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USCA1 Opinion

UNITED STATES COURT OF APPEALS


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 96-1251

UNITED STATES OF AMERICA,


Appellee,

v.

IRVIN R. MORRIS,
Defendant, Appellant.
_________________________

No. 96-1252

UNITED STATES OF AMERICA,


Appellee,

v.

STUART L. SMITH,
Defendant, Appellant.
_________________________

APPEALS FROM THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]


___________________
_________________________

Before

Selya, Circuit Judge,


_____________
Coffin and Bownes, Senior Circuit Judges.
_____________________
_________________________

William Maselli for appellant Morris.


_______________
Theodore A. Barone, with
__________________
and Largey,
___________

and

whom William F. Sullivan, Sullivan


___________________ ________

Perkins, Smith & Cohen


________________________

were

on brief,

for

appellant Smith.

F. Mark Terison, Assistant United States Attorney, with whom


_______________
Jay P. McCloskey, United States
________________

Attorney, and Jonathan A. Toof,


_________________

Assistant United States Attorney, were on brief, for appellee.

_________________________

November 6, 1996

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.

These

interlocutory

appeals

_____________

question whether the acquittal of

appellants Irvin R. Morris and

Stuart L. Smith on charges of conspiracy to

bars

the

conspiracy

district

government from

to defraud the

court

answered

now

distribute marijuana

prosecuting them

on

Internal Revenue Service

this

question

in

charges of

(IRS).

the

The

negative.

Concluding, as we do, that neither double jeopardy nor collateral

estoppel

principles preclude

continued prosecution

of the

tax

conspiracy charge, we affirm.

I.
I.
__

Background
Background
__________

In 1994,

indictment against

a federal

the

grand jury returned

appellants

and

seven

a three-count

other

persons.1

Count

1 charged the

appellants (and others)

with conspiracy to

distribute and to possess with intent to distribute marijuana, in

violation of 21 U.S.C.

criminal forfeiture

marijuana

of

conspiracy.

charged the

verdict

U.S.C.

or derived

853

from

(1994).

others) with conspiracy

counts.

count 1,

the

Count 3

to defraud

taxes, in

371 (1994).

district court

the other

on

See 21
___

in

Count 2 sought

determination and collection of income

violation of 18 U.S.C.

trial on

property used

appellants (and

the IRS in the

The

841(a)(1) & 846 (1994).

severed count

The

putting an

3 and

jury returned

end

to that

proceeded to

a "not

charge

guilty"

and also

____________________

1Because
codefendants,

these appeals

do

we

further

minimize

not involve

any

references

of the
to

them

seven

in

describing the indictment and ensuing trial.

eviscerating count 2.

on

double jeopardy

district court

ensued.

and

collateral

denied the motions.

See Abney v.
___ _____

(holding that

The appellants then moved to dismiss count

estoppel grounds.

The

These interlocutory appeals

United States, 431


_____________

pretrial orders rejecting

U.S. 651, 662

(1977)

double jeopardy

claims

premised on successive prosecutions are immediately appealable).2

Inasmuch

as

the

appeals

challenge

the

district

court's

application of the law rather than its factfinding, our review is

plenary.

II.
II.
___

Double Jeopardy
Double Jeopardy
_______________

The

shall

"be

jeopardy of

Double Jeopardy

subject

for the

life or limb .

Clause

same

. . ."

provides that

offence

to be

it shields a defendant

prosecution

for

offense

acquittal,

and it

same

offense.

also prohibits

See United States


___ _____________

person

twice

put in

U.S. Const. amend.

Clause has three aspects:

the same

no

after

V.

from a second

either conviction

multiple punishments

v. Stoller, 78
_______

The

or

for the

F.3d 710, 714

____________________

2Abney
_____
Cases

involved multiple

that

different

implicate

1995)

for

stemming from

want
the

of

single

indictment); see also


___ ____

710, 715

at 662.

arguably

appellate

44 F.3d

courts.

