United States v. Joseph Merlino A/K/A Skinney Joey Joseph Merlino

Citations: 310 F.3d 137; 2002 U.S. App. LEXIS 23258; 2002 WL 31492310Docket: 01-4041

Court: Court of Appeals for the Third Circuit; November 8, 2002; Federal Appellate Court

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Joseph Merlino is appealing a District of New Jersey indictment alleging his involvement in the Philadelphia La Cosa Nostra Family and the murder of Joseph Sodano. He contends that the indictment violates the principle of collateral estoppel, asserting that a prior jury found him not guilty of Sodano's murder. The court, however, determined that Merlino could not demonstrate that the jury's "Not Proven" indication on the verdict sheet constituted a definitive finding in his favor regarding the murder, thus precluding him from using collateral estoppel to challenge the New Jersey indictment.

The case involves two indictments: one in Pennsylvania, where Merlino was convicted on multiple counts under the Racketeer Influenced and Corrupt Organizations Act (RICO), and another in New Jersey. In Pennsylvania, the jury found him guilty of several racketeering acts but marked others, including the murder of Sodano, as "Not Proven." The government argues that the jury's actual finding on the Sodano murder remains ambiguous due to the District Court's jury instructions, which may have allowed the jury to disregard its unanimity requirement. The court affirmed the District Court's decision to deny Merlino's motion to dismiss the New Jersey indictment.

The indictment outlines specific racketeering acts attributed to the defendants, categorized into various offenses: 6 acts of murder or conspiracy to murder, 18 acts of extortion, 3 acts of gambling violations, 6 acts involving stolen property, and 2 acts related to cocaine distribution. The jury was instructed to reach a unanimous decision on whether each racketeering act was proven or not, with a requirement that at least two acts or one unlawful collection of debt must be established for a RICO conviction. 

During deliberations, the jury inquired whether they needed to decide on all racketeering acts once they established the necessary criteria for a guilty verdict. The judge affirmed that they did, and later clarified that they could unanimously decide on an act being "not proven" even if there was no consensus on its relevance to the overall count. Ultimately, the jury found that Merlino was involved in six acts under Count I and five under Count II, but marked several acts, including the murder of Sodano, as "Not Proven."

The government contends that the jury's ability to mark the Sodano murder as "Not Proven" was influenced by the judge's instructions, leaving uncertainty about the actual vote count on that specific act. Following this trial, Merlino faced new RICO charges in New Jersey, including conspiracy to murder Sodano. He moved to dismiss these charges based on the Pennsylvania jury's special verdict, invoking the doctrine of collateral estoppel, but the District Court denied his motion, prompting an appeal. The review of the collateral estoppel claim is considered a legal issue subject to plenary review under the Double Jeopardy Clause.

The District Court held subject matter jurisdiction following a grand jury indictment under 18 U.S.C. 3231, with appellate jurisdiction over the pre-trial order under 28 U.S.C. 1291 and the collateral order doctrine. The Double Jeopardy Clause of the Fifth Amendment prevents successive prosecutions for the same offense, but in this case, Merlino faces charges for two distinct offenses: a RICO violation from a prior conviction and a new charge under 18 U.S.C. 1959 for violent crime in aid of racketeering. The offenses are considered different for Double Jeopardy purposes since each requires proof of elements not required by the other.

Merlino contended that principles of collateral estoppel should dismiss his New Jersey indictment based on his acquittal in Pennsylvania for Sodano's murder. However, the District Court denied this motion, stating that it could not ascertain whether the Pennsylvania jury's "Not Proven" verdict was unanimous. Merlino argued that he need not prove a unanimous acquittal to benefit from collateral estoppel, but the court concluded that he must demonstrate such unanimity, a burden he could not meet. The principles from Ashe v. Swenson stipulate that a unanimous acquittal constitutes a "valid and final judgment" that bars relitigation of the decided issue, but a hung jury does not provide such a bar, reinforcing the requirement that the defendant must prove the jury's unanimous decision to successfully claim collateral estoppel.

