                                  ___________

                                  No. 95-2061
                                  ___________

Thomas Edward Nesbitt,                 *
                                       *
       Plaintiff - Appellant,          *
                                       * Appeal from the United States
       v.                              * District Court for the
                                       * District of Nebraska.
Frank X. Hopkins, Warden,              *
Nebraska State Penitentiary,           *
                                       *
       Defendant - Appellee.           *
                                  ___________

                    Submitted:    December 14, 1995

                         Filed:   June 7, 1996
                                  ___________

Before BOWMAN and LOKEN, Circuit Judges, and WOLLE,* Chief District Judge.
                                ___________


LOKEN, Circuit Judge.


       Thomas Edward Nesbitt was tried in a Nebraska court for the first
degree murder of Mary Kay Harmer.    After the trial court dismissed a charge
of felony murder because of insufficient evidence, the jury convicted
Nesbitt of premeditated murder, and he was sentenced to life in prison.
Nesbitt now appeals the district court's1 denial of his federal habeas
corpus petition.   Nesbitt v.




   *
       The HONORABLE CHARLES R. WOLLE, Chief United States
       District Judge for the Southern District of Iowa, sitting
       by designation.
       1
      The HONORABLE RICHARD G. KOPF, United States District Judge
for the District of Nebraska, who adopted the report and
recommendation of the HONORABLE DAVID L. PIESTER, United States
Magistrate Judge for the District of Nebraska.
Hopkins, 907 F. Supp. 1317 (D. Neb. 1995).       He argues that the Nebraska
Supreme Court in affirming his conviction violated the Double Jeopardy
Clause by construing the trial evidence as establishing the acquitted
charge of felony murder.     We affirm.


                                     I.


     For reasons that will become apparent, we summarize the evidence at
Nesbitt's trial in the light most favorable to the jury verdict.      In the
early morning of November 30, 1975, at Nesbitt's order, Kathleen Ray lured
the victim, Mary Harmer, to the house Ray shared with Nesbitt by falsely
telling Harmer that many people would be there.      When the women arrived,
Ray and a third woman quickly departed.        That left Nesbitt alone with
Harmer, who was not seen again until her body was discovered nine years
later.


     Later that morning, Nesbitt called his neighbor, Wayne Bieber, to ask
whether he should kill Harmer because he had raped her and might be in
trouble.     Nesbitt also asked Bieber to get some lye, but Bieber did not
comply.    Meanwhile, Ray attempted to return to the house but Nesbitt, under
the influence of drugs, sent her away.      When Ray returned a second time,
an agitated Nesbitt asked if she could "handle it if the Feds were
involved."    Nesbitt and Ray then scrubbed the house and burned throw rugs
and clothing.   While cleaning, Ray found blood in the kitchen and bathroom.
Nesbitt told Ray that Harmer left the house alive, but later said, "Let's
just say she died of an overdose."        Soon after Harmer's disappearance,
Nesbitt and Ray left town, taking only a few belongings and changing their
identities.


     Harmer's naked body was found in a manhole in Iowa.    Forensic experts
could not determine the cause of death, but opined that holes in her skull
suggested bullet wounds.       The condition of Harmer's teeth and skull
suggested that a caustic substance had been poured on her head, and sludge
in the manhole was consistent




                                     -2-
with a caustic substance such as lye.   Nesbitt testified in his own defense
that Harmer died of a drug overdose, and that he dumped her body in the
manhole to avoid questioning by police, whom he did not trust.      Another
woman testified that, in 1974, Nesbitt had abducted and raped her and
threatened to kill her family if she reported the incident to police.


      The State charged Nesbitt with premeditated murder and felony murder,
with the underlying felony being sexual assault.   No one witnessed a sexual
assault, Harmer's decomposed body did not yield physical evidence of sexual
assault, and of course, Harmer could not testify to a sexual assault.
Therefore, at the close of the State's evidence, the trial court dismissed
the   felony murder charge for insufficient evidence.        But the court
submitted premeditated murder, and the jury convicted Nesbitt of that
crime.


