Appeal from judgment of conviction after a jury trial of conspiracy to violate the federal narcotics laws and of distribution of heroin entered in the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge. Affirmed.
Moore, Oakes and Meskill, Circuit Judges.
Angelo Seijo appeals from a judgment of conviction of violation of the federal narcotics laws entered on October 24, 1975 in the United States District Court for the Southern District of New York after a four day jury trial before Charles L. Brieant, Jr., Judge. Seijo was sentenced to concurrent fifteen-year terms of imprisonment for each of the two counts on which he was convicted, to be followed by a special parole term of three years.
This is the second time that this Court must rule on the validity of a district court trial involving this appellant. On April 23, 1975, Seijo and a co-defendant, Nicholas Hildebrandt, were granted a new trial because another co-defendant, Leonard Torres, who testified as a government witness, had, unbeknownst to the government, falsely denied any prior criminal convictions when in fact he had previously been convicted of possession of marijuana. Having fully described the drug transactions involved in this case in our prior decision, United States v. Seijo, 514 F.2d 1357 (2 Cir. 1975), we now will develop only those facts and issues relevant to disposition of this second appeal.
Appellant was initially tried on four of the six counts contained in indictment 74 Cr. 606, filed on June 14, 1974.*fn1 Count One charged Seijo and co-defendants Hildebrandt, Torres, and DiDomenico with conspiracy to violate the federal narcotics laws from April 1, 1974 to June 14, 1974, in violation of 21 U.S.C. § 846. Count Four charged all four defendants with distributing approximately 260 grams of heroin on June 5, 1974. Count Five charged only Seijo with possessing, with intent to distribute, approximately 34 grams of heroin on June 5, 1974.*fn2 Counts Four and Five charged violations of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2. Finally, Count Six charged Seijo with carrying a firearm during commission of the felonies specified in the other three counts, in violation of 18 U.S.C. § 924(c)(2); this last count was severed by Judge MacMahon prior to trial and subsequently was dismissed with the government's consent. On the first day of trial, co-defendant Torres pleaded guilty to Count One and later testified as a government witness. After a two day trial, the jury found Seijo guilty on Counts One and Four and not guilty on Count Five. Co-defendant Hildebrandt was found guilty on all counts in which he was named; DiDomenico was found guilty on Counts One and Two. Judge MacMahon sentenced Seijo to concurrent terms of fifteen years' imprisonment on each of the two convictions, to be followed by a three year special parole term.
As described, supra, the convictions of Seijo and Hildebrandt were reversed on appeal and a new trial granted. On the day upon which retrial before Judge Brieant began, Hildebrandt pleaded guilty to Counts Three and Four, and Seijo proceeded to trial alone. The jury again convicted him on Counts One and Four.
On appeal Seijo argues that the government was collaterally estopped from offering proof in the second trial that he possessed heroin because his acquittal on Count Five in the first trial could only have been based on a finding of reasonable doubt that he had ever possessed the drugs; Seijo further argues that collateral estoppel also bars the evidence because the possession of heroin was a lesser included offense of the crime of possession with intent to distribute, the offense charged in Count Five. Additionally, Seijo asserts that the district court abused its sentencing discretion and violated due process guarantees because of the absence of substantive standards for the imposition of sentence. For the reasons set forth below, we affirm the judgment of conviction.
I. The Collateral Estoppel Claims.
It is now well settled that collateral estoppel, an ingredient of the Fifth Amendment guarantee against being placed in jeopardy twice for the same offense, applies to criminal prosecutions and precludes prosecution when an issue of ultimate fact has been determined in a defendant's favor by a valid and final judgment in a prior proceeding between the same parties. Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970); Turner v. Arkansas, 407 U.S. 366, 32 L. Ed. 2d 798, 92 S. Ct. 2096 (1972). The defendant has the burden of establishing that the issue he seeks to foreclose from the second litigation was "necessarily" resolved in his favor by the first verdict. United States v. Cala, 521 F.2d 605, 608 (2 Cir. 1975); United States v. Gugliaro, 501 F.2d 68 (2 Cir. 1974); United States v. Tramunti, 500 F.2d 1334 (2 Cir.), cert. denied, 419 U.S. 1079, 42 L. Ed. 2d 673, 95 S. Ct. 667 (1974). We have previously noted that this burden of proof is a heavy one, since "it usually cannot be determined with any certainty upon what basis the previous jury reached its general verdict." United States v. Gugliaro, supra, 501 F.2d at 70. See also United States v. Cala, supra, 521 F.2d at 609; United States v. Cioffi, 487 F.2d 492, 498 (2 Cir. 1973), cert. denied sub nom. Ciuzio v. United States, 416 U.S. 995, 40 L. Ed. 2d 774, 94 S. Ct. 2410 (1974).
The Court's task in evaluating a claim of issue preclusion has been ably summarized by Judge Mansfield in United States v. Cala, supra, 521 F.2d at 608:
In determining what issues were necessarily resolved by the prior proceedings, the court is to take a practical approach, examining the record, pleadings, evidence and jury instructions in order to decide "whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Ashe v. Swenson, supra, 397 U.S. at 444, 90 S. Ct. at 1194; Sealfon v. United States, 332 U.S. 575, 579, 68 S. Ct. 237, 92 L. Ed. 180 (1948); United States v. Tramunti, supra, 500 F.2d at 1346. If the jury could have done so in the prior case, the claim of collateral estoppel must fail, since the defendant can prevail only if the issue which he seeks to preclude from consideration was "necessarily" resolved in his favor in the prior proceeding.
It remains for us to apply these principles to the instant case.
Count Five charged Seijo with possession with intent to distribute 7.6 grams of heroin found beneath the backseat of the police car into which he had been placed by the arresting officer shortly after his arrest. Seijo claims that the record of the first trial establishes that the jury's acquittal on this count could only have been based on a finding of reasonable doubt that he had possessed the heroin in question. In support of his argument he cites his own testimony, unchallenged by the government, that he himself never used heroin and never possessed the heroin in question, and testimony by a former police officer that any heroin on Seijo's person would have been discovered during normal pat-down procedures. Seijo claims that no evidence was introduced by either side to resolve the "intent to distribute" issue, i. e., the amount of drugs that would constitute a user's supply as opposed to a seller's supply. He argues that since ...