                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
RAJUL RUHBAYAN, a/k/a Creme, a/k/a
Kreem, a/k/a Day-Ja, a/k/a Deja,
a/k/a Amir Ruhbayan, a/k/a Jibra’el             No. 02-4331
Ruh-alamin, a/k/a Jibrael
Ruhalamin, a/k/a James Vernon
Wood, a/k/a James Vernette
Johnson,
               Defendant-Appellant.
                                       
           Appeal from the United States District Court
          for the Eastern District of Virginia, at Norfolk.
               Rebecca Beach Smith, District Judge.
                            (CR-02-29)

                      Argued: January 21, 2003

                       Decided: April 7, 2003

 Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge,
    and Morton I. GREENBERG, Senior Circuit Judge of the
      United States Court of Appeals for the Third Circuit,
                     sitting by designation.



Affirmed by published opinion. Judge King wrote the opinion, in
which Senior Judge Hamilton and Senior Judge Greenberg joined.
2                    UNITED STATES v. RUHBAYAN
                             COUNSEL

ARGUED: Joseph Barry McCracken, COOK & MCCRACKEN,
Norfolk, Virginia, for Appellant. James Ashford Metcalfe, Assistant
United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:
Paul J. McNulty, United States Attorney, Norfolk, Virginia, for
Appellee.


                              OPINION

KING, Circuit Judge:

   Rajul Ruhbayan appeals from the district court’s refusal to dismiss
charges of perjury and subornation of perjury levied against him by
a grand jury in the Eastern District of Virginia. Ruhbayan maintains
that, because of a favorable jury verdict rendered in an earlier prose-
cution, those charges are barred by the doctrine of collateral estoppel.
As explained below, we reject Ruhbayan’s collateral estoppel claim
and affirm the decision of the district court.

                                   I.

   On August 25, 2000, Ruhbayan was indicted in the Eastern District
of Virginia for multiple felonies, including being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1) (the "Firearms
Charge"), and related drug-trafficking offenses. In September of
2000, Ruhbayan was tried by a jury in Norfolk, Virginia (the "First
Trial"). During the First Trial, the prosecution presented several wit-
nesses, including police officers, who testified that Ruhbayan had
been involved in drug-trafficking and firearms activities. On the Fire-
arms Charge, officers testified about their search of Ruhbayan’s van
on the morning of April 14, 2000. During the search, the police found
a loaded nine-millimeter pistol (the "pistol") hidden between cushions
of the van’s back seat.

   Ruhbayan testified in the First Trial, admitting that he was a con-
victed felon, but denying that he was a drug dealer or that he had pos-
sessed the pistol. He specifically denied knowing the pistol was in his
                      UNITED STATES v. RUHBAYAN                        3
van on April 14, 2000. In his defense, Ruhbayan also called Yolanda
Goodman, who testified that she was his girlfriend, that she had often
been to his home, and that she had never seen him with either drugs
or firearms. Most importantly, she asserted that, without Ruhbayan’s
knowledge, she had placed the pistol in his van on April 14, 2000.
The jury found Ruhbayan guilty of two lesser-included misdemeanor
offenses, simple possession and conspiracy to possess crack cocaine,
but acquitted him of the remaining charges, including the Firearms
Charge.

   Following the First Trial, Goodman was indicted for a federal fire-
arms offense relating to the pistol. Her indictment, for violating 18
U.S.C. § 922(g)(1), was premised on her admissions in the First Trial
that she (1) possessed the pistol, and (2) was a convicted felon. After
her indictment, Goodman’s lawyer advised the United States Attorney
that, contrary to her trial testimony, Goodman had nothing to do with
the pistol. Instead, she claimed to have testified falsely to assist Ruh-
bayan’s defense. Goodman then agreed to plead guilty to an informa-
tion charging obstruction of justice and, inter alia, to cooperate with
the prosecutors, in exchange for the dismissal of her indictment. In
her plea agreement, Goodman stipulated that:

    On September 1, 2000, in the United States District Court
    . . . Defendant GOODMAN testified falsely that she had
    possessed the firearm and ammunition and that she had
    placed them in Ruhbayan’s vehicle without his knowledge
    on or about April 14, 2000, in Suffolk, Virginia, when she
    knew in fact that she had never possessed the firearm and
    ammunition, had never placed them in Ruhbayan’s vehicle,
    and was testifying falsely as requested by the defendant
    Ruhbayan in order to assist him in misleading the jury in
    order to obtain an acquittal on Ruhbayan’s pending firearms
    charges.

