The HONORABLE CHARLES R. WOLLE, Chief United States

*

District Judge for the Southern District of Iowa, sitting

by designation.

 The HONORABLE RICHARD G. KOPF, United States District Judge 1

for the District of Nebraska, who adopted the report and

recommendation of the HONORABLE DAVID L. PIESTER, United States

Magistrate Judge for the District of Nebraska.

___________

No. 95-2061

___________

Thomas Edward Nesbitt, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Frank X. Hopkins, Warden, *

Nebraska State Penitentiary, *

*

Defendant - Appellee. *

___________

 Submitted: December 14, 1995

 Filed: June 7, 1996

___________

Before BOWMAN and LOKEN, Circuit Judges, and WOLLE, Chief District Judge. *

___________

LOKEN, Circuit Judge.

Thomas Edward Nesbitt was tried in a Nebraska court for the first

degree murder of Mary Kay Harmer. After the trial court dismissed a charge

of felony murder because of insufficient evidence, the jury convicted

Nesbitt of premeditated murder, and he was sentenced to life in prison.

Nesbitt now appeals the district court's denial of his federal habeas

1

corpus petition. Nesbitt v.
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Hopkins, 907 F. Supp. 1317 (D. Neb. 1995). He argues that the Nebraska

Supreme Court in affirming his conviction violated the Double Jeopardy

Clause by construing the trial evidence as establishing the acquitted

charge of felony murder. We affirm.

I. 

For reasons that will become apparent, we summarize the evidence at

Nesbitt's trial in the light most favorable to the jury verdict. In the

early morning of November 30, 1975, at Nesbitt's order, Kathleen Ray lured

the victim, Mary Harmer, to the house Ray shared with Nesbitt by falsely

telling Harmer that many people would be there. When the women arrived,

Ray and a third woman quickly departed. That left Nesbitt alone with

Harmer, who was not seen again until her body was discovered nine years

later. 

Later that morning, Nesbitt called his neighbor, Wayne Bieber, to ask

whether he should kill Harmer because he had raped her and might be in

trouble. Nesbitt also asked Bieber to get some lye, but Bieber did not

comply. Meanwhile, Ray attempted to return to the house but Nesbitt, under

the influence of drugs, sent her away. When Ray returned a second time,

an agitated Nesbitt asked if she could "handle it if the Feds were

involved." Nesbitt and Ray then scrubbed the house and burned throw rugs

and clothing. While cleaning, Ray found blood in the kitchen and bathroom.

Nesbitt told Ray that Harmer left the house alive, but later said, "Let's

just say she died of an overdose." Soon after Harmer's disappearance,

Nesbitt and Ray left town, taking only a few belongings and changing their

identities.

Harmer's naked body was found in a manhole in Iowa. Forensic experts

could not determine the cause of death, but opined that holes in her skull

suggested bullet wounds. The condition of Harmer's teeth and skull

suggested that a caustic substance had been poured on her head, and sludge

in the manhole was consistent
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with a caustic substance such as lye. Nesbitt testified in his own defense

that Harmer died of a drug overdose, and that he dumped her body in the

manhole to avoid questioning by police, whom he did not trust. Another

woman testified that, in 1974, Nesbitt had abducted and raped her and

threatened to kill her family if she reported the incident to police.

The State charged Nesbitt with premeditated murder and felony murder,

with the underlying felony being sexual assault. No one witnessed a sexual

assault, Harmer's decomposed body did not yield physical evidence of sexual

assault, and of course, Harmer could not testify to a sexual assault.

Therefore, at the close of the State's evidence, the trial court dismissed

the felony murder charge for insufficient evidence. But the court

submitted premeditated murder, and the jury convicted Nesbitt of that

crime. 

On direct appeal, Nesbitt argued that the evidence was insufficient

to prove premeditated murder. In rejecting that claim, the Nebraska

Supreme Court summarized at length the circumstantial evidence supporting

Nesbitt's conviction. Its summary included a statement that is the basis

for this appeal:

The jury could infer that Harmer was called to the party at

[Nesbitt's] request for purposes of sexual gratification and that the

identity of the group and the location were withheld from her at

Nesbitt's suggestion. Drugs were furnished to the victim and a

sexual assault or at least an attempt was made. The victim was

struck to "keep her in line," and sometime during the orgy she died.

