                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2002

USA v. Merlino
Precedential or Non-Precedential: Precedential

Docket No. 01-4041




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PRECEDENTIAL

       Filed November 8, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No: 01-4041

UNITED STATES OF AMERICA,

v.

JOSEPH MERLINO
a/k/a
SKINNEY JOEY

Joseph Merlino,
       Appellant

Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 01-cr-00197-1)
District Judge: Honorable Dickinson R. Debevoise

Argued on March 21, 2001

Before: NYGAARD, ROTH and AMBRO, Circuit Judges

(Opinion filed November 8, 2002)




       Christopher D. Warren, Esquire
        (Argued)
       1604 Locust Street
       Philadelphia, PA 19103
        Attorney for Appellant

       Christopher J. Christie
       United States Attorney
       Laura J. Kaplan
       Assistant United States Attorney
       George S. Leone
       Chief, Appeals Division
       District of New Jersey
       970 Broad Street, Room 700
       Newark, NJ 07102-2535

       Frank J. Marine (Argued)
       Senior Litigation Counsel
       U.S. Department of Justice
       Organized Crime & Racketeering
        Section
       1301 New York Ave., NW, #700
       Washington, DC 20005
        Attorneys for Appellee

OPINION OF THE COURT
ROTH, Circuit Judge:

Appellant Joseph Merlino has been charged in the
District of New Jersey with advancing a racketeering
enterprise, the Philadelphia La Cosa Nostra Family, by
participating in the murder of Joseph Sodano. Merlino
claims that his indictment violates the principle of collateral
estoppel embodied in the Double Jeopardy Clause because
another jury has already found that he did not participate
in Sodano’s murder. We conclude that, under the unusual
circumstances of this case, Merlino cannot prove that the
jury decided in his favor when they checked the"Not
Proven" boxes corresponding to the Sodano murder
racketeering acts. Merlino is, therefore, foreclosed from
invoking collateral estoppel to bar his prosecution under

                                2


the New Jersey indictment. We will, therefore, affirm the
order of the District Court, denying Merlino’s motion to
dismiss the indictment.

I. Factual and Procedural History

This case is the tale of two indictments, one in
Pennsylvania and one in New Jersey. A multi-defendant,
multi-count trial took place in the United States District
Court for the Eastern District of Pennsylvania. Merlino was
convicted, among other offenses, of two Racketeer
Influenced and Corrupt Organizations Act (RICO) counts. In
Count I, Merlino was charged with conspiring from March
1, 1990, to March 30, 2000, to participate in the affairs of
an enterprise, the Philadelphia La Cosa Nostra Family,
through a pattern of racketeering activity in violation of 18
U.S.C. S 1962(d). In Count II, he was charged with
participating in the affairs of the Philadelphia La Cosa
Nostra Family during the same period in violation of
S 1962(c). Specifically, the government accused Merlino of
violating SS 1962(c) and (d) by committing twenty-one
racketeering acts. Those acts included conspiring to murder
and murdering a former member of the La Cosa Nostra,
Joseph Sodano. The jury in the Pennsylvania trial found
that Merlino had committed six of the racketeering acts
charged against him under Count I and five of the
racketeering acts under Count II. As for the remaining
racketeering acts, including the murder of Joseph Sodano,
the jury indicated on the verdict sheet that they were "Not
Proven."

The government alleges that, despite the checking of"Not
Proven" on the special verdict sheet, the jury’s actual
finding as to the Sodano murder is not clear because the
instructions given to the jury by the District Court, in
answer to a jury question during deliberations, permitted
the jury to violate its unanimity instruction.

To understand the government’s argument, it is helpful
to review the relevant parts of the District Court’s
instructions to the jury. When the case was submitted to
the jury, the jurors were given special interrogatories to
assist them in determining whether each of the defendants

                                 3


was guilty of the RICO offenses charged in the indictment.
The judge referred to the special interrogatories and
instructed the jury that:

        For each defendant you must unanimously agree as
        to the identity of two racketeering acts or one collection
        of unlawful debt which the defendant agreed that
        someone would commit. On the verdict sheet I will give
        you, you should indicate whether you find a
        racketeering act or a collection of unlawful debt to be
        proven beyond a reasonable doubt or not proven.

         And, the allegations from the indictment are there,
        directs you to the count, and then says, proven or not
        proven. And you will discuss and determine whether or
        not -- and you’ll check off which it is. If you check off
        not proven, not proven, not proven, not proven, each
        one you have to consider separately, each act.

