IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-40568

_______________

UNITED STATES OF AMERICA,

Plaintiff-AppelleeCross-Appellant,

VERSUS

GEORGE E. BRACKETT, SR.,

Defendant-AppellantCross-Appellee.

_________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________

May 21, 1997

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

We now consider the application of the collateral estoppel

doctrine to successive criminal prosecutions. George Brackett

appeals the denial of his motion to dismiss his indictment, arguing

that the Double Jeopardy Clause bars the inst ant prosecution for

conspiracy to possess with intent to distribute marihuana in

violation of 21 U.S.C. § 846(a)(1). The government cross-appeals,

arguing that the district court erred in suppressing evidence

introduced in a previous prosecution for possession with intent to

distribute marihuana. We affirm on the appeal, reverse on the2

cross-appeal, and remand.

I.

On September 18, 1992, Brackett was stopped at a border patrol

checkpoint in Falfurrias, Texas, and consented to a search of his

tractor-trailer truck. Border patrol officers discovered 247

kilograms of marihuana in the truck, and Brackett was arrested.

Brackett was indicted on one count of possession with intent

to distribute marihuana in violation of 21 U.S.C. § 841(a)(1).

At trial, he did not contest the fact that he had been in possession when he was arrested; instead, he pleaded ignorance, claiming

that he had no knowledge of the marihuana and speculating that the

drugs must have been placed in the truck, without his knowledge,

while it was unattended. Accordingly, the prosecution and the

defense both acknowledged that mens rea was the only disputed issue

for the jury. Brackett was acquitted.

Subsequently, the government discovered evidence implicating

Brackett as a drug courier in a marihuana distribution conspiracy.

Consequently, he was indicted on one count of conspiracy to possess

with intent to distribute marihu ana in violation of 21 U.S.C.

§§ 846(a)( 1) and 841(b)(1)(B). The conspiracy alleged in the

indictment occurred from April 1990 to May 1994, including the

events charged in the prior possession pros ecution. Moreover,

three alleged co-conspirators pleaded guilty to charges of

possession with intent to distribute, implicating Brackett in the

conspiracy and offering testimony about the Se ptember 18, 1992,3

marihuana shipment to substantiate their allegations.

Brackett filed a pretrial motion to dismiss the indictment,

claiming that it constituted a successive prosecution barred by the

Double Jeopardy Clause, insofar as he had been acquitted previously

of the substantive offense of possession with intent to distribute.

The district court denied the motion but ordered the suppression of

all evidence introduced in the pr ior possession prosecution,

concluding that collateral estoppel barred the government’s use of

that evidence to prove any fact necessarily decided by the jury in

acquitting Brackett of the possession offense.

Brackett appeals the denial of his pretrial motion to dismiss

the indictment, which is an appealable order under the collateral

order doctrine. S ee Abney v. Unite d States , 431 U.S. 651, 662

(1977). The government appeals the suppression order, which is

immediately appealable under 18 U.S.C. § 3731.

II.

The doctrine of collateral estoppel is incorporated into the

Double Jeopardy Clause. A she v. Swenson

, 397 U.S. 436, 445 (1970).

Collateral estoppel guarantees that “when an issue of ultimate fact

has once been determined by a valid and final judgment, the issue

cannot again be litigated between the same parties in any future

lawsuit.” Id . at 443.

This court has consistently held that collateral estoppel may

affect successive criminal prosecutions in one of two ways. First,

it will completely bar a subsequent prosecution if one of the facts1 Accord United States v. Kalish

, 780 F.2d 506 , 508-09 (5th Cir. 1986);

United States v. Caucci , 635 F.2d 441, 448 (5th Cir. Unit B Jan. 1981); United

States v. Lee , 622 F.2d 787, 790 (5th Cir. 1980).

4 necessarily determined in the former trial is an essential element

of the subseq uent prosecution. Second, while the subsequent

prosecution may proceed, collateral estoppel will bar the introduction or argumentation of facts necessarily decided in the prior

proceeding. E .g.

, United States v. Deerman

, 837 F.2d 684, 690 (5th

Cir. 1988). 1

In this appeal, both applications of collateral estoppel are

at issue: The district court declined to dismiss the indictment,

but sup pressed all evidence introduced in the prior possession

prosecution. The application of collateral estoppel is a question

of law that we review d e novo

. United States v. Smith

, 82 F.3d

1261, 1265-66 (3d Cir. 1996); United States v. Rogers

, 960 F.2d

1501, 1507 (10th Cir. 1992).