17, 18-19

jurisdiction an

rejection of

claim asserted in connection with

431 U.S.

punishments

concerns for

Ramirez-Burgos,
______________

(dismissing

appeal

multiple

jurisdictional

United States v.
______________

prosecutions.

raise

See
___

(1st Cir.

interlocutory

a multiple

punishments

parallel counts contained in a

United States v.
_____________

Stoller, 78 F.3d
_______

& n.2 (1st Cir. 1996) (indicating uncertainty as to the

continued vitality of Ramirez-Burgos in light of emergent Supreme


______________

Court precedent), petition for cert. filed, 64 U.S.L.W. 3823 (May


________________________
29,

1996)

(No. 95-1936).

itself, involve
Jeopardy

Because these

appeals,

the successive prosecution branch

like Abney
_____

of the Double

Clause, we have jurisdiction to hear and determine them

prior to trial.

(1st

Cir. 1996), petition for cert. filed, 64 U.S.L.W. 3823 (May


________________________

29, 1996) (No. 95-1936); United States v. Caraballo-Cruz, 52 F.3d


_____________
______________

390,

391 (1st Cir. 1995); United States v. Rivera-Martinez, 931


______________
_______________

F.2d

148, 152

Here,

the

(1st Cir.),

appellants

cert. denied,
_____ ______

invoke

successive prosecutions.

whether the tax conspiracy

the

502 U.S.

Clause's

862 (1991).

protection against

The resolution of their claim turns on

is the same offense as

conspiracy for double jeopardy purposes.

the marijuana

The Supreme Court has

use

in

determining

when

double jeopardy

prosecution under two distinct

same

act

or

transaction

authored a black-letter rule for

principles

statutory provisions:

constitutes

violation

prohibit

"where the

of

[both]

statutory provisions, the test to be applied to determine whether

there are two

requires

v.

offenses or

whether each

proof of a fact which the other does not."

United States,
_____________

charged

only one, is

are

Blockburger,
___________

284

discrete

U.S. 299,

offenses

the defendant may

304 (1932).

within

the

be prosecuted

provision

Blockburger
___________

If the

crimes

contemplation

of

consecutively for

them, even if the crimes arise out of the same conduct or nucleus

of operative

F.3d

368, 372

facts.

(1st

See United States v.


___ ______________

Cir. 1994).

Thus, the

Parrilla-Tirado, 22
_______________

Blockburger
___________

rule

depends on statutory analysis, not on evidentiary comparisons.

Having carefully

did

the court below, that

conspiracy

are

conspiracy,

the

separate

government

examined the record, we

the tax conspiracy

offenses.

must

prove

To

conclude, as

and the marijuana

establish

that

the

the

tax

conspiracy

existed,

that the

defendants agreed to

participate in

it, and

that at least one overt act was perpetrated in furtherance of the

goal

of

defrauding the

Cambara,
_______

United States.

902 F.2d 144, 146-47 (1st Cir. 1990).

marijuana

conspiracy,

the

government

conspiracy existed, that the

it, and that they

See
___

1993), cert.
_____

had to

To establish the

prove

that

the

defendants agreed to participate in

intended to possess and

United States
_____________

objects

See United States v.


___ ______________

v. Sepulveda,
_________

15 F.3d

denied, 114 S. Ct. 2714


______

of the two conspiracies

distribute marijuana.

1161, 1173

(1994).

(1st Cir.

Thus, the primary

are different, and

each of the

charged crimes includes an element that the other does not.

