UNITED STATES OF AMERICA, PETITIONER V. SALVATORE SALAMONE No. 88-2092 In The Supreme Court Of The United States October Term, 1988 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-29a) is reported at 869 F.2d 221. An amendment to the court of appeals' opinion (App., infra, 30a-31a) is not yet reported. The pertinent orders of the district court (App., infra, 32a-39a) are unreported. JURISDICTION The judgment of the court of appeals (App., infra, 40a-41a) was entered on March 6, 1989. A petition for rehearing was denied on April 27, 1989 (App., infra, 42a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether respondent's acquittal on drug trafficking and RICO conspiracy charges collaterally estopped the government from introducing evidence tending to connect respondent to other alleged members of those conspiracies in respondent's subsequent trial for firearms offenses. 2. Whether the court of appeals erred in concluding that the evidence was offered to prove a matter that had been resolved against the government in the prior prosecution. STATEMENT Respondent Salvatore Salamone was convicted on one count of possessing an illegally made machine gun, in violation of 26 U.S.C. 5861(c); one count of possessing an unregistered machine gun, in violation of 26 U.S.C. 5861(d); one count of conspiracy to falsify firearms transaction records required by federal law, in violation of 18 U.S.C. 371; and two counts of falsifying firearms transaction records, in violation of 18 U.S.C. 924(a). He was sentenced to a total of 16 years' imprisonment and $20,000 in fines. The court of appeals reversed the convictions on the last three counts, holding that the doctrine of collateral estoppel should have been applied to exclude certain evidence from respondent's trial. 1. In the indictment in United States v. Badalamenti, No. SS 84 Cr. 236 (PNL) (S.D.N.Y.), respondent was charged with conspiracy to import and distribute narcotics, conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), participation in a money laundering conspiracy, and various substantive money laundering offenses. See App., infra, 2a-3a. The narcotics conspiracy count alleged that respondent "obtained, possessed, stored, concealed, transported and otherwise utilized firearms" in order to further the conspiracy, and it listed as overt acts some of the firearms transactions involved in this case. Gov't C.A. Supp. App. 1511-1512, 1520-1521. The RICO conspiracy count in Badalamenti incorporated those allegations by reference. Id. at 1535. After a trial to a jury, respondent was convicted in Badalamenti on the money laundering counts, but he was acquitted on the narcotics and RICO conspiracy counts. See App., infra, 3a. 2. Before his trial in this case, respondent moved to dismiss the indictment or, in the alternative, to prohibit the introduction of evidence that had been admitted in Badalamenti. /1/ He argued that the Double Jeopardy Clause and the doctrine of collateral estoppel prohibited the government from relitigating the firearms transactions that were referred to in the counts of the Badalamenti indictment on which he was acquitted. See App., infra, 32a. The district court denied the motion. Id. at 32a-37a. The court found that "it is impossible to determine whether the evidence with respect to firearms was actually decided in favor of or against (respondent)" in Badalamenti. Id. at 36a. The court stated, moreover, that the "jury could have acquitted (respondent) on the narcotics and racketeering conspiracies without giving any consideration to the issues and facts concerning firearms" (ibid.), for instance by concluding that respondent did not willfully and knowingly join a conspiracy to distribute narcotics or to participate in the affairs of the alleged racketeering enterprise (id. at 36a-37a). /2/ On the same grounds, the district court denied respondent's subsequent motion to exclude specified evidence on the basis of the partial acquittal in Badalamenti. Id. at 38a-39a. At trial, the evidence introduced by the government to prove the counts alleging respondent's possession of an illegally made and unregistered machine gun was distinct from the evidence on the counts involving the falsification of firearms records. With respect to the machine gun offenses, an employee of the Renco Home and Sport Center in Bloomsburg, Pennsylvania, testified that respondent purchased a semi-automatic handgun and later returned it. When the gun was returned, it had been modified so that it would function as a fully automatic weapon. Respondent asked the employee to have it "fixed" -- i.e., restored to its prior condition -- and stated that "'the FBI was checking up on him.'" App., infra, 4a-5a. Similar testimony had been introduced in Badalamenti. Id. at 7a-8a n.7. On the firearm record falsification conspiracy and substantive counts, Daniel Jenkins, a Renco employee who was named as an unindicted co-conspirator, testified that respondent ordered seven AR-15's, three Uzi's and six