A.

It is axiomatic that “[c]ollateral estoppel bars relitigation

only of those facts necessar ily determined in the first trial.”

Deerman

, 837 F.2d at 690. Accordingly, the first step in resolving

a claim of collateral estoppel is to determine which facts were

“necessarily decided” in the first trial. United States v. Levy

,

803 F.2d 1390, 1398-99 (5th Cir. 1986); United States v. Mock

,

604 F .2d 341, 343 (5th Cir. 1979). At this first stage of the

inquiry, the defendant bears the burden of demonstrating that the

issue he seeks to foreclose was “necessarily decided” in the first2 See also Schiro v. Farley

, 510 U.S. 222, 232-36 (1994) (rejecting a claim

of collateral estoppel because the petitioner could not prove that the jury had

“necessarily determined” the issue he sought to foreclose).

3 Accord Deerman

, 837 F.2d at 690; Levy

, 803 F.2d at 1398; Kalish

, 780 F.2d

at 508.

5 trial. Dowling v. United States , 493 U.S. 342, 350 (1990). 2

This threshold determination is the touchstone of collateral

estoppel doctrine. “When a 'fact is not necessarily determined in

a f ormer trial, the possibility that it may have been does not

prevent re-examination of that issue.'” L ee

, 622 F.2d at 790

( quoting Adams v. United States

, 287 F.2d 701 (5th Cir. 1961)). 3

The application of this test to criminal cases is awkward, however,

as a general verdict of acquittal does not specify the facts

“necessarily decided” by the jury.

Therefore, to determine which facts were “necessarily decided”

in the first trial, following an acquittal by a general verdict, we

examine the record of the prior proceeding, taking into account the

pleadings, evidence, charge, and other relevant matter, in order to

determine “'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 (citations

omitted); accord Dowling , 493 U.S. at 350.

Following this directive, we have taken a functional approach

to collateral estoppel in criminal cases, like the instant appeal,

in which a defendant was first acquitted by a general verdict and

later invoked collateral estoppel to bar a subsequent prosecution.

See

, e.g.

, Deerman , 837 F.2d at 690; Levy , 803 F.2d at 1399; Lee

,4 Cf. Ashe

, 397 U.S. at 445 (concluding that a general verdict of acquittal

“necessarily decided” the question of identity in an armed robbery prosecution,

(continued...)

6 622 F.2d at 790; Mock

, 604 F.2d at 344. “In making this evaluation, we must examine allegations of the indictment, testimony,

c ourt's instructions to the jury, and jury's verdict to consider

what makes the jury's verdict coherent. We should make this

determination in a realistic, rational, and practical way, keeping

in mind all the circumstances.” D eerman

, 837 F.2d at 690 (citations omitted).

It is not difficult to discern the facts “necessarily decided”

by the jury in the first trial. Brackett did not deny that he was

in possession of 247 kilograms of marihuana when arrested, nor did

he contest the physical evidence and eyewitness testimony. To the

contrary, he freely conceded all the facts relevant to the actus

reus and staked his defense exclusively on the question of mens

rea

.

Insisting that he had no knowledge of the marihuana, Brackett

characterized himself as an innocent driver who had been used as an

unwitting drug courier by drug smugglers, and the jury apparently

believed him. Under these circumstances, there is only one

rational explanation for the general ve rdict of acquittal: The

government did not prove, beyond a reasonable doubt, that Brackett

knew of the 247 kilograms of marihuana in his truck on

September 18, 1992. Accordingly, the jury “necessarily decided”

only that Brackett did not knowingly possess marihuana with intent

to distribute on that date. 4(...continued)

which was the “single rationally conceivable issue in dispute before the jury”).

7 Having determined which facts were “necessa rily decided” in

the first trial, we must decide whether the government is attempting to relitigate the same facts in the conspiracy trial. S ee

Levy

, 803 F.2d at 1398-99; Mock

, 604 F.2d at 343. Therefore, we

must divi ne whether the facts “necessarily decided” in the first

trial are essential elements of the conspiracy charge. If so, the

conspiracy prosecution is barred by collateral estoppel. If not,

we must decide whether the evidence offered in the p ossession

prosecution must be suppressed in the conspiracy trial.

