The opinion of the court was delivered by: POLITAN
NICHOLAS H. POLITAN, UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on defendant Walter Esposito's motion to dismiss the Indictment on the grounds that this criminal prosecution is barred by principles of double jeopardy and collateral estoppel and also is a "vindictive prosecution" which deprives him of due process. On February 1, 1989, a three count Indictment was returned by the grand jury charging defendant Esposito with three separate acts of cocaine distribution alleged to have occurred on December 5, 1984 (Count One), December 20, 1984 (Count Two), and January 9, 1985 (Count Three). This Indictment was returned approximately five months after Esposito was acquitted of all charges against him in the District of New Jersey in United States v. Accetturo, Criminal No. 85-292.
Walter Esposito was named as a defendant in Counts One, Two, Three and Four of the Accetturo Indictment. Count One named twenty defendants and charged a RICO conspiracy spanning approximately nine (9) years. The specific overt acts alleged in the drug aspect of the RICO conspiracy included a reference to "the latter part of 1984 and early 1985, [when] the defendant Walter Esposito and co-conspirator Marianne Esposito sold multi-ounces of cocaine to a customer in New Jersey." Count Two, the substantive RICO charge, also named twenty defendants. Esposito was included as a participant in four acts of racketeering. First, defendant was alleged to have participated in a cocaine distribution conspiracy operating from 1977 to July of 1985. In addition, defendant was alleged to have committed three separate overt acts of cocaine distribution during approximately November 1984, December 1984, and January 1985. In Count Three, Esposito was charged, along with seven other defendants, in a straight drug conspiracy operating between approximately September 1982 and July 1985. Finally, in Count Four, Esposito was alleged to have committed one act of distribution and aiding and abetting distribution of a quantity of cocaine, occurring in or about late November 1984.
Virtually all the evidence proffered during the Accetturo trial which implicated defendant Esposito was presented on a single day through the testimony of FBI agent Dennis J. Marchalonis. Agent Marchalonis testified that cocaine was purchased on four different occasions by a cooperating witness from the defendant Esposito. The first transaction occurred on November 21, 1984 and involved an 1/8 of an ounce of cocaine. On December 5, 1984 a second purchase of 1 ounce of cocaine was made by the cooperating witness from defendant Esposito. A third transaction took place on December 20, 1984. The final transaction occurred on January 9, 1985.
Only the transaction in November 1984 was charged as a separate substantive offense in the Accetturo Indictment. The other transactions, two in December 1984 and the single transaction in January 1985, are the ones which form the basis of the substantive distribution charges contained in the instant Indictment.
There are two principles of collateral estoppel in criminal cases. Under constitutional collateral estoppel, reprosecution is barred where a jury's acquittal of the defendant in the first prosecution necessarily was grounded upon its resolution of a particular issue that is essential to the defendant's conviction in the second prosecution. See Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970). Under doctrinal collateral estoppel, the government may not relitigate a particular issue in a subsequent criminal case even if a contrary resolution of that issue is not necessary to convict the defendant of the charges contained in the second indictment. See United States v. Keller, 624 F.2d 1154 (3d Cir. 1980).
Recently, the Third Circuit applied constitutional and doctrinal collateral estoppel in United States v. Salamone, 869 F.2d 221 (3d Cir.), cert. denied, 493 U.S. 895, 107 L. Ed. 2d 196, 110 S. Ct. 246 (1989). In that case, the defendant was named in a prior Indictment in the Southern District of New York and charged with drug trafficking conspiracy and racketeering (RICO), as well as money laundering conspiracy and substantive money laundering. The defendant was convicted on both money laundering counts but was acquitted on the drug trafficking conspiracy and racketeering counts.
As overt acts in furtherance of the drug trafficking conspiracy, it was alleged that defendant purchased a number of semi-automatic hand guns using fictitious names. The Indictment further alleged as an overt act the defendant's receipt of various types of hand guns. Defendant was not charged in this prior Indictment with any substantive firearm offenses. See 869 F.2d at 222.
Following trial, defendant was charged in a second Indictment with a variety of firearm offenses in violation of federal law.
The defendant moved to dismiss the indictment or, in the alternative, to prohibit the introduction of certain evidence admitted in the prior trial in the Southern District of New York under the double jeopardy clause and collateral estoppel. The District Court denied the defendant's motion and the defendant was ultimately convicted.
On appeal, the Third Circuit noted that constitutional collateral estoppel bars reprosecution "where a jury's acquittal of a defendant in a first prosecution necessarily was grounded upon its resolution of a particular issue [and] redetermination of [that] issue would be essential to the defendant's conviction [in the second trial]." 869 F.2d at 226. In addition, the court recognized that under doctrinal collateral estoppel, the government cannot "relitigate the issue even if a contrary resolution is not necessary to convict the defendant, but simply would constitute evidence against him or her." Id. (emphasis in the original).
The defendant in Salamone argued that the second prosecution was barred under constitutional collateral estoppel. However, the Third Circuit reasoned that the Southern District jury did not necessarily ground its particular acquittal of Salamone upon the issues charged in the second indictment (i.e., whether he committed the substantive firearm offenses) and therefore the second prosecution was not barred. "The jury could have decided that Salamone committed the substantive crimes charged in this case, yet lacked the requisite intent to participate in the racketeering enterprise." 869 F.2d at 227. The Court noted that
As an alternative argument, Salamone claimed that the testimony of two specific witnesses should be barred in the second trial because it paralleled their testimony in the prior trial. That testimony related to the separate overt acts which the defendant allegedly committed in furtherance of the overlying conspiracy charges. The Court concluded that under doctrinal collateral estoppel, the mere fact that those specific witnesses testified in ...