United States v. Santos Medina
709 F.2d 155
2d Cir.
1983
Check Treatment

*2 VAN GRAAF- KAUFMAN and Before MISHLER, EILAND, Judges, and Circuit Judge.* District PER CURIAM: Judge Werk- appeals Medina Santos to dismiss his motion denying er’s order or, indictment three count count two evidence in alternatively, to exclude certain Medina subsequent prosecution. possible a jury and Judge Werker was tried before with 1982. He in December bank, 18 U.S.C. §§ to rob conspiracy abetting a аnd (count 1), aiding 2113(a) (count 2113(a) 18 U.S.C. §§ bank abetting an armed 2), and 3). 2113(d) (count robbery, 18 U.S.C. §§ one on counts Medina jury acquitted a verdict three, to reach was unable and but verdict, the Following two. on count mistrial, Medi- and court declared district which we to motion na submitted then have referred. for the rea order

We affirm the thorough Judge Werker’s sons stated 1983). (S.D.N.Y. F.Supp. 979 opinion. 563 “that the is cannot demonstrate was ‘neces seeks to sue he foreclose in the first sarily’ resolved in his favor Mann, New Atty., U.S. L. Asst. Roanne verdict,” he not and accordingly, Martin, Louis Atty., (John City York S. estoppel the collateral successfully invoke counsel), for Freeh, of Atty., Asst. J. Jeopardy Clause. of the Double component appellee. (2d Seijo, 537 F.2d v. Cir.1976), Kessler, N.Y. Hempstead, Lawrence W. (1977).** defendant-appellant. one,” * heavy Moreover, “is this burden the East- District Court Of the United States Seijo, supra, because F.2d at York, by designa- sitting States ern District New difficulty great proving the basis for tion. Clark, Id.; jury’s States verdict. ** dissenting the doc misconstrues brother Our Cir.1979), (2d 613 F.2d applicatiоn its trine of 66 L.Ed.2d 22 who at defendant to the case reprosecution on tempts preclude of a count to reasonably case, jury present In the reach a was unable initial which the because it count 3 Medina on have decisions, text, in the our As verdict. noted sustained its had believed discuss, estab fails which the dissent demonstrating aрpellant knew fire- burden bears principle lished the Al- employed arms would proving necessar the first verdict the burden undisputed were though the robbers it was he seeks ily indicating the issues in his favor armed, determined no direct evidence there was Accordingly, consideration to foreclose ‍​‌​​‌‌‌​​‌‌​‌​‌‌‌​​‌‌​​‌​​​‌‌‌​​‌​​​​‌​‌‌‌​‌‌​‌​‍from fact. was aware of this Seijo, had rеtrial. States could have concluded (2d guilty proven resolving of a bank without armed Cir.1975). Cala, count elements of of the essential MISHLER, Judge, District dissenting: car used in the robbery.) The third witness was Victor Rosado. Rosado observed the 25,1982, Torres, On March Edwin Roman riding while past the bank in a van. Rodriguez, Jorge Pierna robbed the pursued He three individuals who fled from Manufacturers Hanover Trust Company lo- the bank green in a car. Rosado testified Road, cated Bronx, at 200 E. Gunhill New pursuit that his of the robbers was cut off *3 York, armed with loaded revolvers. They when Medina drove his car into path the were subsequently charged with violation the van. According Rosado, to Medina of 18 2113(d). They pled guilty § U.S.C. to warned that “the assailants were armed the charge May 1982. and dangerous and the police already had 18,1982, On October a three count indict- information.” The fourth witness was ment against was returned Santos Medina F.B.I. Agent Edward Bodigheimer. Bodig- in connection with the aforesaid robbery. heimer introduced post-arrest a statement Count charged One Mеdina with member- made by Medina in which Medina admitted ship in conspiracy a to rob the bank in knowing that the bank was going to be violation of 18 2113(a) U.S.C. (d).1 § and statement, robbed. In his claimed Medina charged Count Two that Medina aided and that he was at the scene of the robbery to abetted the bank in robbery violation of persuade friend, his Rodriguez, tо rob 2113(a). charged Count Three § that Medi- the bank. falsely claimed to have na aided and abetted the robbery “and given a description of the robbers to po- a in the course of committing offense, said lice officer. did person assault a put in jeopardy and the jury acquitted Medina on Counts One life person of a by the use of a dangerous and Three and was unable to reach a ver- weapon.” 18 2113(d). U.S.C. § dict on Count Two. The government ex- The government’s Medina pressed its retry intention to Medina on primarily consisted of the testimony of four Two. moved, Count then on double witnesses. Roman Rodriguez and Edwin jeopardy grounds, an order barring fur- Baez testified that plannеd rob- the or, ther prosecution alternative, pre- bery. (Baez was the driver of the cluding switch the government seeking from to Although correctly notes, the dissent tion on count but not relevant to the lesser charge examination the court’s charge to Accordingly, the on count 2. there is no may help verdict, elucidate the basis for the concluding see basis for the verdict of ac- Swenson, Ashe v. 436, 444, quittal “necessarily” on count 3 resolved in (1970), any such exami- necessary Medina’s favor elements for a charge whole, nation be must as a Judge not of properly on count conviction 2. Werker incomplete which, excerpts alone, standing denied Medina’s mоtions. misleading. Judge Werker robbery required 1. Bank § noted and crimes the elements incidental for a conviction on beyond charge, an armed those neces- Whoever, by violence, (a) by force and or sary the robbery: lesser offense of bank intimidation, takes, take, attempts or In to convict order the defendant on Count рerson presence any prop- or of another three, you government must find that the has erty money any or thing or of value proved beyond a reasonable to, doubt all of the care, control, belonging custody, or in the elements the crime in Count two. management, of, bank, possession any or addition, you beyond In must union, find a аny savings reasona- or credit associa- loan ble committing doubt that the tion; in or ... attempting to $5,000 this commit crime either as- Shall be fined not more than or im- put jeopardy or in person prisoned saulted twenty years, life of a or dangerous weapon use of a or device. both. requires finding Whoever, three committing, (d) attempting de- in or in person by commit, fendant either: any assaulted a in offense defined subsections dangerous weapon use device; section, (a) (b) any per- or or of this assaults [e]ndangered person by son, the life puts any person the use or in the life of dangerous weapon device, or weapon device. the use of a or being manner,