These

indictment

differences

in this case.

are

brought

In respect

home

by

parsing the

to count 3, the government

needs to prove at trial that the appellants specifically intended

to defraud the IRS and that they undertook at least one overt act

in furtherance of that

establishing

however,

appellants

conspiracy

the marijuana conspiracy.

the

government

intended

extraneous to

(1st

needed

to distribute

establishing the tax

the two charges constitute

See, e.g.,
___ ____

proof that is

United States
_____________

extraneous to

In respect

to prove

at

trial

marijuana

conspiracy.

that

proof that

On

distinct offenses under

v. Gomez-Pabon,
___________

to count 1,

the

is

this basis,

Blockburger.
___________

911 F.2d 847,

861-62

Cir. 1990) (holding that a conspiracy to import cocaine and

conspiracy to

possess cocaine

distinct offenses because

with intent to

they differ "in

distribute are

what they specify

as

the proscribed object of the conspiracy"), cert. denied, 498 U.S.


_____ ______

1074 (1991); United States


_____________

Cir.

1988) (holding

aiding

and abetting

distribute are

even

if

that conspiracy

the

to distribute

possession of

distinct offenses

both arise

requires proof

v. Rodriguez, 858 F.2d 809,


_________

out of

of an element

the

cocaine and

cocaine with

and may be

817 (1st

intent to

charged separately

same transaction

that the other does

because each

not).

Hence,

trying

the appellants

on count

3 will

not violate

the Double

Jeopardy Clause.

The

technical.

appellants

They hawk

decry

this

analysis

three separate, but

as

excessively

related, rejoinders:

(1) that the government will introduce at a future trial much the

same

evidence

despite

the

alleged

only

marijuana and
___

(3)

which it

used in

proliferation

single

of

the

previous trial;

counts the

conspiracy

government

involving

concealment of the profits

(2) that

in

fact

distribution

of

derived therefrom; and

that the district court misapplied this court's gloss on the

test for determining when two separately charged conspiracies are

deemed

synonymous

for

asseverations lack force.

double

jeopardy

purposes.

These

1.
1.

Same Evidence.
Same Evidence.
______________

The

Supreme

Court

has

never

endorsed a blanket rule prohibiting the government from using the

same evidence to

prove two different

defendant.

be sure,

To

jeopardy protection

test.

the Court

See Grady v. Corbin,


___ _____
______

Court laid waste

at

to Grady
_____

the

offenses against a

high-water

briefly adopted a

495 U.S. 508, 521

in fairly short

mark for

single

double

"same conduct"

(1990).

order and

But the

confirmed

that

the performance

judicial

States v.
______

task in

of

a Blockburger
___________

analysis completes

successive prosecution

Dixon, 509 U.S.


_____

688, 712

case.

See
___

(1993) (overruling

the

United
______

Grady).
_____

Consequently, the appellants' "same evidence" argument fails.

2.
2.

Singularity of the Conspiracy.


Singularity of the Conspiracy.
_______________________________

assertion

that

conspiracy

is

transactions

"best

the

government

no more

on which

than

alleged

only

play on

words.

the charges

rest

The appellants'

one

overarching

Even if

are intertwined

the

the

case" assumption for the appellants, and a matter on which

we need not opine

this

datum would not alter the outcome of

Blockburger
___________

inquiry.

"It

is

transaction

can give

rise to

well

settled

distinct offenses

that

single

under separate

statutes without violating the

Double Jeopardy Clause," and this

tenet

the

"is

true

agreement or

even

though

conspiracy."

`single transaction'

Albernaz
________

v. United States,
_____________

is

an

450 U.S.

333, 344 n.3 (1981).

Whether a particular course

more distinct

offenses depends on congressional

choice, and the

Clause offers little limitation

on that choice.

Double Jeopardy

See Sanabria
___ ________

v. United States, 437 U.S.


_____________

principle readily

already

of conduct involves one or

disposes of the

54, 69-70 (1978).

appellants' argument.

have shown, Congress defined

This

As we

the tax conspiracy and the

marijuana conspiracy such that each requires proof of a fact that

the other does not.

3.
3.

appellants

Segregating Distinct Conspiracies.


