United States of America, Plaintiff-appellant, v. Patricia Corley, Defendant-appellee, 824 F.2d 931 (11th Cir. 1987)

Patricia Corley was indicted for conspiring to defraud Biscayne Federal Savings and Loan in violation of 18 U.S.C. § 371¹  (Count I) and with aiding and abetting the embezzlement of funds from the savings and loan in violation of 18 U.S.C. § 657²  and 18 U.S.C. § 2³  (Count II). After hearing all the evidence, a jury acquitted Corley on the substantive count but was unable to reach a verdict on the conspiracy count. Accordingly, the district court declared a mistrial on the conspiracy count.

Corley then moved to dismiss Count I on double jeopardy grounds or to estop the United States from introducing certain evidence at her retrial on Count I. The district court denied the motion to dismiss but agreed to exclude any evidence relating to the substantive count when retrying the conspiracy count. The government conceded that such a limitation would irreparably damage its case, so it appealed the court's ruling, contending that collateral estoppel does not apply where a jury has reached inconsistent conclusions. We find that the jury did not reach an inconsistent verdict, and we affirm the district court's use of collateral estoppel.

The scheme to defraud the savings and loan originated with Rolando Fernandez, who had obtained a copy of a banking institution agreement signed by Juan Thomas Pena and starter checks for Pena's checking account at Biscayne Federal. Fernandez suggested to Alex Diaz de Otazu (Diaz) that Diaz transfer the approximately $27,000 in Pena's account at Biscayne Federal to a separate account at a different bank. Later, the two of them would withdraw the money to divide between them. Diaz accepted the documents from Fernandez, but he decided to implement a different plan. He would simply write a check for all the money in Pena's account at Biscayne Federal. Then he and Fernandez would split up the money.

Subsequently, Diaz contacted Nidia Puentes, a former girlfriend who he owed $2,500. Puentes had previously worked at Biscayne Federal, and Diaz wanted to know if she knew anyone who would help him cash Pena's check. Puentes stated that she would ask around and contact Diaz later.

Puentes then called Patricia Corley, who worked in the personnel department at Biscayne Federal. During the trial, Puentes presented two conflicting versions of how much Corley knew about the scheme initially. On direct, Puentes stated that she asked Corley if she knew anyone who would help a friend cash a bad check in return for $1,000. Corley said that she would ask her former sister-in-law, Debra Kummerer, a teller at Biscayne Federal. (Record, Vol. 3, p. 7). Later, Corley and Puentes spoke again, and Corley informed Puentes that Kummerer agreed to help. (Record, Vol. 3, p. 8).

During cross-examination, however, Puentes presented a different version of her request for help. As to the reason for the assistance, Puentes stated, "So I don't know if I confided in her to tell her but she did it. She got someone to help do this." (Record, Vol. 3, p. 44). In any event, Kummerer agreed to help Diaz cash the bad check by not scrutinizing it as closely as usual.

After learning that someone at the bank would assist him, Diaz worried about the type of identification he would need to cash the check. Diaz called Kummerer and found out that he would need a passport, driver's license, social security card or credit card. (Record, Vol. 4, pp. 105-106). The government contended that Corley gave Puentes her daughter's social security card as one of the forms of ID. Once again, the testimony at trial on this point was contradictory. Puentes testified on direct that Corley gave her the card when the two of them were alone. (Record, Vol. 3, p. 11). The defense impeached that testimony by reading from a statement Puentes had given to the Federal Bureau of Investigation (FBI). In that earlier statement, Puentes had recalled that Kummerer was present when Corley handed her the social security card. (Record, Vol. 3, p. 53). The defense theory was that Kummerer, unbeknownst to Corley, had taken the social security card of Corley's daughter. At that time, Kummerer was staying with Corley three or four days a week. (Record, Vol. 4, p. 143.) In support of the defense theory, Diaz testified that, according to his information, Kummerer had given the card to Puentes. (Record, Vol. 6, p. 6.)⁴ 

With a social security card⁵  and two other fake pieces of identification, Diaz went to Biscayne Federal Savings & Loan on July 28, 1983, and presented a forged check for $25,500 to Debra Kummerer. After Kummerer had her supervisor approve the check, Kummerer cashed the check, but she did not list any of the information from Diaz's identification cards on the back of the check.