After $10,000 instructed this be fined not shall more than or im- prisoned twenty-five years, have determined the had not not more than or proved elements, these for a convic- both. that determina- is to examine how personnel for second prove that Medina recruited ease.” United lookout for the on the second or аcted as a tion bears January Kramer, 289 F.2d In an order dated robbers. Swenson, motions. supra, court denied Medina’s Cir.1961). In Ashe v. The trial reasoned oí fleshed out the nature Supreme Court explaining process, three did not nec- this on count favor essarily resolve in Medina’s in criminal the rule of While the of count two. the elements hyper- with thе applied to be cases is not overwhelmingly demon- proof at of a 19th approach and archaic technical during was used gun strated that a book, with realism but century pleading direct there was no course of the previous judg rationality. Where aided, induced or that Medina evidence gen upon was based ment of addition, al- activity. procured that case, this verdict, usually the eral as is concluded *4 though likely the most a court to “examine approach requires were that Medina knew that the robbers taking proceeding, prior the record of a armed, knowl- I instructed the that evidence, pleadings, the into account ground sufficient edge alone was not a matter, relevant charge, and other as an guilty to find Medina upon which jury could a rational conclude whether aider and abettor. an issue upon its verdict grounded have conspir- the respect acquittal to the on With that which the defendant count, judge the trial concluded that acy from cоnsideration.” seeks to foreclose found that Medina’s jury might the practical “must set in a inquiry The be sufficiently indic- role as a lookout “was not the eye an to all viewed with frame and agree- an entering of Medina’s into ative Seal proceedings.” circumstances of the As for robbery.” ment ... to commit the 575, 579, 68 States, 332 fon v. United person- the evidence that Medina recruited Any test 237, 240 L.Ed. S.Ct. 180]. [92 hypothesized nel for the the court would, of technically restrictive the evi- jury might the have found course, rejection amount to simply dence either incredible or insufficient in criminal estoppel collateral the rule of I conspiracy. Because believe establish a every case where at least in proceedings, estoppel bars that the doctrine of collateral upon gen judgment first was based the proving an essential government the acquittal. eral verdict crime for which it seeks to element of the at Medina, reverse the decision retry I would Ashe, judge’s we must look the Under direct dis- judge of the learned trial the evidence to determine charge and ‍​‌​​‌‌‌​​‌‌​‌​‌‌‌​​‌‌​​‌​​​‌‌‌​​‌​​​​‌​‌‌‌​‌‌​‌​‍the missal of indictment. the favor in his “jury whether the resolved The doctrine from consid he seeks to foreclose very issue when a issue of simply “means [sic] trial.” United States eration in the second once been determined ultimate fact has Cir. Mespoulede, judgment, that issuе can- a valid and final cannot be that he 1979). argues same again litigated between the Thus, the issue robbery. for bank retried future lawsuit.” Ashe v. parties from reconsider foreclose which he seeks to Swenson, 397 the and abetted he aided ation is whether Collateral es- for a conviction Although robbery. applicable prosеcutions to criminal toppel is armed bank abetting an aiding element of the double clause. or con Medina knew of proof that requires 445-46, Application at 1195. Id. at weapon in templated the use first phases. “has two The doctrine McCaskill, 676 robbery, United States judgment is to determine what the first - Cir.), cert. (4th determined, in which ... process -, simрly pleadings to the court must look not Sanborn, The prior trial. but to the record (1st Cir.1977), venture, ne on Count glected to requirement include this in his necessarily Three reflects the jury’s finding charge to the jury. He gave instead there was a reasonable doubt whether general charge and abetting and participated in the criminal ven- did not apply charge to the ture. having This issue been resolved in separate counts in the indictment. he favor, Medina’s government preclud- instructed the jury as follows: ed from relitigating it. participation Since The government contends that the de- in the criminal venture is also an essential before,

