IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30055

JEFFREY D. NEAL,

Petitioner-Appellant,

versus BURL CAIN, Acting Warden,

Respondent-Appellee.

Appeal from the United States District Court

For the Western District of Louisiana

May 8, 1998

Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Petitioner Jeffrey Neal was convicted in two separate trials

in Louisiana state court of sexual battery and aggravated kidnaping

respectively. He is currently serving a sentence of life

i mprisonment at hard labor. Neal filed a petition for a writ of

habeas corpus in federal district court, alleging, am ong other

things, that the principle of collateral estoppel barred his second

trial for aggravated kid naping after he was convicted of sexual

battery but acquitted of aggravated rape in his first trial. The

district court denied his petition and we affirm.

I.2

On the evening of October 24, 1986, the victim was walking

a lone in her neighborhood in Bastrop, Louisiana, when she was

grabbed from behind by Neal . Neal held a knife to her throat,

asked her if “she had ever been cut,” and told her not to scream.

He dragged her 150 feet to a secluded area behind a vacant house,

where the victim told Neal that she would do anything if he would

not hurt her. After threatening to kill her if she did not remain

quiet, Neal made the victim undress, forced her to engage in oral

sex, and then had intercourse with her. The victim complied with

Neal’s sexual demands because she was afraid that Neal would kill

her.

After Neal had intercourse with the victim, the victim asked

if she could leave. Neal refused, telling her that he had a gun

and would sho ot her if she tried to escape. Neal then discussed

with the victim the idea of her making money for him by

prostituting herself. Neal suggested that he would let the victim

go if she would act as a pro stitute for him. Hoping to appease

Neal and hasten her release, the victim went along with Neal’s

plan.

The victim and Neal then walked through the neighborhood

together until they reached a park, where he once again forced her

to engage in oral sex and had intercourse with her. After they

left the park, the pair arrived at a bar. Neal sent the victim

into the bar and told her to act as a prostitute for him inside.

Once inside the bar, the victim told the bar’s owner that there was

a man outside who was threatening to kill her. The police were3

called and the victim identified Neal to them. After discovering

a knife on his person, the police arrested Neal.

A Louisiana grand jury indicted Neal on charges of aggravated

rape, aggravated oral sexual battery, and simple kidnaping. The

prosecutor chose to go to trial only on the aggravated rape charge,

see La. Rev. Stat. Ann. § 14:42, re serving the others in case

something went “wrong” at the rape trial. Neal testified at this

trial, claiming that the sexual relations between himself and the

victim were consensual. The jury convicted Neal only of the

lesser-included offense of sexual battery, see La. Rev. Stat. Ann.

§ 14:43.1, amended by Acts 1991, No. 654, § 1, and the trial court

sentenced him to ten years of im prisonment. Louisiana’s Second

Circuit Court of Appeal later affirmed th is conviction on direct

appeal. See State v. Neal , 535 So. 2d 757 (La. Ct. App. 1988).

The State then returned to the grand jury and obtained new

indictments for aggravated kidnaping and aggravated or al sexual

battery. A trial on the aggravated kidnaping charge ensued, s ee

La. Rev. Stat. Ann. § 14:44, and Neal w as convicted. For this

offense, the court sentenced Neal to life imprisonment at hard

labor, without benefit of probation, parole, or suspension of

sentence. The Louisiana appellate courts denied Neal’s direct

appeal from his second conviction as well. S ee State v. Neal

, 550

So. 2d 740 (La. Ct. App. 1989).

Thereafter, Neal filed a habeas petition in state court. The

trial court denied relief to Neal, s ee State v. Neal

, No. 88-11A

(La. 4th Dist. Ct. Dec. 15, 1992), a decision that was affirmed by4

the Court of Appeal, see State v. Neal

, No. 25269-KH (La. Ct. App.