      On direct appeal, Nesbitt argued that the evidence was insufficient
to prove premeditated murder.     In rejecting that claim, the Nebraska
Supreme Court summarized at length the circumstantial evidence supporting
Nesbitt's conviction.   Its summary included a statement that is the basis
for this appeal:


            The jury could infer that Harmer was called to the party at
      [Nesbitt's] request for purposes of sexual gratification and that the
      identity of the group and the location were withheld from her at
      Nesbitt's suggestion.    Drugs were furnished to the victim and a
      sexual assault or at least an attempt was made.       The victim was
      struck to "keep her in line," and sometime during the orgy she died.
      A strong inference arises from the testimony of Bieber and Ray that
      a motive for her killing was concealment of the assault.


State v. Nesbitt, 409 N.W.2d 314, 318 (Neb. 1987) (emphasis added).
Nesbitt petitioned the Court for a rehearing, arguing that this statement
violated his double jeopardy rights because he was acquitted of felony
murder.   The Nebraska Supreme Court summarily denied that petition.




                                    -3-
     Nesbitt renews his double jeopardy contention on this appeal.      More
fully stated, the theory is:     (1) Nesbitt's acquittal of felony murder
"necessarily resolved that [he] neither perpetrated nor attempted to
perpetrate a sexual assault on the deceased"; (2) the Nebraska Supreme
Court's opinion demonstrates that "the only way to uphold the first degree
intentional murder conviction was to utilize the same issues of fact . .
. necessarily resolved by the [trial] Court in [his] favor"; and therefore
(3) his conviction for premeditated murder violates the issue preclusion
(collateral estoppel) component of the Double Jeopardy Clause.


                                    II.


     The protections afforded an accused by the Double Jeopardy Clause
include the basic principle of collateral estoppel:       "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."   Ashe v. Swenson, 397 U.S. 436, 443 (1970).   In a criminal case,
a fact previously determined "is not an 'ultimate fact' unless it was
necessarily determined by the [factfinder] against the government and, in
the second prosecution, that same fact is required to be proved beyond a
reasonable doubt in order to convict."    Prince v. Lockhart, 971 F.2d 118,
123 (8th Cir. 1992), cert. denied, 507 U.S. 964 (1993).


     Our decision in United States v. Brown, 547 F.2d 438 (8th Cir.),
cert. denied, 430 U.S. 937 (1977), illustrates this principle.     Brown was
tried and acquitted of committing perjury before a grand jury investigating
a bank robbery.   He was then tried for conspiring to commit the robbery.
Because the only evidence implicating Brown in the conspiracy was factually
inconsistent with Brown's acquittal in the perjury trial, we reversed the
conspiracy conviction:   "Clearly, that same issue of fact had been before
the jury in the perjury case and must




                                    -4-
necessarily have been resolved by the jury in favor of Brown.               He therefore
could not be required to 'run the gantlet a second time.'"              547 F.2d at 443
(quoting Ashe, 397 U.S. at 446).


       The conceptual problem with Nesbitt's theory is that it seeks to
apply a double jeopardy principle that governs successive prosecution cases
like Ashe and Brown to his single, multi-count trial.                The shoe will not
fit.   A review of Supreme Court cases involving allegedly inconsistent
verdicts persuades us that, in a single trial of multiple charges, the only
relevant question is whether the evidence is constitutionally sufficient
to support each count of conviction.


       Using Nesbitt's trial to illustrate the inconsistent verdict issue,
if the trial court had submitted both murder charges to the jury, and the
jury   had   acquitted   Nesbitt     of   felony    murder    but    convicted   him   of
premeditated murder, the conviction would not be reviewable on the ground
that the verdict was inconsistent.         As the Supreme Court has explained:


       [R]eview [of the sufficiency of the evidence] should be
       independent of the jury's determination that evidence on
       another count was insufficient. The Government must convince
       the jury with its proof, and must also satisfy the courts that
       given this proof the jury could rationally have reached a
       verdict of guilt beyond a reasonable doubt. We do not believe
       that further safeguards against jury irrationality are
       necessary.


United States v. Powell, 469 U.S. 57, 67 (1984), construing Dunn v. United
States, 284 U.S. 390 (1932).       In Nesbitt's case, of course, the trial court
rather than the jury acquitted him of felony murder.                 For our purposes,
however, the distinction is irrelevant.            Even if the trial court had made
both   rulings   after   a   bench    trial,    Nesbitt      would   have   no   federal
constitutional claim that the verdict was inconsistent.                 As the Supreme
Court said in Harris v. Rivera, 454 U.S. 339, 348 (1981):




                                          -5-
     Apart from the acquittal of [a co-defendant], this record
     discloses no constitutional error.   Even assuming that this
     acquittal was logically inconsistent with the conviction of
     respondent, respondent, who was found guilty beyond a
     reasonable doubt after a fair trial, has no constitutional
     ground to complain that [the co-defendant] was acquitted.