MAC's (semi-automatic weapons) from Renco. Respondent later accepted -- and signed the requisite federal forms for -- the Uzi's, seven CAR-15's (in place of the AR-15's he had ordered), and an elephant gun that he added to the order. Jenkins testified, however, that respondent refused to fill out the forms for the MAC's in his own name. Consequently, Jenkins and respondent filled out forms for the six weapons using two false names, along with fictitious addresses and identifying information. App., infra, 5a-6a. Respondent's defense was that he was not the purchaser of the MAC's. Rather, he testified, he refused to buy the guns or to sign the federal forms for them, because the guns were for his brother, Filippo. App., infra, 7a. The government also introduced evidence that FBI agents recovered some of the MAC's for which false paperwork had been prepared from hiding places at three locations in New Jersey: above a false ceiling at Sal's Pizza restaurant in Neptune; in an attic of an apartment in Nutley; and in a heating duct at the Pizza Village restaurant in Clark. Weapons that respondent had purchased in his own name were found at two of those locations. FBI agents testified that respondent's brother, Filippo, and several other persons -- all of whom were defendants in Badalamenti -- were seen at those locations. Finally, the prosecution introduced a stipulation that various phone calls had been made among respondent's restaurants, the locations from which the weapons were recovered, and the homes of some of those seen entering and leaving those locations. App., infra, 6a-7a, 19a-21a & n.16. The evidence that the MAC's were found with guns that respondent had purchased in his own name and that a group of individuals were linked to those locations and to one another was offered to buttress Jenkins' testimony that respondent had purchased the MAC's, and to suggest that the weapons were involved in a scheme to which respondent might have wished to conceal his connection. R. 129, at 11-12; Gov't C.A. Supp. App. 788. The government did not dispute that comparable evidence was introduced in the Badalamenti case. See App., infra, 20a. In the instant case, however, the government did not suggest that respondent or the others to whom the government's evidence referred were part of a narcotics conspiracy or racketeering enterprise of the sort alleged in Badalamenti. 3. On appeal, respondent renewed his contention that his acquittals in Badalamenti required the dismissal of the indictment or foreclosed the introduction of any evidence that had been admitted in that case. The court of appeals held that the acquittals did not bar this prosecution, since the Badalamenti jury "did not necessarily ground" the acquittals "upon the issues which (respondent) seeks to foreclose from consideration here -- whether he possessed an illegally made and unregistered machine gun, or purchased and conspired to purchase MACs using fictitious names." App., infra, 14a. For the same reason, the court rejected respondent's argument that collateral estoppel precluded the introduction in this case of any of the evidence introduced in Badalamenti. Id. at 17a. The court concluded, however, that the Badalamenti verdict estopped the government from offering some of the evidence admitted in this case -- specifically, the evidence that respondent's brother and others had been at the locations from which some of the MAC's were recovered and that calls had been placed among those individuals and those locations. The court explained that the Badalamenti jury "necessarily decided that (respondent) was not a member of the narcotics conspiracy" at issue in that case and that the government was effectively attempting in this case to relitigate the existence of the same conspiracy. App., infra, 23a-24a. Even if the facts the government sought to prove were not necessarily rejected by the jury in Badalamenti, the panel continued, "the inference that the government sought the jury to draw from those facts -- that (respondent) purchased various weapons as a participant in a conspiracy -- already had been decided in (respondent's) favor by a prior jury." Id. at 25a-26a. /3/ Finding that the admission of the evidence was not harmless error, the court reversed respondent's convictions on the record-falsification conspiracy and the related substantive counts, and it remanded for a new trial on those counts. Id. at 26a. The court of appeals affirmed the convictions on the machine gun counts. Id. at 18a. REASONS FOR GRANTING THE PETITION This case presents two questions that are before the Court in Dowling v. United States, No. 88-6025. The first is whether the doctrine of collateral estoppel prohibits the introduction of evidence relating to an offense of which the defendant has been acquitted in a trial for a separate offense. In Ashe v. Swenson, 397 U.S. 436 (1970), the Court concluded that collateral estoppel and the Double Jeopardy Clause prohibited a State from prosecuting a defendant