That evening, after Diaz gave Fernandez his share of the money, approximately $17,000, Diaz visited Puentes. He gave her $3,400, $2,400 for herself, and $1,000 for Kummerer.⁶  (Record, Vol. 3, p. 13; Vol. 6, p. 15). Thereafter, the two of them drove to Corley's house. While Diaz waited in the car, Puentes went inside and allegedly gave Corley $1,000. (Record, Vol. 3, p. 13). Corley then supposedly divided the money in half with Kummerer, who was also at the house at the time. (Record, Vol. 4, p. 114).

About a week or two after Diaz cashed the forged check, Puentes called Corley and Kummerer to a meeting at a Howard Johnson's. At that meeting, they discussed what to do since Diaz had been picked up for questioning by the FBI. They decided to wait and see if Diaz reported their involvement. (Record, Vol. 3, pp. 23-25). Puentes did not recall what Corley said at the meeting, but she was sure that Corley did not deny her involvement in the situation. (Record, Vol. 3, pp. 27-28).

Subsequently, Diaz confessed the check forging to the FBI and named Puentes and Kummerer as his accomplices. When the FBI questioned Puentes and Kummerer, they implicated Corley in the scheme.

Before trial, the prosecution offered to charge the defendants only with conspiracy to defraud if they pleaded guilty. Corley refused. All the other defendants accepted the plea bargain and agreed to testify against Corley. After hearing the testimony of Puentes, Kummerer, Diaz and a character witness for Corley, the jury acquitted Corley of the substantive charge but was unable to reach a decision on the conspiracy charge. The district court then declared a mistrial and, upon Corley's motion, applied collateral estoppel to limit the government's evidence on Corley's retrial. The government appealed this limitation.

Collateral estoppel, embodied in the fifth amendment guarantee against double jeopardy, provides 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 v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469, 475 (1970). Thus, collateral estoppel in the criminal context prohibits the government from forcing a defendant to defend against charges or factual allegations which he overcame in an earlier trial. Albert v. Montgomery, 732 F.2d 865, 869 (11th Cir. 1984). For a defendant to invoke the doctrine, "the fact sought to be foreclosed by the defendant must necessarily have been determined in his favor in the prior trial; it is not enough that the fact may have been determined in the former trial." United States v. Irvin, 787 F.2d 1506, 1515 (11th Cir. 1986) (emphasis in original).

Here the district court ruled that in order to acquit Corley the jury must necessarily have found that Corley did not commit the following two overt acts:

(1) procure Kummerer's assistance in cashing a bad check after learning all about the planned embezzlement from Puentes

(2) provide a social security card as a fake identification card for Diaz.⁷ 

We agree that the jury must have based Corley's acquittal on the fraud charge on these findings.⁸ 

The government argues that the jury reached an inconsistent verdict when it acquitted Corley of the substantive crime of fraud but refused also to find her innocent of conspiracy to defraud. Of course, conspiracy and the related substantive offense which is the object of the conspiracy are considered separate and distinct crimes. Ianelli v. United States, 420 U.S. 770, 777-78, 95 S. Ct. 1284, 1284-90, 43 L. Ed. 2d 616, 623 (1975); United States v. Romeros, 600 F.2d 1104, 1105 (5th Cir. 1979), cert. denied, 444 U.S. 1077, 100 S. Ct. 1025, 62 L. Ed. 2d 759 (1980); United States v. Seelig, 498 F.2d 109, 112 (5th Cir. 1974).⁹  An acquittal on the substantive count does not foreclose prosecution and conviction for a related conspiracy. United States v. Veltre, 591 F.2d 347, 349 (5th Cir. 1979). In fact, there is nothing necessarily inconsistent, in law or logic, with such a result. "We do suggest, however, that such a result should engage our judicial skepticism. A critical analysis of the facts is required when such a contrariety of results does appear." United States v. Caro, 569 F.2d 411, 418 (5th Cir. 1978).

