Before EDGERTON, Senior Circuit Judge, and DANAHER and WRIGHT, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 1965.CDC.7
February 11, 1965. Decided
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WRIGHT
J. SKELLY WRIGHT, Circuit Judge:
The appellants in this case were convicted of a conspiracy to commit an offense against the United States *fn1 by influencing the actions of one Jean Smith, a material witness in an earlier criminal prosecution against appellant Forte. *fn2 Each appellant here was also convicted of the substantive offense of corruptly endeavoring to influence Mrs. Smith in her actions as a witness. *fn3
The case for the prosecution rested chiefly on the testimony of Bernice Gross, who was named as a third member of the alleged conspiracy but was not indicted. It appears that she had acted as an intermediary between the appellants and the target witness, Mrs. Smith. Mrs. Gross testified to numerous conversations with each appellant concerning her role in the scheme, and also stated that on one occasion appellant Laughlin had instructed her to have Mrs. Smith write a letter to the United States Attorney asking him to excuse her from appearing in the criminal case against Forte. Such a letter was actually sent and was introduced by the Government as evidence in this case. Mrs. Gross further testified that on several occasions she had received sums of money from appellant Forte which she delivered to Mrs. Smith.
The testimony of Mrs. Gross was corroborated by Mrs. Smith, who acknowledged receiving gifts of money from Mrs. Gross and writing the letter to the United States Attorney at the suggestion of Mrs. Gross. Mrs. Gross' story was also corroborated by tape recordings, offered by the Government, of four telephone conversations between Mrs. Gross and appellant Laughlin which occurred some time after the alleged conspiracy had ended. *fn4 Of the numerous points raised on appeal, the primary contention of the appellants is that these recordings should not have been admitted as evidence in this case. I.
The same tape recordings introduced in this case were also involved in a prior case, Criminal No. 599-63, in which appellant Laughlin was tried on a charge of perjury. In that case, the Government introduced the recordings in evidence, but subsequently, on Laughlin's motion, the court declared a mistrial, holding that they should have been excluded. The court found that the recordings had been made in violation of Section 605 of the Communications Act *fn5 since they were made without the consent of Mrs. Gross. *fn6 The indictment in Criminal No. 599-63 was thereafter dismissed on the ground that, excluding the recordings, the evidence before the grand jury was not sufficient to sustain the indictment. *fn7
In the trial of this case, Laughlin contended that under the doctrine of collateral estoppel the Government should have been precluded from relitigating the question of whether Mrs. Gross' consent to the making of the recordings was coerced. The trial court rejected this contention, found that Mrs. Gross' consent was freely given, and admitted the recordings into evidence. We hold that in so doing the court erred. II.
The doctrine of collateral estoppel, developed largely in the context of civil litigation, is designed to prevent repetitious litigation of the same issue by the same parties. *fn8 It applies generally to preclude relitigation of an issue resolved by final judgment in a prior legal action. *fn9 While some of the policies underlying the application of the doctrine may be different, *fn10 it is well established that the principles of collateral estoppel apply in criminal, as well as in civil, litigation. *fn11 This much is not controverted.
The contention of the Government is that, in the particular circumstances of this case, the doctrine should not apply. Conceding that the issue of admitting the recordings was litigated on Laughlin's motion for mistrial in Criminal No. 599-63, the Government points out that Judge Youngdahl's order granting that motion was not a final judgment. Admitting that Judge Curran's dismissal of the indictment in Criminal No. 599-63 was a final judgment, the Government contends that the issue as to the admissibility of the tapes was not litigated during the hearing on the motion to dismiss. *fn12 By thus separating the two prerequisites for collateral estoppel - full litigation and final determination - the Government seeks to show that the issue of whether Mrs. Gross voluntarily consented to the recordings was open for resolution in the present case.
We see no reason why this separation should have the effect sought. When the question of Mrs. Gross' consent was litigated before Judge Youngdahl on the motion for mistrial, both the Government and appellant had full opportunity to present, and presumably did present, whatever relevant evidence they had. Judge Youngdahl ruled against the Government. *fn13 Although the Government did not challenge the ruling, the fact of coercion, as found by Judge Youngdahl, was essential to Judge Curran's disposition of the motion to dismiss the indictment. He had the transcript of the record made before Judge Youngdahl before him. He had Judge Youngdahl's opinion before him, and since he agreed that the tape recordings were illegally made, he dismissed the indictment for lack of competent evidence. *fn14
Here, after a determination that Mrs. Gross' consent was not voluntary, the proceedings in Criminal No. 599-63 had been terminated. The Government then had the right to appeal. On this appeal the findings of the trial court would have been subject to review. Hence, this was not a situation where the Government was to be bound by an order not subject to review. *fn15
One final matter requires discussion. Relying on the distinction drawn by the court's opinion in The Evergreens v. Nunan, *fn16 the Government contends that the fact in issue here was not an ultimate fact. In Yates v. United States, 354 U.S. 298, 338, 77 S. Ct. 1064, 1087, 1 L. Ed. 2d 1356 (1957), the Supreme Court said that "[the] normal rule is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding. So far as merely evidentiary or 'mediate' facts are concerned, the ...