Apr. 8, 1993). Neal then filed this petition for a writ of habeas

corpus in federal district court. A magistrate judge recommended

that Neal’s petition be denied, and the district court adopted the

magistrate judge’s report and recommendation. Later, the district

court also denied Neal’s request for a certificate of

appealability, but we granted Neal’s request for a certificate of

probable cause. S ee Brown v. Cain

, 104 F.3d 744 (5th Cir.), cert.

denied

, 117 S. Ct. 1489 (1997) (holding that habeas petitions filed

before effective date of AEDPA need only obtain certificates of

probable cause for appeal). This appeal followed.

II.

The central thrust of Neal’s petition is that the principle of

collateral estoppel barred his second trial for aggravated

kidnaping. As Neal sees it, the State was collaterally estopped

fr om relying upon the facts of the “rape,” which he claims were

disproved in the first trial, in establishing the aggravated

kidnaping in the second trial.

As the Supreme Court has recognized, the Double Jeopardy

Clause incorporates the doctrine of collateral estoppel. S ee Ashe

v. Swenson

, 397 U.S. 436, 4 43-44 (1970). Collateral estoppel

provides 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.” I d. at5

443. As applied against the government in criminal cases,

collateral estoppel may either bar a subsequent prosecution, or it

may prevent the relitigation of particular facts nece ssarily

established in the prior proceeding. S ee United States v. Caucci

,

635 F.2d 441, 448 (5th Cir.), c ert. denied

, 454 U.S. 831 (1981).

In determining whether collateral estoppel bars a sub sequent

prosecution, as Neal contends it does here, we engage in a two-step

analysis. S ee United States v. Levy

, 803 F.2d 1390, 1398 (5th Cir.

1986). First, we must discern which facts were “necessarily

decided” in the first proceeding. See United States v. Brackett

,

113 F.3d 1396 , 1398 (5th Cir.), c ert. denied

, 118 S. Ct. 341

(1997). We then consider whether the facts “necessarily decided”

in the first trial constitute essential elements of the offense in

the second trial. See id. at 1399.

The first step of the collateral-estoppel analysis requires us

to identify the facts necessarily decided in Neal’s first trial, in

w hich he was charged with aggravated rape. At the time of his

offense, Louisiana’s aggravated rape statute provided, in relevant

part:

A. Aggravated rape is a rape committed where the anal or

vaginal sexual intercourse is deemed to be without law ful

consent of the victim because it is committed under any one or more of the following circumstances:

(1) When the victim resists the act to the utmost, but

whose resistance is overcome by force.

(2) When the victim is prevented from resisting the acts

by threat s of great and immediate bodily harm,

accompanied by apparent power of execution.

(3) When the victim is prevented from resisting the act

because the offender is armed with a dangerous weapon.

(4) When the victim is under the age of twelve years.

Lack of knowledge of the victim’s age shall not be a

defense.6 (5) When two or more offenders participate in the act.

. . . .

La. Rev. Stat. Ann. § 14:42. The jury, however, by a general

verdict acquitted Neal of the aggravated rape charge and convicted

him instead of the lesser-included offense of sexual battery. S ee

State v. Campbell

, 670 So. 2d 1212, 1213 (La. 1996) (acknowledging

that conviction only of a lesser-included offense is a functional

acquittal of greater offense). At the time, the sexual battery

statute provided, in pertinent part:

A. Sexual battery is the intentional engaging in any of the

following acts with another person, who is not the spouse of

the offender, where the offender compels the other person to

submit by placing the person in fear of receiving bodily harm,

or where the other person has not yet attained fifteen years

of age and is at least three years younger than the offender:

(1) The touching of the anus or genitals of the victim by

the offender using any instrumentality or any part of the

body of the offender; or

(2) The touching of the anus or genitals of the offender

by the victim u sing any instrumentality or any part of

the body of the victim.

. . . .

La. Rev. Stat. Ann. § 14:43.1, amended by Acts 1991, No. 654, § 1.

