
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1251                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   IRVIN R. MORRIS,                                Defendant, Appellant.                              _________________________          No. 96-1252                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   STUART L. SMITH,                                Defendant, Appellant.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                      Coffin and Bownes, Senior Circuit Judges.                                         _____________________                              _________________________               William Maselli for appellant Morris.               _______________               Theodore A. Barone, with  whom William F. Sullivan, Sullivan               __________________             ___________________  ________          and  Largey,  and  Perkins, Smith  &  Cohen  were  on brief,  for          ___________        ________________________          appellant Smith.               F. Mark Terison, Assistant United States Attorney, with whom               _______________          Jay P. McCloskey, United States  Attorney, and Jonathan A.  Toof,          ________________                               _________________          Assistant United States Attorney, were on brief, for appellee.                              _________________________                                   November 6, 1996                              _________________________                    SELYA,  Circuit Judge.    These  interlocutory  appeals                    SELYA,  Circuit Judge.                            _____________          question whether the acquittal of  appellants Irvin R. Morris and          Stuart L. Smith on charges of conspiracy to  distribute marijuana          bars  the  government from  now  prosecuting them  on  charges of          conspiracy  to defraud the  Internal Revenue Service  (IRS).  The          district  court   answered  this   question   in  the   negative.          Concluding, as we do, that neither double jeopardy nor collateral          estoppel  principles preclude  continued prosecution  of the  tax          conspiracy charge, we affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                    In 1994,  a federal  grand jury returned  a three-count          indictment against  the  appellants  and  seven  other  persons.1          Count  1 charged the  appellants (and others)  with conspiracy to          distribute and to possess with intent to distribute marijuana, in          violation of 21 U.S.C.    841(a)(1) & 846 (1994).  Count 2 sought          criminal forfeiture  of  property used  in  or derived  from  the          marijuana  conspiracy.   See 21  U.S.C.    853  (1994).   Count 3                                   ___          charged the  appellants (and  others) with conspiracy  to defraud          the IRS in the  determination and collection of income  taxes, in          violation of 18 U.S.C.   371 (1994).                    The  district court  severed count  3 and  proceeded to          trial on  the other  counts.  The  jury returned  a "not  guilty"          verdict  on  count 1,  putting an  end  to that  charge  and also                                        ____________________               1Because  these appeals  do  not involve  any  of the  seven          codefendants,  we   minimize  further  references   to  them   in          describing the indictment and ensuing trial.                                          2          eviscerating count 2.  The appellants then moved to dismiss count          3  on  double jeopardy  and  collateral  estoppel grounds.    The          district court  denied the motions.   These interlocutory appeals          ensued.   See Abney v.  United States, 431  U.S. 651, 662  (1977)                    ___ _____     _____________          (holding that  pretrial orders rejecting  double jeopardy  claims          premised on successive prosecutions are immediately appealable).2          Inasmuch   as  the   appeals  challenge   the   district  court's          application of the law rather than its factfinding, our review is          plenary.                                         II.                                         II.                                         ___                                   Double Jeopardy                                   Double Jeopardy                                   _______________                    The  Double Jeopardy  Clause  provides that  no  person          shall  "be  subject  for the  same  offence  to be  twice  put in          jeopardy of  life or limb .  . . ."   U.S. Const. amend.  V.  The          Clause has three aspects:   it shields a defendant  from a second          prosecution  for  the same  offense  after  either conviction  or          acquittal,  and it  also prohibits  multiple punishments  for the          same  offense.   See United States  v. Stoller, 78  F.3d 710, 714                           ___ _____________     _______                                        ____________________               2Abney  involved multiple  prosecutions.   431 U.S.  at 662.                _____          Cases   that  implicate   multiple  punishments   arguably  raise          different  jurisdictional  concerns for  appellate  courts.   See                                                                        ___          United  States v.  Ramirez-Burgos,  44 F.3d  17, 18-19  (1st Cir.          ______________     ______________          1995)  (dismissing  for  want  of  jurisdiction an  interlocutory          appeal  stemming from  the  rejection of  a multiple  punishments          claim asserted in connection with  parallel counts contained in a          single  indictment); see also  United States v.  Stoller, 78 F.3d                               ___ ____  _____________     _______          710, 715  & n.2 (1st Cir. 1996) (indicating uncertainty as to the          continued vitality of Ramirez-Burgos in light of emergent Supreme                                ______________          Court precedent), petition for cert. filed, 64 U.S.L.W. 3823 (May                            ________________________          29,  1996)  (No. 95-1936).    Because these  appeals,  like Abney                                                                      _____          itself, involve  the successive prosecution branch  of the Double          Jeopardy  Clause, we have jurisdiction to hear and determine them          prior to trial.                                          3          (1st  Cir. 1996), petition for cert. filed, 64 U.S.L.W. 3823 (May                            ________________________          29, 1996) (No. 95-1936); United States v. Caraballo-Cruz, 52 F.3d                                   _____________    ______________          390,  391 (1st Cir. 1995); United  States v. Rivera-Martinez, 931                                     ______________    _______________          F.2d  148, 152  (1st Cir.),  cert. denied,  502 U.S.  862 (1991).                                       _____ ______          Here,  the  appellants  invoke  the  Clause's  protection against          successive prosecutions.   The resolution of their claim turns on          whether the tax conspiracy  is the same offense as  the marijuana          conspiracy for double jeopardy purposes.                    The Supreme Court has  authored a black-letter rule for          use  in  determining  when  double jeopardy  principles  prohibit          prosecution under two distinct  statutory provisions:  "where the          same  act  or  transaction  constitutes  a  violation  of  [both]          statutory provisions, the test to be applied to determine whether          there are two  offenses or  only one, is  whether each  provision          requires  proof of a fact which the other does not."  Blockburger                                                                ___________          v.  United States,  284  U.S. 299,  304 (1932).    If the  crimes              _____________          charged  are  discrete  offenses  within   the  contemplation  of          Blockburger,  the defendant may  be prosecuted  consecutively for          ___________          them, even if the crimes arise out of the same conduct or nucleus          of operative  facts.   See United  States v.  Parrilla-Tirado, 22                                 ___ ______________     _______________          F.3d  368, 372  (1st  Cir. 1994).    Thus, the  Blockburger  rule                                                          ___________          depends on statutory analysis, not on evidentiary comparisons.                    Having carefully  examined the record, we  conclude, as          did  the court below, that  the tax conspiracy  and the marijuana          conspiracy  are   separate  offenses.    To   establish  the  tax          conspiracy,  the  government  must  prove  that  the   conspiracy                                          4          existed,  that the  defendants agreed to  participate in  it, and          that at least one overt act was perpetrated in furtherance of the          goal  of  defrauding the  United States.    See United  States v.                                                      ___ ______________          Cambara,  902 F.2d 144, 146-47 (1st Cir. 1990).  To establish the          _______          marijuana  conspiracy,  the  government  had to  prove  that  the          conspiracy existed, that the  defendants agreed to participate in          it, and that they  intended to possess and  distribute marijuana.          See  United States  v. Sepulveda,  15 F.3d  1161, 1173  (1st Cir.          ___  _____________     _________          1993), cert.  denied, 114 S. Ct. 2714  (1994).  Thus, the primary                 _____  ______          objects  of the two conspiracies  are different, and  each of the          charged crimes includes an element that the other does not.                    These  differences  are  brought  home  by  parsing the          indictment  in this case.  In respect  to count 3, the government          needs to prove at trial that the appellants specifically intended          to defraud the IRS and that they undertook at least one overt act          in furtherance of that  conspiracy   proof that is  extraneous to          establishing  the marijuana conspiracy.   In respect  to count 1,          however,  the  government  needed  to prove  at  trial  that  the          appellants  intended  to distribute  marijuana     proof that  is          extraneous to  establishing the tax  conspiracy.  