that the defendant's acquittal on Count I in White I could have been based on several factors, evidence previously presented in White I which did not have a direct bearing on either count of the White I indictment should be allowed to be presented in White II as evidence.
In Dowling v. United States, 493 U.S. 342, 110 S. Ct. 668, 672, 107 L. Ed. 2d 708 (1990), the Supreme Court held that "relevant and probative evidence that is otherwise admissable under the Rules of Evidence [should not be excluded] simply because it relates to alleged criminal conduct for which a defendant has been acquitted." In Dowling, the Supreme Court specifically held that an acquittal in a criminal case does not always preclude the government from religating an issue in a subsequent action governed by a lower standard of proof. Id. 110 S. Ct. at 672. This language concerning burden of proof may have been troubling to this Court but for the Supreme Court's further rejection of "the Third Circuit's holding that the common-law doctrine of collateral estoppel in all circumstances bars the later use of evidence relating to prior conduct which the government failed to prove violated a crime." Id. at 673.
The Supreme Court's holding in Dowling suggests that the analysis concerning what evidence to allow in the subsequent prosecution is identical to this Court's Double Jeopardy analysis. It is the defendant's burden to demonstrate that the issue he seeks to foreclose was actually decided in White I. Since the defendant has failed to demonstrate that his acquittal on Count I was based on a jury determination that the defendant did not know Mr. Linden's true identity, evidence relating to this issue cannot be precluded from White II. In Dowling, the Supreme Court held that evidence introduced to prove a charge of which the defendant is acquitted can be introduced in a subsequent prosecution if the prior acquittal did not determine an ultimate issue in the present case. Id. at 672. Evidence of the defendant's knowledge of Linden's identity, as well as evidence concerning the acquisition and subsequent transfer of the birth certificate, will not be excluded since it would, indeed, be relevant and probative evidence otherwise admissable under the Federal Rules of Evidence simply because it related to alleged criminal conduct for which the defendant has been acquitted. See United States v. Salamone, 902 F.2d 237 (3rd Cir. 1990) (applying Dowling and holding that defendant's acquittal on drug trafficking conspiracy charges did not preclude introduction of evidence in subsequent weapons prosecution that coconspirators had been at locations where weapons involved even though same evidence introduced in drug trafficking case since evidence collateral to offenses charged.)
The government has demonstrated that the jury's acquittal on Count I in White I could have been based on a number of issues. The government should not be precluded from introducing evidence concerning the acquisition and subsequent transfer of the birth certificate. See United States v. Irvin, 787 F.2d 1506, 1516 (11th Cir. 1986) (collateral estoppel no bar to government introducing evidence of acts allegedly in furtherance of a conspiracy to violate civil rights when defendant had been previously acquitted of depriving same victim of secured rights).
For the foregoing reasons, and for the reasons stated in open court on December 11, 1990, defendant's motion to dismiss shall be DENIED.
ORDER - December 20, 1990, Filed
In accordance with the hearing held in the above-captioned case on December 11, 1990, and the Memorandum Opinion issued on December 20, 1990, it is this 20th day of December, 1990, hereby
1) Defendant's Motion to Dismiss for Prosecutorial Vindictiveness is denied;
2) Defendant's Motion to Dismiss on Double Jeopardy grounds is denied.