B.

Collateral estoppel completely bars a subsequent prosecution

only when a fact “necessarily determined” in the first prosecution

is an essential element of the offense charged in the subsequent

prosecution. S ee Kalish

, 780 F.2d at 508; Lee

, 6 22 F.2d at 790.

In the instant case, none of the essential elements of the offense

of conspiracy to possess with intent to distribute marihu ana was

“necessarily decided” in the prior possession trial. Consequently,

the district court properly refused to dismiss the indictment.

In order to prove the existence of a conspiracy to possess

with intent to distribute marihuana, the government is required to

prove three essential elements beyond a reaso nable doubt: first,

that an agreement existed to violate the federal narcotics laws;

second, that the defendant knew of the existence of the agreement;5 See Lee

, 622 F.2d at 790 (holding that an acquittal on charges of

marihuana possessi on does not foreclose proof of any element essential to a

conviction for conspiracy to distribute marihuana).

6 In the district court, Brackett also claimed the Double Jeopardy Clause

bars the subsequent conspiracy prosecution. Insofar as he renews this claim on

appeal, it is without merit. A substantive offense and conspiracy to commit that

offense are not the “same offense” for purposes of double jeo pardy. U nited

(continued...)

8 and third, th at he voluntarily participated in the conspiracy.

See United States v. Garcia

, 86 F.3d 394, 398 (5th Cir. 1996),

cert. denied

, 117 S. Ct. 752 (1997); United States v. Cardenas

,

9 F.3d 1139, 1157 (5th Cir. 1993); United States v. Maltos

,

985 F.2d 743, 746 (5th Cir. 1992).

As we have stated, the jury “necessarily determined” only that

the government had failed to prove, beyond a reasonable doubt, that

Brackett knew of the m arihuana discovered in his truck on

September 18, 1992. To convict Brackett for conspiracy, however,

the government need not prove that he knew of the marihuana

confiscated at the checkpoint; to the contrary, the government is

required to prove only that Brackett knew of an agreement to

violate the federal narcotics laws and voluntarily participated in

that agreement. S ee

, e.g.

, Garcia

, 86 F.3d at 398. Consequently,

his acquittal on the possession charge did not “necessarily decide”

any essential element of the conspiracy charge. 5

Under these circumstances, Brackett’s acquittal of possession

with intent to distribute doe s not collaterally estop the United

States from prosecuting him, in a subsequent proceeding, for

conspiracy to possess with intent to distribute. Accordingly, the

district court did not err in refusing to dismiss the indictment. 6(...continued)

States v. Felix , 503 U.S. 378, 389-92 (1992).

Likewise, Brackett suggests that a successive prosecution is barred if the

governmen t seeks to establish an essential element of the second offense by

proving conduct for which the defendant was prosecuted in the first prosecution.

See Grady v. Corbin

, 495 U.S. 508, 510 (1990); Illinois v. Vitale

, 447 U.S. 410,

420 (1980). This “same conduct” test for double jeopardy was abandoned, however,

in United States v. Dixon

, 509 U.S. 688, 704 (1993). S ee Wrig ht v. Whitley

, 11 F.3d 542, 545-46 (5th Cir. 1994). Therefore, Brackett can find no shelter in

the Double Jeopardy Clause.

9 C.

Even when a subsequent prosecution is not completely barred,

this court has held that collateral estoppel may bar the admission

or argumentation of facts necessarily decided in the first trial.

See

, e.g.

, Deerman

, 837 at 690; Kalish

, 780 F.2d at 508-09; Caucci

,

635 F.2d at 448; Lee , 622 F.2d at 790. Relying on this doctrine,

the district cour t concluded that all evidence introduced in the

possession prosecution must be suppressed in the conspiracy trial.

The government appeals this suppression order, arguing that it is

overbroad and contrary to Supreme Court precedent. We agree.

A general verdict of acquittal, exculpating the defendant of

liability for a substantive offense, does not estop the government

from introducing the same evidence in a subsequent prosecution for

conspiracy to commit the same offense. E .g.

, United States v.

