Collateral Estoppel: the "Little Brother" to the Double Jeopardy Clause

February 8, 2012 by Paul Kish

The Fifth Amendment to the U.S. Constitution includes the well-known protection against double jeopardy. Some lawyers and lay people might not realize that there is sort of a "little brother" to the protection against double jeopardy, which is called the rule of "collateral estoppel." The United States Court of Appeals for the Eleventh Circuit, down the street from us here in Atlanta, recently used the "little brother" to reverse a criminal conviction from the Middle District of Florida. The case is United States v. Valdiviez-Garza.

Double jeopardy protects against multiple prosecutions for the same offense. Collateral estoppel, on the other hand, teaches that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. In other words, if there was an earlier criminal case that the Defendant won, and if the jury in that previous case "necessarily determined" a certain fact in the Defendant's favor, then there cannot be a later case against that same Defendant if the subsequent case requirs proof of that same fact. Therefore, the big issue in this context almost always is whether the earlier trial involved a fact or issue that was "necessarily determined" in the defendant's favor.

In Valdiviez-Garza, he had previously been charged with illegally re-entering the U.S. after a previous deportation. He won that case by arguing that he was not an illegal alien because he obtained citizenship through his father, who was also a citizen. Several years later, he was prosecuted again for illegally entering the country, and this later case also required the prosecutor to prove he was not a citizen. However, he got convicted the second go-round. He appealed to the Eleventh Circuit, and they agreed that he should have never faced the second prosecution because of the collateral estoppel rule. The only issue in his first trial was whether he was an alien, and he won. There never should have been a second prosecution, because the issue of his alienage had already been determined in the earlier trial.

This is a rather rare case. It is refreshing to see the courts remember that the government should only get one whack at a Defendant, otherwise we could all be in jeopardy time and time again.

Eleventh Circuit Reverses County Attorney's Federal Mail Fraud and Money Laundering Convictions: Material Variance Unduly Prejudiced the Defendant

February 2, 2012 by Paul Kish

A few hours ago the Atlanta-based United States Court of Appeals for the Eleventh Circuit reversed a former county attorney's mail fraud and money laundering convictions based on a "material variance" between the allegations in the indictment and the proof at trial. The money laundering charges were based on the underlying fraud case, so these convictions also were reversed. A second set of fraud convictions were affirmed, but because the sentence was based on both sets of fraud charges, the court sent the matter back for a new sentencing hearing. The case is United States v. Lander.

Mr. Lander was the County Attorney of Dixie County, Florida. He also was trying to develop a vitamin company. The Court affirmed the fraud conviction that arose from the scheme involving the vitamin company.

Other fraud and money laundering charges emanated from a different set of facts. Some real estate investors wanted to develop property in the county and approached Lander for assistance. The developers put up about $850,000 as assurance that the project would go forward. Lander deposited these funds into his law firm's trust account, but used a large chunk of these funds for purposes not related to the real estate development.

The indictment alleged that Mr. Lander engaged in a scheme to defraud by falsely telling the developers that the county required the $850,000 as a performance bond. However, at trial the developers did not recall hearing Landers say this. The government then shifted gears mid-trial, arguing that the scheme to defraud involved Lander falsely telling the developers that he would help them through the regulatory process, when instead he used some of the funds for other purposes.

The Eleventh Circuit noted that a defendant has the right to defend against the specific allegations in an indictment, and when the prosecution changes theories mid-stream this can result in what we lawyers call a "material variance." If the defendant was surprised and disadvantaged by this change in theory, the variance is deemed to be "prejudicial." Here, the Court noted that Landers walked into trial planning on defending against a claim that he falsely told the developers one thing, but by the time the prosecutor made the closing argument the government had shifted to a different theory. This prejudicial material variance thus doomed the fraud charges, the money laundering crimes that came out of this supposed scheme, and the sentence that was predicated in part of the reversed charges.