Interpreting the outcome of the first trial is complicated by

the somewhat inconsistent verdict of the jury. At trial, the

victim’s testimony was that she had been forced by Neal to engage

in sexual activity with him. Neal’s defense, on the other hand,

was that the sexual activity was consensual. Thus, depending on

whom it believed, the jury’s options were either to convict or

acquit Neal of rape; no party attempted to establish that some

crime less serious than rape might have occurred instead. That

Neal was convicted on the lesser-included offense of sexual battery7

seems to represent a compromise between those members of the jury

favoring conviction and those favoring acquittal.

Nevertheless, our task is to make legal sense of the jury’s

verdict. C f. De La Rosa v. Lynaugh

, 817 F.2d 259, 267-68 (5th Cir.

1987) (noting that in considering double-jeopardy challenges

premised on a first jury’s verdict, that jury must be presumed to

have acted in a legally correct manner); Green v. Estelle

, 601 F.2d

877, 878-79 (5th Cir. 1979) (holding that, for collateral estoppel

purposes, appellate court must take jury “at its word,” even if the

verdict appears influenced by mercy). “While we do not test

o urselves as three more jurors in the case, we are compell ed to

determine as best we can what makes the jury’s verdict cohere.”

United States v. Larkin

, 605 F.2d 1360, 1369 (5th Cir. 1979),

modified on other grounds , 611 F.2d 585 (5th Cir.), cert. denied

,

446 U.S. 939 (1980). “We should make this determination in a

realistic, rational, and practical way, keeping in min d all the

circumstances.” United States v. Deerman , 837 F.2d 684, 690 (5th

Cir.), cert. denied , 488 U.S. 856 (1988).

The most straightforward manner of determining which facts

were necessarily decided by Neal’s implicit acquittal on aggravated

rape charges is to examine the differences between the aggravated

rape and sexual battery statutes as they existed at the time of

Neal’s trial. The rape statute, for example, requires actual

intercourse between the defendant and the victim, whereas a

defendant could violate the sexua l battery statute simply by1 Apparently, it is this distinction in conduct that motivated

the Louisiana Legislature to establish sexual battery as a separate

crime. S ee State v. Schenck

, 5 13 So. 2d 1159, 1162 (La. 1987)

(noting that the “legislative scheme

. . . envisions sexual battery

as encompassing conduct falling short of actual rape but which is

sexually intrusive and more egregious than simple battery”).

2 Our research has revealed little judicial commentary in

Lou isiana analyzing the differing levels of force in the two

8 touching the victim in an inappropriate manner. 1 Yet there was no

d ispute at trial that actual intercourse had occurred, so the

jury’s verdict could not have depended on this distinction.

Likewise, the rape statute’s references to youthful victims and

multiple assailants also were not implicated in this case.

The only remaining difference between the two stat utes on

which the jury could have hung its verdict relates to the varying

definition s of “force.” A defendant can violate the aggravated

rape statute by using force in one of three separate scenarios:

“(1) When the victim resist the a ct to the utmost, but whose

resistance is overcome by force. (2) When the victim is prevented

from resisting the acts by threats of great and immediate bodily

harm, accompanied by apparent power of ex ecution. [and] (3) When

the victim is preve nted from resisting the act because the

offenders is armed with a dangerous weapon.” La. Rev. Stat. Ann.

§ 14:42. The sexual battery statute, on the other hand, is

violated “where the offender compels the other person to submit by

pl acing the person in fear of receiving bodily harm.” La. Rev.

Stat. Ann. § 14:43.1.

We need not tarry long with interpreting and distinguishing

the force elements of the two statutes, 2 except to note that astatutes. S ee, e.g.

, State v. Honeycutt

, 438 So. 2d 1303, 1309-10

(La. 1983)(Stoker, J., dissenting) (implying that aggravated rape, simple rape, and sexual battery, the spectrum of sexual crimes in

diminishing order of severity, can be sorted by level of resistance

of the victim).

