together to negotiate the amount of the payoffs on yet another job, this time Spring Creek. And while Mr. Savino was himself only feigning a conspiratorial role, in a real sense he continued to represent the interests of the Genovese family and in particular his patron, Mr. Mangano, who repeatedly emphasized that he wanted no one to know that he was in the window business.
But the government's evidence showed that he was. And he was not alone. He and numerous other organized crime members and associates extended their business activities beyond the lucrative NYCHA Authority market seizing every opportunity to broaden their influence and control over manufacturers, installers, and contractors whose work fell within the jurisdiction of Local 580. The government cannot demonstrate that the there was anything special or unique about the Spring Creek job that necessitated a separate conspiratorial agreement. While Spring Creek may have had its own peculiarities and difficulties requiring the deft hand of Mr. Savino to overcome, like so many other jobs, the agreement to demand and receive payoffs was long since in place and Savino's guidance did not involve the question of whether there should be an agreement, but rather how the long standing agreement should be implemented in the Spring Creek contract.
In sum, considering the totality of circumstances surrounding the issue before the Court, including the charges and the evidence already advanced, albeit unsuccessfully, by the government during the Windows trial, and the theory of that prosecution, the Court is obliged to conclude that the two conspiracies are the same for double jeopardy purposes.
A review of the eight specified Korfant factors demonstrates that the government has failed to sustain its burden of proving that two separate conspiracies existed. The criminal offenses charged in both conspiracies are the same. (Korfant factor 1.) At least some (and perhaps many) of the principal defendants are charged in both conspiracies and, as noted earlier, the time span and geographic scope of the McGowan conspiracy falls entirely and comfortably within the larger Windows charge. (Korfant factors 2, 3, 6.) The conspiracies operated similarly and had the same objectives - - to enrich the conspirators at the expense of private contractors engaged in public and private work through the wrongful use of union power. (Korfant factors 4 and 7.) Finally, as just demonstrated, the charged conspiracies did not operate independently of one another. (Korfant factor 8.) In short, the "degree of commonality" is high and the "degree of difference" is virtually imperceptible. Calderone, 982 F.2d at 46.
For these reasons, the two conspiracies are "in fact and in law the same" for jeopardy purposes. Reiter, 848 F.2d at 340. In essence, the Government has responded to McGowan's acquittal in Windows by attempting to retry him for a smaller conspiracy in the hope of a more favorable outcome. This course of action is forbidden by the Fifth Amendment. Accordingly, Count One of this indictment is barred by the double jeopardy clause and must be dismissed.
B. Counts Two and Three
McGowan relies on a combination of double jeopardy and collateral estoppel arguments in urging that Counts Two and Three of the indictment be dismissed. It is well-settled that under traditional double jeopardy analysis, a previous conspiracy prosecution does not serve as a bar to a later prosecution for a related substantive offense. See United States v. Felix, 118 L. Ed. 2d 25, 112 S. Ct. 1377, 1384 (1992); see also Pinkerton v. United States, 328 U.S. 640, 643, 90 L. Ed. 1489, 66 S. Ct. 1180, (1946) (". . . The commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.") As a consequence, McGowan devotes most of his energy to arguing that the doctrine of collateral estoppel, which is embodied within the double jeopardy clause, requires the dismissal of Counts Two and Three.
Collateral estoppel, a doctrine developed in the context of civil litigation, prevents an issue that has been fully and fairly litigated in one suit from being relitigated in another suit between the parties. See RESTATEMENT (SECOND) OF JUDGMENTS § 17 (1980). In the context of a criminal case, the doctrine of collateral estoppel bars the government from relitigating an issue decided in a defendant's favor by a valid final judgment. Ashe v. Swenson, 397 U.S. 436, 443, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970). Judge Friendly has written that the application of the collateral estoppel doctrine always has two phases. First the Court must determine, by analyzing both the indictment and the record in the previous trial, what the first judgment decided. Then the Court must go on to examine how that determination bears on the second case. See United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961).