Garza , 754 F.2d 1202, 1209 (5th Cir. 1985). A general verdict of

acquittal merely indicates that t he government has failed to

convince the jury, beyond a reasonable doubt, of at least one

essential element of the substantive offense; it does not “necessarily determine” any facts at issue in the conspiracy trial.

Therefore, the doctrine of collateral estoppel is inapposite. I d

.7 See also United States v. Morris , 79 F.3d 409, 411 n.2 (5th Cir. 1996)

(reaffirming that “acquittal of the substantive offense does not preclude use of

the same facts as evidence of noncriminal overt acts in furtherance of a

conspiracy”).

10 Accordingly, the government may introduce evidence of an

alleged criminal act, notwithstanding the fact that the defendant

previously has been acquitted of the substantive offense, to prove

participation in a conspiracy to comm it the substantive offense.

Overt acts in furtherance of a conspiracy need not be criminal;

therefore, acquittal for the substantive offense does not bar the

admission of the same evidence in a subsequent conspiracy trial.

“Merely because appellants were acquitted of the substantive

. . .

charges does not mean tha t the facts upon which the charges were

based cannot later be used as non-criminal overt acts in furtherance of the conspiracy to commit the substantive offenses.” I d

. at

1209-10. 7

The Supreme Court has placed its imprimatur on this principle.

In Dowling v. United States , 493 U.S. 342 (1990), the Court held

that a prior acquittal does not preclude the governme nt from

relitigating a question of fact when the issue is gove rned by a

lower standard of proof in a subsequent proceeding. I d

. at 347-50.

The Dowling Court adopted the same reasoning we employed in Garza

,

acknowledging that a general acqu ittal does not “necessarily

decide” an ultimate issue of fact but merely indicates that the

evidence was not sufficient to prove every element of the offense

beyond a reasonable doubt.

When the same evidence is admissible for a purpose that does8 The Court has recently reaffirmed this principle, holding that a general

acquittal does not collaterally estop the government from introducing the same

evidence in a subsequent proceeding governed by a lower burde n of proof. S ee

United States v. Watts , 117 S. Ct. 633, 637 (1997).

9 In the aftermath of Dowling

, collateral estoppel bars the introduction

of evidence in a subsequent proceeding only if the facts “necessarily decided”

in the first trial were determined under the same burden of proof applicable in

the subsequent trial. Accordingly, D owling calls into question the line of cases holding that collateral estoppel may bar the admission or argumentation of facts

necessarily decided in the first trial, even if the subsequent prosecution is not

completely barred. S ee

, e.g.

, Deerman

, 837 F.2d at 690; Kalish

, 780 F.2d at 508-

09; Caucci

, 635 F.2d at 448; Lee

, 622 F.2d at 790. A general verdict of

acquittal “necessarily determines” only that the evidence was insufficient to

prove each element of the offense beyond a reasonable doubt; therefore,

collateral estoppel bars relitigation only of facts that must be proven beyond

a reasonable doubt.

Because only ultimate facts must be established beyond a reasonable doubt,

however, Dowling effectively limits the doctrine of collateral estoppel to cases

in which the government seeks to relitigate an essential element of the offense.

See Dowling

, 493 U.S. at 348 (declining to give collateral estoppel effect to a prior acquittal that did not decide an ultimate issue in the second prosecution);

see also Ashe

, 397 U.S. at 443 (limiting collateral estoppel to ultimate facts).

“ Dowling teaches that the Ashe holding only bars relitigation of a previously

rejected factual allegation where that fact is an ultimat e issue in the

subsequent case.” Wright v. Whitley , 11 F.3d 542, 546 (5th Cir. 1994); accord

Nichols v. Scott

, 69 F.3d 1255, 1271-72 (5 th Cir. 1995), c ert. denied

, 116 S. Ct. 2559 (1996).

(continued...)

11 not require proof beyond a reasonable doubt, therefore, collateral

estoppel does not bar the government from relitigating the issue in

a subsequent proceeding. I d

. at 348-49. 8 Therefore, the D owling

Court declined the defendant’s in vitation “to extend A she v.