Goodman provided the Government with more than fifty letters that
Ruhbayan had written to her while he was in custody awaiting the
First Trial (the "Ruhbayan Letters"). The Ruhbayan Letters corrobo-
rate Goodman’s obstruction of justice plea and provide compelling
evidence that Ruhbayan had concocted a scheme to offer false testi-
mony in his First Trial.
4                    UNITED STATES v. RUHBAYAN
   In the Ruhbayan Letters, Ruhbayan repeatedly asked Goodman to
find a non-felon who would admit to placing the pistol in his van,
without his knowledge, on or before April 14, 2000. When Goodman
was unsuccessful in locating such an individual, Ruhbayan convinced
her to testify that it was she who placed the pistol in his van. In his
letters, Ruhbayan laid out a "roadmap" for her to follow, writing that
she should contact his lawyer and say that she had placed the pistol
in the van about 3:00 a.m. on April 14, 2000. She should add, Ruh-
bayan wrote, that she had planned to retrieve the pistol around 5:00
a.m., but that Ruhbayan was arrested before she could do so. Ruh-
bayan promised not to "cross up" Goodman when he testified. (Good-
man’s recantation and the Ruhbayan Letters are referred to
collectively as the "Goodman Evidence.")

   On the basis of the Goodman Evidence, a grand jury, on February
12, 2002, returned a five-count indictment against Ruhbayan (the "In-
dictment"). In the Indictment, Ruhbayan was charged with: (1) con-
spiracy to commit perjury and obstruct justice; (2) corruptly
influencing the testimony of a witness; (3) perjury, in violation of 18
U.S.C. § 1623 (the "Perjury Charge"); (4) suborning Goodman’s per-
jury, in contravention of 18 U.S.C. § 1622 (the "Subornation
Charge"); and (5) obstructing justice. Ruhbayan sought dismissal of
the Indictment on collateral estoppel grounds, contending that all five
counts were barred by his acquittal on the Firearms Charge in his First
Trial. The district court refused to dismiss the Indictment, however,
concluding that the doctrine of collateral estoppel was inapplicable to
Ruhbayan’s situation. Ruhbayan has appealed, challenging the court’s
refusal to dismiss the Perjury Charge and the Subornation Charge.1
We possess jurisdiction pursuant to 28 U.S.C. § 1291, because the
denial of Ruhbayan’s motion to dismiss constitutes an appealable
final order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
541, 546 (1949).2
    1
    On appeal, Ruhbayan initially contended that all five counts of the
Indictment were barred by collateral estoppel. At oral argument, how-
ever, he narrowed the scope of his appeal, challenging only the Perjury
Charge and the Subornation Charge.
  2
    See Abney v. United States, 431 U.S. 651, 659 (1977) (holding that
order denying pretrial motion to dismiss indictment on grounds of double
                      UNITED STATES v. RUHBAYAN                          5
                                    II.

  We review de novo a district court’s refusal to dismiss an indict-
ment assertedly barred by collateral estoppel. United States v. Fiel, 35
F.3d 997, 1005 (4th Cir. 1994). Findings of fact made by a district
court in connection with such a ruling are reviewed for clear error.
See United States v. Ward, 171 F.3d 188, 193 (4th Cir. 1999).

                                   III.

                                    A.

   For criminal purposes, the doctrine of collateral estoppel derives
from the Fifth Amendment’s guarantee against double jeopardy. Ashe
v. Swenson, 397 U.S. 436, 445 (1970). As the Court explained in
Ashe, "[w]hen 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." Id. at 443. Similarly,
as we have held previously, "[d]ouble jeopardy is a constitutional bar
not only to retrial for the same offense, but also to relitigation of adju-
dicated issues whether they emerge in trials for the same or distinct
offenses." United States v. Nash, 447 F.2d 1382, 1385 (4th Cir. 1971).
Although the doctrine of collateral estoppel was first developed in the
realm of civil litigation, it now constitutes a fixed principle of federal
criminal law. See United States v. Oppenheimer, 242 U.S. 85, 87
(1916) ("It cannot be that the safeguards of the person, so often and
so rightly mentioned with solemn reverence, are less than those that
protect from a liability in debt."). Collateral estoppel is not to be
applied mechanically, however, but only with "realism and rational-
ity." Ashe, 397 U.S. at 444.