* * *

        When you review the indictment, you will see that the
        Government has alleged that the defendants carried out
        the RICO offenses charged in Counts 1 and 2 through
        36 racketeering acts, 6 racketeering acts that involve
        acts of murder, attempted murder, or conspiracy to
        murder, 18 racketeering acts involving extortion in
        violation of State and Federal law, 3 racketeering acts
        involving gambling violations, 6 racketeering acts
        involving receipt of stolen property and 2 racketeering
        acts involving distribution of cocaine.

(emphasis added).

Thus, the jury was instructed that it must unanimously
agree that a racketeering act or collection of unlawful debt
was either proven or not proven. In addition, the jury was
told that, to find a defendant guilty of a RICO offense, it
must agree that he had committed at least two racketeering
acts or one collection of unlawful debt. Furthermore, as the
judge explained, unanimous agreement on more than two
racketeering acts per defendant would not be necessary for
a guilty verdict on a RICO count as to that defendant.

Two days after the jury began its deliberations, it
submitted the following question to the District Court:

                                 4


        Racketeering Acts. Once we determine that the
        defendant has committed one unlawful collection of
        debt or two or more racketeering acts, do we need to
       decide proven or not proven on all the racketeering
       acts?

The judge responded, "Yes."

Two days later, the jury requested additional clarification
on this issue. It sent a note asking:

       If, on a given racketeering act that has no bearing on
       the count decision we cannot come to a unanimous
       decision, is it within the law to unanimously decide
       that the act is "not proven"?

Over the objections of the government, the judge again told
them, "Yes."

The jury ultimately returned its verdict. On Merlino’s
verdict sheet, the jury found Merlino’s participation in six
racketeering acts under Count I and five acts under Count
II to have been "Proven." The remaining racketeering acts,
including the Sodano murder, were checked by the jury as
"Not Proven." The government argues that the supplemental
instructions allowed the jury to mark the special verdict
"Not Proven" as to Merlino’s involvement in Sodano’s
murder even though we have no idea of the actual jury vote
on that count. Indeed, we do not know if the jury had
unanimously found Merlino’s participation in the Sodano
murder acts to be "Not Proven" prior to the supplemental
instructions or if, after the supplemental instructions,
despite a vote count of anywhere from 11 to 1 for acquittal
to 11 to 1 for conviction, the jury decided to mark those
acts "Not Proven."

Soon after the Pennsylvania trial, the government
charged Merlino, in the United States District Court for the
District of New Jersey, with violating other provisions of
RICO under 18 U.S.C. SS 1959(a)(5) and 1959(a)(1) and (2),
the so-called "VICAR" offenses which prohibit the
commission of violent crime in aid of racketeering. In the
New Jersey indictment, the government again charged
Merlino with conspiring to murder Joseph Sodano and
aiding and abetting in that murder, in violation ofSS

                                5


1959(a)(1), (2), and (5). In a pre-trial motion, Merlino moved
to dismiss this new indictment, arguing it was barred by
the special verdict of the Pennsylvania jury and the doctrine
of collateral estoppel. After the District Court denied his
motion, Merlino appealed.

II. Standard of Review

Since collateral estoppel as a bar to reprosecution is a
component of the Double Jeopardy Clause and is an issue
of law, our review is plenary. See United States v. Smith, 82
F.3d 1261, 1265-66 (3d Cir. 1996)

III. Jurisdiction
The District Court had subject matter jurisdiction after a
grand jury indictment pursuant to 18 U.S.C. S 3231. We
have appellate jurisdiction over the pre-trial order pursuant
to 28 U.S.C. S 1291 and the collateral order doctrine. See
United States v. Abney, 431 U.S. 651 (1977).

IV. Discussion

The Double Jeopardy Clause of the Fifth Amendment
protects an accused from successive prosecutions for the
same offense. See Brown v. Ohio, 432 U.S. 161, 165 (1977).
This case does not implicate that traditional bar against
successive prosecutions because Merlino has been accused
of two separate offenses. In the first trial Merlino was
convicted of violating RICO pursuant to 18 U.S.C.S 1962 (c)
and (d). In the indictment before us now, however, he is
charged with violating 18 U.S.C. S 1959, which prohibits
the commission of violent crime in aid of racketeering.
Because that VICAR offense requires proof of an element
that the RICO offense does not, and vice-versa, they are
different offenses for the purposes of the Double Jeopardy
Clause. See Blockburger v. United States, 284 U.S. 299, 304
(1932).

