United States v. Felder

they Bellinger proposed that Felder FERREN, Before NEWMAN Bellinger agreed. dealer. rob a cocaine GALLAGHER, Judges, and Associate (a thereafter, Bel- Myles friend of Shortly Judge. Senior Myles scene. linger’s) arrived on the NEWMAN, Judge: Associate .22 plan and exhibited a agreed join revolver, Ruger which was magnum caliber case, upon called to deter- In this we are persons The three trav- in his belt. tucked the doctrine of collateral es- mine whether only to intended crime scene elled to the Jeop- toppel component of the Double sug- Felder had drug dealer find that the Fifth Amendment as ardy Clause of found. nowhere to be gested they rob was Swenson, 397 U.S. enunciated in Ashe v. Gantt, killing dem- Unfortunately for as his 1189, 25 L.Ed.2d 469 According onstrates, present. he was progeny prevents selling marijuana. Bellinger1, Gantt was relitigating certain facts at a second from guilty manslaughter armed and at- bargain, Bellinger pled while plea 1. Pursuant to a defense, from Felder he yards Gantt was five testified that where Myles standing. innocently present Felder were As Gantt where was on the scene area, turned to walk out of the Bellinger Myles standing Felder he saw side Bellinger signalled robbery that the new Bellinger side with another man. target grabbed was Gantt. Felder Gantt struggling this third “interlocked” collar, by away the but and Gantt broke man. three he heard Two or seconds later ran, Bellinger. ran towards As Gantt Bel- apartment. a shot ran to and Newton’s linger in said Felder shot Gantt the back any participation planning Felder denied gun previously the he had seen in robbery attempting carry or to out the Felder, Myles Bellinger, Myles belt. and armed; shooting he further while denied nearby apartment occupied by all fled to a having gun possession Gantt or a his knew, Ruby a woman Felder Newton. the relevant date. being Jessie Penn Gantt also witnessed Argument and II. Instruction According shot and testified at trial. to government open- told jury The the Penn, previously crap Gantt had been ing prove that it that statement would game Bellinger he where had won. had triggerman: Felder was the crap game. also been at the When Gantt tussles, turns, away, Mr. Gantt breaks crap game winnings, left the with his he Felder, running away and is from Mr. Bellinger. by Bellinger was confronted to Mr. He made with his back Felder. struggled; appeared and Gantt it Bel- that step, steps, one he made and then two linger trying was to rob Gantt. While the driving agreement the force behind struggle continuing Bellinger was between robbery] the .22 pulled commit a out [to Gantt, Myles standing Felder and were long style revolv- barrel six shot western away. some distance Felder called out to shot er and fired one into the back Thereafter, Felder, Bellinger. who was running away Gantt who was Ruben top eighteen steps near the of some to from him. twenty-one feet away, shot Gantt in the three back. The cohorts fled. Gantt later in its government The also the told gunshot. died of the opening that the evidence would statement show when the three men arrived that Newton, Ruby apartment to whose Feld- “nerv- apartment, the Felder was Newton fled, er and the others testified that Felder greater upset for a than ous and reason” they just guy stated that had tried to rob a Bellinger pulled the Myles he “because around the comer and that he left “his trigger.” prosecutor, explaining the The gun” around there. Because events tak- present carrying the evidence it would ing the place apartment, Newton Felder offense, the pistol a license told the other two left men soon that loca- put Bellinger’s testimony tion, would making separate ways that their home. pistol right in the hand of Donnell “that later, during the Sometime arrest of trigger.” Felder the pulling offense, Myles police unrelated opening Ruger As it it would in its seized a .22 A indicated caliber revolver. statement, government presented its subsequent test that demonstrated it was Felder weapon theory operable and that used case to the it was witness, present- triggerman. It did so expert Phillips, kill An was the to Gantt. Penn, Bellinger and gun testimony who examined the coat Gantt trigger- wearing killed, Felder night he was testi- both who identified was testimony addition, presented gun to been man. fied that had within admissions testified to inch of coat when it was fired Newton who Gantt’s which, Felder, The made produce effect he observed. trig- suggest proved urged, he was that Felder did not tended was testimony Newton pistol. german. The carry a license plea bargain; robbery Felder cross-examined him tempted his in return for truthful testi- length. mony. informed of the details of elements of the offense testimony New- The essential impeached by defense license, carrying pistol without a drug user who was ton was an habitual must each which the Government Felder and the freebasing cocaine when doubt, are: beyond a reasonable day prove apartment on others arrived at her question. openly carried 1. That the defendant person, concealed on or about Phillips, testimony expert, pistol; had shot that had killed Gantt operable; pistol was 2. That the greater than fired from a distance no been li- i.e., the defendant was Gantt, likely 3. That it was one inch from by the carry Chief shot, censed presented problem contact Columbia; and Police the District of government’s theory that Felder was triggerman. Bellinger testified that Felder he had the intent to do the 4. That running away shot Gantt as Gantt was carrying of a acts constitute the which Indeed, Bel- Bellinger. from Felder toward a pistol without license. surprised that linger testified that he was for the District Jury Criminal Instructions Bellinger was Felder shot Gantt when (3d 1978). Columbia, No. 4.81 ed. the line of fire. The other argument, the closing In Penn, eighteen eye-witness, puts Felder on the urged jury the to convict Felder when, Penn twenty-one feet from Gantt Alter- theory triggerman. he the that was these ver- says, Felder shot Gantt. Both urged jury natively, prosecutor Penn’s) (Bellinger’s and seem to be at sions murder, felony even if it convict Felder of testimony presented expert odds with trigger- that he was the was not satisfied expert own indicated he at least man since the evidence hand, shooting. the other contact On attempted rob- armed aided and abetted shooting Bellinger was consist- contact Gantt, resulted in Gantt’s bery of testimony ent of Felder in his own with death. shortly gunshot defense that he heard a Jury Proceedings III. “interlocked,” strug- seeing Bellinger after as it said court had instructed After the gling Gantt. with Af- would, to deliberate. jury it retired posture, court With the case in this deliberation, jury hours of ter several met counsel to settle instructions. notes, sum of which court sent the two government requested The aiding on and abet- requested reinstruction second-degree murder instruct the complied with the ting. The trial court felony mur- as a included offense of lesser Thereafter, requested request. objected. der. Felder The court overruled felony murder and second- reinstruction on government also asked objection.2 reinstruct- degree The trial court murder. aiding abetting instruction since for an elements of these of- ed the on the intended to ask prosecutor stated he returned Subsequently, fenses. Felder on alternative jury to convict guilty carrying pistol its verdict of not triggerman or as an as the theories—either license; reported hope- itself without triggerman. aider and abettor remaining lessly deadlocked position government, Based on this a mistrial as charges. The court declared unanimity in- requested special Felder guilty verdict was to these counts. this re- The trial court denied struction. duly entered. gave the standard in- quest. The court Review Standard of IV. on all the offenses as well structions A. addition, aiding abetting. the