United States Court of Appeals,

Eleventh Circuit.

No. 94-4664.

UNITED STATES of America, Plaintiff-Appellee,

v.

Alfredo C. GARCIA, Defendant-Appellant.

April 1, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 89-10017-CR), James Lawrence King, Judge.

Before KRAVITCH, DUBINA and CARNES, Circuit Judges.

CARNES, Circuit Judge:

Alfredo Garcia, appeals his 1993 conviction under the Travel

Act, 18 U.S.C. §§ 1952 and 2. Garcia's Travel Act conviction was

based on the charge that on or about April 17, 1988, Garcia

traveled in foreign commerce with the intent to facilitate the

importation of cocaine. Garcia contends that the district court

erred in holding that his 1993 conviction under the Travel Act is

not barred by the doctrine of collateral estoppel as a result of

his 1989 acquittal on a four-count indictment charging him with

conspiracy to import cocaine, importation of cocaine, conspiracy to

possess cocaine with intent to distribute, and possession of

cocaine with intent to distribute. The government concedes that

the charges in both prosecutions involve the same alleged

importation conspiracy that was in existence from late March 1988

to April 21, 1988. However, the government contends that the

Travel Act conviction is not barred by collateral estoppel, arguing

that it did not attempt to relitigate any issue in the second trial

that was necessarily decided in Garcia's favor in the first trial.
 1

The remaining four codefendants had either pleaded guilty

or were fugitives at the time of trial. 

For the reasons discussed below, we disagree and hold that Garcia's

conviction is due to be reversed and rendered.

I. FACTS AND PROCEDURE

Because error can be shown even accepting the government's

statement of the facts, we will take that statement as true for

purposes of this appeal and quote liberally from it.

A. The Facts Established at the First Trial

On May 31, 1989, the government charged Garcia and seven

codefendants with conspiracy to import cocaine, importation of

cocaine, conspiracy to possess cocaine with intent to distribute,

and possession of cocaine with intent to distribute. The

indictment alleged the conspiracy existed "[f]rom in or about late

March, 1988 to on or about April 21, 1988." The case proceeded to

trial against Garcia and three codefendants.1

The government summarizes the evidence against Garcia in the

first trial as follows:

The evidence presented ... showed a scheme involving

several co-defendants to import approximately 975 pounds of

cocaine with a wholesale value in excess of $6 million from

Mexico into the Florida Keys. The co-conspirators used a 50-

foot vessel named the Sea Lark which was specially fitted with

a hidden compartment in a cabinet beneath the steering wheel.

With co-defendant Manuel Fiallo as captain and a crew

consisting of co-defendants Ricardo Gaetano and Pedro

Martinez, the Sea Lark traveled from Key Largo, Florida, to

Progresso, Mexico, where it cleared Customs. From there, the

Sea Lark headed to Carmen Island, off the coast of Mexico,

where approximately 400 duffel bags filled with cocaine were

loaded. Once the cocaine had been secreted aboard the Sea

Lark, it headed back to South Florida.

The vessel developed engine problems on the return

voyage. Co-defendant Antonio Gonzalez contacted a boat
mechanic, co-defendant Hector Cabrera, and requested that he

perform repairs on the Sea Lark at sea. Cabrera agreed; [on

or about April 17, 1988,] he left Key Largo aboard a 35-foot

sportfisherman and met the Sea Lark at the Alacran Reef where

he successfully repaired its engines.

Because of his concern that the engines of the Sea Lark

might develop additional problems, Fiallo requested that

Cabrera remain close to the Sea Lark for the remainder [of]

the trip to Key Largo. During the ensuing journey the Coast

Guard stopped and searched both boats; the Coast Guard

boarding party did not locate the cocaine that was secreted on

the Sea Lark.

When the Sea Lark developed additional engine troubles

and it was determined that Cabrera's sportfisherman was unable

to tow it, a third vessel, the Miss Heineken, was dispatched

from Key Largo to provide assistance. Ultimately, all three

boats returned safely to Key Largo. Acting on an anonymous

tip, Customs officials conducted an extensive search of the

Sea Lark which ultimately revealed 450 packages of cocaine

weighing about 975 pounds hidden in the secret compartment.

The wholesale value of the cocaine was estimated to be in

excess of $6 million.