Segregating Distinct Conspiracies.
__________________________________

urge

us

to

find

that

they

are

Finally, the

shielded

from

prosecution

for the

between

and

it

the

tax conspiracy

because of

marijuana conspiracy.

the imbrication

In

framing

this

exhortation the

Booth, 673
_____

(1982),

appellants pin their

F.2d 27, 29

in which

whether two

purposes.

(1st Cir.), cert.


_____

we set

out a

conspiracies

are

denied, 456 U.S.


______

five-part test

synonymous

for

978

for determining

double

jeopardy

Here, four-fifths of the test falls neatly into place:

it is

undisputed that

place

contemporaneously

essentially the same

same

hopes on United States v.


______________

the tax and

(or

nearly

marijuana conspiracies

so);

personnel; that they

places; and that most

that

they

involved

occurred at much

of the evidence

took

the

that the government

introduced in its failed effort to prove the marijuana conspiracy

will

be

offered anew

conspiracy.

in a

Nevertheless,

future

there

endeavor to

is

prove

missing

the tax

link;

the

appellants cannot pass the fifth part of the test because the two

conspiracies are premised on separate statutory provisions.

This divagation is fatal to the appellants' contention.

The rationale

danger

with

underlying Booth stems


_____

that, in

the

conspiracy cases,

letter of

Blockburger
___________

from a recognition

the government

while

of the

might comply

evading its

spirit

partitioning a single conspiracy into separate prosecutions.

id.
___

abuse,

The Booth
_____

not

at

test is

thus

circumscribing

multiple offenses that occur

Because

separate statutory

conspiracies

aimed at

limned in

power

to

during a single course of

this case,

See
___

limiting prosecutorial

congressional

provisions are

by

involved in

a subsequent

define

conduct.

the two

prosecution on

count 3 will

not offend the Double Jeopardy

Clause.

See Gomez___ ______

Pabon, 911 F.2d at 861-62.


_____

III.
III.
____

Collateral Estoppel
Collateral Estoppel
___________________

It

is settled

beyond cavil

that the

Double Jeopardy

Clause encompasses the doctrine of collateral estoppel.

See Ashe
___ ____

v. Swenson, 397 U.S.


_______

901

F.2d 1132,

(1990).

1135

436, 444-45 (1970); United States


_____________

(1st Cir.),

This doctrine ensures

cert.
_____

denied, 498
______

that "when an

v. Dray,
____

U.S.

895

issue of ultimate

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

issue cannot again be

future lawsuit."

litigated between the same parties

Ashe, 397 U.S. at


____

defendant

who wishes to wield

government

bears the burden

seeks to foreclose was

443.

in any

In a criminal case,

this doctrinal weapon against the

of demonstrating that

in fact settled by the

the issue he

first proceeding.

See Dowling v. United States, 493 U.S. 342, 350-51 (1990).


___ _______
_____________

The

show

appellants thus face a formidable task:

they must

that the first trial necessarily decided that they were not
___________

involved in the

222, 236 (1994).

tax conspiracy.

See Schiro v.
___ ______

Of course, we must interpret this

the appellants' task in a practical manner:

who

raises a potential collateral

and is not

Farley, 510 U.S.


______

statement of

a criminal defendant

estoppel bar should

held to a standard of absolute certainty.

not be

A court's

approach must be pragmatic in order to prevent the rejection of a

collateral

judgment

estoppel

defense in

every case

in which

the prior

was based on a general verdict of acquittal.

See Ashe,
___ ____

397 U.S. at

444 (warning against

restrictive").

verdict

does

collateral

If all proffered

not

decide

an

courts being too

"technically

explanations for why

issue

are

frankly

a jury's

implausible,

estoppel ought to bar relitigation of the issue.

See
___

Dray, 901 F.2d at 1137.


____

It is against this

particulars

appellants

of

the

can clear

legal backdrop that we inspect

case at

the

bar.

necessarily

(1st Cir. 1996).

"require

determine whether

collateral estoppel

undertake whole-record review.