The Double Jeopardy Clause, however, also embodies
principles of collateral estoppel that can bar the relitigation
of an issue actually decided in a defendant’s favor by a
valid and final judgment. See Ashe v. Swenson , 397 U.S.

                                6


436, 443 (1970). Merlino argued to the District Court, and
argues again before us, that these principles require the
dismissal of his New Jersey indictment because the
Pennsylvania jury had entered a valid and final judgment,
acquitting him of Sodano’s murder.

The District Court denied Merlino’s motion to dismiss the
indictment. It held that collateral estoppel did not apply
because the Pennsylvania District Court’s instructions to
the jury made it impossible to determine whether the jury
unanimously acquitted Merlino of involvement in Sodano’s
murder. Indeed, one cannot tell if the vote "Not Proven" was
unanimous or if it represented a split decision which might
in fact not even have been a majority vote for "Not Proven."
Merlino contends that the District Court’s ruling was
erroneous because the principles of collateral estoppel
enunciated by the Supreme Court in Ashe v. Swenson do
not require him to prove that he was unanimously
acquitted. He also argues, in the alternative, that he can
prove he was unanimously acquitted. We conclude,
however, that the District Court properly dismissed
Merlino’s motion. To claim the benefit of collateral estoppel
he must prove that the Pennsylvania jury unanimously
acquitted him of participation in Merlino’s murder. He
cannot meet that burden.

A.
In Ashe v. Swenson the Supreme Court held that the
Double Jeopardy Clause prohibits relitigation of an issue
when the jury has decided that issue in a defendant’s favor
by a "valid and final judgment." Id. at 443; accord United
States v. Console, 13 F.3d 641, 664 (3rd Cir. 1993). A "final
judgment" in favor of a criminal defendant is an acquittal,
United States v. Lanoue 137 F.3d 656 (1st Cir. 1998), and
an acquittal, in order to bar future litigation, must be
unanimous; a "hung jury" does not bar future
prosecutions. See Illinois v. Somerville, 410 U.S. 458, 463
(1973). Because a criminal defendant bears the burden of
proving that the litigation of an issue is foreclosed, Dowling
v. United States, 493 U.S. 342, 350-1 (1990); United States
v. Console, 13 F.3d at 665, n. 28, it follows, under
circumstances in which a unanimous vote is required, that

                                7


the defendant can claim the benefit of collateral estoppel
only if he can prove that the jury vote was in fact
unanimous.

In order to demonstrate a unanimous vote, the face of a
verdict sheet may not alone be sufficient. For example, in
Ashe, the Supreme Court held that when a defendant
claims a general verdict forecloses litigation of an issue, he
must demonstrate that the issue was actually decided, not
just by referring to the verdict itself, but by examining "the
record of the prior proceeding, taking into account the
pleadings, evidence, charge and other relevant matter."
Ashe, 397 U.S. at 443. See also Schiro v. Farley, 510 U.S.
222, 232-36 (1994). Jury instructions are part of that
analysis. See e.g., United States v. Marino, 200 F.3d 6, 8-11
(1st Cir. 1999) (rejecting defendants’ collateral estoppel
arguments because "their jury charge contained
considerable ambiguity.").

Although the cases we cite above involved general
verdicts, we reject the contention that the type of verdict
changes the defendant’s burden. Whether the verdict was
general or special, the defendant bears the burden of
proving the issue he wants to foreclose was decided in his
favor. See, e.g., Dowling v. United States, 493 U.S. at 350-
51 (stating that the defendant had the burden to prove a
general verdict decided the issue in its favor); United States
v. Ham, 58 F.3d 78, 85 (4th Cir. 1995) (stating a jury’s
special verdict must necessarily resolve an issue in the
defendant’s favor before collateral estoppel can apply.). See
also United States v. Console, 13 F.3d at 664 (same).

B.

Applying these rules to the case before us, we hold that,
despite the notations on the special verdict sheet, Merlino
cannot prove that the jury unanimously, or even by a
majority, acquitted him of participation in Sodano’s
murder, and thus he cannot foreclose litigation of that
issue. On the special verdict sheet, the Pennsylvania jury
checked the "Not Proven" boxes corresponding to the
Sodano murder. Because, however, of the supplemental
instructions given by the District Court, those check marks

                                8


are ambiguous. They do not demonstrate that the jury
unanimously found that the Sodano murder was "Not
Proven."