court liability question must answer accomplice The first said it would instruct of review of felony The in- is our measure charge to the murder. is what ruling. The cit carrying trial court’s struction on the offense Fenton, cases, ing among other Miller a license said: opinion ruling express about it. us. We no is not before 2. The correctness issue, L.Ed.2d 405 ble view of the evidence on a factual (1985),urges ruling judge’s is to the choice that the trial court’s it must defer trial solely among one of law and our review de Bessem these views. Anderson v. if Alternatively, suggested 574, 105 novo. City, supra, er 470 U.S. at question mixed Co., we deem the issue to be a 1512; v. Yellow Cab United States law, question of of fact and the ultimate 177, 179, 94 applies the collateral bar whether Inc. Washington, L.Ed. 150 see Lee legal question is a which we must review Transport Washington Motor Truck side, Felder, with- de On the other novo. Trust, 310 Employees Health & Welfare citing us to stating clearly, view out his (D.C.1973). City, 470 U.S. Anderson v. Bessemer contrast, refers to By of law urges inquiry to pertinent to the the rule of law Judge Wal- give us to “some deference” v. McCon be reviewed. See United States ruling given “experience as a trial ton’s Cir.1984) (en (9th ney, 728 F.2d judge.” We note that this is an issue we banc). The court’s resolution of a trial previously decided. Nor has the have not deference question of law is entitled to no any Court Supreme Court or appeal. This and is reviewed “de novo” on Likewise, Appeals explicitly. done so reviewing make means that the court will holding point in square find no on this upon an independent judgment based any supreme state court. original appraisal of the record. Bose the United Corp. v. Consumers Union of B. 485, 31, States, Inc., 514 n. 104 466 U.S. classically of review been Standards 31, 1949, 502 1967 n. 80 L.Ed.2d S.Ct. governed by the matter under whether (1984). fact, question of question view is a fact are questions” of law and “Mixed fact, law, question or a a mixed of law and the historical “questions those which discre- matter committed to the trial court’s established, the rule facts are admitted question tion. A of fact has defined been undisputed, the issue is is “basic, [subsidiary], law primary, as the or his- statutory satisfy the whether the facts facts ‘in the sense of recital torical facts: way, put it another whether credibility their standard or of external events and Sain, applied to the established 372 the rule of law is narrators....’” Townsend v. 309, 6, 745, 755, 6, Pullman- 293, is or is not violated.” U.S. n. 83 S.Ct. n. 9 facts 273, n.19, Swint, (1963) 456 U.S. 289 (quoting v. L.Ed.2d 770 Brown v. Al- Standard n.19, 1781, L.Ed.2d 66 len, 443, 506, 397, 445, 1790 72 73 97 102 S.Ct. (1982). questions” of law (1953) “mixed (opinion L.Ed. 469 of Mr. Justice So-called clumsily, Frankfurter)). assigned, sometimes and fact are And under the scheme review, “clearly erroneous” or to either to the question standards of of fact is ostensibly, depending, category, highly “de novo” reviewed under deferential regards the reviewing court “clearly erroneous” standard. D.C.Su- on whether See resembling ques- (a);3 closely 52(a); matter as more per.Ct.Civ.R. Fed.R.Civ.P. Although question of law. 17-305(a) (1981).4 fact or a Specifically, tion of D.C.Code § therefore, classifying is, authority for that, if, after re- there provides standard standard, questions” under either record, “mixed appellate court con- viewing the ac- id., questions” are many “mixed permissi- see is more than one cludes that there appears 52(a) set aside ... unless not be D.C.Super.Ct.Civ.R. court] and Fed.R.Civ.P. wrong 52(a) “Findings judgment plainly or without provide: of fact shall not both erroneous, it,” clearly due regarded support be set aside unless been evidence to given opportunity regard of the shall be "clearly indistinguishable erroneous” from the credibility judge of the Kraisel, trial court to See, e.g., 466 A.2d Auxier v. standard. 416, witnesses.” curiam): (D.C.1983) (per v. Hummel 1187, (D.C.1983). Koehler, 17-305(a) requires, which § 4. D.C. Code judgment part, "the the trial pertinent [of Baumgartner v. United United executing.” review. See novo” corded “de 665, 671, McConney, supra, v. 728 F.2d 1195 322 U.S. 64 S.Ct. Sullivan, Cuyler (9th Cir.1984); see also 88 L.Ed. 1525 Statutes and 1708, 1715, 446 U.S. 100 S.Ct. governing standards of review other rules (1980) (“presumption of cor L.Ed.2d 333 particular guidance, and provide any do not 2254(d) by 28 U.S.C. rectness” afforded § any “rule of yet courts have to arrive at findings to state factual unerringly distinguish a principle that will court does not habeas review federal finding legal conclusion.” factual from questions” apply to “mixed sub Pullman-Standard, supra, 456 U.S. at review). ject independent It is also 1790. Daunted 102 S.Ct. at for a court when confronted uncommon “elusive,” Miller, id., “vexing,” ques regards as a “mixed with what at nature of 474 U.S. at tion,” engage in measure of unmix- some matter, conceptual the distinction as a issues, subsidiary, fact-like ing, whereby explore “practical begun courts “clearly erroneous” are reviewed under the an issue a truth that the decision label issue, standard, ultimate, and the law-like fact,’ law,’ or a ‘question ‘question See, e.g., Miller v. is reviewed “de novo.” fact’ is some- ‘mixed of law and Fenton, 112, 117, supra, much a matter of allocation as it is times as Strickland 113-14, 106 S.Ct. at Id. analysis.” Washington, recognition 451-52. The result has been Curry v. in those instances in which least “[a]t States, 498 A.2d (D.C. pris- the issue falls somewhere between 1985). simple historical legal tine standard and a Finally, appellate court reviews when an fact, at times has the fact/law distinction of the trial court on a matter a decision that, as a matter turned on a determination discretion, committed to the trial court’s justice, one administration of of the sound only decision will reversed for be positioned than an- judicial actor is better abuse of discretion. This most deferential Id. question.” in other to decide the issue judge the trial standard of review allows at 452. It is our thesis wrong,” Rosenberg, right “limited to be ap- play allocation analysis and both Appellate Review Trial Court Discre- of necessary in determin- propriate and roles tion, 79 F.R.D. It also of review. ing standards requires appellate court to assure itself rationality only “indicia of and in originate that certain of review a varie- Standards met, Johnson v. Unit- 52(a), fairness” Some, have been Rule ty such as of sources. (D.C.1979). ed rules. Others are enacted as court are by such statutes as D.C.Code provided general relat- there are definitions While (1981), scope of which defines further, § dichotomy, and ing to the fact/law court,5 and 28 U.S.C. review of suggest analytical an categories these 2254(d) governs federal ha- which undergirding § of re- framework standards of state court factual corpus review beas view, “is often the scheme described above contrast, some standards of findings.6 In illuminating test and is never self- not an 17-305(a) judgment plainly appears is it supra Code unless § note 3. D.C. 5. See support (1981) wrong it. provides or without evidence in full: judgment considering an or of a In order reads, (1982) 2254(d) relevant § 6. 