F.3d 1, 4

To

hurdle, we

the

the

must

See, e.g., Rossetti v. Curran, 80


___ ____ ________
______

After all, collateral estoppel cases

an examination

of

the

entire record

to

determine whether the jury could have `grounded its

verdict upon

an issue other than

to foreclose

that which the defendant seeks

from consideration.'"

Schiro, 510 U.S. at 236 (quoting Ashe).


______
____

The appellants

first trial must have

argue vehemently

determined that they were not

the conspiracy described

visualize as

that the jury

in count

encompassing

at the

involved in

conspiracy which

three facets:

obtaining

marijuana,

distributing it, and hiding the proceeds from the government.

think

that this

characterization misstates the

the government alleged.

they

We

conspiracy that

We explain briefly.

Our explanation starts with an acknowledgement that the

premise

implicit in the appellants' argument is sound.

indictment

alleging that

defendant's role

in the

Under an

marijuana

conspiracy

was

to

conceal

the

proceeds,

that

defendant

potentially could be found guilty of conspiracy to distribute and

10

possess with intent

to distribute marijuana

not personally deal drugs.

even though he

did

See generally United States v. David,


___ _________ _____________
_____

940 F.2d 722, 735 (1st Cir.) (noting that, in a chain conspiracy,

the

law holds a conspirator "accountable for the earlier acts of

his

coconspirators in

denied,
______

furtherance

502 U.S. 989 (1991);

conspiracy"),

United States v.
_____________

41, 42 (1st Cir. 1987) (similar).

in this case is too

of the

But count 1

cert.
_____

Baines, 812 F.2d


______

of the indictment

narrowly drawn to animate that premise

it

alleged in effect that Smith and Morris were directly involved in


________

marijuana distribution

that the government

indictment."

and

whose

and the trial judge instructed the

must prove "the conspiracy

jury

described in the

Thus, the jury would have been bound under count

the district court's elucidation of it to acquit a defendant

only involvement was to launder the funds generated by the

principals' operation of the marijuana conspiracy.

Equally as

important, count

1 of the

indictment sets

out a

conspiracy

distribute

it,

the

entrusted,

to

distribute

marijuana, not a conspiracy

government

and

avers

that

the

distributed marijuana,"

attempts to describe how

of

and

possess

with

intent

to

IRS.

In

to defraud the

appellants

but

"consigned,

the count

nowhere

the conspirators concealed the proceeds

the marijuana distribution from

prying eyes.3

This lack of

____________________

3The closest count


conspired
cash,
the

to defraud

1 comes to
the IRS

stating that the

is its

averment that

they "used

bank checks, and money orders to further the objectives of


conspiracy,

consignment

and

to

wit,

the

distribution

acquisition,
of large

far short

of

specifying whether

11

receipt,

amounts

thereby deriving substantial cash proceeds."


falls

appellants

(and

of

storage,

marijuana,

But this allegation


if so,

how)

the

connectedness

is critical,

district court

for,

instructed the

as we

mentioned earlier,

jury that

the government

the

had to

prove beyond a reasonable doubt "that the conspiracy described in

[count

the

1] was willfully formed

time alleged in the indictment."

that the appellants were

count 1 does

not rule

count 3.4

the

Hence, the jury's decision

out the possibility

arguments

described in

that the

appellants

to defraud the IRS as

alleged in

Because the record as

evidence,

at on or about

not guilty of the conduct

nonetheless may have conspired

the

and was existing

a whole (i.e., the indictment,

of

counsel,

and

the

jury

instructions)

reveals

more than

one

plausible

basis for

the

____________________

appellants

conspired to

launder drug

proceeds and

deprive the

government of tax revenue.

4This point

is driven home by

indictment, which
to

a reading of count

discusses in detail the

3 of the

conspirators' actions

hide the income that flowed their way, alleging, for example,

that Morris

and Smith used marijuana-generated

and improve real property

cash to renovate

(a specie of money laundering

that is

not mentioned in count 1).