     Read     together,   Powell   and   Harris   establish   that   there   was   no
violation of Nesbitt's constitutional rights -- double jeopardy or due
process -- so long as the evidence before the jury was constitutionally
sufficient to convict him of premeditated murder.          To be sure, the trial
court's dismissal of Nesbitt's felony murder charge was an acquittal for
double jeopardy purposes.      See Smalis v. Pennsylvania, 476 U.S. 140, 144
(1986).   But his conviction of premeditated murder did not place Nesbitt
twice in jeopardy because "the criminal rule of collateral estoppel found
in Ashe v. Swenson . . . does not apply to verdicts of guilt and innocence
rendered in a single trial."       Arnold v. Wyrick, 646 F.2d 1225, 1228 (8th
Cir. 1981).    See also Ohio v. Johnson, 467 U.S. 493, 500 n.9 (1984) ("where
the State has made no effort to prosecute the charges seriatim, the
considerations of double jeopardy protection implicit in the application
of collateral estoppel are inapplicable").        As the district court correctly
observed, "At worst, Nesbitt was tried once on alternative theories of
murder.     American law has long permitted the assertion of alternative
theories of first-degree murder in one murder prosecution without concern
that the defendant is subject to 'double jeopardy' if convicted on one
theory but acquitted on the other."        907 F. Supp. at 1319.2




     2
      Nesbitt relies heavily on Peru v. United States, 4 F.2d 881
(8th Cir. 1925), in which we reversed a conviction on the fifth
count of an indictment because the only evidence of guilt was the
evidence introduced to prove the first four counts on which the
trial court had directed verdicts of acquittal. However, Peru is
a sufficiency-of-the-evidence case -- we expressly held that the
motion for acquittal on count five "should have been sustained."
Id. at 884.    Peru does not support Nesbitt's attempt to apply
collateral estoppel to a single trial of multiple charges.

                                         -6-
       With the issue now in proper perspective, we turn to the Nebraska
Supreme      Court's comment of which Nesbitt complains.                 The Court was
reviewing      the   sufficiency    of    the   evidence   of   premeditated     murder.
Nesbitt's      possible   motive    was    of   course   relevant   to    the   issue   of
premeditation.       See, e.g., State v. Harrison, 378 N.W.2d 199, 203-04 (Neb.
1985).       The trial record included all the State's evidence, including
evidence tending to prove sexual assault.            The State's evidence tended to
show that something happened in the hours Nesbitt was alone with Harmer
that made him want to kill her.           If Bieber was believed, Nesbitt had raped
her.       But he might also have seriously injured her with a beating or by
inducing a drug overdose.          Even if the Nebraska Supreme Court overstated
the trial evidence when it declared that Nesbitt had sexually assaulted
Harmer, the Court's ultimate conclusion was correct -- the evidence of
motive plus the evidence of an elaborate cover-up of Harmer's death was
sufficient to convict Nesbitt of premeditated murder.3                   Indeed, Nesbitt
does not challenge that conclusion under the federal standard for measuring
the constitutional sufficiency of the evidence.             See Jackson v. Virginia,
443 U.S. 307, 324 (1979).
       In these circumstances, Nesbitt's conviction for premeditated murder
did not violate his constitutional rights under the Double Jeopardy Clause.
His additional contention that the state courts deprived him of due process
by denying his requests for postconviction bail is therefore without merit.
Because these issues can be resolved on the state court record, the
district




       3
      Thus, the trial evidence belies Nesbitt's assertion that the
only way to uphold his conviction is to use facts establishing
sexual assault. Although we do not think Ashe v. Swenson applies
to a single trial of multiple counts, its collateral estoppel
principle would not in any event entitle Nesbitt to habeas relief
because his felony murder acquittal did not determine an "ultimate
fact" in his prosecution for premeditated murder. Compare United
States v. Rodgers, 18 F.3d 1425, 1428-29 (8th Cir. 1994).

                                            -7-
court did not err in denying Nesbitt's request for an evidentiary hearing.
The judgment of the district court is affirmed.


     A true copy.


           Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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