court observed that "(o)bviously, different evidence would have to be presented to prove the charges of the respective indictments," since "the Virginia indictment alleges travel from Florida to Virginia" and "the Maryland charge refers to travel in Maryland." Id. at A6-A7. Because the government "presented evidence that (petitioner) had traveled from Virginia to Maryland" at the Maryland trial, the court found that the government "presented evidence different from that used to prove the Travel Act violation alleged in the Virginia indictment." Id. at A7. The court also noted that "each separate act of interstate travel * * * constitutes a separate punishable offense." Ibid. (citing United States v. Alsobrook, 620 F.2d 139, 142 (6th Cir.), cert. denied, 449 U.S. 843 (1980)). Relying on Ashe v. Swenson, 397 U.S. 436 (1970), the court of appeals also ruled that the doctrine of collateral estoppel did not bar petitioner's trial on the Maryland indictment after his acquittal on the Virginia indictment. /3/ The court explained that "there were no ultimate factual issues decided in the trial in the Eastern District of Virginia" because "the district court merely stated that it did not believe that the government had met its burden of proof." Pet. App. A7. The court added that its "review of the record in this case indicates that there was no ultimate finding or issue of fact relitigated in the Maryland trial." Ibid. ARGUMENT 1. Petitioner first contends that his trial on Counts 4 and 12 of the Maryland indictment was barred by the Double Jeopardy Clause because he was acquitted at the bench trial on Counts 2 and 17 of the Virginia indictment. Pet. 5-16; Supp. Br. 3-5. a. There is no merit in petitioner's contention that the Double Jeopardy Clause barred his trial on Count 12 of the Maryland indictment following his acquittal on Count 2 of the Virginia indictment. Count 2 of the Virginia indictment charged that petitioner traveled from Florida to Virginia on July 7, 1982, to deliver 396.5 grams of cocaine in aid of racketeering enterprise, in violation of 18 U.S.C. 1952(a)(3). Pet. App. D; C.A. App. 91-92. Count 12 of the Maryland indictment charged that petitioner traveled in interstate commerce in Maryland on July 7, 1982, in aid of a racketeering enterprise, in violation of 18 U.S.C. 1952(a)(3). Pet. App. L. As the court of appeals noted, "the Virginia indictment alleges travel from Florida to Virginia" while "the Maryland charge refers to travel in Maryland." Pet. App. A6-A7. Count 12 of the Maryland indictment was thus based on an act of interstate travel different from that charged in Count 2 of the Virginia indictment. Under these circumstances, Count 12 of the Maryland indictment and Count 2 of the Virginia indictment do not charge petitioner with the "same offense" for purposes of the Double Jeopardy Clause. There is likewise no merit in petitioner's claim that the Double Jeopardy Clause barred his trial on Count 4 of the Maryland indictment following his acquittal on Count 17 of the Virginia indictment. Count 17 of the Virginia indictment charged that petitioner possessed with intent to distribute 396.5 grams of cocaine on July 7, 1982, in Fairfax County, Virginia, in violation of 21 U.S.C. 841(a). Pet. App. D; C.A. App. 96. Count 4 of the Maryland indictment charged that petitioner distributed one pound of cocaine on July 7, 1982, in Maryland, in violation of 21 U.S.C. 841(a). Pet. App. C. Count 4 of the Maryland indictment was thus based on a drug transaction different from the one charged in Count 17 of the Virginia indictment. Accordingly, Count 4 of the Maryland indictment did not charge petitioner with the "same offense" as Count 17 of the Virginia indictment. /4/ b. Contrary to petitioner's contention (Supp. Br. 3-5), this Court's recent decision in Grady v. Corbin, 110 S. Ct. 2084 (1990), does not alter the conclusion that the Maryland prosecution was not jeopardy-barred. In Grady, the Court held that the Double Jeopardy Clause prohibits a successive prosecution "in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." 110 S. Ct. at 2093. Here, the government did not prove conduct constituting an offense for which petitioner had already been prosecuted in Virginia in order to establish any essential element of the offenses charged in the Maryland indictment. Indeed, acting pursuant to the government's concession, the district court expressly precluded the government in this case from proving that petitioner had committed the Virginia offenses. C.A. App. 194-195, 665-674. Petitioner's claim that Grady requires reversal of his convictions apparently rests (Pet. 14-15) on the fact that the government introduced some of the same evidence in the Maryland prosecution that it had introduced in the Virginia prosecution. In Grady, however, the Court emphasized that it was not adopting an "actual evidence" or "same evidence" test. 110 S. Ct. at 2093 (footnote omitted). As the Court explained, "(t)he critical inquiry is what conduct the (government) will prove, not the evidence the (government) will use to prove that conduct." Ibid. To be sure, at both trials the government relied on some of the same evidence. In the Maryland prosecution, though, that evidence was introduced to prove that petitioner had traveled from Virginia to Maryland and had distributed cocaine in Maryland; it was not offered to prove that petitioner had traveled from Florida to Virginia or had distributed cocaine in Virginia. Accordingly, the evidence was not offered to prove conduct for which petitioner had already been prosecuted in Virginia. 