### The HONORABLE CHARLES R. WOLLE, Chief United State s * 

### District Judge for the Southern District of Iowa, sittin g by designation. The HONORABLE RICHARD G. KOPF, United States District Judge 1 

### for the District of Nebraska, who adopted the report an d reco mmendation of the HONORABLE DAVID L. PIESTER, United State s 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 Judg es, and WOLLE, Chief District Judge. *

___________ LOKEN, Circuit Judge.

Thomas Edward Nesbitt was tried in a Nebraska court for the firs t degree murder of Mary Kay Harmer. After the trial court dismissed a charg e of fel ony murder because of insufficient evidence, the jury convicte d Nesbitt of premeditated murder, and he was sentenced to life in prison

. Nesbitt now appeals the district court's denial of his federal habea s 1 corpus petition. Nesbitt v.

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Hopkins , 907 F. Supp. 1317 (D. Neb. 1995). He argues that the Nebrask a Suprem e Court in affirming his conviction violated the Double Jeopard y Clause by construing the trial evidence as establishing the acquitte d charge of felony murder. We affirm.

I.

For reaso ns 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 wit h Harmer, w ho was not seen again until her body was discovered nine year s 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 i n trouble

. Nesbitt also asked Bieber to get some lye, but Bieber did no t comply. Meanwhile, Ray attempted to return to the house but Nesbitt, unde r 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 wer e involved." Nesbitt a nd 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 bel ongings and changing their identities.
Harmer's naked body was found in a manhole in Iowa. Forensic e xperts could not determine the cause of death, but opin ed that holes in her skull suggested bullet wounds. The condition of Harmer's teeth and skul l suggested that a caustic substance had been pour ed 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 defens e that Harmer died of a drug overdose, and that he dumped her body in th e manhole t o avoid questioning by police, whom he did not trust. Anothe r
woman test ified that, in 1974, Nesbitt had abducted and raped her an d threatened to kill her family if she reported the incident to police.
The State charged Nesbitt with premeditated murder and felony m urder, with the underlying felony being sexual assault. No one witnessed a sexua l assault, Harmer's decomposed body did not yield physical evidence of sexua l assault, a nd of course, Harmer could not testify to a sexual assault

. Therefore, at the close of the State's evidence, the trial court dismissed the felo ny murder charge for insufficient evidence. But the cour t submit ted premeditated murder, and the jury convicted Nesbitt of tha t crime.

On direct appeal, Nesbitt argued that the evidence was insufficient to p rove premeditated murder. In rejecting that claim, the Nebrask a Supreme Court summari zed at length the circumstantial evidence supporting Nesbitt's conviction. Its summary included a statement that is the basis for this appeal:

Th e jury could infer that Harmer was called to the party a t [Nesbitt's] request for purposes of sexual gratification and th at the identi ty of the group and the location were withheld from her a t Nesbitt's suggestion. Drugs were furnished to the victim and a sex ual assault or at least an attempt was made. The victim wa s struck to "keep her in line," and so metime 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 th e Court for a rehearing, arguing that this statement violated his double jeopardy rights because he was acquitted of felon y murder. The Nebraska Supreme Court summarily denied that petition.

### -4- Nesbitt r enews his double jeopardy contention on this appeal. More fully stated, the theory is: (1) Nesbitt's acquittal of felony murde r "n ecessarily resolved that [he] neither perpetrated nor attempted t o perpetrate a sexual assault on the deceased"; (2) the Nebraska Suprem e 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 Claus e inclu de the basic principle of collateral estoppel: "when an issue o f ultimate fact has once been determined by a vali d and final judgment, that issue cannot again be litigated between the same parties in any futur e lawsuit." Ashe v. Swenson , 397 U.S. 436, 443 (1 970). In a criminal case,
a fact pre viously determined "is not an 'ultimate fact' unless it wa s necessarily determine d by the [factfinder] against the government and, in the second prosecution, that same fact is required to be proved beyond a reasonable doubt in o rder to convict." Prince v. Lockhart , 971 F.2d 118, 123 (8th Cir. 1992), cert. denied , 507 U.S. 964 (1993).

Our de cision 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 investigatin g
a bank robbery. He was then tried for conspiring to commit the robbery. Because the only

evidence implicating Brown in the conspiracy was factuall y inconsistent with Bro wn'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 therefor e could not be required to 'run the gantlet a second time.'" 547 F.2d at 44 3 (quoting Ashe , 397 U.S. at 446).