28 U.S.C. (or any divisions or branch- lower court of its part, as follows: review, es) brought the District of before it any court proceeding instituted in Federal Appeals of shall review Columbia Court corpus by application for a writ of habeas appeal. of fact When the issues record on judg- custody pursuant person to a by jury, the court shall review were tried court, a determination after ment of a State law. When the case as to matters of case hearing of a factual issue made may on the merits jury, review the court tried without a law, competent jurisdiction ... judgment a State court of and the but the as to the facts finding, opin- except evidenced a written written may for errors of law be set aside product judge-made upon range review are the of rules. draw broad of sources See, e.g., Corp., supra, Bose guide inquiry. our (interpreting Amend- S.Ct. 1949 First require independent appellate are, effect, ment to Standards of review of view determination “actual malice” legal presumptions, Like all presumptions. actions); Rosenberg, libel 79 F.R.D. most, they transparently and more than (whether at 174-75 a matter is committed represent judgments about the risk where may to trial discretion deter- court’s be They of an erroneous decision should lie. decision). by rule, judicial mined statute or policy practice. informed by and applies court Sometimes when a a standard Hence, a standard of review ei embodies review, expressly acts to construe following or considera ther both of See, these Pull- e.g., rules or statutes. (1) logically judicial tions: which actor man-Standard, supra (construing Fed.R. primary be entrusted to the deci- should 52(a)); Miller, supra, (construing Crv.P. issue, particular light sionmaker about a 2254(d) (1982)). Alternatively, a U.S.C. § conceptions signifi nature and may employ familiar standard with- legal system, of that in our cance issue explicit governing out to a rule. reference (2) is, purely practical which as a forum See, e.g., Burroughs, matter, likely more render decision (11th Cir.1987)(reviewing F.2d 1574 an al- higher degree accuracy. leged violation). And, Brady at other approach, “analytical,” first we call which times, novel standard depends priori categorization on an basis, mustered an ad hoc often absent the nature of the matter under review. any acknowledgement something real See, “func ordinary approach, The second which we term taking place. out court, e.g., Agurs, tional,” instead on focuses 49 L.Ed.2d original reviewing, has access the best considering (stating that “since after necessary tools materials to the [i.e., by prosecu- nondisclosed evidence deciding question. Compare matter respondent’s guilt in the context of tion] McConney, supra7 doubt, beyond a since we reasonable sure, analytical and functional To be appraisal are satisfied that his firsthand Indeed, approaches are not unrelated. reasonable,” thorough the record was analytical fact separates law and as what trial.). there was no denial of fair actuality, a rec- categories may, in reflect are kind We convincedthat there exists a ap- roles ognition divergent of between review, of common law to standards of court trial court. In other pellate and a by conceptions framed fundamental words, analytically questions that would authority how should be divided between of likely regarded questions as most originally the court a matter is which ordinarily an- are those that can be fact reviewing and heard court or courts. testimony by hearing function swered —a principles frequently These transcend engage. courts On which trial particular as characterization of a case hand, regarded that questions are other federal, criminal, state or civil or and thus law are questions of quintessentially we, seeking as have other courts direction through rea- resolved precisely those to be application stan- in the formulation or cases, soning, comparison with like review, see, Miller, e.g., supra, dards 449-50, 110-11, trial record—tasks view of a court ion, on appeals think that if we focus adequate stated that “we or other reliable and written indicia, presumed required inquiry shall be to be correct.... in determin- nature of the ing facts within whether the established McConney, supra, appeals for the court of 7. definition, legal employ neutral relevant Circuit, exigent dealing Ninth in a case accurately that the concerns reflects test "mixed which it viewed as a circumstances jurispru- properly standard review underlie fact, question" of nature law and focused on the dence.” 728 F.2d at analysis inquiry as a characterized its of the but approach. Specifically, court of functional appellate principally designed and law is be ulti- is tween fact what mately generating undertake. decisive standards review, might therefore assume “[o]ne competing analysis roles appellate that the cases which the courts play regulating standards of function duty independent have a to exercise review by operation are illustrated merely presumption those in which 52(a). Rule The functional basis for the ruling the trial court’s is correct is long “clearly erroneous” has been standard weak, particularly [i.e., where it does not recognized proposition that “the trial depend principally credibility judg- on opportunity customary court’s to evaluate The difference between the two ments]. credibility the demeanor and thus the rules, however, is much more than a matter witnesses ... is the rationale behind Rule Bose, degree,” supra, of mere 466 U.S. at 52(a),” Motors General 500-01, 104 S.Ct. at 1959. Corp., 384 U.S. 141 n. n. “op by rule that its terms adverts to the C. portunity judge of the of the trial court fact A determination of what issue of witnesses,” credibility of the Fed.R.Civ.P. previously been determined a ver- 52(a). underpinnings of the The functional guilty “requires a dict of not court ‘to principle suggested by Rule are also prior proceeding, examine the record of a findings that not all factual are entitled to evidence, pleadings, taking into account the equal weight upon “The conclu review: matter, and con- charge, and other relevant ‘finding depends on siveness of a fact’ jury could have clude whether a rational nature of materials grounded upon an issue other based,” finding Baumgartner, seeks to than that which the defendant 322 U.S. at 64 S.Ct. at ” foreclose from consideration.’ Ashe v. significance “essentially in what is has less Swenson, 90 S.Ct. at ” Motors, supra, ‘paper case.’ General (quoting Mayers Yarbrough, Bis & Vexari: at 141 n. S.Ct. at 1328 n. 16 Prosecutions, New Trials and Successive (being accessible to resolution a review 1, 38-39). 74 HaRV.L.Rev. court). appears to 'us to be a Analytically, this Nevertheless, superintending the Rule question of law. The pure nature wholly findings review of of fact is not analysis required to determine perspective. For delimited a functional rationality estoppel assuming of collateral — ‘clearly same erroneous’ standard “[t]he verdict, issue of fact must in the what documentary applies findings based jury have resolved in the defendant’s entirely on oral evidence as to those based evi- pleadings, focus on the favor—with its testimony though] presump- ... [even type instructions is dence in the former situa- tion has lesser force ques- analysis generally that constitutes Bose, supra, in 466 tion than the latter.” way, this is tion of law. Put another 500, (emphasis 104 at 1959 U.S. at S.Ct. appel- generally entrusted type of issue Therefore, supplied). we know that “[t]he courts, light conceptions about “in of late original find- for deference to the rationale significance of that issue the nature and superiority of er of fact is not limited to Using at legal system”, supra, our make determi- judge’s position trial to the same approach leads the functional Anderson, supra, credibility.” nations of by Ashe v. results. The task mandated 574, S.Ct. at 1512. Instead 470 U.S. at 105 weigh- or involves no evaluation Swenson analytical essential differ- there are some finding, testimony, no fact no evalu- ing of finding of facts and the ences between the “feeling credibility, no need for a ation of finding of fact is expositing of law. case,” judge expertise, or no trial of major role and with judge’s ... trial “[t]he us to things which cause any of those other comes ex- fulfilling that role experience Thus, give to the trial court. deference warranting appellate court defer- pertise” analytical or functional use the ence, be- whether we analytical This distinction id.