for robbing a member of a poker game after he had been acquitted of robbing a different member of the same game. The courts of appeals and state courts have reached conflicting conclusions, however, as to whether either collateral estoppel or the prohibition against double jeopardy extends to a case in which, unlike Ashe, the government is not seeking to establish beyond a reasonable doubt a fact that a jury has resolved in the defendant's favor under that standard. Because of the conflict among the circuits and the frequency with which this issue arises, we acquiesced in certiorari in Dowling. In our brief in Dowling, we have argued that collateral estoppel applies only when a fact is subject to the same standard of proof in successive proceedings. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361-362 (1984). For that reason, an acquittal in a criminal case can provide the basis for an estoppel only if the fact at issue in the second case is one that the government must prove beyond a reasonable doubt -- the same standard that the jury used in resolving the issue in the defendant's favor in the first case. /4/ If Dowling is resolved on that basis, the decision will control this case. In this case, relying principally on its decision in United States v. Keller, 624 F.2d 1154 (3d Cir. 1980), the court of appeals applied a proposition that it described as one of two "principles of collateral estoppel" -- that "the government is collaterally estopped from relitigating (an) issue even if a contrary resolution is not necessary to convict the defendant, but simply would constitute evidence against him or her." App., infra, 10a. The Third Circuit relied on the same proposition in Dowling when it held that the government could not introduce evidence of a robbery of which Dowling had been acquitted for the purpose of identifying Dowling as the perpetrator of a separate bank robbery. See United States v. Dowling, 855 F.2d 114, 120-121 (1988). Thus, a decision by the Court in Dowling on the validity of the Third Circuit's understanding of the doctrine of collateral estoppel would be squarely applicable to this case. In Dowling, we have also presented as an alternative ground for affirmance of the judgment the argument that collateral estoppel applies only to those facts that a defendant can demonstrate were actually and necessarily determined in his favor by an acquittal. Resp. Br. at 38-41, Dowling v. United States, supra. In this case, as in Dowling, we believe that the Third Circuit has misapplied that basic prerequisite for invoking collateral estoppel. The specific facts that the government sought to prove -- phone calls to which respondent stipulated and the presence of respondent's brother and others at the locations from which the weapons were recovered -- were not resolved in respondent's favor in Badalamenti. Nevertheless, relying on its decision in Dowling, the court of appeals held that the inferences that the government sought to establish were barred by the acquittal. App., infra, 25a-26a & n.21. In our view, the Badalamenti jury's determination that respondent was not shown beyond a reasonable doubt to have participated in conspiracies to traffic in narcotics and to violate the RICO statute did not foreclose the jury in this case from finding that the government's evidence was relevant for the purpose for which it was offered. It was not necessary for the jury to conclude that petitioner was a participant in a narcotics or RICO conspiracy in order to infer from the evidence in dispute that he was associated with a scheme that gave him a motive to falsify documents that would have identified him as the purchaser of the MAC's. If the Court addresses that issue in Dowling, its decision could well affect the judgment of the court of appeals in this case. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the Court's disposition of Dowling v. United States, No. 88-6025. Respectfully submitted. KENNETH W. STARR Solicitor General JUNE 1989 /1/ This case arises from respondent's second trial on the offenses alleged in the indictment. Petitioner's first trial, which preceded the Badalamenti trial, resulted in convictions on six of the seven counts in the indictment. The court of appeals reversed, however, holding that the district court had committed error during voir dire. 800 F.2d 1216 (1986). /2/ In this connection, the jury found, by special verdict, that although respondent had committed the money laundering offenses charged, he had not done so in furtherance of a violation of the federal drug laws. App., infra, 3a n.3. /3/ The court held that the prior verdict did not foreclose the admission of evidence of the recovery of the MAC's from the three New Jersey locations or phone calls between respondent's restaurant and one of those locations, Sal's Pizza. App., infra, 26a-28a. /4/ See Resp. Br. at 13-30, Dowling v. United States, supra. We have provided counsel for respondent with a copy of our brief in Dowling. APPENDIX