The only evidence of appellant Garcia's participation in

that scheme was the testimony of co-defendant Cabrera, who

pleaded guilty and testified for the government at trial. [On

or about April 17, 1988,] Cabrera traveled in the 50-foot

sportfisherman to the Alacran Reef to provide mechanical

assistance to the Sea Lark and then accompanied that vessel to

Key Largo. Cabrera testified that he invited Garcia to

accompany him on the trip as his helper because he knew that

Garcia "was in sort of a squeeze economically." According to

Cabrera's testimony, he did not notice any cargo on the Sea

Lark when he met it at sea; in fact, Cabrera testified that

he did not know what Fiallo and his crew were doing at sea and

he learned the purpose of the voyage only after the Sea Lark

had been seized by the authorities in Key Largo. Upon his

return to Key Largo, Cabrera and Garcia went to the home of

co-defendant Juan Batista before they went their separate

ways; there was no discussion regarding the shipment of

cocaine at Batista's house.

Government's brief, pp. 3-5 (record citations omitted).

At the close of all the evidence at the first trial, Garcia

moved for a judgment of acquittal pursuant to Federal Rule of

Criminal Procedure 29. Garcia argued that the evidence was

insufficient to show anything more than his mere presence at the
scene of the crime because even Cabrera, who went aboard the Sea

Lark to perform repairs, testified that he himself did not know

about the cocaine until later and well after the Sea Lark had

arrived in Key Largo. There was no evidence that Garcia had gone

aboard the Sea Lark at any time, no evidence that he knew there was

cocaine aboard the Sea Lark, and no evidence he knew anything about

the conspiracy. The district court granted Garcia's motion for

judgment of acquittal, as to all four counts, explaining that

"there has to be some showing that Alfredo Garcia knowingly joined

in [the] conspiracy or knowingly intended to break the law," and

there had been none.

B. The Facts Established at the Second Trial

Nearly four years after Garcia had been acquitted in the first

trial of all four counts, including conspiracy to import cocaine

between March 1988 and April 21, 1988, the government charged

Garcia with a Travel Act violation arising out of the same scheme

to import cocaine that was the subject of the first prosecution.

Specifically, the 1993 indictment charged that, "[o]n or about

April 17, 1988, ... Garcia did travel in foreign commerce, with the

intent to promote, manage, establish, carry on and facilitate the

promotion, management, establishment and carrying on of an unlawful

activity, that is the importation of a controlled substances, and

thereafter did knowingly and willfully perform and cause to be

performed, acts to facilitate the promotion, management,

establishment and carrying on of said unlawful activity, in

violation of Title 18, United States Code, Sections 1952 and 2."

Garcia filed a pretrial motion to dismiss the indictment on double
jeopardy and collateral estoppel grounds, which the district court

denied. Following a three-day trial, the jury returned a verdict

finding Garcia guilty as charged. The district court denied

Garcia's Rule 29 post-trial motions for judgment of acquittal and

for a new trial.

Unlike the first trial at which there was no evidence of

Garcia's involvement in the conspiracy, at the second trial there

was substantial evidence he was actively involved in it. The

government summarizes the second trial evidence against Garcia as

follows:

The evidence showed that one Oscar Caicedo arranged with

Garcia's codefendant Harold Bustamonte to import approximately

350 kilograms of cocaine from Colombia into the United States

via Mexico. Caicedo hired appellant Garcia to transport the

cocaine from Mexico to South Florida based upon Garcia's

reputation as one who was experienced in transporting cocaine

and his representations to that effect. Before hiring Garcia,

Caicedo and his employee Carlos Umberto Rodriguez met with

Garcia several times to ensure that Garcia was capable of

transporting the cocaine; Garcia met with them in Key Largo

and showed them two boats that he could use to transport the

cocaine—the Miss Heineken, which belonged to Juan Batista, and

the Sea Lark, which belonged to Antonio Gonzalez. Ultimately,

Garcia hired Antonio Gonzalez who provided the Sea Lark to

import the cocaine as well as a house in Key Largo where the

cocaine could be offloaded.