65 both, approach compelled foregoing we are to the All the confirm us in our view review is do novo. our estop- conclusion issue of collateral under Ashe v. to a Swenson pel applied as Estoppel V. Collateral particular jury is a of law. A. is de novo. Thus our review Although collateral has been An portion Jeopardy examination of both federal and state Double Clause the Fifth Amendment since at least stating cases shows the mea that while United States Supreme decision in Court’s utilized, did, sure courts 85, 68, Oppenheimer, 242 v. U.S. 37 S.Ct. fact, e.g., review the matter de novo. See (1916), expli- 61 L.Ed. 161 and was further Rosa v. (5th Lynaugh, De La 817 F.2d 259 United by the v. cated Court Solem, Sealfon Cir.1987); 933, Flittie v. 775 F.2d States, 575, 237, 332 68 S.Ct. 92 L.Ed. U.S. (8th Cir.1985) (en banc), cert. de 941-42 given renewed 180 doctrine nied, 475 1025, 1223, 106 89 U.S. S.Ct. Swenson, Court Ashe v. vitality by v. United States (1986); 333 L.Ed.2d supra. defining estoppel, collateral Mulherin, Jr., 731, (11th F.2d 710 740-43 “ said: is an estoppel’ Court ‘Collateral denied, cert. Cir.), 964, 464 U.S. 104 S.Ct. phrase, ex- awkward but it stands for an 402, (1983); 78 L.Ed.2d 343 tremely important principle in our adver- Mespoulede, (2d Cir.1979); v. F.2d 329 597 sary system justice. simply It means Gonzalez, 1185, United States v. 548 F.2d an that when issue of ultimate fact has (5th Cir.1977); been determined once valid final Tramunti, Cir.), 1334, 1346-49 (2d F.2d 500 judgment, again cannot be liti- issue denied, 1079, cert. 667, 42 gated parties any same between the (1974); Green v. United L.Ed.2d 673 Id., future lawsuit.” 397 90 U.S. 138 U.S.App.D.C. 426 F.2d 661 at 1194. has set Not the Court States, (1970); Travers v. United estoppel, the doctrine collateral forth Gareeb App. (1964); D.C. 335 F.2d 698 proper approach instructed to the us as Weinstein, N.J.Super. 390 A.2d application: “The in its federal decisions State, (1978); Dixon v. So.2d the rule collateral have made clear that (Miss.1987); Aetna Insurance Co. v. Life ap- estoppel in criminal cases is not to be McElvain, (Mont.1986); Si 717 P.2d 1081 plied hypertechnical and archaic Commonwealth, mon v. Va. book, century pleading approach of 19th Jones v. Common S.E.2d 567 Id. rationality.” but with realism wealth, 217 Va. 228 S.E.2d 127 directing After 90 S.Ct. at 1194. Finally, Supreme we note that the Court of the the review must focus record estoppel, part purpose stated that prior proceeding collateral for the of deter- Jeopardy mining Fifth a rational could have the Double Clause of the whether Amendment, issue than the its verdict on an other is “a matter constitutional based to foreclose one the defendant seeks fact through must decide an examina the Court said: estoppel, collateral Ashe v. Swen of the record.” tion entire son, inquiry practical U.S. at ‘must be set in a New York (emphasis added) eye to all (citing frame and viewed with Any Sullivan, proceedings.’ Times v. circumstances would, technically test more restrictive course, rejection simply amount to a 268, 271, of v. Maryland, Niemotko 340 estoppel rule in crimi- of the of collateral 325, (1952); 327, 71 95 L.Ed. 267 S.Ct. every case at least proceedings, nal Indiana, 49, 51, v. S.Ct. Watts 338 U.S. 69 on a judgment was based where a final 1347, 1348, (1949)); Cham L.Ed. 1801 93 acquittal. general of verdict Florida, 229, v. 227, bers 309 U.S. 60 S.Ct. v. 472, 473, Norris Seal 444, 84 1194 (quoting Id. L.Ed. 716 at 90 at Alabama, at supra, fon, 332 U.S. 240). (1935). L.Ed. 79 1074 part indictment