As we set out in Section I above, after five days of
deliberations, the Pennsylvania jury asked the court to
clarify its instructions. The jury sent a note inquiring, "If,
on a given racketeering act that has no bearing on the
court decision we cannot come to a unanimous decision, is
it within the law to unanimously decide that the act is ‘not
proven’?" Over the objections of the government, the judge
responded "Yes." That instruction makes the jury’s vote
ambiguous because we cannot tell from the face of the
verdict sheet whether the vote was unanimously "Not
Proven" or whether the jury unanimously decided that they
were unable to reach a unanimous decision as to"Proven"
or "Not Proven," i.e., whether they were "hung" on that
issue.

Only the first of these interpretations of the jury note
would bar the current case against Merlino because only
the first is a unanimous acquittal and only the first resolves
the issue Merlino wants to preclude from consideration in
the New Jersey prosecution. The second interpretation of
the note is not a unanimous acquittal and therefore is not
a final judgment in favor of the defendant. Because Merlino
cannot prove which is the actual jury vote, he cannot
preclude the issue of his participation in the Sodano
murder.

C.

Merlino challenges our conclusion on two grounds. First,
he claims that the jury’s verdict is unambiguous regardless
of the trial court’s instructions. He contends that the jury
was essentially instructed that its lack of unanimity could
prove reasonable doubt, and then applied that instruction
by unanimously deciding that the act was "not proven." If
this were the only possible interpretation of the jury’s
special verdict, we would agree with Merlino. It is not,
however, the only interpretation. As discussed above, the
trial court’s instructions could also be interpreted to allow
the jury to check the "not proven" box if the jury agreed

                                9


that it could not reach a unanimous conclusion on"Proven"
or "Not Proven." Because of this ambiguity, Merlino fails to
prove that the issue he wants to foreclose was decided in
his favor by the Pennsylvania jury.

Merlino also contends, despite any ambiguity, that the
special verdict is a valid and final judgment. He denies that
the verdict in a criminal case must be a unanimous
acquittal before it precludes future litigation. He asserts
that any judgment is final if it is rendered by a court of
competent jurisdiction and if it is "procedurally definite,"
leaving nothing more for the jury to do. To support his
claim, he cites Fong Foo v. United States, 369 U.S. 141
(1962), and Sanabria v. United States, 437 U.S. 54 (1978),
which hold that an erroneous jury instruction does not
make an acquittal non-binding for collateral estoppel
purposes. He argues that these cases contradict a holding
that collateral estoppel is not applicable here.

Those cases do not, however, address the question
whether an acquittal must be unanimous to have
preclusive effect. They consider other issues not relevant
here. In Fong Foo, the Supreme Court held that the 5th
Amendment’s Double Jeopardy clause barred further
prosecution of a defendant who was acquitted even though
the acquittal was based on an "egregiously erroneous
foundation." 369 U.S. at 142-3. In Sanabria , the Court
made a similar holding: an acquittal based on an erroneous
evidentiary ruling barred further prosecution of the
defendant for the same offense. 437 U.S. at 68-69.

These cases hold that an erroneous legal foundation does
not alter the binding affect of a unanimous acquittal. They
do not alter the rule that a "hung jury" does not bar future
litigation. See Johnson v. Lousisiana, 406 U.S. 356, 363
(1972). Foo Fong and Sanabria do not, therefore, affect our
decision. Our holding rests on Merlino’s inability to prove
he was unanimously acquitted, not on the accuracy of the
trial court’s instructions. He, thus, could not claim the
benefit of collateral estoppel.

V. Conclusion

For the above stated reasons, we will affirm the District
Court’s denial of the motion to dismiss the indictment and
we will remand this case for further proceedings.

                                10


NYGAARD, Circuit Judge, dissenting:

The issue on appeal is whether we must accept the jury’s
finding of "Not Proven" on its face, or whether we are
empowered to look behind its finding and conclude that it
is not clear whether the jury actually reached a unanimous
decision on this critical predicate act. I must respectfully
dissent because I believe that, under the doctrine of
collateral estoppel, the predicate acts that the jury decided
were "Not Proven" cannot be re-litigated. I therefore
conclude that the District Court should have dismissed the
charges.

