Unpublished Disposition, 919 F.2d 147 (9th Cir. 1990)

MEMORANDUM^* 

Reuben Sturman appeals the district court's denial of his motion to dismiss Counts 1 and 2 of the second superseding indictment charging him with a RICO conspiracy and a substantive RICO offense predicated on obscenity offenses. The district court rejected Sturman's argument that the two counts violated the Double Jeopardy Clause of the Constitution based on Sturman's acquittal in Cleveland in 1978 of charges of conspiracy to violate federal obscenity laws.

This court has jurisdiction over this appeal from a pretrial denial of a defendant's motion to dismiss on double jeopardy grounds under 28 U.S.C. § 1291 and Abney v. United States, 431 U.S. 651, 662 (1977). We affirm.

* Since the trial has not yet commenced, we review for clear error only the district court's determination that proof of the conduct constituting the offense of which defendant has been acquitted would not be essential to prove the offense now charged. United States v. Bendis, 681 F.2d 561, 566 (9th Cir. 1981).

Because Sturman has made a non-frivolous showing of former jeopardy, see infra, the government bears the burden of establishing separate offenses are involved. Id. at 564. The district court's opinion is silent as to the burden of proof, and Sturman argues the order therefore is "constitutionally suspect" and the matter should be remanded for further proceedings. United States v. Ragins, 840 F.2d 1184, 1193 (4th Cir. 1988). A remand is unnecessary. Defense counsel informed the district court of the appropriate allocation of the burden of proof, and the government did not deny that it bore that burden. There is no reason to believe the experienced trial judge disregarded what both parties conceded. Cf. id. at 1191 (noting the district court "apparently assumed that [the burden of proof] lay with the defendant throughout the proceeding.").

II

The Supreme Court recently restated the standard for determining whether the Double Jeopardy Clause bars a subsequent prosecution. Even if each of two prosecutions "requires proof of a fact which the other does not," and thus satisfies the traditional test laid out in Blockburger v. United States, 284 U.S. 299, 304 (1932),

the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

Grady v. Corbin, 110 S. Ct. 2084, 2087 (1990). The Grady test does not preclude the government from basing a later prosecution on the "same criminal transaction" upon which the defendant's earlier conviction rests, id. at 2094 n. 15, nor preclude the government from introducing evidence in the later proceeding that was introduced in the prior proceeding. Id. at 2093 n. 12; see also Dowling v. United States, 110 S. Ct. 668, 673-74 (1990).

The district court found the indictment in the present case alleged a RICO conspiracy focusing on an agreement between Sturman and other owners of retail outlets regarding the retail distribution of pornographic materials, whereas the conspiracy which was the subject of the Cleveland trial focused on an agreement between Sturman, Sovereign News, and other "agency companies" or distributors not named in the Cleveland indictment regarding the regional or wholesale distribution of pornography. Speaking of the present indictment, the court found "that there is a different agreement entered into by different conspirators with a different focus than the Cleveland conspiracy." The court continued,

this agreement is sufficiently dissimilar that it constitutes 'conduct' different from that for which Sturman has already been prosecuted. The court also finds that the Cleveland conspiracy is not an essential element of this indictment, since the government need not prove the existence of the Cleveland conspiracy in order to convict Sturman in this case.

On the present record we cannot say these findings are clearly wrong.¹

To support his argument that the present indictment alleges the same agreement the government attempted to prove at the Cleveland trial, Sturman points to evidence introduced at the Cleveland trial concerning retail bookstores, and in particular, Talk of the Town Bookstore. Although evidence was introduced at the Cleveland trial describing the distribution of materials to retail bookstores and indicating Sturman and some of his codefendants controlled a number of such bookstores, the only agreement the government attempted to prove was one between Sturman and regional distributors of pornography.

Sturman contends the government is collaterally estopped by the district court's decision in United States v. Kamins, 479 F. Supp. 1374 (W.D. Pa. 1979), from arguing the Cleveland trial did not include an agreement relating to retail distribution. The Kamins court held a subsequent Pittsburgh indictment barred by double jeopardy because of the Cleveland acquittal. As we read the findings of the Kamins court regarding the scope of the Cleveland conspiracy, however, they do not include a finding that the conspiracy tried in Cleveland encompassed the agreement regarding retail bookstores alleged in the present case.

Because the district court did not clearly err in concluding that proof of the conduct for which Sturman was tried in Cleveland was not essential to proof of the offense alleged in this case, we AFFIRM.