Garcia was to be paid $50,000 for arranging the

transportation of the cocaine; it was Garcia's responsibility

to hire a crew for the boat, to pay the crew, and to ensure

safe arrival of the cocaine in South Florida. He dispatched

the Sea Lark to Mexico once he was notified that the cocaine

had arrived there. After the Sea Lark embarked, Garcia

visited Caicedo frequently at his place of business to keep

him apprised of the vessel's progress. The vessel was damaged

en route to Mexico and Garcia was dispatched with the

necessary parts to repair the ship. After the cocaine was

loaded and the vessel began its return voyage, it experienced

engine problems again. [On or about April 17, 1988,] Garcia

and Cabrera went to the Sea Lark 's assistance in the

sportfisherman. While the Sea Lark and the sportfisherman

were traveling together, the Coast Guard stopped and boarded

both vessels; the officer did not find the hidden cargo of

cocaine aboard the Sea Lark.
Ultimately, the Sea Lark with its cargo of cocaine

arrived in Key Largo. The crew did not immediately offload

the cocaine when the Sea Lark arrived at Antonio Gonzalez'

residence in Key Largo, apparently because they suspected that

they were under Coast Guard surveillance. Their suspicions

were well founded. When the agents failed to discover the

cocaine during their initial search of the vessel at Antonio

Gonzalez' residence, Garcia suggested to his co-conspirators

that, if the vessel were taken to the Custom's dock, they

should attempt to steal the cocaine during the night. The

agents discovered the cocaine and removed it before the

co-conspirators were able to carry out such a plan, however.

Government's brief, pp. 6-8 (record citations omitted). After the

jury at the second trial heard this evidence against Garcia, it

convicted him of the Travel Act offense.

II. DISCUSSION

 Although Garcia attacks his conviction on several grounds, we

address only the collateral estoppel issue because our disposition

of that issue moots the others. "The doctrine of collateral

estoppel is a narrow exception to the Government's right to

prosecute a defendant in separate trials for related conduct."

United States v. Brown, 983 F.2d 201, 202 (11th Cir.1993); United

States v. Lee, 622 F.2d 787, 789 (5th Cir.1980) ("The protection of

collateral estoppel is an established rule of federal criminal law

and extends to prevent redetermination of evidentiary facts as well

as ultimate facts."), cert. denied, 451 U.S. 913, 101 S.Ct. 1987,

68 L.Ed.2d 303 (1981). Collateral estoppel bars a subsequent

prosecution when a fact or issue necessarily determined in the

defendant's favor in the first trial is an essential element of the

conviction at the second trial. Brown, 983 F.2d at 202; United

States v. Bennett, 836 F.2d 1314, 1316 (11th Cir.), cert. denied,

487 U.S. 1205, 108 S.Ct. 2847, 101 L.Ed.2d 884 (1988).

 In Brown we said that applying the doctrine of collateral
estoppel is a two-step process. 983 F.2d at 202. First, the Court

must decide whether it can ascertain the basis of the acquittal at

the first trial. Id.; see also Lee, 622 F.2d at 790 ("When

collateral estoppel is raised by a defendant, the court's task is

to decipher exactly what facts have been or should be deemed to

have been determined at the first trial."). The second step is to

determine whether the element or elements of the crime upon which

the prior acquittal were based are also essential elements of the

crime for which the defendant was convicted at the second trial.

Brown, 983 F.2d at 202. The burden of persuasion is on the

defendant as to both steps of the test. Id. As we said in Brown,

"the identity of overlapping elements required for collateral

estoppel must extend beyond the legal definition of the elements."

Id. at 204. There also has to be such factual identity of the

issues that, "[t]he subsequent verdict of conviction [is]

rationally inconsistent with the prior verdict of acquittal." Id.

Garcia contends that he has carried his burden as to both prongs of

the collateral estoppel inquiry. We agree.

 The first step of the collateral estoppel analysis is simple

to perform in this case, because the acquittal at the first trial

was the result of a Rule 29 motion, and the district court stated

its reasons for granting the motion on the record. After Garcia

made the Rule 29 motion in the first trial, the district court

asked the prosecutor if there was any evidence that Garcia knew, or

should have known, when he went with Cabrera to the aid of the Sea

Lark on April 17, 1988, that he was helping to rescue a boat

carrying cocaine. The prosecutor conceded that no such evidence
had been presented. The court then granted the motion for judgment

of acquittal, explaining:

Well, it would seem to me that that problem is not

sufficient to offset the mere presence at the scene of a crime

and even some general knowledge that a crime may be committed,

may be in the process of being committed at that time, there

has to be some showing that Alfredo Garcia knowingly joined in

[the] conspiracy or knowingly intended to break the law.

Thus the basis of Garcia's acquittal at the first trial was

the district court's finding that the government had failed to

prove that Garcia was knowingly involved in the cocaine conspiracy.

