United States of America, Plaintiff-appellee, v. Robert Rawlings, Jr., Defendant-appellant, 34 F.3d 1075 (9th Cir. 1994)

MEMORANDUM^** 

Robert Rawlings, Jr., appeals the denial of his pretrial motion to dismiss on double jeopardy grounds his indictment for thirteen counts of wire fraud in violation of 18 U.S.C. § 1343. Rawlings contends that his prosecution for wire fraud in his dealings with The Florida Group, Inc., is barred because a bankruptcy court found that The Florida Group failed to establish fraud. We have jurisdiction under the collateral order doctrine. See United States v. Witten, 965 F.2d 774, 775 (9th Cir. 1992) (citing Abney v. United States, 431 U.S. 651, 659-62 (1977)). We affirm.

We review de novo the denial of a motion to dismiss an indictment on double jeopardy grounds. United States v. Traylor, 978 F.2d 1131, 1132 (9th Cir. 1992) (per curiam), cert. denied, 113 S. Ct. 1958 (1993).

The Double Jeopardy Clause prohibits successive punishments for the same criminal offense. United States v. Dixon, 113 S. Ct. 2849, 2855 (1993). It also prohibits successive prosecutions for the same criminal offense. Id. This prohibition encompasses a prohibition against prosecutions barred by collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 443 (1970) ("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"); United States v. Barragan-Cepeda, No. 93-50642, slip op. 7547, 7552 (9th Cir. July 12, 1994). Civil proceedings, however, normally "cannot form the basis for a double jeopardy claim." United States v. Yacoubian, 24 F.3d 1, 10 (9th Cir. 1994) (deportation not impermissible double criminal punishment); cf. Traylor, 978 F.2d at 1133 n. 2 (civil penalty may constitute punishment precluding later criminal prosecution).

Rawlings contends that the doctrine of collateral estoppel bars his prosecution for mail fraud because in Rawling's personal bankruptcy proceeding, the bankruptcy court found that The Florida Group failed to prove fraud. This contention lacks merit because the United States was not a party in the bankruptcy proceeding. See Ashe, 397 U.S. at 443; Stephens v. Attorney General, 23 F.3d 248, 249 (9th Cir. 1994) (per curiam) ("collateral estoppel cannot be applied to a litigant who was not a party or in privity with a party to the earlier proceeding"). Accordingly, the district court did not err by denying Rawlings's motion to dismiss the indictment.¹ 

AFFIRMED.