In a criminal case, the first phase of the analysis - - determining what issues the jury resolved in the previous trial - - can be exceedingly difficult because of the nature of juries and the general verdicts they render. The Second Circuit has held that the burden is on the defendant to demonstrate that "'the issue he seeks to foreclose from litigation in the present prosecution was necessarily decided in his favor by the prior verdict.'" United States v. Citron, 853 F.2d 1055, 1059 (2d Cir. 1988) (quoting United States v. Cala, 521 F.2d 605, 608 (2d Cir. 1975)) (other citations omitted). Thus, in a case where "the previous acquittal was based on a general verdict, the court must 'examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" Citron, 853 F.2d at 1059 (quoting Ashe v. Swenson, 397 U.S. 436, 444, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970)) (other citations omitted). Courts have been enjoined not to take a hypertechnical view of the analysis thereby making the defendant's burden overly difficult. Citron, 853 F.2d at 1058 (citations omitted). However, a criminal defendant's burden has been acknowledged to be "particularly onerous where the acquittal in the first trial involves the crime of conspiracy." United States v. Clark, 613 F.2d 391, 400 (2d Cir. 1979), cert. denied, 449 U.S. 820, 66 L. Ed. 2d 22, 101 S. Ct. 78 (1980) (citing United States v. Tramunti, 500 F.2d 1334, 1346-1349 (2d Cir.), cert. denied, 419 U.S. 1079, 42 L. Ed. 2d 673, 95 S. Ct. 667 (1974)). Indeed, it has been recognized that "since it is usually impossible to determine with any precision upon what basis the jury reached a verdict in a criminal case, it is a rare situation in which the collateral estoppel defense will be available to a defendant." Citron, 853 F.2d at 1058 (citing Tramunti, 500 F.2d at 1346).
Applying the rule of collateral estoppel to the facts of this case, McGowan must demonstrate that the jury in Windows could not reasonably have reached its verdict acquitting McGowan on the broad labor payoff conspiracy charge without also deciding that McGowan was innocent of conspiring to accept a labor payoff concerning the Spring Creek development. In fact, the limited amount of evidence involving the Spring Creek project represented a minuscule aspect of the Windows trial, and was never fully developed at trial. See Government's Memorandum at 8-9.
Indeed, in the context of a six month jury trial, McGowan focuses so much attention on a supplemental response by the government to McGowan's request for a bill of particulars, see Defendant's Memorandum at 3-5, and on sidebars that took place out of the hearing of the jury, see Defendant's Reply Memorandum at 2-4, precisely because so little information relating to Spring Creek emerged at trial. A realistic evaluation of the Windows verdict reveals that the jury did not, by any means, necessarily find McGowan innocent of the substantive Spring Creek payoffs.
In this crucial way this case is instantly distinguishable from many of the drug conspiracy cases cited by McGowan. In those cases, because of the comparative simplicity of the original charge, the reviewing courts had less difficulty determining what the jury had necessarily decided in rendering its original verdict. See United States v. Mespoulede, 597 F.2d 329, 333 (2d Cir. 1979) (in acquitting defendant at first trial, jury must have found that the defendant did not possess cocaine on specific date charged); United States v. Seley, 957 F.2d 717, 721 (9th Cir. 1992) (in acquitting defendant at first trial, jury must have found that defendant did not know vehicle contained marijuana); United States v. Gornto, 792 F.2d 1028, 1031 (11th Cir. 1986) (in acquitting defendant at first trial, jury must have found that defendant did not possess and distributed drugs at specific apartment); Defendant's Memorandum at 17-18. In a massive conspiracy like the one charged in Windows, however, it is far more difficult to ascertain what issues the jury necessarily decided in rendering its verdict. Defendant's reliance on Calderone II is also misplaced. In Calderone II, the government was barred on double jeopardy grounds from bringing a charge of conspiracy to distribute heroin. Among the substantive offenses that the government contended were not barred by the conspiracy acquittal were substantive telephone counts charging that the telephone was used to conspire to distribute heroin - - the very same conspiracy which the Court had held was barred by double jeopardy. Calderone II, 982 F.2d at 48. In McGowan, since the substantive Taft-Hartley offense does not have as one of its elements the labor payoff conspiracy, the Calderone II logic is inapposite. The Court finds that the other cases upon which defendant relies are also distinguishable. Finally, the Court notes that, given the circumstances of this case, "fundamental considerations of fair play," Mespoulede, 597 F.2d at 333, are by no means offended by requiring McGowan to stand trial on the substantive charge of accepting a labor payoff related to the Spring Creek project. For all these reasons, then, McGowan is not one of those rare cases where collateral estoppel can be invoked to bar the government from bringing a substantive charge.
Since McGowan has not sustained his burden of establishing that his acquittal in Count Four of McGowan necessarily resolved the substantive offenses charged in Counts Two and Three of this case, the motion is denied as to Counts Two and Three.
Finally, defendant argues that Counts Two and Three should be dismissed based on the "supervisory power" of the Court. Defendant's Memorandum at 19-21. However, despite defendant's advocacy, the Court does not believe that subjecting McGowan to trial on the substantive labor payoff charges would be "inequitable," "unfair," or "questionable." Defendant's Memorandum at 19-21. Therefore, since the Court has determined that defendant has not satisfied the standards for dismissal under either the double jeopardy clause or the doctrine of collateral estoppel, the Court declines defendant's invitation to dismiss the charges.
For the foregoing reasons, McGowan's Motion to Dismiss should be granted as to Count One and denied as to Counts Two and Three.
Dated: Brooklyn, New York
June 15, 1994
RAYMOND J. DEARIE
United States District Judge