We have addressed the issue of collateral multi-count jury, per mains unresolved is no se estoppel component jeopardy as a double application estoppel. of collateral bar to beginning in three cases with United Mespoulede, supra, 597 v. (D.C.1975), United States Smith, v. 337 A.2d 499 States Judge Irving F.2d at 336-37. As Chief R. States, by Copening v. followed points for Kaufman out the court Mes- (D.C.1976), recently and most 353 A.2d 305 poulede: States, 528 A.2d 1211 v. United Jackson [per seem odd that such a Smith, (D.C.1987). In made clear that se] [I]t us, pressed upon especially since rule is appli- for requirement fundamental “[t]he litigating the burden of an issue estoppel cation of the doctrine of collateral thought laid to rest defendant had been ability to conclude is the what lighter time is no than in the first for all necessarily must have determined at the indeed, trial. And with virtual unanimi- Smith, A.2d at prior supra, trial.” ty, applied collateral es- the cases have “ap- Copening, 501. In we stated that toppel to the Government from relit- bar estoppel plication of the collateral doctrine igating question of fact that was deter- pro- requires concurrence in different partial mined in defendant’s favor (1) ceedings of the three circumstances verdict. necessary to both common factual issue Judge cited cases (2) Id. at 336. Kaufman adjudications, prior determination of as well from the Third and Ninth Circuits litigation the same that issue in between District Courts (3) as the United States parties, showing that the determi- and the Eastern District of North Carolina seeking party nation was favor District of New York. United 309; Southern 353 A.2d at raise bar. (3d Pappas, 445 F.2d v. Jackson, supra, 528 A.2d accord Cir.) (dictum), denied, cert. The defendant has the burden Cosgrove proving the test enunciated (9th States, 224 F.2d 146 Cir. v. United explicated Supreme Court in Ashe and as Flowers, 1955); v. United States Copening, 353 A.2d by us has been met. (E.D.N.C.1966); F.Supp. 485 United States 309; Gugliaro, v. accord United States (S.D.N. Perrone, F.Supp. (2d Cir.1974). 501 F.2d We have (dictum). Y.1958) importantly, More how previous deter recognized that where the consideration, ever, M.A.P. v. for our see constituting the upon mination relied as bar (We (D.C.1971) Ryan, 285 A.2d (as virtually always general is a of the United States by decisions bound by jury), case in a criminal trial Appeals for the District Colum Court difficulty resolving question is com February prior to Circuit decided bia A.2d at pounded. Copening, supra, 353 1971), points to Judge Kaufman Chief recognized this 309. Other courts have Appeals Court cases the United States difficulty. e.g., v. Tra See of Columbia Circuit. the District 1346; munti, supra, 500 F.2d Jones States, U.S.App.D.C. v. United Green Commonwealth, supra, 217 Va. at curiam); (per Tra 426 F.2d 661 at 128-29 228 S.E.2d Green, supra. vers v. United recognized also that when We have doctrine of applied supra, trial, indict a multi-count prior trial involved their first estoppel. At collateral ment, acquitted one count acquitted wherein defendants were verdict, hung vehicle) on the multi- general (unauthorized of a count use of count(s), hung unable to frequently other “one is indictment. count counts; discern, of col a mistrial was declared. required by remaining the doctrine retrial, defendants’ collateral estoppel, must have At the over lateral what Smith, permit estoppel objection, McFarlane was factually.” determined added; he and the defendants (first testify second emphasis ted to A.2d at 501 subject of was the However, the car which original). the fact had stolen emphasis in robbery. in a acquittal and used prior determination original evidence, instructions, reversed, clos holding pleadings, Appeals The Court relating principles argument familiar to the like and conclude ing “[u]nder estoppel, the of this jury” collateral admission could have ac a “rational whether error_” U.S.App. evidence was Id. other than the quitted based on an issue 426 F.2d at 662. D.C. to from recon one the defendant seeks bar Swenson, supra. sideration. Ashe v. subsequent Mespoulede to Cases Likewise, not make the defend we must estop- the doctrine of collateral considered by strain ant’s task even more formidable pel in the context of multi-count indict- un “hypertechnical and postulate to Indeed, ments. the United States Court [jury grounds on the ... rejected an realistic Appeals for this Circuit has conceivably its conclu citing to and have rested” attempt the United could] reading Jacobson, F.2d relying primarily upon its own v. sions. States United Smith, denied, (2d Cir.1976), our v. 430 U.S. decision United States cert. exception (1977); engraft to a multi-count 51 L.Ed.2d 793 97 S.Ct. on to Ashe v. Swenson. Swenson, supra, 397 U.S. see also Ashe v. case, Finally, ad- we must present parties