On  this basis,          the two charges constitute  distinct offenses under  Blockburger.                                                               ___________          See, e.g.,  United States  v. Gomez-Pabon,  911 F.2d 847,  861-62          ___  ____   _____________     ___________          (1st  Cir. 1990) (holding that a conspiracy to import cocaine and          a  conspiracy to  possess cocaine  with intent to  distribute are          distinct offenses because  they differ "in  what they specify  as          the proscribed object of the conspiracy"), cert. denied, 498 U.S.                                                     _____ ______                                          5          1074 (1991); United States  v. Rodriguez, 858 F.2d 809,  817 (1st                       _____________     _________          Cir.  1988) (holding  that conspiracy  to distribute  cocaine and          aiding  and abetting  the  possession of  cocaine with  intent to          distribute are  distinct offenses  and may be  charged separately          even  if  both arise  out of  the  same transaction  because each          requires proof  of an element  that the other does  not).  Hence,          trying  the appellants  on count  3 will  not violate  the Double          Jeopardy Clause.                    The  appellants  decry  this  analysis  as  excessively          technical.   They hawk  three separate, but  related, rejoinders:          (1) that the government will introduce at a future trial much the          same  evidence  which it  used in  the  previous trial;  (2) that          despite  the  proliferation  of  counts the  government  in  fact          alleged  only  a  single  conspiracy  involving  distribution  of          marijuana and  concealment of the profits  derived therefrom; and                    ___          (3)  that the district court misapplied this court's gloss on the          test for determining when two separately charged conspiracies are          deemed  synonymous   for   double  jeopardy   purposes.     These          asseverations lack force.                    1.    Same  Evidence.   The  Supreme  Court  has  never                    1.    Same  Evidence.                          ______________          endorsed a blanket rule prohibiting the government from using the          same evidence to  prove two different  offenses against a  single          defendant.    To  be sure,  at  the  high-water  mark for  double          jeopardy protection  the Court  briefly adopted a  "same conduct"          test.   See Grady v. Corbin,  495 U.S. 508, 521  (1990).  But the                  ___ _____    ______          Court laid waste  to Grady  in fairly short  order and  confirmed                               _____                                          6          that  the performance  of  a Blockburger  analysis completes  the                                       ___________          judicial  task in  a  successive prosecution  case.   See  United                                                                ___  ______          States v.  Dixon, 509 U.S.  688, 712  (1993) (overruling  Grady).          ______     _____                                          _____          Consequently, the appellants' "same evidence" argument fails.                    2.   Singularity  of the  Conspiracy.   The appellants'                    2.   Singularity  of the  Conspiracy.                         _______________________________          assertion  that  the  government  alleged  only  one  overarching          conspiracy  is  no more  than  a  play on  words.    Even if  the          transactions  on which  the charges  rest  are intertwined    the          "best  case" assumption for the appellants, and a matter on which          we need not opine   this  datum would not alter the outcome of  a          Blockburger  inquiry.    "It  is   well  settled  that  a  single          ___________          transaction  can give  rise to  distinct offenses  under separate          statutes without violating the  Double Jeopardy Clause," and this          tenet  "is  true  even  though  the  `single transaction'  is  an          agreement or  conspiracy."  Albernaz  v. United States,  450 U.S.                                      ________     _____________          333, 344 n.3 (1981).                    Whether a particular course  of conduct involves one or          more distinct  offenses depends on congressional  choice, and the          Double Jeopardy  Clause offers little limitation  on that choice.          See Sanabria  v. United States, 437 U.S.  54, 69-70 (1978).  This          ___ ________     _____________          principle readily  disposes of the  appellants' argument.   As we          already  have shown, Congress defined  the tax conspiracy and the          marijuana conspiracy such that each requires proof of a fact that          the other does not.                    3.   Segregating Distinct  Conspiracies.   Finally, the                    3.   Segregating Distinct  Conspiracies.                         __________________________________          appellants  urge  us   to  find  that  they  are   shielded  from                                          7          prosecution  for the  tax conspiracy  because of  the imbrication          between  it  and  the  marijuana conspiracy.    In  framing  this          exhortation the  appellants pin their  hopes on United  States v.                                                          ______________          Booth, 673  F.2d 27, 29  (1st Cir.), cert.  denied, 456 U.S.  978          _____                                _____  ______          (1982),  in which  we set  out a  five-part test  for determining          whether two  conspiracies  are  synonymous  for  double  jeopardy          purposes.  Here, four-fifths of the test falls neatly into place:          it is  undisputed that  the tax and  marijuana conspiracies  took          place  contemporaneously  (or  nearly  so);  that  they  involved          essentially the same  personnel; that they  occurred at much  the          same  places; and that most  of the evidence  that the government          introduced in its failed effort to prove the marijuana conspiracy          will  be  offered anew  in a  future  endeavor to  prove  the tax          conspiracy.     Nevertheless,  there  is  a   missing  link;  the          appellants cannot pass the fifth part of the test because the two          conspiracies are premised on separate statutory provisions.                    This divagation is fatal to the appellants' contention.          The rationale  underlying Booth stems  from a recognition  of the                                    _____          danger  that, in  conspiracy cases,  the government  might comply          with  the  letter of  Blockburger  while  evading its  spirit  by                                ___________          partitioning a single conspiracy into separate prosecutions.  See                                                                        ___          id.    The Booth  test is  thus  aimed at  limiting prosecutorial          ___        _____          abuse,  not  at  circumscribing  congressional  power  to  define          multiple offenses that occur  during a single course of  conduct.          Because  separate statutory  provisions are  involved in  the two          conspiracies  limned in  this case,  a subsequent  prosecution on                                          8          count 3 will  not offend the Double Jeopardy  Clause.  See Gomez-                                                                 ___ ______          Pabon, 911 F.2d at 861-62.          _____                                         III.                                         III.                                         ____                                 Collateral Estoppel                                 Collateral Estoppel                                 ___________________                    It  is settled  beyond cavil  that the  Double Jeopardy          Clause encompasses the doctrine of collateral estoppel.  See Ashe                                                                   ___ ____          v. Swenson, 397 U.S.  436, 444-45 (1970); United States  v. Dray,             _______                                _____________     ____          901  F.2d 1132,  1135  (1st Cir.),  cert.  denied, 498  U.S.  895                                              _____  ______          (1990).   This doctrine ensures  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."  Ashe, 397 U.S. at  443.  In a criminal case,  a                            ____          defendant  who wishes to wield  this doctrinal weapon against the          government  bears the burden  of demonstrating that  the issue he          seeks to foreclose was  in fact settled by the  first proceeding.          See Dowling v. United States, 493 U.S. 342, 350-51 (1990).          ___ _______    _____________                    The  appellants thus face a formidable task:  they must          show  that the first trial necessarily decided that they were not                                     ___________          involved in the  tax conspiracy.  See Schiro v.  Farley, 510 U.S.                                            ___ ______     ______          222, 236 (1994).  Of course, we must interpret this  statement of          the appellants' task in a practical manner:  a criminal defendant          who  raises a potential collateral  estoppel bar should  not be            and is not   held to a standard of absolute certainty.  A court's          approach must be pragmatic in order to prevent the rejection of a          collateral  estoppel  defense in  every case  in which  the prior          judgment  was based on a general verdict of acquittal.  See Ashe,                                                                  ___ ____                                          9          397 U.S. at  444 (warning against  courts being too  "technically          restrictive").   If all proffered  explanations for why  a jury's          verdict  does  not  decide  an  issue  are  frankly  implausible,          collateral  estoppel ought to bar relitigation of the issue.  See                                                                        ___          Dray, 901 F.2d at 1137.          ____                    It is against this  legal backdrop that we inspect  the          particulars  of  the  case at  bar.    