The opinion of the court was delivered by: Block, District Judge.
On February 1, 2002, defendant, Qasim Duffy ("Duffy"), was
indicted for being a
felon in knowing and intentional possession of ammunition in and
affecting commerce, in violation of 18 U.S.C. § 922(g)(1). See
Indictment, 02-CR-142 (Feb. 1, 2002). Duffy moves to dismiss the
indictment, claiming that the Government is collaterally
estopped from prosecuting him by reason of his recent acquittal
on related charges under a prior indictment. That indictment
charged Duffy with Conspiracy to Interfere with Commerce by
Robbery, Attempt to Interfere with Commerce by Robbery, and
Causing the Death of a Person by Using and Carrying a Firearm.
See Indictment, 01-CR-102 (Jan. 31, 2001).*fn1 On January
23, 2002, Duffy was acquitted on each of these counts by a jury
in general verdicts.
The circumstances underlying both indictments arose out of an
incident that occurred on September 8, 1997, when an individual
entered the basement of 141 Hull Street in Brooklyn, New York
and attempted to commit a robbery. During the course of the
attempted robbery, the assailant shot two victims, killing one.
The new indictment superceded a complaint that was issued the
day after Duffy's acquittal. See Complaint (Jan. 24, 2002);
see also Fed.R.Crim.P. 5. The complaint, setting forth the
same ammunition charge contained in the superceding indictment,
stated that the charge arose out of the same robbery and
shooting that gave rise to the original charges, and that the
ammunition Duffy is charged with possessing are the shell
casings that were recovered at the scene of the attempted
robbery. See id. ("On September 8, 1997, in the basement of
141 Hull Street in Brooklyn, Bilberto Lopez was shot to death
. . . Crime scene detectives . . . did . . . recover . . .
9-millimeter shell casings.").*fn2
For the reasons set forth below, the Court holds that the
Government is collaterally estopped from reprosecuting Duffy
under the new indictment.
In Ashe v. Swenson, the Supreme Court held that the concept
of double jeopardy incorporates the doctrine of collateral
estoppel. 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469
(1970); see also United States v. Chestaro, 197 F.3d 600,
608-09 (2d Cir. 1999) (recognizing the "collateral estoppel
component to the Double Jeopardy Clause" as distinct from
traditional double jeopardy analysis) (quoting United States v.
Medina, 709 F.2d 155, 156 (2d Cir. 1983)).*fn3 Collateral
estoppel precludes the Government from relitigating in a second
prosecution an issue that "was
necessarily resolved in [the defendant's] favor in the first
verdict." Medina, 709 F.2d at 156. "The burden is on the
defendant to demonstrate that the issue whose relitigation he
seeks to foreclose was actually decided in the first
proceeding." Schiro v. Farley, 510 U.S. 222, 233, 114 S.Ct.
783, 127 L.Ed.2d 47 (1994) (quotation marks omitted).
The Supreme Court has instructed that "the rule of collateral
estoppel in criminal cases is not to be applied with the
hypertechnical and archaic approach of a 19th century pleading
book, but with realism and rationality." Ashe, 397 U.S. at
444, 90 S.Ct. 1189; see also United States v. Citron,
853 F.2d 1055, 1058 (2d Cir. 1988) ("[T]he court should avoid . . .
straining to postulate hypertechnical and unrealistic grounds on
which the jury could conceivably have rested its conclusions."
(quotation marks omitted)). Where the initial acquittal was
based upon a general verdict "a 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.'" United States v. McGowan, 58 F.3d 8, 12
(2d Cir. 1995) (quoting Ashe, 397 U.S. at 444, 90 S.Ct. 1189);
see United States v. Mespoulede, 597 F.2d 329, 333 (2d Cir.
1979). The Second Circuit has "noted that `[s]ince 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.'" Id. (quoting United States v.
Tramunti, 500 F.2d 1334, 1346 (2d Cir. 1974)). The present case
is one of those rare situations.
Duffy claims that the jury in his first prosecution
necessarily determined that there was reasonable doubt as to
whether he was the assailant who fired the gun in the basement
of 141 Hull Street on September 8, 1997; therefore, the
Government is collaterally estopped from rearguing this issue.
Duffy further contends that if the Government is barred from
arguing that he was the shooter, the Government cannot link him
to the ammunition found at the scene of the attempted robbery.
The Government makes two arguments in response: (1) that the
jury did not necessarily determine there was reasonable doubt
that Duffy was the assailant; and (2) that, even if the
Government is barred from arguing that Duffy was the assailant,
the jury in the second trial could, nevertheless, find him
guilty on the ammunition charge. The Court has examined the
"record of the prior proceeding, taking into account the
pleadings, evidence, charge, and other relevant matter" to
assess the merits of each of these contentions. McGowan, 58
F.3d at 12 (quoting Ashe, 397 U.S. at 444, 90 S.Ct. 1189).
The only defense advanced by Duffy at the trial was mistaken
identity. In his opening statement, counsel for the defendant
There really is only one real question in the case
. . . To put it a different way or more specifically,
the case begins and ends with a young man named
Martin Nunez, who is the only eyewitness to this
event. Actually, there is another witness, the
eyewitness who cannot make an identification.
Tr.*fn4 at 42 (Jan. 15, 2002) (emphasis added). Consequently,
the trial evidence and arguments focused principally on the
identification issue. The Government's
identification evidence was suspect. There were only two trial
witnesses who actually saw the assault, Nunez and the brother of
the deceased. At a lineup conducted many months after the
shooting, both witnesses failed to identify Duffy. The day after
the lineup, police officers investigating the case visited
Nunez, a twelve-year-old child at the time of the assault, in
his home. During that interview, Nunez recanted and stated that
he did recognize Duffy. At trial, Nunez identified Duffy as the
shooter, but the decedent's brother did not. Nunez's testimony,
however, was riddled with inconsistencies, and the Government
conceded that "perhaps [Nunez] was not a reliable eyewitness."
Tr. at 391 (Jan. 22, 2002). The evidence at trial established
that on the day of the incident Nunez told the police that the
attacker was a light-skinned black man with ...