Unpublished Disposition, 874 F.2d 817 (9th Cir. 1988)

Nos. 88-3152, 88-3153.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and ALARCON, Circuit Judges, and WILLIAM H. ORRICK, Jr.,^*  Senior District Judge.

MEMORANDUM^** 

Affirming the district court's denial of appellants' double jeopardy motion, we conclude the second indictment charges offenses distinct from those in the first.

FACTS

Hilling and Neubauer held management positions in Irving Savings and Loan after acquiring a controlling interest in August 1983. During 1983-84, they allegedly participated in a scheme to make unauthorized loans and credits. In exchange for their participation, they received substantial kickbacks from the loan recipients.

In December 1986, a Washington federal grand jury indicted Hilling and Neubauer for (1) wire fraud (18 U.S.C. § 1343) (1982); (2) interstate transportation of property taken by fraud (18 U.S.C. § 2314) (1982); and (3) conspiring (18 U.S.C. § 371) (1982) (a) to commit wire fraud, (b) to transport property taken by fraud, (c) to make false statements and entries (18 U.S.C. § 1014) (1982), (d) to misapply funds (18 U.S.C. § 657) (1982); and (e) to receive money with intent to defraud several financial institutions (18 U.S.C. § 1006) (1982). These charges arose from a series of unsound loans and credits that the two defendants made to Raymond Gray and Brian Marler. Gray and Marler used the loan proceeds to maintain control of Home Savings and Pride Air, Inc. The fraudulent transactions occurred between December 9, 1983 and October 17, 1984.

A jury acquitted Hilling and Neubauer of the wire fraud and interstate transportation charges. It convicted them of the conspiracy charge, but this court reversed. See United States v. Hilling and Neubauer, Nos. 87-3121 and 87-3123 (9th Cir. Dec. 20, 1988).

In August 1987, a federal grand jury in Montana indicted them for (1) wire fraud (Sec. 1343); (2) receiving kickbacks (18 U.S.C. § 215(a) (2)) (1982 and Supp. III 1985); and (3) making false reports to obtain loans for Virgil Jahnke and Steven McMullen (Sec. 1006). The acts forming the basis for these charges took place from August 4, 1983 through April 5, 1984 and involved two loans: a loan to Jahnke for the alleged purpose of converting a potato storage warehouse to a grain storage facility; and a loan to McMullen for the purchase of an airplane from Jahnke.

The government introduced evidence of the Jahnke transactions in the Washington conspiracy prosecution. It offered them as overt acts establishing a scheme to defraud, not as proof of the substantive charges.

Hilling and Neubauer allege that double jeopardy bars the Montana action as a second prosecution of either the substantive offenses or the conspiracy charge. They appeal from an order denying their motion to dismiss the indictment.

DISCUSSION

We review de novo. United States v. Morlan, 756 F.2d 1442, 1444 (9th Cir. 1985).

A. Washington Acquittal of Substantive Offenses

The double jeopardy clause bars multiple prosecutions for the same offense. " [T]he test to be applied to determine whether there are two offenses or only one, is whether each [charge] requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). Although Blockburger involved one act that violated several statutes, courts have applied the same evidence test where the prosecution alleges several distinct acts. See United States v. Ragins, 840 F.2d 1184, 1189 (4th Cir. 1988) (acquittal of illegal possession of one birth certificate did not bar prosecution for possession of a different certificate); United States v. Hoelker, 765 F.2d 1422, 1427 (9th Cir. 1985) (proof of substantive drug charges in second indictment did not necessarily constitute proof of first indictment's substantive or conspiracy counts), cert. denied, 475 U.S. 1024 (1986).

The substantive offenses charged in the Montana indictment require proof of facts which the Washington indictment did not. The acts forming the basis for the second prosecution occurred on different dates and involved different parties, financial institutions and funds.

Appellants claim alternatively that collateral estoppel bars the Montana prosecution. They assert the Jahnke transactions underlying the Montana indictment arise from the same set of acts that formed the basis for the Washington charges.

The double jeopardy clause protects the accused from attempts to relitigate the facts underlying a prior acquittal. Brown v. Ohio, 432 U.S. 161, 165 (1977). Collateral estoppel is an element of the Fifth Amendment's protection. Ashe v. Swenson, 397 U.S. 436 (1970). In a criminal case, the collateral estoppel analysis involves three steps: the court identifies the issues in the two actions to determine whether they are sufficiently similar to justify invoking the doctrine; it examines the first record to determine whether the issue was fully litigated; and it ascertains whether the issue was necessarily decided. United States v. Crooks, 804 F.2d 1441, 1446 (9th Cir. 1986).

The issues in the two substantive prosecutions are not sufficiently similar to invoke collateral estoppel. The Washington prosecution determined whether Hilling and Neubauer violated wire fraud and interstate transportation statutes when, on September 27, 1984, they transferred $2.3 million from Home Savings to Alliance Federal for the benefit of Gray and Marler.

In contrast, the Montana prosecution will decide whether Hilling made false reports between August 4 and October 13, 1983 for the purpose of securing a $2.8 million loan to Jahnke. It will determine whether Hilling and Neubauer accepted kickbacks from Jahnke in exchange for their role in obtaining the loan. Finally, it will establish whether they committed wire fraud (a) on October 13, 1983, when they transferred the $2.8 million from Irving Savings to Security Title, and (b) on April 3, 1984, when they transferred $97,000 from Irving Savings to the Valley Bank of Belgrade for McMullen's purchase of Jahnke's plane.

Hilling and Neubauer also argue that the Washington conviction bars the Montana prosecution. Because this court has reversed the conspiracy conviction on grounds other than sufficiency of the evidence, their claim is moot. Double jeopardy does not bar retrial of a defendant whose conviction has been reversed. "Reprosecution can proceed on the same or a different statutory violation, regardless of whether that statutory violation is considered to be the same or a separate offense." Lowery v. Estelle, 696 F.2d 333, 340 (5th Cir. 1983); see also United States v. Poll, 538 F.2d 845, 847 (9th Cir.), cert. denied, 429 U.S. 977 (1976).

AFFIRMED. The clerk will issue the mandate now.