To  determine whether  the          appellants  can clear  the  collateral estoppel  hurdle, we  must          undertake whole-record review.  See, e.g., Rossetti v. Curran, 80                                          ___  ____  ________    ______          F.3d 1, 4  (1st Cir. 1996).  After all, collateral estoppel cases          necessarily  "require  an examination  of  the  entire record  to          determine whether the jury could have `grounded its  verdict upon          an issue other than  that which the defendant seeks  to foreclose          from consideration.'"  Schiro, 510 U.S. at 236 (quoting Ashe).                                 ______                           ____                    The appellants  argue vehemently  that the jury  at the          first trial must have  determined that they were not  involved in          the conspiracy described  in count  1   a  conspiracy which  they          visualize as  encompassing  three facets:   obtaining  marijuana,          distributing it, and hiding the proceeds from the government.  We          think  that this  characterization misstates the  conspiracy that          the government alleged.  We explain briefly.                    Our explanation starts with an acknowledgement that the          premise  implicit in the appellants' argument is sound.  Under an          indictment  alleging that  a  defendant's role  in the  marijuana          conspiracy  was   to   conceal  the   proceeds,  that   defendant          potentially could be found guilty of conspiracy to distribute and                                          10          possess with intent  to distribute marijuana  even though he  did          not personally deal drugs.  See generally United States v. David,                                      ___ _________ _____________    _____          940 F.2d 722, 735 (1st Cir.) (noting that, in a chain conspiracy,          the  law holds a conspirator "accountable for the earlier acts of          his  coconspirators in  furtherance  of the  conspiracy"),  cert.                                                                      _____          denied,  502 U.S. 989 (1991);  United States v.  Baines, 812 F.2d          ______                         _____________     ______          41, 42 (1st Cir. 1987) (similar).  But count 1  of the indictment          in this case is too  narrowly drawn to animate that premise    it          alleged in effect that Smith and Morris were directly involved in                                                       ________          marijuana distribution   and the trial judge instructed the  jury          that the government  must prove "the conspiracy  described in the          indictment."  Thus, the jury would have been bound under count  1          and  the district court's elucidation of it to acquit a defendant          whose  only involvement was to launder the funds generated by the          principals' operation of the marijuana conspiracy.                    Equally as  important, count  1 of the  indictment sets          out a  conspiracy  to  distribute  and  possess  with  intent  to          distribute  marijuana, not a conspiracy  to defraud the  IRS.  In          it,  the   government  avers  that   the  appellants  "consigned,          entrusted,  and  distributed marijuana,"  but  the count  nowhere          attempts to describe how  the conspirators concealed the proceeds          of  the marijuana distribution from  prying eyes.3   This lack of                                        ____________________               3The closest count  1 comes to  stating that the  appellants          conspired  to defraud  the IRS  is its  averment that  they "used          cash,  bank checks, and money orders to further the objectives of          the  conspiracy,  to  wit,  the  acquisition,  receipt,  storage,          consignment  and  distribution  of large  amounts  of  marijuana,          thereby deriving substantial cash proceeds."  But this allegation          falls  far short  of  specifying whether  (and  if so,  how)  the                                          11          connectedness  is critical,  for,  as we  mentioned earlier,  the          district court  instructed the  jury that  the government  had to          prove beyond a reasonable doubt "that the conspiracy described in          [count  1] was willfully formed  and was existing  at on or about          the  time alleged in the indictment."  Hence, the jury's decision          that the appellants were  not guilty of the conduct  described in          count 1 does  not rule  out the possibility  that the  appellants          nonetheless may have conspired  to defraud the IRS as  alleged in          count 3.4   Because the record as  a whole (i.e., the indictment,          the   evidence,  the   arguments   of  counsel,   and  the   jury          instructions)  reveals  more than  one  plausible  basis for  the                                        ____________________          appellants  conspired to  launder drug  proceeds and  deprive the          government of tax revenue.               