In the 90 S.Ct. at estop- teachings: Supreme dressed the of collateral mindful of Court in connection with the defend- pel below permitted to state that If a later court is count two in the ants’ motion to dismiss substantial have disbelieved second trial. The Government’s brief prose- evidence of the and uncontradicted glosses v. doc- over Ashe Swenson did not point on a the defendant cution trine, attempting distinguish to this case prose- contest, possible multiplicity of as influenced different considerations fact, such a staggering.... cutions is charged with more because Bowman was ‘determined’ restrictive definition count, Ashe was faced than one while rejection of collat- simply to a amounts prosecutions. successive one-count impossible it is to estoppel, eral since sweep reject attempt aside We statutory offense which imagine a progeny, and its Ashe v. Swenson ele- prove government has estop- hold that the doctrine of collateral a conviction. issue to sustain ment or controlling pel is here. Swenson, U.S. at n. supra, 397 Ashe v. Bowman, App. v. United States Mayers (quoting n. 9 & at 1194 246, 251-52, 609 F.2d D.C. this task at 38. It is to Yarbrough, supra, omitted). circuits, well, (footnote Other we now turn. applied traditional Ashe v. Swenson partial in multi-count doctrines verdicts B. See, e.g., United States v. indictments. through theory The Cir.1985); Garza, (5th F.2d 1202 Unit evidence, of its both presentation out the (5th Cir.), Price, 750 F.2d 363 ed States v. rebuttal, was that case in chief denied, cert. posses in his actual pistol had the Felder v. 87 L.Ed.2d 651 United States pistol, sion; with this that he shot Gantt Cir.1986), (7th Kimberlin, 805 F.2d — him; Felder did not killing and that thereby U.S.-, denied, cert. in the carry pistol v. have a license States Cir.1980); (7th Columbia. Castro, United District of 629 F.2d 456 Bel- (11th testimony of Gornto, principally 792 F.2d 1028 Cir. relied gun F.2d in Feld 1986); place Rogers, linger Penn to Cir.1986). (11th that he shot to establish hand and er’s official relied on Gantt. fact of analysis, although the In the final Felder was records to establish fact of a as well as the general District of carry licensed indictment in a multi-count partial verdict evi Columbia; presented testimonial difficult, must be our task may make Felder operable. pistol was dence requires us that Ashe v. mindful Swenson elements latter two these record, account never contested taking into to examine the 68 general ing. government argues jury

