United States v. Ronald Ustica, Joseph Testa, and Anthony Senter

Citations: 847 F.2d 42; 1988 U.S. App. LEXIS 10797Docket: 830-832

Court: Court of Appeals for the Second Circuit; May 16, 1988; Federal Appellate Court

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Three defendants—Ronald Ustica, Joseph Testa, and Anthony Senter—appealed a decision from the United States District Court for the Southern District of New York that allowed the government to retry them for violating 18 U.S.C. Sec. 241. Ustica was previously convicted of this charge along with two others, but the conviction for Sec. 241 was overturned due to insufficient evidence. Testa and Senter were acquitted of the other charges, but the jury could not reach a verdict on the Sec. 241 charge, resulting in a mistrial for them.

The Court of Appeals ruled that retrying Ustica on the Sec. 241 charge would constitute double jeopardy under the Fifth Amendment, as his conviction had been invalidated. In contrast, the Court found that Testa and Senter could be retried since their initial jeopardy had not terminated with the mistrial. The appellate court reversed the district court’s order concerning Ustica while affirming it regarding Testa and Senter.

The case stemmed from a broader 78-count indictment involving multiple defendants and various serious allegations, including murder and racketeering, and was presided over by Judge Kevin Thomas Duffy.

On September 9, 1985, Judge Duffy ordered a separate trial for twenty-three counts of an indictment involving ten defendants in a stolen car operation. The trial commenced on September 30, 1985, and concluded on March 5, 1986. Ustica and four others were convicted of conspiracy to transport stolen property under 18 U.S.C. Sec. 371, while Testa and Senter were acquitted. Ustica and two others were also convicted of interstate transportation of stolen property per 18 U.S.C. Sec. 2314, with Testa and Senter acquitted on those counts. The appeal focuses on the Sec. 241 count, where Ustica and one other defendant were convicted of conspiring to violate the civil rights of two murder victims, Ronald Falcaro and Kalid Fahd Darwish Daoud. The government argued that Ustica wanted these individuals killed due to their involvement in the defendants' stolen car scheme. Evidence presented included that one defendant had committed the murders and that Testa and Senter participated in the dismemberment and disposal of the bodies.

On January 30, 1986, the defendants moved for acquittal on the Sec. 241 count, arguing that the government had not established the victims' American citizenship, a critical element of the charge. Judge Duffy denied the motion, stating that Sec. 241 protects not only American citizens but also non-resident aliens under due process. He indicated that he would pose a special jury question regarding citizenship. Prior to the defendants' motion, testimony from Falcaro's wife suggested his legal residency and tax status in the U.S., but the government did not present further evidence on the victims' citizenship at the time of the motion.

Following Judge Duffy's ruling on a Rule 29 motion, the government completed its case on February 3, 1986, and the defense rested the next day. After both parties had rested, the government sought to reopen its case to introduce victim Falcaro's American birth certificate, which the court denied. Judge Duffy instructed the jury to specifically consider the victims' citizenship, leading the jury to find Falcaro an American citizen. However, upon Ustica's appeal, the Court determined that the evidence did not meet the government's burden of proof regarding the victims' citizenship concerning the Sec. 241 count. The Court emphasized that Falcaro's citizenship could not be established beyond a reasonable doubt, and noted that Daoud was a Jordanian citizen. Following this decision, Judge Duffy recused himself, and the case was reassigned to Judge Broderick, who granted the government's motion for retrial of Ustica, Testa, and Senter on the Sec. 241 count despite the defendants' motion to bar retrial. The Double Jeopardy Clause of the Fifth Amendment generally does not prevent reprosecution where a conviction is overturned through an appeal. However, if a conviction is set aside due to insufficient evidence, retrial is barred under the principle of double jeopardy, as established in precedent cases.

An exception to the double jeopardy rule exists where an appellate reversal for evidentiary insufficiency parallels a trial court acquittal based on insufficient evidence. Rule 29 of the Federal Rules of Criminal Procedure mandates a district court to enter a judgment of acquittal when evidence is insufficient, precluding retrial for that offense. This principle is supported by case law, including *Fong Foo v. United States* and *Kepner v. United States*, which affirm that a defendant cannot be retried once acquitted. In *Burks*, the Supreme Court clarified that a defendant's protection from retrial applies equally whether the acquittal comes from a trial court or an appellate court's determination of insufficient evidence. Justice O'Connor echoed this sentiment in *Tibbs v. Florida*, stating that any verdict of not guilty protects against retrial, as it indicates no rational basis for a conviction.

The rationale behind this protection is rooted in the Double Jeopardy Clause, which emphasizes the significance of acquittals and the risk that a government with superior resources could pressure a defendant into an unjust conviction upon retrial. The public interest does not favor retrying a defendant whose conviction was reversed due to evidentiary insufficiency, as a jury's verdict of acquittal is final. The court in *Burks* noted that retrial is unwarranted when a legal review establishes that a guilty verdict was unattainable.

In *United States v. Gaggi*, the court reversed Ustica's conviction, concluding that no rational jury could have found the defendant guilty beyond a reasonable doubt, thus determining the evidence insufficient as a matter of law.