2. Petitioner also contends that his acquittal on Counts 2 and 17 of the Virginia indictment barred his trial on Counts 4 and 12 of the Maryland indictment under the doctrine of collateral estoppel. Pet. 5-16. The court of appeals correctly rejected that fact-bound contention. The doctrine of collateral estoppel precludes the government from relitigating factual issues necessarily decided adversely to it in a prior criminal proceeding. Dowling v. United States, 110 S. Ct. 668, 672 (1990); Ashe v. Swenson, 397 U.S. 436, 443 (1970). Contrary to petitioner's assumption, his acquittal in Virginia did not constitute a finding in his favor on each and every factual proposition that the government sought to prove to establish the essential elements of the offenses charged in the Virginia indictment. Collateral estoppel only bars the government from proving those facts that were necessarily decided against it; the defendant has the burden of showing that "the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding." Dowling, 110 S. Ct. at 673; see also Ashe, 397 U.S. at 444. In this case, the court of appeals properly concluded that the Virginia acquittal did not resolve any particular factual issue in petitioner's favor because the Virginia trial court "merely stated that it did not believe that the government had met its burden of proof." Pet. App. A7. As in Dowling, "(t)here are any number of possible explanations" for the acquittal in the Virginia trial. 110 S. Ct. at 674. As to the overarching issue of guilt or innocence that was decided in petitioner's favor in the Virginia proceedings, the government here was not required to -- and, in accordance with its concession, in fact did not -- prove that petitioner participated in the transportation of the 396.5 grams of cocaine from Florida to Fairfax County, Virginia, on July 7, 1982. Because the government in this case proved simply that petitioner on that same day traveled from Virginia to Maryland with a separate pound of cocaine and then distributed it in Maryland, and because this fact was not at issue in the Virginia prosecution, petitioner's conviction did not violate principles of collateral estoppel. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General JOSEPH C. WYDERKO Attorney JULY 1990 /1/ In addition, Count 1 of the Virginia indictment charged five individuals with conspiracy to distribute cocaine, in violation of 21 U.S.C. 846, and alleged that petitioner and four other individuals were unindicted coconspirators. Pet. App. D; C.A. App. 73-74. /2/ Since the evidence the government intended to present was outside the scope of discovery to which petitioner was entitled, petitioner agreed that an ex parte, in camera hearing in which the government could present its evidence to the court was appropriate. C.A. App. 116, 130, 146. See United States v. Stricklin, 591 F.2d 1112, 1119 (5th Cir.), cert. denied, 444 U.S. 963 (1979). /3/ To support his collateral estoppel argument, petitioner relied on United States v. Salamone, 869 F.2d 221 (3d Cir. 1989), which the court of appeals found "inapposite." Pet. App. A7. We note that on January 16, 1990, this Court granted the government's petition for a writ of certiorari in Salamone, vacated the judgment and remanded the case for further consideration in light of Dowling v. United States, 110 S. Ct. 668 (1990). See United States v. Salamone, 110 S. Ct. 830 (1990). On remand, the Third Circuit reversed its earlier ruling. United States v. Salamone, 902 F.2d 237 (3d Cir. 1990). /4/ There is no merit to the contention that Count 1 of the Maryland indictment, charging petitioner with conspiracy, is barred by the Double Jeopardy Clause. Petitioner was not charged with conspiracy in the Virginia indictment. Even if the substantive offenses with which he was charged in Virginia were objects of the conspiracy charged in Count 1, "(i)t has been long and consistently recognized * * * that the commission of (a) substantive offense and a conspiracy to commit it are separate and distinct offenses," and consequently "the plea of double jeopardy is no defense to a conviction for both." Pinkerton v. United States, 328 U.S. 640, 643 (1946). Accord, Perreira v. United States, 347 U.S. 1, 11 (1954); United States v. Bayer, 331 U.S. 532, 541-542 (1947).