9 rational jury could have premised its verdict on the differing

definitions of force in the two provisions. Neal’s jury could have

read the rape statute to mean that the defendant’s use of force

must be of an immediate nature, contemporaneous wit h the sexual

act. In other words, the jury might have believed that under the

aggravated rape statute, a defendant’s use of force must have been

directly aimed at overcoming the victim’s resistance. The

testimony at trial indicated that Neal’s threats to the victim and

use of a weapon preceded the sexual activity to some degree,

however minor. Thus, the jury must have reasoned that Neal’s more

general threats of violence, none of which were aimed explicitly at

securing sexual favors from the victim, came closer to satisfying

the force definition of the sexual battery statute. This is not to

say that this is the most compelling view o f the case. We seek

only to assign a rational explanation to the jury’s actions. See

Larkin , 605 F.2d at 1369.

It is important that the fir s t verdict determined

unambiguously that Neal had e ngaged in forcible sexual relations

with the victim. Neal submits that the first jury declared that he

had not “raped” the victim, and thus the State was precluded from

relitigat ing the facts of the “rape” in the second trial. While

Neal is correct in a tautological sense, by no means did his first

jury conclude that he did not have a violent sexual encounter with10

the victim. The first jury necessarily decided little if anything

against the government in convicting Neal only of sexual battery.

The second step in our collateral estoppel analysis is to

ascertain whether the facts decided against the government in the

first trial were essential elements of the crime charged in the

second trial. S ee Brackett

, 113 F.3d at 1399. In his second

trial, Neal was convicted of aggrava ted kidnaping. Louisiana’s

aggravated kidnaping statute provides, in relevant part:

Aggravated kidnaping is the doing of any of the following

acts with the intent thereby to force the victim

. . . to give

up anything of apparent present or prospective value, or to

grant any advantage or immunity, in order to secure a release

of the person under the offender’s actual or apparent control:

(1) The forcible seizing and carrying of any person from

one place to another; or

(2) The enticing or persuading of any person to go from

one place to another; or

(3) The imprisoning or forcible secreting of any person.

. . . .

La. Rev. Stat. Ann. § 14:44. Most of the elements of aggravated

kidnaping are noncontroversial in this case. The government

offered ample evidence that Neal employed force, as testimony was

presented that he held the victim at knifepoint. Moreover, Neal’s

actions in compelling the victim to accompany him on a trip through

Bastrop constituted a “seizing” under the statute.

Neal, however, contends that the State encountered collateral

estoppel problems in attempting to establish the “thing of value”

element of the offense. In demonstrating that Neal intended to

make the victim relinquish a “thing of value,” the State relied on

two separate theories. First, it argued to the jury that Neal

required the victim to act as a prostitute on his behalf in order3 There was evidence that the victim’s submission to the second

sexual encounter was premised on Neal’s releasing her. As the

Court of Appeal commented on Neal’s direct appea l, “[s]ince the

discussion regarding the victim’s release took place prior to the

rape in the park, the jury could have reasonably concluded that the

defendant forced her to engage in sexual relations in order to

secure her release.” N eal

, 550 So. 2d at 744. It is less clear

that the victim’s submission to the first sexual encounter was a

condition of her release.

11 to secure her release. Had the State’s proof stopped there, Neal

would not have even a colorable collateral estoppel argument, for

there would be no need to relitigate any of the forced sexual

encounters to demonstrate that Neal w ould not release the victim

until she served him as a prostitute. However, the State went

further and presented a second theory to the jury: that Neal also

would not release the victim until she had sexual relations with

him. 3 S ee , e.g.

, S tate v. Branch

, 475 So. 2d 388, 391 (La. Ct.

App. 1985) (acknowledging that forced sexual acts can be “things of

value” for purposes of the aggravated kidnaping statute). The

State argued that it need not demonstrate that Neal actually

succeeding in having sexual relations with the victim, only that he

conditioned her release upon her submission to his sexual advances.