fendant his conduct during and element indictment, Two of the after the of the Manufacturers preclusion of this issue impos- makes it Hanover Trust Company, aided and abet- sible for government to prove ele- ted others in the commission of the ments of Count Two in a subsequent at- crimes in Counts Two and Three. tempt to convict that Count.

Accordingly, retrial is barred by collateral course, еstoppel. Of to find guilty the defendant you must abetting, find some- argues that the thing more than knowledge mere on his of Count Three established only that part committed, that a crime being jury was that a dangerous unconvinced spectator a mere at a crime is not a weapon was used in sup participant. this, port of the government points to the jury’s inability to reach verdict on Count *5 To determine whether the defendant aid- which, Two the government notes, is identi offense, ed the commission of an you may cal to Three respects all except in ask yourselves following questions: that it not require does the use of a danger Did he associate himself with the ven- ous weapon. There are two answers to this ‍​‌​​‌‌‌​​‌‌​‌​‌‌‌​​‌‌​​‌​​​‌‌‌​​‌​​​​‌​‌‌‌​‌‌​‌​‍ture? Did he in participate it as some- First, significance contention. little can be thing he bring wished to about? .... accorded to the jury’s failure to reach a however, I you, must caution that mere unanimous verdict. United See States ex criminals, association with presence mere LaVallee, rel. Rogers v. 517 F.2d 1330 crime, at the scene of the and mere Cir.1975), 423 U.S. knowledge that a is being crime commit- Second, (1976).2 ted are not sufficient to establish that the government’s completely ig contention crime, aided and abetted the presented nores the evidence at trial. Not you unless find that the defendant was a only weapon clearly was use of a estab participant and merely knowing Medina, by lished and it was uncontested spectator. attorney conceded Medina’s in his closing the jury jury. Since was remarks to the v. instructed that in or- See States Medina, der convict the government Mespoulede, (2d Cir.1979). prove must that he “participated” in the Supreme The Cоurt cautioned in Ashe v. jury 2. The gleaned jury’s inability reasoned that would ence can be acquitted on all three counts if there was reach a verdict on Count Two and the 2113(d) a reasonable doubt § element of Three, on Count that inference must favor Me- However, weapons other than the element. easily important, cutting edge dina. More the double argument just this can as be turned the folly argument points specu- of this out the of words, way. jurors In other if the did not lating jury’s process. into the The deliberation have a reasonable on an doubt element other jury simply suscepti- deliberations of are element, weapons they than the would have logical anаlysis. ble to such There is wisdom convicting returned a verdict of v. Supreme Ashe admonition in Court’s 2113(a). § This Circuit has held that an ac Swenson, supra, analysis “hypertechnical” quittal greater weight should be accorded general “simply verdict amount to a would Rogers States ex a deadlock. See rel. rejection of the rule in of LaVallеe, (2d Cir.1975), 517 F.2d 1330 proceedings.” 397 U.S. at S.Ct. at 1194. to the extent that an infer- he should Swenson, the bank on March supra, interpretations gauntlet’ are unrealistic and ‘run the verdict which “to not be Swenson, evidence which fail to take into account the second time.” Ashe jury. to the presented Green (quoting at 1195 States, if argues next that even The (1957)).3 Accоrding- 221, 225, 2 L.Ed.2d dangerous weapon that a jury believed I vote to reverse. ly, may have they was used in the proof government’s because the did not that Medina establish abet- in or otherwise aided and