  While the doctrine of collateral estoppel is constitutionally based
and will, in proper circumstances, constitute a bar to a criminal trial,

jeopardy is final order for purposes of 28 U.S.C. § 1291); see also United
States v. James, 109 F.3d 597, 599 (9th Cir. 1997) ("The denial of a
motion to dismiss an indictment on . . . collateral estoppel grounds is [an
appealable] final order."); United States v. Smith, 82 F.3d 1261, 1265-66
(3d Cir. 1996) (same); United States v. Patterson, 782 F.2d 68, 72 (7th
Cir. 1986) (same).
6                    UNITED STATES v. RUHBAYAN
a criminal defendant’s right to testify in his own defense "does not
include a right to commit perjury." United States v. Dunnigan, 507
U.S. 87, 96 (1993). Thus, an acquittal does not constitute an auto-
matic bar to a subsequent prosecution for perjury committed during
the earlier trial. As the Ninth Circuit has aptly observed, "[t]o hold
otherwise . . . would be to put a premium on perjury and to make
immunity from punishment for perjury rest on success in commission
of the crime." United States v. Sarno, 596 F.2d 404, 407 (9th Cir.
1979) (internal quotation marks and citations omitted).

   In our 1994 Fiel decision, Chief Judge Ervin identified the five ele-
ments relevant to a collateral estoppel claim (the "Fiel test"). They
are:

    (1) whether the issue in question is identical to the issue
    adjudicated in a prior proceeding;

    (2) whether the issue was actually determined in the prior
    adjudication;

    (3) whether the issue was necessarily decided in that pro-
    ceeding;

    (4) whether the resulting judgment settling the issue was
    final and valid; and

    (5) whether the parties had a full and fair opportunity to
    litigate the issue in the prior proceeding.

Fiel, 35 F.3d at 1006. In order for a criminal prosecution to be barred
by collateral estoppel under the Fiel test, each of these five elements
must be resolved in the movant’s favor. In seeking relief here, Ruh-
bayan contends that the Fiel test is satisfied and that our decision in
Nash is factually indistinguishable from his case.

  In assessing a collateral estoppel claim, a reviewing court is
obliged to "‘examine the record of [the] prior proceeding, taking into
account the pleadings, evidence, charge, and other relevant matter,
and conclude whether a rational jury could have grounded its verdict
                         UNITED STATES v. RUHBAYAN                            7
upon an issue other than that which the defendant seeks to foreclose
from consideration.’" Fiel, 35 F.3d at 1006 (quoting Ashe, 397 U.S.
at 444). In conducting its examination, the court’s inquiry must be
"set in a practical frame and viewed with an eye to all the circum-
stances of the proceedings." Sealfon v. United States, 332 U.S. 575,
579 (1948). With this background in mind, we turn to the merits of
Ruhbayan’s appeal.

                                       B.

                                       1.

   In assessing the Perjury Charge,3 we begin by observing that the
first and fourth elements of the Fiel test are satisfied, that is, the issue
at stake in the two proceedings is identical and the judgment in the
first proceeding was final and valid. The issue to be resolved in the
Perjury Charge is whether Ruhbayan testified falsely in the First Trial
regarding his knowledge of the pistol in his van (the "Issue"). The
Issue was implicitly presented to the jury in the First Trial, in that the
defense presented the jury with Ruhbayan’s denial of knowledge of
the pistol as a basis for acquittal on the Firearm Charge. Thus, the
Fiel test’s first element is satisfied. The fourth element of the Fiel test
is also satisfied, because the First Trial resulted in a final and valid
judgment of acquittal on the Firearms Charge. The other three ele-
ments of the Fiel test are not so easily resolved, however, and they
require more comprehensive analyses.