The government argues that because of the two
supplemental instructions given to the jury in response to
the jury’s questions, we cannot be sure if the jury truly
reached a unanimous decision on the murder-based
predicate acts. I submit that looking behind jury verdicts to
reconstruct the jury’s thinking, or attempting to determine
how it may have reached consensus, is pure speculation
and contravenes our fundamental constitutional heritage of
treating jury verdicts as unimpeachable. The government
claims that because of the judge’s supplemental
instructions, the jury probably was not unanimous when it
found that the government failed to prove the murder-based
predicate acts. But we do not know how the jury voted after
the judge issued the second supplemental instruction, and
we should not pretend that we do. We only know that it
decided that this predicate act was not proven.

In Ashe v. Swenson, the Supreme Court held that when
a defendant claims a general verdict forecloses litigation of
an issue, he must demonstrate that the issue was actually
decided by examining "the record of the prior proceeding,
taking into account the pleadings, evidence, charge and
other relevant matter." 397 U.S. 436, 444 (1970). However,
the Court specifically based its holding on a situation
"[w]here a previous judgment of acquittal was based upon
a general verdict, as is usually the case." Id. That holding
makes sense for a general verdict, where it is difficult to
determine which particular facts the jury actually decided.
It makes no sense when we have a special verdict and we
know exactly what the jury concluded. Here, the special
verdict form clearly indicates how the jury resolved each

                                11


issue. Put simply, the jury decided that the predicate acts
were "Not Proven." I would accept that verdict as the jury’s
adjudication of the murder charges, and prohibit that issue
from being raised against Merlino again.

The government argues that Merlino bears the burden of
proving that the issue he wants to foreclose was decided in
his favor, whether the verdict was general or special. I
conclude that he has done just that. Moreover, the case
that the government cites for support does not determine
the issue. United States v. Console, upon which the District
Court relied, involved a hung jury. 13 F.3d 641, 664 (3d
Cir. 1993). In Console, we explained that"a response to a
special interrogatory regarding an element of a‘hung’ count
is neither a ‘final’ judgment nor a determination‘necessary’
to a final judgment." Id. Here, however, the jury was not
"hung." It returned a verdict. We have a final judgment.

The jury’s decision on the murder-based predicate acts
was the functional equivalent of a verdict on the stand-
alone murder charge. Apprendi v. New Jersey holds that
any fact that has the effect of increasing the maximum
penalty permitted by law is an element of the offense, which
must be submitted to a jury and proven beyond a
reasonable doubt. 530 U.S. 466, 476 (2000). If the jury had
found that the murder-based predicate acts were proved,
then Merlino could have faced life imprisonment. The
government was therefore obligated to prove a predicate act
of murder beyond a reasonable doubt. Because a favorable
verdict for the government on racketeering acts 4A and 4B
would have been tantamount to a conviction for the Sodano
murder and conspiracy offense, the converse should be
true: the "Not Proven" verdicts should be treated as
acquittals for collateral estoppel purposes.

The District Court rejected this Apprendi reasoning
because "[t]he sentencing consequences flow from the
racketeering acts that were Proven" and that"[t]o give
similar weight to the Not Proven acts is unjustified." But
the District Court’s rationale leads to inequities. Following
its logic, as long as the government fails to prove verdicts
on certain predicate acts, it could continue to use those
predicate acts in other RICO prosecutions until they are
"Proven." The defendant would be forced to prove his

                                12


innocence of that charge repeatedly. Yet the purpose of the
Double Jeopardy Clause and collateral estoppel is to
protect defendants from having to face serial trials for the
same offense.

Appellee’s argument boils down to this: the District Court
gave an erroneous jury instruction that theoretically could
have permitted the jury to say it was unanimous when it
really was not. But, this argument goes nowhere. An
acquittal may not be overturned based on "an egregiously
erroneous foundation." Fong Foo v. United States, 369 U.S.
141, 143 (1962); Sanabria v. United States, 437 U.S. 54, 74
(1978) ("there is no exception permitting a retrial once the
defendant has been acquitted, no matter how ‘egregiously
erroneous’ the legal rulings leading to that judgment might
be").

The general principles underlying the Fifth Amendment’s
Double Jeopardy Clause are designed to ensure that the
defendant does not have to face the burdens and hazards
of trial again and again, especially when the government
has obtained the benefit of a "dry run." Here, the defendant
should not be punished for a quirky, and perhaps
erroneous, jury instruction. I would therefore reverse.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                13
