                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Overton
Argued at Alexandria, Virginia


EVAN JOHN CASEY COYNE
                                                OPINION BY
v.   Record No. 2534-01-4               JUDGE JAMES W. BENTON, JR.
                                            OCTOBER 29, 2002
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                      James H. Chamblin, Judge

           William B. Moffitt (Asbill Moffitt & Boss,
           Chtd., on brief), for appellant.

           Margaret W. Reed, Assistant Attorney General
           (Jerry W. Kilgore, Attorney General, on
           brief), for appellee.


     Evan John Casey Coyne conditionally pled guilty to the

charge of possessing a controlled substance with the intent to

distribute it as an accommodation.   See Code § 18.2-248.   He

contends on appeal that the Commonwealth is barred by the

doctrine of collateral estoppel from prosecuting him for that

offense because the Commonwealth previously had successfully

convicted another individual of the same offense based on the

same facts.   For the reasons that follow, we affirm the

conviction.

                               I.

     Prior to accepting Coyne's conditional guilty plea, the

trial judge held a hearing on Coyne's motion to dismiss the
indictment.   The evidence established that the Commonwealth

indicted Donald Keith Bryden for distributing controlled

substances to an informant for the Loudoun County Sheriff's

Department on August 23, 2000.    Bryden tendered a plea of guilty

to the indictment.   At the hearing on Bryden's plea, the

prosecutor proffered that the evidence would prove the informant

arranged the transaction in a telephone conversation with

Bryden, that Bryden met the informant at the prearranged

location on August 23, 2000, and that Bryden personally sold ten

tablets of a controlled substance to the informant.   The

prosecutor proffered that the transaction was captured on both

video and audio recordings.   At the hearing, Bryden acknowledged

those facts to be true.   The trial judge accepted Bryden's

guilty plea and convicted Bryden of distributing the controlled

substances on August 23, 2000 in violation of Code § 18.2-248.

Two months after Bryden was convicted, a grand jury indicted

Coyne for the same offense.

     At the hearing on Coyne's motion to dismiss the indictment,

the prosecutor acknowledged that the facts recited above were an

accurate representation of the incidents occurring at the prior

proceedings when the judge convicted Bryden on his guilty plea.

The prosecutor asserted, however, that the prosecutor who made

the proffer at Bryden's hearing "misspoke" when he said Bryden

personally delivered the controlled substances to the informant.

He told the trial judge that "[w]hen [the other prosecutor] said
                                 - 2 -
the drugs were delivered by Bryden, he should have said through

an agent, Evan Coyne."

        The trial judge ruled that the doctrine of collateral

estoppel did not bar the prosecution "because . . . Coyne was

not a party to the proceeding between the Commonwealth and . . .

Bryden," and he denied Coyne's motion to dismiss.    Coyne then

tendered a conditional guilty plea to the charge of distributing

the same controlled substances to the informant on August 23,

2000.    The proffer at Coyne's hearing established that after

Bryden spoke to the informant and agreed to sell the controlled

substances, Bryden left town.    The proffer further established

that Coyne met the informant and delivered the controlled

substances to the informant.    On these facts, the trial judge

accepted Coyne's conditional guilty plea to the charge of

distributing the controlled substances as an accommodation in

violation of Code § 18.2-248.    As permitted by Code § 19.2-254,

Coyne appeals the denial of his motion to dismiss.

                                 II.

        Relying upon federal law, Coyne contends that this case is

governed by the principle that, "[u]nder collateral estoppel,

once a court has decided an issue of fact or law necessary to

its judgment, that decision may preclude relitigation of the

issue in a suit on a different cause of action involving a party

to the first case."     Allen v. McCurry, 449 U.S. 90, 94 (1980).

He further contends that "[a]lthough [collateral estoppel was]
                                 - 3 -
first developed in civil litigation, [it] has been an

established rule of federal criminal law."    Ashe v. Swenson, 397

U.S. 436, 443 (1970).

     Relying on Virginia law, the Commonwealth contends that to

invoke the doctrine of collateral estoppel in Virginia, the

parties must be the same in each of the lawsuits.    Whitley v.

Commonwealth, 260 Va. 482, 489, 538 S.E.2d 296, 299 (2000); Lee

v. Commonwealth, 219 Va. 1108, 1110, 254 S.E.2d 126, 127 (1979).

In addition, the Commonwealth contends the doctrine of

collateral estoppel does not bar the prosecution because the

trial judge "in Bryden's case could have grounded [the]

conviction on a factual issue other than who physically handed

the informant the drugs on August 23."    See id. at 1111, 254

S.E.2d at 127.

     Neither Coyne nor the Commonwealth addresses head-on the

choice of law issue.    Although Coyne relies on federal cases

that apply the doctrine of collateral estoppel, he makes no

persuasive argument that federal law, rather than state law,

governs the issue as it arises in this context.   Coyne makes no

claim that his collateral estoppel argument as it is raised in

the context of this case is grounded in constitutional

principles such as double jeopardy, due process, or other

guarantees.   Put simply, he contends that the preclusive effect

of the prior judgment convicting Bryden necessarily bars his

prosecution in a state criminal proceeding.
                                - 4 -
     At its core, collateral estoppel is a common law doctrine.

United States v. Mendoza, 464 U.S. 154, 158 (1984).     Although

the Supreme Court "[i]n Ashe v. Swensen, . . . recognized that

the Double Jeopardy Clause incorporates the doctrine of

collateral estoppel," Dowling v. United States, 493 U.S. 342,

347 (1990), the Supreme Court has also recognized that "the

collateral-estoppel component of the Double Jeopardy Clause is

inapposite" in some cases.   Id. at 349.    Thus, in the absence of

a claim of constitutional dimensions, the preclusive effect of a

state court judgment is a matter governed by state law.     See

Haring v. Prosise, 462 U.S. 306, 316-17 n.10 (1983).     See also

Allen, 449 U.S. at 96 (holding that "Congress has specifically

required all federal courts to give preclusive effect to

state-court judgments whenever the courts of the State from

which the judgments emerged would do so"); Kane v. Hargis, 987

F.2d 1005, 1008 (4th Cir. 1993) (holding that in an action under

42 U.S.C. § 1983 "[t]he collateral estoppel effect of the

Virginia court's decision is determined by Virginia law").

     Applying state law, the Supreme Court of Virginia has

consistently held that "before the doctrine of collateral

estoppel may be applied, . . . the parties to the two

proceedings must be the same."     Whitley, 260 Va. at 489, 538

S.E.2d at 299.   See also Selected Risks Insurance Co. v. Dean,

233 Va. 260, 355 S.E.2d 579 (1987); Jones v. Commonwealth, 217

Va. 231, 232, 228 S.E.2d 127, 128 (1976).    We have held likewise
                                 - 5 -
in Jones v. City of Lynchburg, 23 Va. App. 167, 171, 474 S.E.2d

863, 865 (1996).   As the United States Supreme Court noted in

Haring, "[a]lthough the doctrine of mutuality of parties has

been abandoned in recent years by the courts of many

jurisdictions, . . . it has not been rejected by the courts of

Virginia."   462 U.S. at 606 n.10 (citations omitted).

     Accordingly, we hold that the trial judge did not err in

applying Virginia law and denying Coyne's motion to dismiss.

We, therefore, affirm the conviction.

                                                         Affirmed.




                               - 6 -
