The opinion of the court was delivered by: Block, District Judge.
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The new indictment superceded a complaint that was issued the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.
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
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 a heavy mustache and
a goatee. A photograph taken of Duffy on the day of the
attempted robbery depicted Duffy as a clean-shaven dark-skinned
black man. As with his opening, defense counsel's closing
argument substantively addressed only the identity issue.
In regard to the Government's argument that the jury did not
necessarily determine that there was reasonable doubt as to
whether Duffy was the assailant, the Government contends: (1)
that "the jury may have acquitted Duffy on the ground that the
Government had not proved that the robbery affected commerce, an
issue that would not be an element at the retrial," Gov't Ltr.
Br. at p. 2 (Jan. 31, 2002); and (2) that the jury may have
acquitted Duffy because it believed that he shot the decedent
over a "drug-related dispute," rather than in the course of a
robbery, Gov't Ltr. Br. at p. 3 (Feb. 6, 2002).
Turning first to the commerce issue, true to the defendant's
singular theory of the case — mistaken identity — defense
counsel made no mention of the commerce issue in either its
opening or closing statements; moreover, defense counsel neither
elicited any testimony nor cross-examined any of the
Government's witnesses on this issue. The undisputed evidence
was that the victims ran a landscaping business and kept their
landscaping supplies in the basement of 141 Hull Street, and
that the money that was the target of the attempted robbery was
going to be used by the victims to purchase supplies for the
business. The indictment stated that the landscaping business
was the target of the attempted robbery. See Indictment,
01-CR-102 (Jan. 31, 2001) (the robbery was "of persons
conducting a landscaping business"). Photos of the basement
depicted different types of gardening supplies which the victims
regularly purchased and which the Government established were
not manufactured in New York State. The Court gave the standard
instruction regarding the Government's de minimis burden of
proving an effect on commerce:
If you decide that there was any effect at all on
interstate commerce, then that is enough to satisfy
this element. The effect can be minimal. For example,
if a successful robbery of money would prevent the
use of those funds to purchase articles which travel
through interstate commerce, that would be a
sufficient effect on interstate commerce.
Tr. at Ct. Ex. 1 (jury charge).
In light of the defendant's concession that the "one real
question in the case" was identity, his failure to raise any
concern regarding the commerce issue, the Government's
undisputed evidence of an effect on commerce, and the Court's
instructions on the Government's de minimis burden, the
Government's "unrealistic and hypertechnical" argument that the
jury could have acquitted Duffy because it
found the evidence of an effect on commerce deficient is
untenable. Citron, 853 F.2d at 1058.
The Government's "drug-related dispute theory" apparently
arises from a videotaped statement Duffy made to the police. In
that statement, Duffy said that on September 8, 1997 he went to
the basement of 141 Hull Street, bought drugs and left. Duffy
also said that he did not have a gun and did not shoot anyone.
The Government introduced this evidence to place Duffy in the
basement at the time of the robbery, not to suggest that the
incident was drug-related. The crime scene detective testified
that there was no indication of drug activity in the basement.
The brother of the deceased testified that he and his brother
ran a legitimate landscaping business. No witness testified that
the assault arose out of a drug-related dispute, and neither the
Government nor the defense ever mentioned such a theory during
the course of the trial. Moreover, the Government told the jury
in closing that the case had nothing to do with drugs:
There is no evidence from [the defense] or from the
crime scene that anyone ever sold crack, heroin or
marijuana, anything in that basement. Mr. Duffy went
down there to rob them. Why? Well, because they had
money. From crack? No. From doing hard work.
Tr. at 398 (Jan. 22, 2002). No reasonable juror could have
concluded, solely from Duffy's videotaped statement, that he
shot the decedent during a drug-dispute.
In sum, viewing the evidence presented at trial, the Court's
instructions on the law, the pleadings and the arguments made to
the jury, with "realism and rationality," Ashe, 397 U.S. at
444, 90 S.Ct. 1189, the Court concludes that no "rational jury
could have grounded its verdict" upon anything other than
reasonable doubt that Duffy was the assailant. McGowan, 58
F.3d at 12. The Government is, therefore, precluded from arguing
that Duffy was the assailant.
In regard to the Government's alternative argument, made
orally in open court, it contends that it can prove Duffy
possessed the ammunition even assuming it is collaterally
estopped from arguing that he was the assailant. The Government
proffers that it could present Duffy's videotaped statement to
establish, contrary to the Government's prior representation to
the jury, that Duffy was in the basement buying drugs, not
attempting a robbery. It also submits that it could present a
witness who would testify that she saw Duffy on the street
outside the basement with what she believed was a gun in his
pocket. The Government argues that a jury could believe these
two assertions and convict Duffy on the ammunition charge
without concluding that he was the shooter.
In respect to the video-taped statement, any effort by the
Government to contradict its prior representation to the jury
would be disingenuous, at the very least, and probably
impermissible. See Pivirotto v. Innovative Systems, Inc.,
191 F.3d 344, 358 n. 7 (3rd Cir. 1999) ("It may be true . . . that
an attorney's clear and unambiguous statements of fact made
during opening or closing arguments can constitute judicial
admissions under Federal Rule of Evidence 801(d)(2)."); United
States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991) (holding
that attorney's statement in closing argument can constitute
judicial admission); Wheeler v. John Deere Co., 935 F.2d 1090,
1097-99 (10th Cir. 1991) (holding that judicial admission by
party at first trial was binding on that party at the second
In any event, the Government's argument is logically flawed.
The ammunition that Duffy allegedly possessed were the shell
casings discharged by the shooter in the basement. The
Government proffers no theory to explain how the ammunition that
was discharged from the shooter's gun could possibly have been
possessed by Duffy if he were not the shooter. Any conceivable
theory would be pure speculation, beyond the bounds of any
reasonable inference. A jury could, therefore, convict Duffy of
possessing the ammunition only if it believed he was the
assailant. This is precisely the issue that the Government is
precluded from relitigating.
That the Government itself characterizes this second
prosecution as a "retrial" is quite telling. Gov't Ltr. Br. at
p. 2 (Jan. 31, 2002). Behind all of its hyper-technical
arguments lies one basic fact that the Government cannot avoid:
the Government failed to obtain a conviction in the first
instance and is now looking for the proverbial second bite at
the apple. "Allowing a second jury to reconsider the very issue
upon which the defendant has prevailed serves no valuable
function. To the contrary, it implicates concerns about the
injustice of exposing a defendant to repeated risks of
conviction for the same conduct, and to the ordeal of multiple
trials, that lie at the heart of the double jeopardy clause."
Mespoulede, 597 F.2d at 337. The indictment is dismissed.