of the offense issue of in- that the or the The challenge Myles tent. His was factually to the that have concluded government’s possessed brought evidence that he gun to the the shoot the scene of pistol any time, the or used it to shoot ing; of it possession that Felder came into stated, previously As his Gant. defense just shooting; he shot and before the that innocently present that he was was when to gun killed dropped and then the Gantt Bellinger struggling he saw “interlocked” ground. fac jury the The then could have Gantt and a shot heard fired. tually Myles up the picked determined that scene, gun says it and recovered from the Although government the contended government. Indeed, the is in the there jury may the trial that the ac have support record that such a evidence would quitted based on a doubt about whether get finding, factual if made. does not That Felder had a pistol license or whether the government “home free” however. operable, it correctly was does not advance What con would have us arguments those Ashe here. See v. Swen jury, clude is that the confused about son, 9, supra, 397 at 444 n. 90 U.S. S.Ct. law, possession concluded that the time of Rather, n. 1194 con shooting necessary pistol Gantt with tends collateral not apply does is less possession than the time of neces acquittal two reasons. The first is that the sary to carrying pistol convict of without lenity. could have been result of The no license. We find basis in the record that jury may second is have concluded law. suggesting jury such confusion on the pistol long while Felder possessed said, pre As repeatedly courts have enough to “while armed” ele commit the juries the law. sume follow instructions on felony ment murder while armed and Street, 471 105 Tennessee v. U.S. armed, attempted robbery while he did 2082, 2078, S.Ct. long enough possess weapon to commit 422, Lonberger, 438 Marshall v. pistol “carrying” the offense of 843, 6,n. 646 n. 103 853 74 L.Ed.2d S.Ct. view, government’s In our license. ar 442 Randolph, Parker v. U.S. guments nothing urging more than us 99 L.Ed.2d 713 ignore the task mandated Ashe opinion); (plurality to determine from Hairston Swenson— the record jury necessarily States, (D.C. what must have decid ed, approaching jury 1985); verdict with real 478 A.2d v. United Sherrod rationality eschewing hy- 644, ism and (D.C.1984); Cupp, while see Frazier v. pertechnical approach. and archaic 1422- L.Ed.2d government’s argument jury may lenity, per have while exercised Here, was instructed “[a] haps factually cases, proves true some pistol openly on or is carried or concealed much; proves nothing. Any thus too person if is actual- about the defendant’s partial verdict could be rationalized on this ly if it in such person is located Estelle, basis. See Green v. F.2d him as to proximity to be convenient (5th Cir.1979); Ly De La Rosa v. access reach.” As we and within For, essence, supra. naugh, stated, government argued previously government’s argument is based on the momentary possession to the that this fallacy which underlies the contention same support was sufficient to a conviction all the rejected virtually courts which This carrying without a license. issue, including considered the argument entirely fully correct and court, per that there is a se multi-count previ- just the instruction consistent with exception to the doctrine. suggest ously quoted. The record does not instruc- that the failed follow the attempt government’s a dis- draw invita- tions. We decline “possess” “carry”, tinction between case, similarly engage speculation the facts of this unavail- tion Here, acquitting the re- ignored on misunderstood the law.8 instead or charges, jury maining felony the basic VI. Conclusion that, hung. logically expect One would single rationally “The conceivable issue consistent, acquitted, as it would be dispute the was whether before or commit the arm- hardly one could shoot possessed (carried) the the [Felder gun. robbery ed the jury by And the relevant time]. majority opinion has a theo- While the Swenson, he had found not.” Ashe su- it to a fact of appeal, retical we know be pra, 397 U.S. 90 S.Ct. at 1195. The life in of the criminal the administration component of Dou- estoppel collateral the system multiple count in- justice —where Jeopardy the prevents govern- ble Clause this dictments are involved—that to follow relitigating ment from these facts. ignore well-recog- course the would be Felder, counsel, through urging us to trial the nized realities of the court. Since use a measure of deferential multiple jury hung on some counts of the Judge experienced ferred to as an Walton indictment, I think count judge. Indeed, Judge experi- trial Walton’s from a of these should not be barred retrial broad, in the deep, ence criminal law is Smith, counts. 337 A.2d insightful. often think the best We tribute (D.C.1975). give Walton, hold, to Judge we can is to say, if the in this Needless to first trial do, we after our novo review of the de count, had case involved this be- question, ruling eminently was cor- ing charge he was weapon rect. me, result, acquitted, be dif- would AFFIRMED. here application ferent and I would favor estoppel in rela- collateral doctrine subsequent presently to a trial on tion GALLAGHER, Judge, Senior charged offenses, which would necessitate dissenting: possession weapon. If in acquitted, this case Felder had been weapon charge as he possession