The government contends that a retrial of Ustica should be allowed despite insufficient evidence due to alleged trial court error. Judge Broderick rejected this, affirming that Judge Duffy's exclusion of Mr. Falcaro's birth certificate was not an error. The ruling emphasizes that appellate reversals based on insufficient evidence prohibit retrial, regardless of any trial errors. This principle is supported by precedents such as *Sanabria v. United States* and *United States v. Scott*, where acquittals based on insufficient evidence, even if erroneous, bar further prosecution. The court highlights that allowing a retrial after such an acquittal poses significant risks to defendants, potentially leading to unjust outcomes. Consequently, retrial of Ustica on the Sec. 241 count would violate the Fifth Amendment's Double Jeopardy Clause. While acknowledging the jury's finding of Ustica's involvement in serious crimes, the ruling underscores that the constitutional protections against double jeopardy are absolute and not subject to judicial discretion. Regarding defendants Testa and Senter, the jury was unable to reach a verdict on their involvement in Sec. 241 violations, resulting in a mistrial for them on that count.

A mistrial declared due to a hung jury does not bar retrial under the Double Jeopardy Clause, as established in United States v. Perez and reaffirmed in Richardson v. United States. The Supreme Court has clarified that such a mistrial is a "manifest necessity" to uphold public justice, meaning that the original jeopardy continues despite the jury's inability to reach a verdict. Consequently, a defendant cannot claim double jeopardy even if the initial trial's evidence was deemed insufficient. 

In the current case, the defendants Testa and Senter argue that an "event" occurred that should terminate their original jeopardy, specifically a prior finding of insufficient evidence regarding a co-defendant. However, the principle from Richardson indicates that retrial following a hung jury is permissible regardless of prior evidentiary insufficiency. The Court noted that Richardson did not address situations involving co-defendants but maintained that a ruling on evidence sufficiency does not affect the right to retrial after a mistrial. Thus, the retrial of Testa and Senter on the Sec. 241 count is upheld.

Testa and Senter contend that collateral estoppel prevents relitigation of citizenship issues in their second trial. While collateral estoppel can bar the relitigation of issues decided by a valid final judgment, the Supreme Court's ruling in Standefer establishes that nonmutual collateral estoppel generally does not apply in criminal cases. The court finds no reason to apply it here, emphasizing that the Double Jeopardy Clause does not mandate a nonmutual ruling on insufficient evidence to preclude retrial after a hung jury, aligning with the Supreme Court's decision in Richardson. The court also points out that Testa and Senter do not claim any misconduct by the government or trial court in declaring a mistrial.

The apparent disparity in the retrial rules for Testa and Senter compared to Ustica is justified by the purposes of the Double Jeopardy Clause. The court notes the dissenting opinion in Richardson, which highlighted the inequity faced by defendants who do not receive an acquittal due to a flawed trial process. Ultimately, the district court's order is reversed concerning Ustica, resulting in the dismissal of Count Four of the indictment against him, while the order is affirmed for Testa and Senter. The legal context includes references to several statutes (18 U.S.C. Sec. 241, 2314, and 371) relevant to the case and a brief mention of the factual background discussed in another case.

The indictment dated October 4, 1984, was modified for the trial on severed charges, retaining only those specific counts, which were renumbered accordingly. The charges under 18 U.S.C. Sec. 241 against Ustica, Testa, and Senter were moved from Count Four of the original indictment to Count Twenty-Three in the redacted version. Defendant Ronald Turekian was convicted of four counts of mail fraud in connection with a stolen car operation, an offense defined under 18 U.S.C. Sec. 1341. During oral argument, government counsel noted that the American birth certificate of victim Falcaro was prepared as an exhibit but not submitted due to an inadvertent error. Judge Duffy instructed the jury to consider the citizenship of Falcaro and Daoud separately, highlighting the lack of evidence regarding their citizenship status. He emphasized that Daoud possessed a Jordanian passport at the time of his death, suggesting he was not a U.S. citizen. A special jury question was posed regarding Ronald Falcaro's U.S. citizenship. Additionally, a reference was made to the legal distinction made by the Supreme Court in Tibbs v. Florida concerning the differences between appellate reversals based on the weight versus the sufficiency of the evidence.

Judge Duffy's decision to prohibit the government from introducing Falcaro's birth certificate into evidence after both parties had rested is not contested as erroneous by the government. Instead, the government asserts that the actual error was Judge Duffy's interpretation of Section 241, which misapplied the law to include lawfully present aliens rather than just citizens. This misinterpretation, according to the government, was the primary reason for the reversal of the case and influenced Judge Duffy's rejection of the late offer to introduce the birth certificate. The government acknowledged it failed to present the birth certificate in a timely manner, attributing this to a communication breakdown among its trial counsel. Additionally, it did not inquire whether Falcaro was a citizen because it intended to introduce the birth certificate during its case presentation, which ultimately did not happen due to a mistake. Government counsel admitted that mishandling the birth certificate was a significant error. Furthermore, the Burks Court distinguished the case concerning evidentiary sufficiency and noted that nonmutual collateral estoppel applies to Testa and Senter, as they were not parties to Ustica's appeal despite being present at the same trial.