Moreover, the trial court instructed the jury that sexual acts can

constitute “things of value.”

Neal argues that the principle of collateral estoppel

prevented the State from demonstrating that the sexual encounters

represented a “thing of value,” as the first jury concluded that

Neal did not “rape” the victim. Yet the first jury unquestionably

determined that Neal had engaged in forcible sexual relations with

the victim. The state therefore did not violate Neal’s double12

jeo pardy rights by relitigating the sexual encounters. Whether

those encounters constituted “sexual battery” or “aggravated rape”

is immaterial. For the jury to determine that Neal had forced the

victim to relinquish sexual favor s, the State need only have

demonstrated that the victim engaged in sexual relations with Neal

against her will. The first jury’s verdict did not preclude the

State from doing so. C f. Ashe

, 397 U.S. at 444 (“Where a previous

judgment of acquittal was based upon a general verdict . . . a

court [must] ‘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.’”) (quoting Daniel K. Mayers &

Fletcher L. Y arbrough, Bis Vexari: N ew Trials and Successive

Prosecutions , 74 Harv. L. Rev. 1, 38-39 (1960)).

In support of his double jeopardy argument, N eal relies on

State v. Miller

, 571 So. 2d 603 (La. 1990). In M iller

, the

defendant was tried separately on charges of attempted aggravated

rape and simple kidnaping. His first jury acquitted him on the

rape charge, but the second convicted him on the kidnaping charge.

The Louisiana Supreme Court r eversed his kidnaping conviction,

finding that the state had improperly relied on evidence of the

attempted rape in establishing the “unlawful purpose” element of

the kidnaping. S ee id. at 608. Because Miller had been acquitted

of attemp ted rape, the State could not relitigate the attempted

rape as an essential element of simple kidnaping. This situation13

is different, however, because Neal was not completely exonerated

by his first jury. Rather, that jury found that Neal had sexually

battered the victim, and the State was thus free to relitigate that

particular crime in Neal’s second trial.

Therefore, the principle of collateral esto ppel did not

prevent the State from taking Neal to trial on aggravated kidnaping

charges following his implicit acquittal of aggravated rape. What

few facts that were decided against the government in Neal’s first

trial were nonessential to the aggravated kidnaping charge in his

second.

III.

The othe r issues Neal raises in his habeas petition are

similarly without merit. Neal argues that he was subject to

vindictive prosecution, contending that the state charged him with

aggravated kidnaping in retaliation for his appeal from the sexual

battery conviction. Neal points to a plea offer made by the State

in the second proceeding, in which the prosecutor offered a plea to

lesser charges if, among other things, Neal would drop his appeal

from the first conviction. The prosecutor, on the other hand,

claimed that he brought the aggravated kidnap ing charges against

Neal because Neal’s acquittal on the rape charge was a “travesty of4 According to the prosecutor, he did not seek an aggravated

kidnaping charge in the first indictment because of an adverse

appellate court ruling which held that sexu al acts could not

constitute “things of value” for purposes of the aggravated

kidnaping statute. Without any citation, the State asserts in its

brief that this ruling was overturned before the second grand jury

convened. Although we assign no disingenuous motive to the

prosecutor’s statement, we do find that his reading o f Louisiana

law is wrong. Long before Neal committed his crime, the Louisiana

Supreme Court had made it clear that sexual gratification can

constitute something of value under the kidnaping statute. S ee,

e.g.

, State v. Sonnier , 402 So. 2d 650, 658 (La. 1981), c ert.

denied , 463 U.S. 1229 (1983).