Th e conceptual problem with Nesbitt's theory is that it seeks t o apply a double jeopardy principle that governs successive prosecution case s like Ashe and Brown to his single, multi-count trial. The shoe will not fit. A review of Supreme Court cases involving allegedly inconsisten t verdicts persuades us that, in a single trial of multiple charges, the onl y relevant question is whether the evidence is constitutionally sufficient to support each count of conviction.
Using Nes bitt's trial to illustrate the inconsistent verdict issue, if the trial court ha d submitted both murder charges to the jury, and the ju ry had acquitted Nesbitt of felony murder but convicted him o f premeditated murder, the conviction would not be reviewable on the ground that the verdict was inconsistent. As the Supreme Court has explained:

[R]ev iew [of the sufficiency of the evidence] should b e indep endent of the jury's determination that evidence o n another count was insufficient. The Government must convince the jury with its proof, and must also satisfy the courts that giv en 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 ar e 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 cour t rather th an the jury acquitted him of felony murder. For our purposes , however, the distinct ion is irrelevant. Even if the trial court had made both ruli ngs after a bench trial, Nesbitt would have no federa l
con stitutional claim that the verdict was inconsistent. As the Suprem e 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 fift h count of an indictment because the only evidence of guilt was the evidence introduced to prove the first four counts on which th e trial court had directed verdicts of acquittal. However, Peru is a suff iciency-of-the-evidence case -- we expressly held that th e mot ion for acquittal on count five "should have been sustained. " Id

. at 884

. Peru does not support Nesbitt's attempt to appl y collateral estoppel to a single trial of multiple charges.
-6- Apart f rom the acquittal of [a co-defendant], this recor d discloses no constitutional error. Even assuming that thi s acquittal was logically inconsistent with the conviction o f re spondent, respondent, who was found guilty beyond a reas onable doubt after a fair trial, has no constitutiona l ground to complain that [the co-defendant] was acquitted.

Read together, Powell and Harris establish that there was n o violat ion of Nesbitt's constitutional rights -- double jeopardy or du e process -- so long as the evidence before the jury was constitutionall y 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 bec ause "the criminal rule of collateral estoppel found in Ashe v. Swenson . . . does not apply to verdi cts 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) ("wher e the State has made no effort to prosecute the charges seriatim, th e considerations of double jeopardy protection implicit in the application of collateral estoppel are inapplicable"). As the district court correctl y observed, "At worst, Nesbitt was tried once on alternative theories o f murder. American law has long permitted the assertion of alternativ e theories of first-deg ree murder in one murder prosecution without concern that the defendant is subject to 'double jeopardy' if convicted on on e theory but acquitted on the other." 907 F. Supp. at 1319. 2

### Thus, the t rial evidence belies Nesbitt's assertion that the 3 

### only way to uphold his conviction is to use facts establishin g sexual assault. Although we do not think Ashe v. Swenson applies to a single trial of multiple counts, its collateral estoppe l principle would not in any event entitle Nesbitt to habeas relief because his felony murder acqu ittal 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 Nebrask a Supreme Court's comment of which Nesbitt complains. The Court wa s
rev iewing the sufficiency of the evidence of premeditated murder

. Ne sbitt's possible motive was of course relevant to the issue o f premeditation. See, e.g. , State v. Harrison , 37 8 N.W.2d 199, 203-04 (Neb. 1985). The trial record included all the State's evidence, includin g evidence tending to p rove sexual assault. The State's evidence tended to show that something happened in the hours Nesbitt was alone with Harme r that made him want to kill her. If Bieber was b elieved, Nesbitt had raped her. But he might also have seriously injured her with a beating or b y inducing a drug overdose. Even if the Nebraska Supreme Court overstated the trial evidence when it declared that Nesbitt had sexually assaulte d Harmer, the Court's ultimate conclusion was correct -- the evidence o f motive plus the evidence of an elaborate cover-up of Harmer's death wa s sufficie nt to convict Nesbitt of premeditated murder. Indeed, Nesbit t 3 does not challenge that conclusion under the federal standard for measurin g the constitutional su fficiency of the evidence. See Jackson v. Virginia , 443 U.S. 307, 324 (1979). In these circumstances, Nesbitt's co nviction 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 proces s by denying his requests for postconviction bail is therefore without merit

. Because t hese issues can be resolved on the state court record, th e district

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court did not err in denying Nesbitt's request f or an evidentiary hearing. The judgment of the district court is affirmed.

A true copy.

Attest:

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