Swenson and the collateral-est oppel component of the Double

Jeopardy Clause to exclude in all circumstances

. . . relevant and

probative evidence that is otherwise admissible under the Rules of

Evidence simply because it relates to alleged criminal conduct for

which a defendant has bee n acquitted.” I d

. at 348. Informed by

Dowling , we decline to extend the doctrine of collateral estoppel

to bar relitigation of all evidence introduced in Brackett’s prior

possession prosecution. 9(...continued)

Given the narrow interpretation of collateral estoppel endorsed in Dowling

, it is difficult to conceive of a case in which collateral estoppel would bar the

admission or argumentation of facts necessarily decided in the first trial,

without completely barring the subsequent prosecution. In the instant case,

however, we have no occasion to consider whether Dowling has overruled this line

of decisions, and we leave that question for another day.

1 0 Cf. Bourjaily v. United States

, 483 U.S. 171, 175 (1987) (“Evidence is

placed before the jury when it satisfies the tec h nical requirements of the

evidentiary Rules, which embody certain legal and policy determinations. The

inquiry made by a court concerned with these matters is not whether the proponent

of the evidence wins or loses his case on the merits, but whether the evidentiary

Rules have been satisfied. Thus, the evidentiary standard is unrelated to the

burden of proof on the substantive issues, be it a criminal case or a civil

case.”) (internal citations omitted).

12 Although the jury in the first trial “necessarily determined”

that the government had failed to prove, beyond a reasonable doubt,

that Brackett knew of the 247 kilograms of marihuana in his truck,

the government need not prove that fact beyond a reasonable doubt

in the conspiracy prosecution, as it is not an ultimate issue. In

order to convict Brackett for participation in the conspiracy, the

government must prove only that Brackett knowingly participated in

a conspiracy to violate the federal narcotics laws; evidence

concerning the September 18, 1992, marihuana shipment is relevant

to establish Brackett’s voluntary participation in the conspiracy,

but is not required to prove the essential elements of the offense.

Accordingly, collateral estoppel does not bar the government from

relitigating evidence originally offered in the possession trial,

because the burden of proof governing the admissibility of evidence

in the conspiracy prosecution is lower than the burden of proof

required to establish an ultimate issue in the possession trial. 10

The admissibility of evidence relevant to an ultimate issue is

governed by F ED

. R. E VID

. 401, which defines “relevant evidence” as1 1 In Dowling

, the contested evidence concerned extrinsic evidence of other

bad acts, admissible under F ED

. R. E VID

. 404(b). In the instant case, however,

the evidence is intrinsic evidence directly relevant to the conspiracy charge and

thus is governed by F ED

. R. E VID . 401-03.

1 2 Relevant evidence is presumptively admissible. F E D

. R. E VI D . 402.

Relevant evidence may be excluded by the district court if the probative value

of the evidence is “substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury. ” F E D

. R. E VID

. 403. Had the

district court excluded all evidence introduced in the possession trial pursuant

to rule 403, we would review that determination for abuse of discretion. See

,

e.g.

, Morris

, 79 F.3 d at 411-12 (affirming the suppression of evidence under

rule 403 despite the conclusion that the evidence was not collaterally estopped).

The district court did not cite rule 403 as the basis for its ruling, however,

and thus we have no occasion to consider such an alternative basis for decision.

13 evidence “having any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” 11

It is indisputable that evidence concerning the September 18, 1992,

marihuana shipment is highly relevant to the determination whether

Brackett participated in a conspiracy to possess with intent to

distribute marihuana, regardless of the fact that the evidence was

insufficient to prove, beyond a reasonable doubt, his guilt of the

substantive offense. Evidence that Brackett had transported 247

kilograms of marihuana, when corroborated by the statements of his

alleged co-conspirators, would have a te ndency to prove the

essential elements of conspiracy to possess with in tent to

distribute marihuana: that an agree ment existed to violate the

narcotics laws, that Brackett knew of the agreement, and that he

voluntarily participated in the conspiracy. Therefore, the

evidence is relevant and admissible. 12

In the instant case, the standard governing the admissibility

of evidence is lower than was the burde n of proof in the first14

trial. Under both Fifth Circuit precedent and Dowling , therefore,

the government is not collate rally estopped from introducing the

same evidence in the conspi racy prosecution. Accordingly, the

district court erred in suppressing all evidence introduced in the

possession trial.

III.

The order refusing to dismiss the indictment is AFFIRMED. The

suppression order is REVERSED, and this matter is REMANDED for

further proceedings consistent with this opinion.