In fairness,

we

also

note that

count

contains

some

allegations tending to blur the distinction between the marijuana


conspiracy
and

and the tax conspiracy.

Smith

of

possessing,

"earn[ing]

storing,

repackaging,

entrusting, and distributing


such sums to the
such evidence

the tax conspiracy,

493 U.S. at 348


estoppel

to

by

acquiring,

receiving,

transporting,

consigning,

marijuana, and fail[ing]

Internal Revenue Service."

is probative

subsequent trial,

income

Thus, Count 3 accuses Morris

To

of the appellants'

to report

the extent that

participation in

the government is free to introduce

it in a

despite the previous acquittal.

See Dowling,
___ _______

(declining to extend the doctrine

of collateral

require

exclusion

of

relevant

evidence

"simply

because

it relates

to

alleged

defendant has been acquitted").


is

intended to

either in making
limiting

circumscribe

criminal

conduct for

which

However, nothing in this opinion


the

in limine orders
__ ______

district

court's

or in fashioning

instructions regarding how (if at

discretion

appropriate

all) evidence of the

appellants' putative involvement in the marijuana conspiracy


now be used.

may

See Dray, 901 F.2d at 1141.


___ ____

12

acquittals, we

claim.

must reject

See Dray, 901


___ ____

the appellants'

collateral estoppel

F.2d at 1139 (explaining that there

is no

collateral

among

estoppel if an inquiring court is "left with a choice

variety

of plausible

theories"

as

to

why the

jury

acquitted at an earlier trial).

To

we sketch the

open

of

put some meat on the bare bones of this conclusion,

scenarios that

in our judgment

suffice to

leave

the possibility that the appellants may yet be found guilty

conspiracy to defraud the IRS without doing violence to their

earlier

acquittals on

drug-related charges.

In the

course of

this exercise, we treat Smith and Morris separately.

1.
1.

Smith's Collateral Estoppel Claim.


Smith's Collateral Estoppel Claim.
__________________________________

The district

court properly instructed the jury that the government must prove

"the specific offense charged in the indictment," and, thus, that

Smith had

the specific

intent to

further

the distribution

or

possession of marijuana.

The record leaves room for at least one

substantial possibility consistent

with permitting

Smith to

be

tried on the tax conspiracy charge.

The

proof showed

entrepreneurial ventures,

that Smith engaged

including

buying and

in a

variety of

selling

coins,

antiques, posters, prints, stamps, collectibles, and real estate.

At trial, his

own counsel described him

conducted his affairs largely

in cash and

as "a hustler."

kept no records.

Smith

Of

particular pertinence for present purposes, he had close business

connections with Gary Dethlefs, a central figure in the marijuana

conspiracy.

13

Both the evidence and the jury's verdict are consistent

with a

finding that

selling marijuana.

Development

Dethlefs.

Dethlefs made

Smith worked as

Corporation,

Smith had

acquisitions.

He

company

direct responsibility for

also

teamed

and he joined Dethlefs

Los

in

regard to

buying and

the general manager of G & A

construction

restaurants,

Angeles

enormous profits

with

venture

in

by

the firm's land

Dethlefs

on at least

owned

to

acquire

one sojourn to

the music

recording

industry.

In

his

trial

testimony,

Smith

involvement with Dethlefs extended only to

and

that

he

inexhaustible

had

no

wealth

knowledge

came

from

solicited Dethlefs to back

money."