Here, the government has stipulated that the overt acts excluded by the district court are the only evidence of Corley's involvement in a conspiracy, but the jury was not aware of that stipulation during the trial. At least one member of the jury believed that Corley was not guilty of the substantive count but that she was a member of the conspiracy, even though she did not commit any overt acts in furtherance of the conspiracy.¹⁰  The elements of a conspiracy under 18 U.S.C. § 371 are an agreement between two or more persons, an unlawful purpose, and an overt act committed by one of the co-conspirators in furtherance of the conspiracy. United States v. Perkins, 748 F.2d 1519, 1527 (11th Cir. 1984); United States v. Wieschenberg, 604 F.2d 326, 331 (5th Cir. 1979). Consequently, in order for a juror to find that Corley was a member of the conspiracy, the government must have shown beyond a reasonable doubt that a conspiracy existed, that Corley knew of it and that she intended to associate herself with the objectives of the conspiracy. See United States v. Horton, 646 F.2d 181, 184 (5th Cir. Unit A), cert. denied, 454 U.S. 970, 102 S. Ct. 516, 70 L. Ed. 2d 381 (1981); United States v. Caicedo-Asprilla, 32 F.2d 1161, 1166 (5th Cir.), cert. denied, 450 U.S. 1000, 101 S. Ct. 1707, 68 L. Ed. 2d 201 (1981). There is no question about the presence of a conspiracy; Puentes, Diaz, and Kummerer admitted their involvement, and they all pleaded guilty to conspiracy to defraud. The issue the jury had to decide was whether Corley was a co-conspirator.

Testimony at trial, not including the evidence excluded by the district court, was that Kummerer told Corley about the scheme, that Corley did not report the conspiracy, that Corley was having problems at the bank over the forged check (Record, Vol. 3, p. 56), and that Corley attended a meeting to discuss the group's next step after the police had picked up Diaz. No one remembered what Corley had said at the meeting.

Based on this evidence, at least one juror thought Corley guilty of conspiracy. In the view of one juror, the acts and conduct of Corley and the conspirators provided relevant and competent circumstantial evidence of an agreement. Of course, mere proof of association with co-conspirators is insufficient without more to show the necessary agreement to commit criminal acts. United States v. Wieschenberg, 604 F.2d 326, 335 (5th Cir. 1979). Nevertheless, such association with co-conspirators may be considered as a factor. United States v. Jenkins, 779 F.2d 606, 614 (11th Cir. 1986); United States v. Cole, 704 F.2d 554, 557 (11th Cir. 1983).

The evidence in this case may not show beyond a reasonable doubt that Corley was guilty of conspiracy, but there was some evidence, although circumstantial, that she was a member of the conspiracy, even though she did not commit any overt act in furtherance of the conspiracy. We do not have to find that there was sufficient evidence to convict Corley of conspiracy, only that, after excluding the evidence necessary for acquittal on the substantive count, there was sufficient evidence to raise some doubts in a rational jury about Corley's innocence or guilt on the conspiracy count. We find sufficient evidence to raise such doubts. Accordingly, the verdicts were not inconsistent. Cf. United States v. Whitaker, 702 F.2d 901 (11th Cir. 1983) (court ruled jury could rationally have acquitted defendant of participation in illegal kickback scheme and convicted him of perjury for his statements to a grand jury denying knowledge of the scheme). The government, if it wished to, could retry Corley on the conspiracy charge, despite the exclusion of evidence regarding the substantive crime.

For the foregoing reasons, we AFFIRM the district court's use of collateral estoppel to limit evidence of the substantive count.