4This point  is driven home by  a reading of count  3 of the          indictment, which  discusses in detail the  conspirators' actions          to  hide the income that flowed their way, alleging, for example,          that Morris  and Smith used marijuana-generated  cash to renovate          and improve real property  (a specie of money laundering  that is          not mentioned in count 1).                In fairness,  we  also  note that  count  3  contains  some          allegations tending to blur the distinction between the marijuana          conspiracy  and the tax conspiracy.  Thus, Count 3 accuses Morris          and  Smith   of  "earn[ing]  income   by  acquiring,   receiving,          possessing,   storing,  repackaging,   transporting,  consigning,          entrusting, and distributing  marijuana, and fail[ing]  to report          such sums to the  Internal Revenue Service."  To  the extent that          such evidence  is probative  of the appellants'  participation in          the tax conspiracy,  the government is free to introduce  it in a          subsequent trial,  despite the previous acquittal.   See Dowling,                                                               ___ _______          493 U.S. at 348  (declining to extend the doctrine  of collateral          estoppel  to  require  exclusion  of  relevant  evidence  "simply          because  it relates  to  alleged  criminal  conduct for  which  a          defendant has been acquitted").  However, nothing in this opinion          is  intended to  circumscribe  the  district  court's  discretion          either in making  in limine orders  or in fashioning  appropriate                            __ ______          limiting  instructions regarding how (if at  all) evidence of the          appellants' putative involvement in the marijuana conspiracy  may          now be used.  See Dray, 901 F.2d at 1141.                        ___ ____                                          12          acquittals, we  must reject  the appellants'  collateral estoppel          claim.  See Dray, 901  F.2d at 1139 (explaining that there  is no                  ___ ____          collateral  estoppel if an inquiring court is "left with a choice          among  a  variety  of plausible  theories"  as  to  why the  jury          acquitted at an earlier trial).                    To  put some meat on the bare bones of this conclusion,          we sketch the  scenarios that  in our judgment  suffice to  leave          open  the possibility that the appellants may yet be found guilty          of  conspiracy to defraud the IRS without doing violence to their          earlier  acquittals on  drug-related charges.   In the  course of          this exercise, we treat Smith and Morris separately.                    1.   Smith's Collateral  Estoppel Claim.   The district                    1.   Smith's Collateral  Estoppel Claim.                         __________________________________          court properly instructed the jury that the government must prove          "the specific offense charged in the indictment," and, thus, that          Smith had  the specific  intent to  further  the distribution  or          possession of marijuana.  The record leaves room for at least one          substantial possibility consistent  with permitting  Smith to  be          tried on the tax conspiracy charge.                    The  proof showed  that Smith engaged  in a  variety of          entrepreneurial ventures,  including  buying and  selling  coins,          antiques, posters, prints, stamps, collectibles, and real estate.          At trial, his  own counsel described him  as "a hustler."   Smith          conducted his affairs largely  in cash and  kept no records.   Of          particular pertinence for present purposes, he had close business          connections with Gary Dethlefs, a central figure in the marijuana          conspiracy.                                          13                    Both the evidence and the jury's verdict are consistent          with a  finding that  Dethlefs made  enormous profits  buying and          selling marijuana.  Smith worked as  the general manager of G & A          Development   Corporation,  a   construction  company   owned  by          Dethlefs.   Smith had  direct responsibility for  the firm's land          acquisitions.     He  also   teamed  with  Dethlefs   to  acquire          restaurants,  and he joined Dethlefs  on at least  one sojourn to          Los  Angeles  in  regard to  a  venture  in  the music  recording          industry.                    In   his   trial  testimony,   Smith  swore   that  his          involvement with Dethlefs extended only to  legitimate businesses          and   that  he   had  no   knowledge  that   Dethlefs'  seemingly          inexhaustible  wealth  came  from  drugs.    He  stated  that  he          solicited Dethlefs to back  his investments because Dethlefs "had          money."    Given  the magnitude  of  Dethlefs'  drug  dealing and          Smith's  close  ties  with him,  the  jury  certainly could  have          believed that marijuana trafficking kept Dethlefs' coffers full            and that Smith knew as much.   The jury, however, also could have          concluded  that Smith was not involved in trafficking per se, but          simply helped  to launder  the proceeds of  Dethlefs' operation.5          Such a conclusion would  be consistent with both an  acquittal on          count 1 and a subsequent conviction on count 3.                    