Smith's

Given

close

drugs.

that

his

legitimate businesses

Dethlefs'

He

seemingly

stated

that

he

his investments because Dethlefs "had

the magnitude

ties

that

swore

with him,

of

the

Dethlefs'

jury

drug

dealing and

certainly could

have

believed that marijuana trafficking kept Dethlefs' coffers full

and that Smith knew as much.

concluded

The jury, however, also could have

that Smith was not involved in trafficking per se, but

simply helped

to launder

Such a conclusion would

the proceeds of

Dethlefs' operation.5

be consistent with both an

count 1 and a subsequent conviction on count 3.

acquittal on

Of course,

the record does not

conclusively establish

____________________

5Smith's track
such a conclusion;

record as a wheeler-dealer
the evidence

introduced at

tends to fortify
the first

showed that he had an entrepreneurial background in


real estate

which included

trial

business and

other relevant experience

in hiding

income from the government.

14

that Smith intended to defraud the United States, but that is not

the issue today.

What matters now is that, giving full effect to

the jury's

verdict, the record

spelled out

above.

does not foreclose

Moreover, though

the scenario

the line for

determining

whether theories explaining a jury's acquittal are too farfetched

to

be given

weight

in

the

collateral

estoppel

calculus

is

inherently tenebrous, that imprecision poses no problem where, as

here, the

proffered

explanation

is

plausible

one.

Much

evidence in the record is consistent with both the jury's verdict

and the appellants' participation in a conspiracy to defraud

IRS.

the

Smith's collateral estoppel claim therefore founders.

2.
2.

Morris' Collateral
Estoppel Claim.
Morris' Collateral
Estoppel Claim.
_____________________________________

We

are

satisfied that Morris, too, failed to carry the burden of showing

that his acquittal on the marijuana conspiracy charge necessarily

decided

his

lack of

involvement in

the

tax conspiracy.

The

record leaves open

the realistic possibility

of a jury

finding

that he did not intend to distribute marijuana.

Morris

living.

He

frequently

payment in cash

income.

claims that

works

for services

One witness testified

he

does construction

"under

the table";

rendered and does

work for

he

accepts

not report

that, between 1985

the

and 1992, he

alone paid Morris $21,000 in cash for work done off the books.

William Hesketh

testified at the

1985 through 1988.

cooperated

first trial.

with the

He admitted

prosecution

dealing drugs

and

from

During that period he bought large quantities

of marijuana (as much as 100 pounds at a time) from Dethlefs.

15

He

also testified that

he both

(who worked for him

on virtually a full-time

1988).

story

Morris built

gave and sold

marijuana to

Morris

basis in 1987

a chimney for Hesketh, remodeled

and

the upper

of Hesketh's home, and constructed two buildings for D and

S Moulding Company (a business that Hesketh controlled).

always paid Morris in cash.

jurors turned down the

marijuana from

Hesketh

While the verdict indicates that the

government's theory that Morris purchased

Hesketh for

resale, they nonetheless

could have

inferred knowledge on Morris' part that Hesketh's money came from

marijuana sales.

Thus, if the jury thought

that Morris, though aware of

the source of Hesketh's funds, had no stake in the success of the

marijuana-purveying enterprise,

it would be obliged

to return a

"not guilty"

verdict on count 1 of the indictment as drawn

that verdict

would not

Morris'

tell us

anything

to

of consequence

guilt or innocence vis- -vis the tax conspiracy.

events, this scenario is sufficient

overcome

Morris'

argument

but

about

In all

(and sufficiently plausible)

that

collateral

estoppel

now

prevents his trial on a charge of conspiracy to defraud the IRS.6

IV.
IV.
___

Conclusion
Conclusion
__________

We

discussed,

need

neither

go

no further.

double

jeopardy

For

nor

the

reasons we

collateral

have

estoppel

____________________

6If more were needed


note that

and

we do not think that it is

only count 3 (the tax

we

conspiracy charge), not count 1

(the marijuana conspiracy charge), alleges that Morris


and improved real and personal property with cash.

16

renovated

preclude

charges

the

of

government

conspiracy

from

to

prosecuting

defraud the

determination and collection of

the

United

income taxes.

appellants

States

Affirmed.
________

the

Consequently, the

district court did not err in refusing to dismiss count

indictment.

in

on

3 of the

17