14 justice,” and because he felt that Neal still presented a threat to

the community. 4

Neal has made an insuff icient showing of prosecutorial

vindictiveness. Vindictiveness may be demonstrated where a

prosecutor brings additional charges against a defendant to punish

the defendant for his exercise of procedural rights. S ee United

States v. Ward

, 757 F.2d 616, 619 (5th Cir. 1985). Apart from the

plea offer that included a demand to drop the appeal, there is no

connection between the second trial and the exercise of any of

Neal’s procedural rights. As to the plea offer, it is a standard

feature of plea agreements for the defendant to drop an appeal or

relinquish appellate rights. We will not presume from the mere

presence of an appeal waiver in the plea offer that the State went

to the expense of bringing new charges against Neal simply to

punish him for the exercise of his appellate rights in a separate

proceeding. The prosecutor’s stated interests in justice and the

safety of the community were legitimate reasons to take Neal to

trial a second time. See United States v. Aggarwal , 17 F.3d 737,

7 44 (5th Cir. 1994) (noting that no presumption of prosecutorial15

vindictiveness arises i f prosector has legitimate reasons for

incre asing the charges against the defendant in a second

proceeding, such as a desire to see justice done); see also United

States v. Stokes , 124 F.3d 39, 45 (1st Cir. 1997) (“[P]rosecutors

are not required to function as bloodless automatons: they may

(indeed, they sho uld) makes judgments about dangerousness, set

priorities, and give heightened attention to cases which inspire a

sense of outrage.”), c ert. denied

, 118 S. Ct. 1103 (1998)

.

Moreover, it should be noted that the new charges brought against

N eal were not more severe than the original charges ; both

aggravated rape, charged in the f irst indictment, and aggravated

kidnaping, charged in the second, carry mandatory penalties of life

imprisonment. See La. Rev. Stat. Ann. § 14:42 & 14:44.

Neal next argues that the trial court erred in permitting the

introduction of evidence in the second trial relating to the

extraneous offense of rape, after he had been acquitted of that

c harge. We will not grant habeas relief for errors in a trial

court’s evidentiary rulings unless those errors result in a “denial

of fundamental fairness” under the Due Process Clause. S ee Porter

v. Estelle

, 709 F.2d 944, 957 (5th Ci r. 1983), c ert. denied

, 466

U.S. 984 (1984). The erroneous admission of prejudicial evidence

will justify habeas relief only if the admission was a crucial,

highly significant factor in the defendant’s conviction. See id.

Here, the trial court committed no error, much less any error

creating fundamental unf airness. Neal was not acquitted of

sexually assaulting the victim, but only of “raping” her. The16

evidence of his sexual battery was relevant to the aggravated

kidnaping charges, as the victim’s consent to at least the second

a ct of intercourse was a “thing of value” that Neal extracted in

exchange for her release. To the extent that the victim’s

submission to the first sexual battery was not motivated by a

promise to release her, the state’s evidence of the battery formed

part of the res gestae of the aggravated kidnaping, as it

constituted a portion of the “full story” of the crime. S ee State

v. Haarala

, 398 So. 2d 1093, 1097 (La. 1981) (permitting

introduc tion of “other crimes evidence when it is related and

intertwined with the charged offense to such extent that the state

could not have accurately presented its case without reference to

it”).

Finally, Neal claims that he received ineffective assistance

of counsel. Neal complains that his trial counsel: 1) failed to

move to quash the indictment on double jeopardy grounds; 2) failed

to raise the issue of prosecutorial vindictiveness; and 3) failed

to pursue an appeal under Abney v. Unit ed States , 431 U.S. 651

(1977), from the denial of his pretrial double jeopardy motion. To

demonstrate ineffective assistance of counsel, however, Neal must

prove that his counsel’s errors were prejudicial, in that they had

an adverse effect on his defense. S ee Strickland v. Washington

,

466 U.S. 668, 687 (1984). Neal’s double jeopardy argument and his

prosecutorial vindictiveness claim are both without merit.

Accordingly, his counsel’s purported failure to press both issues

was not prejudicial.17 IV.

We AFFIRM the district court’s denial of Neal’s petition.