A unanimous vote cannot be solely demonstrated by the face of a verdict sheet; it requires examination of the entire record from the prior proceeding, including pleadings, evidence, and jury instructions. The Supreme Court in Ashe established that a defendant must prove an issue was actually decided in their favor. This principle applies regardless of whether the verdict is general or special, placing the burden on the defendant to show that the prior verdict resolved the issue favorably. In the case at hand, Merlino cannot demonstrate that the jury unanimously or even by majority acquitted him of participating in Sodano's murder, as the jury's special verdict sheet indicated "Not Proven" but was rendered ambiguous by supplemental jury instructions. The jury's inquiry regarding whether a lack of unanimity could lead to a "Not Proven" decision resulted in unclear voting implications. Two interpretations arise: one suggesting a unanimous acquittal and the other indicating the jury was deadlocked. Only the first interpretation would bar further litigation on the issue, but Merlino cannot definitively establish which interpretation applies. He argues that the verdict is unambiguous and reflects a unanimous decision of "not proven," but this assertion does not hold due to the conflicting interpretations arising from the trial court’s instructions, leading to the conclusion that he has not proven the issue was decided in his favor.

Merlino argues that a special verdict in a criminal case is a valid and final judgment despite any ambiguity and that a unanimous acquittal is not necessary to prevent future litigation. He claims that any judgment from a competent court is final if it is "procedurally definite," citing Fong Foo v. United States and Sanabria v. United States, which establish that an erroneous jury instruction does not affect the binding nature of an acquittal for collateral estoppel. However, these cases do not address the necessity of a unanimous acquittal for preclusive effect, as they focus on different issues. The excerpt clarifies that the binding effect of a unanimous acquittal is not altered by erroneous legal foundations, and a hung jury does not prevent future litigation. The court's decision is based on Merlino's failure to prove a unanimous acquittal rather than the trial court's instructions, resulting in the denial of his collateral estoppel claim.

The conclusion affirms the District Court's denial of the motion to dismiss the indictment and remands the case for further proceedings. In dissent, Judge Nygaard contends that the jury’s "Not Proven" finding should be accepted as is, asserting that reconstructing the jury's decision-making process is speculative and undermines the sanctity of jury verdicts. He disagrees with the government's argument that the jury likely was not unanimous after supplemental instructions and emphasizes that the only certainty is that the predicate act was deemed "not proven."

In Ashe v. Swenson, the Supreme Court established that a defendant must demonstrate that an issue was actually decided in a prior proceeding to claim that a general verdict precludes litigation on that issue. This principle applies particularly to cases of acquittal based on general verdicts, where it can be challenging to ascertain the jury's specific determinations. In contrast, with a special verdict, the jury's conclusions are clear; in this case, the jury found the predicate acts "Not Proven," which should preclude any future litigation on the related murder charges against Merlino.

The government contends that Merlino must prove that the issue he seeks to bar was resolved in his favor, regardless of whether the verdict was general or special. However, it is concluded that he has successfully done so. The cited case, United States v. Console, involved a hung jury and is not applicable here, as the jury returned a definitive verdict, establishing a final judgment.

The jury's finding on the predicate acts is equivalent to a verdict on the murder charge itself. Under Apprendi v. New Jersey, any fact that could increase the maximum penalty must be proven beyond a reasonable doubt to a jury. Since a favorable verdict on the predicate acts would have led to life imprisonment for Merlino, the government had the burden to prove murder beyond a reasonable doubt. Consequently, the "Not Proven" verdicts should be regarded as acquittals for purposes of collateral estoppel.

The District Court's dismissal of this reasoning, arguing that the consequences of the Proven racketeering acts should outweigh the Not Proven acts, leads to potential inequities. It suggests that the government could indefinitely use unproven predicate acts in future prosecutions, undermining the protections intended by the Double Jeopardy Clause and collateral estoppel.

The appellee's argument claims that an erroneous jury instruction may have led to a flawed unanimous verdict, but this is insufficient for overturning an acquittal, as established in precedent. The principles of the Fifth Amendment's Double Jeopardy Clause aim to prevent defendants from facing repeated trials for the same charges. Therefore, Merlino should not be penalized for any potential errors during the jury instruction process, warranting a reversal of the District Court's decision.