  3
    The Perjury Charge, set forth in Count Three of the Indictment,
alleges that:
      On or about September 1, 2000, in the United States District
      Court at Norfolk, Virginia, in the Eastern District of Virginia, the
      defendant RAJUL RUHBAYAN, while under oath that he would
      testify, declare, depose, or certify truly, as authorized by the laws
      of the United States, in a jury trial proceeding before the court
      entitled United States v. RAJUL RUHBAYAN, Criminal Number
      2:00 CR 86, did knowingly make a false material declaration.
8                       UNITED STATES v. RUHBAYAN
                                    2.

   We turn then, to a joint assessment of the second and third ele-
ments of the Fiel test, that is, whether the First Trial "actually" and
"necessarily" determined the truthfulness of Ruhbayan’s testimony.
The appropriate inquiry on each of these elements involves an analy-
sis of whether the jury, in reaching its verdict on the Firearms Charge,
credited Ruhbayan’s testimony, or whether it could have reached its
verdict by relying either on some other piece of evidence or some
latent deficiency in the prosecution’s case. See Nash, 447 F.2d at
1385.

   While Ruhbayan invokes Nash for the proposition that his acquittal
on the Firearms Charge bars his perjury prosecution, the factual
underpinnings of Nash are materially different from those underlying
the Perjury Charge. After being acquitted of mail theft, Nash was con-
victed of perjury with respect to testimony she gave in the earlier trial.
Nash, 447 F.2d at 1383. In that situation, Nash had contended that the
perjury charge was barred by collateral estoppel because the prosecu-
tion was based on the same evidence as that underlying her mail theft
prosecution. According to Nash, the perjury case amounted to a mere
retrial of her earlier mail theft charge. We agreed with Nash, conclud-
ing:

        The jury in the first case undoubtedly passed upon the
        believability of Estelle Nash’s statements made under oath.
        The jury may have been in error, but certainly it appraised
        the defendant’s credibility. It is inconceivable that there
        would have been an acquittal if the jury had not accorded
        truth to her testimony.

Id. at 1385. Indeed, we noted that there "were but two conflicting
explanations of her possession to be considered [Nash’s and the Gov-
ernment’s version]. Thus, the jury "necessarily" had to pass upon the
truthfulness of her account."4 Id.
    4
   When Nash was decided in 1974, the Fiel test, enunciated in 1994,
was not available for the Nash court to consider. Our analysis of the
Nash case indicates, however, that an application of the Fiel test to the
facts of Nash would have yielded the same result.
                      UNITED STATES v. RUHBAYAN                          9
   Unlike the situation in Nash, the jury in the First Trial did not nec-
essarily credit or rely on Ruhbayan’s testimony in deciding to acquit.
In his testimony, Ruhbayan simply denied everything and accused the
prosecution witnesses of lying. By contrast, Goodman presented
detailed evidence, describing her purchase of the pistol, the reasons
for the purchase, how she had concealed the pistol in the van, and
why she chose to withhold these facts from Ruhbayan. In light of this
testimony, it is not only possible, but altogether likely that the verdict
in the First Trial was premised on Goodman’s testimony, rather than
on Ruhbayan’s summary denials. In this situation, the jury could have
simply ignored Ruhbayan’s testimony, making it impossible for us to
determine whether the jury passed on his credibility. As the Third Cir-
cuit has observed in a similar setting, "[r]easonable doubt as to what
was decided by a prior judgment should be resolved against using it
as an estoppel." Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir.
1970). The district court therefore correctly concluded that Ruhbayan
failed to establish that the Issue in the Perjury Charge was necessarily
decided in the First Trial.

                                    3.