Of course,  the record does not  conclusively establish                                        ____________________               5Smith's track  record as a wheeler-dealer  tends to fortify          such a conclusion;  the evidence  introduced at  the first  trial          showed that he had an entrepreneurial background in  business and          real estate  which included  other relevant experience  in hiding          income from the government.                                          14          that Smith intended to defraud the United States, but that is not          the issue today.  What matters now is that, giving full effect to          the jury's  verdict, the record  does not foreclose  the scenario          spelled out  above.   Moreover, though  the line for  determining          whether theories explaining a jury's acquittal are too farfetched          to  be given  weight  in  the  collateral  estoppel  calculus  is          inherently tenebrous, that imprecision poses no problem where, as          here, the  proffered  explanation  is  a  plausible  one.    Much          evidence in the record is consistent with both the jury's verdict          and the appellants' participation in a conspiracy to defraud  the          IRS.  Smith's collateral estoppel claim therefore founders.                    2.    Morris'  Collateral   Estoppel  Claim.    We  are                    2.    Morris'  Collateral   Estoppel  Claim.                          _____________________________________          satisfied that Morris, too, failed to carry the burden of showing          that his acquittal on the marijuana conspiracy charge necessarily          decided  his  lack of  involvement in  the  tax conspiracy.   The          record leaves open  the realistic possibility  of a jury  finding          that he did not intend to distribute marijuana.                    Morris  claims that  he  does construction  work for  a          living.   He  frequently  works  "under  the table";  he  accepts          payment in cash  for services  rendered and does  not report  the          income.   One witness testified  that, between 1985  and 1992, he          alone paid Morris $21,000 in cash for work done off the books.                    William Hesketh  cooperated  with the  prosecution  and          testified at the  first trial.   He admitted  dealing drugs  from          1985 through 1988.  During that period he bought large quantities          of marijuana (as much as 100 pounds at a time) from Dethlefs.  He                                          15          also testified that  he both  gave and sold  marijuana to  Morris          (who worked for him  on virtually a full-time  basis in 1987  and          1988).  Morris built  a chimney for Hesketh, remodeled  the upper          story  of Hesketh's home, and constructed two buildings for D and          S Moulding Company (a business that Hesketh controlled).  Hesketh          always paid Morris in cash.  While the verdict indicates that the          jurors turned down the  government's theory that Morris purchased          marijuana from  Hesketh for  resale, they nonetheless  could have          inferred knowledge on Morris' part that Hesketh's money came from          marijuana sales.                    Thus, if the jury thought  that Morris, though aware of          the source of Hesketh's funds, had no stake in the success of the          marijuana-purveying enterprise,  it would be obliged  to return a          "not guilty"  verdict on count 1 of the indictment as drawn   but          that verdict  would not  tell us  anything  of consequence  about          Morris'  guilt or innocence vis- -vis the tax conspiracy.  In all          events, this scenario is sufficient  (and sufficiently plausible)          to  overcome  Morris'  argument  that  collateral   estoppel  now          prevents his trial on a charge of conspiracy to defraud the IRS.6                                         IV.                                         IV.                                         ___                                      Conclusion                                      Conclusion                                      __________                    We  need  go  no further.    For  the  reasons we  have          discussed,  neither  double  jeopardy  nor   collateral  estoppel                                        ____________________               6If more were needed   and  we do not think that it is    we          note that  only count 3 (the tax  conspiracy charge), not count 1          (the marijuana conspiracy charge), alleges that Morris  renovated          and improved real and personal property with cash.                                          16          preclude  the  government  from  prosecuting  the  appellants  on          charges  of  conspiracy  to  defraud the  United  States  in  the          determination and collection of  income taxes.  Consequently, the          district court did not err in refusing to dismiss count  3 of the          indictment.          Affirmed.          ________                                          17