participated weapon.

ted in the use of the this contention is simple

The answer to jury was not re- a violation of Count Three SOLINA, Jr., Peter Paul danger- in the use of a quired participation Petitioner-Appellant, earlier, was jury ous As noted weapon. a conviction for charged only that participation abetting required proof America, UNITED STATES Moreover, there in the criminal venture. Respondent-Appellee. was no evidence that Medina himself 1146, Docket 82-2389. ‍​‌​​‌‌‌​​‌‌​‌​‌‌‌​​‌‌​​‌​​​‌‌‌​​‌​​​​‌​‌‌‌​‌‌​‌​‍No. armed he ever entered the bank or that in the use of particiрated thus could have Appeals, credulity too gun others. It stretches Second Circuit. jury interpreted to assume that far judge’s charge requiring participation 19, 1983. Argued April when the facts before the gun the use of a June Decided even an inference support could not participation by Medina. such “not having found Medina

guilty” deniеd, (2d Cir.1975), 423 authority proposition 1330 cert. is for the There 866, (1976); 1078, having 47 L.Ed.2d 89 rob 96 S.Ct. after of armed bank Henderson, 535 Paul v. bery, lesser United States ex rel. be retried for the Medina cannot 677, (N.D.N.Y.1982), is F.Supp. there 679-81 Brown v. included offense of armed Ohio, 161, 2221, authority point circuits in the other 97 S.Ct. 53 L.Ed.2d 432 U.S. 176, opposite Nielsen, See (1977); conclusion. 9 which reaches the Ex Parte 131 U.S. DeVincent, (1st Brown, 632 F.2d 155 (1889). States v. United 33 L.Ed. 118 Cir.1980), 450 U.S. 101 S.Ct. jeopardy cert. to a held that ‍​‌​​‌‌‌​​‌‌​‌​‌‌‌​​‌‌​​‌​​​‌‌‌​​‌​​​​‌​‌‌‌​‌‌​‌​‍double attaches (1981); precludes subsequent prosecu 67 L.Ed.2d 820 conviction and Larkin, Cir.1979), (5th de Similarly, 605 F.2d 1360 included offense. tion for a lesser nied, 64 L.Ed.2d reprosecution 100 S.Ct. a lesser bars initial States, (1980); Forsberg Seijo, offense. United States v. included Cir.1965), (9th 698-99 (1966). The bet 50 L.Ed.2d 756 86 S.Ct. only applies Middleton, Brown ter reasoned view is that States v. not, have, hand, but did (1st Cir.1982). it is when On the othеr single try greater in a and lesser offenses be re established that a defendant well States, 432 proceeding. Jeffers v. hung See results in a mistrial. tried when a 2216-17, 150-52, Perez, 6 L.Ed. States v. 9 Wheat. (1977). hybrid when a defendant presents L.Ed.2d charged This single proceed greater offenses in with two question offense whether offense of ing, included which is lesser hung jury offense one of on a lesser included and a greater other, jury acquits on the and the precludes While of the lesser offense. retrial on the lesser verdict but cannot reach a support for the offense offense, in this Circuit is tenuous there jeopardy not bar retrial does double retrial of does bar that double view offense, except rules circumstances, the lesser the lesser offense under these LaVallee, estoppel. Rogers United States ex rel. see