   Turning to the final element of Fiel, even if Ruhbayan could estab-
lish that the Issue was actually and necessarily decided in the First
Trial, he could not show that the Government was afforded, in the
First Trial, a full and fair opportunity to litigate the truthfulness of
Ruhbayan’s testimony. In assessing this element of the Fiel test, the
Double Jeopardy Clause precludes the Government from simply try-
ing a defendant a second time, and thereby recovering "from its initial
failure to convince the [jury] of the falsity of defendant’s testimony
at the first trial." Sarno, 596 F.2d at 407. Thus, when a perjury indict-
ment is premised on the same evidence presented in an earlier trial,
a second trial for perjury is an inappropriate "rehash" of the first trial.
Cf. Nash, 447 F.2d at 1387 (Winter, J., concurring) ("In this case, we
obtained transcripts of both trials after argument. My comparisons of
them discloses that, at the trial for perjury, the evidence was a mere
rehash of the evidence adduced at the first trial.") (emphasis added);
see also Sarno, 596 F.2d at 407 ("[A] rehashing of evidence previ-
ously presented would clearly be prohibited by the collateral estoppel
doctrine."). By the same token, if the second trial, involving an
already litigated issue, will be substantially more than a "mere rehash"
10                   UNITED STATES v. RUHBAYAN
— because of evidence unavailable and undiscoverable prior to the
earlier trial — the Government has not been afforded a full and fair
opportunity to litigate the issue. Under those circumstances, the appli-
cation of collateral estoppel would not be appropriate.

   In the circumstances of this case, the Government was denied a full
and fair opportunity to litigate Ruhbayan’s credibility in the First
Trial. His defense to the Firearms Charge — that is, the false exculpa-
tory evidence composed of Ruhbayan’s and Goodman’s testimony —
resulted in his acquittal. His scheme to commit perjury was then
known only to Ruhbayan and Goodman, and the scheme was success-
fully concealed until Goodman disclosed it to the Government follow-
ing her plea agreement. Furthermore, no amount of diligence would
have uncovered Ruhbayan’s scheme to deceive the jury in the First
Trial.

   Given the surfacing of the new, previously unavailable Goodman
Evidence, Ruhbayan’s prosecution on the Perjury Charge will not
constitute a mere rehash of the Firearms Charge. In this prosecution,
the Government will use Goodman’s testimony to show that Ruh-
bayan requested that she testify falsely about the pistol. Additionally,
the Ruhbayan Letters will be compelling corroborative evidence sup-
porting Goodman’s present credibility and showing that Ruhbayan is
likely to have lied in his First Trial. As the district court concluded,
"the truth of [Ruhbayan and Goodman’s testimony] could not have
been determined properly [because] the jury did not have all of the
information in front of it." In these circumstances, the fifth element
of Fiel has not been satisfied.

                                   4.

   Because three of Fiel’s five elements are not satisfied, the doctrine
of collateral estoppel does not bar the prosecution of Ruhbayan on the
Perjury Charge. His claim that the Perjury Charge should be dis-
missed must therefore be rejected. We turn now to assess whether the
Government is barred from prosecuting Ruhbayan on the Subornation
Charge.
                        UNITED STATES v. RUHBAYAN                            11
                                      C.

   The Subornation Charge alleges that Ruhbayan procured Good-
man’s false testimony in the First Trial.5 Therefore, on the collateral
estoppel claim as to the Subornation Charge, none of the elements of
the Fiel test is satisfied. The trial of the Subornation Charge will
focus on Ruhbayan’s corrupt efforts to procure Goodman’s false testi-
mony, and those efforts were neither raised nor litigated in the First
Trial. That the issue of Ruhbayan’s having procured false testimony
was neither presented nor considered in the First Trial quickly dis-
poses of the Fiel test’s five elements. See Nash, 447 F.2d at 1385.
Accordingly, the doctrine of collateral estoppel does not bar the pros-
ecution of the Subornation Charge.

                                      IV.

   Pursuant to the foregoing, the doctrine of collateral estoppel does
not bar the Government from prosecuting Ruhbayan for perjury and
subornation of perjury, as charged in the Indictment. We therefore
affirm the decision of the district court.

                                                                AFFIRMED

  5
    The Subornation Charge, set forth in Count Four of the Indictment,
alleges as follows:
      On or about September 1, 2000, in the United States District
      Court at Norfolk, Virginia, in the Eastern District of Virginia, the
      defendant RAJUL RUHBAYAN, did knowingly and corruptly
      procure another person, namely Yolanda Goodman, to commit
      perjury, knowing, believing, and having reason to believe it to be
      false testimony, and knowing, believing, and having reason to
      believe that the perjurer had knowledge of the falsity of her testi-
      mony in a jury trial proceeding before the court entitled United
      States v. RAJUL RUHBAYAN, Criminal Number 2:00 CR 86.