A strong inference arises from the testimony of Bieber and Ray that

a motive for her killing was concealment of the assault. 

State v. Nesbitt, 409 N.W.2d 314, 318 (Neb. 1987) (emphasis added).

Nesbitt petitioned the Court for a rehearing, arguing that this statement

violated his double jeopardy rights because he was acquitted of felony

murder. The Nebraska Supreme Court summarily denied that petition. 
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Nesbitt renews his double jeopardy contention on this appeal. More

fully stated, the theory is: (1) Nesbitt's acquittal of felony murder

"necessarily resolved that [he] neither perpetrated nor attempted to

perpetrate a sexual assault on the deceased"; (2) the Nebraska Supreme

Court's opinion demonstrates that "the only way to uphold the first degree

intentional murder conviction was to utilize the same issues of fact . .

. necessarily resolved by the [trial] Court in [his] favor"; and therefore

(3) his conviction for premeditated murder violates the issue preclusion

(collateral estoppel) component of the Double Jeopardy Clause. 

II.

The protections afforded an accused by the Double Jeopardy Clause

include the basic principle of collateral estoppel: "when an issue of

ultimate fact has once been determined by a valid and final judgment, that

issue cannot again be litigated between the same parties in any future

lawsuit." Ashe v. Swenson, 397 U.S. 436, 443 (1970). In a criminal case,

a fact previously determined "is not an 'ultimate fact' unless it was

necessarily determined by the [factfinder] against the government and, in

the second prosecution, that same fact is required to be proved beyond a

reasonable doubt in order to convict." Prince v. Lockhart, 971 F.2d 118,

123 (8th Cir. 1992), cert. denied, 507 U.S. 964 (1993). 

Our decision in United States v. Brown, 547 F.2d 438 (8th Cir.),

cert. denied, 430 U.S. 937 (1977), illustrates this principle. Brown was

tried and acquitted of committing perjury before a grand jury investigating

a bank robbery. He was then tried for conspiring to commit the robbery.

Because the only evidence implicating Brown in the conspiracy was factually

inconsistent with Brown's acquittal in the perjury trial, we reversed the

conspiracy conviction: "Clearly, that same issue of fact had been before

the jury in the perjury case and must
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necessarily have been resolved by the jury in favor of Brown. He therefore

could not be required to 'run the gantlet a second time.'" 547 F.2d at 443

(quoting Ashe, 397 U.S. at 446).

The conceptual problem with Nesbitt's theory is that it seeks to

apply a double jeopardy principle that governs successive prosecution cases

like Ashe and Brown to his single, multi-count trial. The shoe will not

fit. A review of Supreme Court cases involving allegedly inconsistent

verdicts persuades us that, in a single trial of multiple charges, the only

relevant question is whether the evidence is constitutionally sufficient

to support each count of conviction. 

Using Nesbitt's trial to illustrate the inconsistent verdict issue,

if the trial court had submitted both murder charges to the jury, and the

jury had acquitted Nesbitt of felony murder but convicted him of

premeditated murder, the conviction would not be reviewable on the ground

that the verdict was inconsistent. As the Supreme Court has explained:

[R]eview [of the sufficiency of the evidence] should be

independent of the jury's determination that evidence on

another count was insufficient. The Government must convince

the jury with its proof, and must also satisfy the courts that

given this proof the jury could rationally have reached a

verdict of guilt beyond a reasonable doubt. We do not believe

that further safeguards against jury irrationality are

necessary. 

United States v. Powell, 469 U.S. 57, 67 (1984), construing Dunn v. United

States, 284 U.S. 390 (1932). In Nesbitt's case, of course, the trial court

rather than the jury acquitted him of felony murder. For our purposes,

however, the distinction is irrelevant. Even if the trial court had made

both rulings after a bench trial, Nesbitt would have no federal

constitutional claim that the verdict was inconsistent. As the Supreme

Court said in Harris v. Rivera, 454 U.S. 339, 348 (1981):
 Nesbitt relies heavily on Peru v. United States, 4 F.2d 881 2

(8th Cir. 1925), in which we reversed a conviction on the fifth

count of an indictment because the only evidence of guilt was the

evidence introduced to prove the first four counts on which the

trial court had directed verdicts of acquittal. However, Peru is

a sufficiency-of-the-evidence case -- we expressly held that the

motion for acquittal on count five "should have been sustained."

