     Case: 10-40705     Document: 00511535585         Page: 1     Date Filed: 07/11/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 11, 2011
                                     No. 10-40705
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

ARMANDO GARCIA, also known as Cachetes, true name Gerardo Castillo
Chavez,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:08-CR-244-24


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Gerardo Castillo Chavez (Castillo) has filed an interlocutory appeal of the
district court’s pretrial order denying his motion to dismiss the indictment on the
grounds of double jeopardy and collateral estoppel. Castillo argues that when
the jury acquitted him of the firearm count of the previous indictment (Count
36), it also necessarily decided that he was not a “sicario” and was not involved
in the conspiracy count (Count 1), or in any of the additional offenses identified


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-40705

in the indictment. He argues that this court should thus reverse the district
court’s decision and should hold that the Government is barred from retrying
him on Counts 1, 28, 29, 33, and 34 of the new indictment.
      The denial of a motion to dismiss an indictment on double jeopardy
grounds is immediately appealable under the collateral order doctrine. United
States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997). This court reviews de
novo the district court’s order denying a motion to dismiss the indictment on
double jeopardy grounds and it accepts as true any underlying factual findings
that are not clearly erroneous. United States v. Mauskar, 557 F.3d 219, 227 (5th
Cir. 2009).
      “This court has consistently held that collateral estoppel may affect
successive criminal prosecutions in one of two ways.” Brackett, 113 F.3d at 1398.
“First, it will completely bar a subsequent prosecution if one of the facts
necessarily determined in the former trial is an essential element of the
subsequent prosecution.” Id. “Second, while the subsequent prosecution may
proceed, collateral estoppel will bar the introduction or argumentation of facts
necessarily decided in the prior proceeding.” Id.
      To determine which issues, if any, were “necessarily decided” in the
defendant’s favor during a previous trial following an acquittal by a general
verdict, the court must examine the record of the prior proceeding, taking into
account the pleadings, evidence, charge, and other relevant matters, and
determine whether a rational jury could have grounded its verdict of acquittal
upon an issue other than that which the defendant seeks to foreclose from
consideration. Yeager v. United States, 129 S. Ct. 2360, 2367 (2009). In making
this determination, the court should not consider the jury’s failure to reach a
verdict on other counts alleged in an indictment. Id.
      “[T]he defendant bears the burden of demonstrating that the issue he
seeks to foreclose was ‘necessarily decided’ in the first trial.” Brackett, 113 F.3d
at 1398 (internal citation omitted). “When a fact is not necessarily determined

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                                  No. 10-40705

in a former trial, the possibility that it may have been does not prevent re-
examination of that issue.” Id. (internal quotation marks and citation omitted).
      Castillo has not shown that it would have been irrational for the jury to
have grounded its verdict of acquittal on a determination that the Government
failed to prove the possession element of the offense. The jury could have
determined that the testimony offered by the Government was not sufficiently
reliable to establish that Castillo possessed a firearm as alleged in Count 36 of
the former indictment. Moreover, even if the jury rejected the testimony of Raul
Jasso, Jr., and concluded that the evidence of possession was insufficient, it did
not necessarily determine that Castillo was not involved in the conspiracy or the
events alleged in Counts 28, 29, 33, and 34. At best, Castillo has shown only a
possibility that the jury could have founded its verdict of acquittal upon a finding
that he was not a sicario and was not involved in the conspiracy. Such is
insufficient to invoke the doctrine of collateral estoppel. See Yeager, 129 S. Ct.
at 2367; Brackett, 113 F.3d at 1398. Accordingly, the judgment of the district
court is AFFIRMED.




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