and, also, had been convicted the shoot- robbery, and armed we would think

nothing inconsistency, obvious be- commonplace

cause this is in trials with

multiple ig- count We indictments. would though

nore it even it meant that the

would have decided that the defendant shot

(or robbed) gun victim with a he did

found not have. Inconsistent ver- frequently

dicts like that occur where there multiple counts, as we know so well. nothing Feld- We note that evidence was consistent with there is the law ballistics picture Bellinger testimony painting er’s collateral as embodied the Double struggling requires sug- when Jeopardy with Gantt Clause which even “interlocked” jurors well had gests to find Gantt All could have court must be able consisten- was shot. cy acquitted on whether Felder was where a on one count and a reasonable doubt triggerman case, however, jurors hung or more were satis- while one on another. consistency in an passing fied that was an aider and abettor note in that such can he Phillips, attempted robbery led to testimony govern- while armed which found. The words, may have expert, In other what ment's was that shot that Gantt’s death. ballistics jurors may testimony or more of the Gantt shot. This occurred is that one killed was a contact government’s (the Bellinger persuaded alter- contrasted with that of Penn been placed argument aider and eyewitnesses), native that Felder was an two who victim, felony conclud- gun away murder while all at various distances from the abettor in the However, (carried) pistol. possessed contact shot. ed he never all inconsistent with a

Case Details

Case Name: United States v. Felder

Court Name: District of Columbia Court of Appeals

Date Published: Sep 16, 1988

Citation: 548 A.2d 57

Docket Number: 87-871

Court Abbreviation: D.C.