Id. at 884. Peru does not support Nesbitt's attempt to apply

collateral estoppel to a single trial of multiple charges. 

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Apart from the acquittal of [a co-defendant], this record

discloses no constitutional error. Even assuming that this

acquittal was logically inconsistent with the conviction of

respondent, respondent, who was found guilty beyond a

reasonable doubt after a fair trial, has no constitutional

ground to complain that [the co-defendant] was acquitted. 

Read together, Powell and Harris establish that there was no

violation of Nesbitt's constitutional rights -- double jeopardy or due

process -- so long as the evidence before the jury was constitutionally

sufficient to convict him of premeditated murder. To be sure, the trial

court's dismissal of Nesbitt's felony murder charge was an acquittal for

double jeopardy purposes. See Smalis v. Pennsylvania, 476 U.S. 140, 144

(1986). But his conviction of premeditated murder did not place Nesbitt

twice in jeopardy because "the criminal rule of collateral estoppel found

in Ashe v. Swenson . . . does not apply to verdicts of guilt and innocence

rendered in a single trial." Arnold v. Wyrick, 646 F.2d 1225, 1228 (8th

Cir. 1981). See also Ohio v. Johnson, 467 U.S. 493, 500 n.9 (1984) ("where

the State has made no effort to prosecute the charges seriatim, the

considerations of double jeopardy protection implicit in the application

of collateral estoppel are inapplicable"). As the district court correctly

observed, "At worst, Nesbitt was tried once on alternative theories of

murder. American law has long permitted the assertion of alternative

theories of first-degree murder in one murder prosecution without concern

that the defendant is subject to 'double jeopardy' if convicted on one

theory but acquitted on the other." 907 F. Supp. at 1319. 

2
 Thus, the trial evidence belies Nesbitt's assertion that the 3

only way to uphold his conviction is to use facts establishing

sexual assault. Although we do not think Ashe v. Swenson applies

to a single trial of multiple counts, its collateral estoppel

principle would not in any event entitle Nesbitt to habeas relief

because his felony murder acquittal did not determine an "ultimate

fact" in his prosecution for premeditated murder. Compare United

States v. Rodgers, 18 F.3d 1425, 1428-29 (8th Cir. 1994). 

-7-

With the issue now in proper perspective, we turn to the Nebraska

Supreme Court's comment of which Nesbitt complains. The Court was

reviewing the sufficiency of the evidence of premeditated murder.

Nesbitt's possible motive was of course relevant to the issue of

premeditation. See, e.g., State v. Harrison, 378 N.W.2d 199, 203-04 (Neb.

1985). The trial record included all the State's evidence, including

evidence tending to prove sexual assault. The State's evidence tended to

show that something happened in the hours Nesbitt was alone with Harmer

that made him want to kill her. If Bieber was believed, Nesbitt had raped

her. But he might also have seriously injured her with a beating or by

inducing a drug overdose. Even if the Nebraska Supreme Court overstated

the trial evidence when it declared that Nesbitt had sexually assaulted

Harmer, the Court's ultimate conclusion was correct -- the evidence of

motive plus the evidence of an elaborate cover-up of Harmer's death was

sufficient to convict Nesbitt of premeditated murder. Indeed, Nesbitt

3

does not challenge that conclusion under the federal standard for measuring

the constitutional sufficiency of the evidence. See Jackson v. Virginia,

443 U.S. 307, 324 (1979). 

In these circumstances, Nesbitt's conviction for premeditated murder

did not violate his constitutional rights under the Double Jeopardy Clause.

His additional contention that the state courts deprived him of due process

by denying his requests for postconviction bail is therefore without merit.

Because these issues can be resolved on the state court record, the

district
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court did not err in denying Nesbitt's request for an evidentiary hearing.

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.