The government had based its case against Garcia on his

accompanying Cabrera to repair the Sea Lark on April 17, 1988, but

the government failed to prove that Garcia knowingly joined the

conspiracy or intended to break the law at that time or at any time

during the conspiracy charged in the indictment, which extended

"[f]rom in or about late March, 1988 to on or about April 21,

1988." For collateral estoppel purposes, the district court's

judgment of acquittal established for all time Garcia's lack of

knowing involvement in the cocaine conspiracy, and his lack of

intent to break the law in connection with that conspiracy, not

only on April 17, but at all times between "late March, 1988" and

"about April 21, 1988." In other words, the district court's order

granting the Rule 29 motion in the first trial established that

Garcia was not knowingly involved in the charged conspiracy at any

time during the specified period, because proof of his knowing

involvement at any time during that period would have been

sufficient for conviction. As to the second step of the collateral

estoppel test, the question is whether the finding established by

the acquittal at the first trial is inconsistent with an essential
element of Garcia's Travel Act conviction. If so, collateral

estoppel bars the second prosecution and Garcia's Travel Act

conviction must be reversed. Bennett, 836 F.2d at 1316 ("To bar

prosecution, a finding of fact must be inconsistent with a finding

of guilt in a second trial."); United States v. Mock, 604 F.2d

341, 343 (5th Cir.1979) (stating that collateral estoppel bars "the

reintroduction or relitigation of facts already established against

the government"). This step begins with the elements the

government was required to prove to obtain a Travel Act conviction.

 "A conviction under the Travel Act requires the jury to find

that the defendant traveled in interstate [or foreign] commerce

with the intent to promote unlawful activity," and "must be based

on proof of guilty knowledge during specific travels." United

States v. Kramer, 73 F.3d 1067, 1071 (11th Cir.1996). Garcia was

indicted for Travel Act violations arising on or about April 17,

1988. The government's initial theory in the second prosecution

was that Garcia had traveled with Cabrera out into international

waters on or about April 17, 1988, to repair the Sea Lark with the

intent and for the purpose of allowing the Sea Lark to continue its

mission of importing cocaine it had picked up in Mexico into this

country. The government used the April 17 date in the indictment.

However, after Garcia pressed the issue of collateral estoppel, the

government adjusted its strategy and sought to base the Travel Act

offense on an earlier trip Garcia and Cabrera had made to repair

the Sea Lark when it was en route to Mexico, before it had

picked-up the cocaine. Garcia made that trip just a few days

before April 17. The government was collaterally estopped by the
result of the first trial from proving at the second trial that

Garcia made either trip with knowledge of and intent to promote the

conspiracy and its unlawful activity. That is so because both

trips fall within the time period of the conspiracy charged in the

first trial, and the Rule 29 acquittal at the first trial

establishes that Garcia did not participate in or know about the

conspiracy during that time.

The government argues that the fact found against it in the

first trial was only that Garcia lacked knowledge that there was

cocaine aboard the Sea Lark at the time he and Cabrera travelled to

repair it on April 17, and that that finding did not estop the

government from proving at the second trial that Garcia had joined

the conspiracy and had guilty knowledge when he travelled to repair

the Sea Lark a few days before April 17, when it was on its way to

Mexico to pick-up the cocaine. We disagree. The district court's

judgment of acquittal necessarily established more than the narrow

proposition that Garcia did not know the cocaine was aboard the Sea

Lark on April 17. It established more than that, because if Garcia

had already joined the conspiracy on or before April 17, 1988, he

could have been convicted of the conspiracy at the first trial even

if he did not know the cocaine was onboard on that date. See,

e.g., Lee, 622 F.2d at 790 ("[C]onviction of drug conspiracy does

not require proof of possession or any other overt act." (citing

United States v. Thomas, 567 F.2d 638, 641 (5th Cir.1978)). Even

if Garcia did not know the Sea Lark was carrying cocaine at the

time that he went out to repair it on April 17, 1988, if he had

believed at that time that the Sea Lark later would be loaded with
cocaine, he would have known that repairing it would facilitate the

cocaine conspiracy. That would have been enough to convict him of

the conspiracy at the first trial.

To accept the government's attempted reconciliation of the

results of the two trials, we would have to believe it logical for

Garcia to have travelled with the intent to promote the conspiracy,

and then a few days later to have had no knowledge of that same

conspiracy. Because these two propositions are logically

inconsistent, the acquittal at the first trial cannot be reconciled

with the conviction at the second trial. Accordingly, the second

result—the conviction—is barred by collateral estoppel.

III. CONCLUSION

Garcia's conviction is REVERSED, and this case is REMANDED

with instructions that the indictment be dismissed.