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January 29, 1993

ROBERT H. BAILIN, et al., Defendants.

The opinion of the court was delivered by: WILLIAM T. HART


 A second interlocutory appeal has been taken in this case after a mistrial. The question before the court is whether a stay should be granted pending this appeal.

 The original indictment in this case was returned on August 2, 1989. The indictment was superseded three times. The third superseding indictment was returned exactly one year after the original indictment was returned. Trial of this case started in September 1990. The case went to the jury in February 1991. A verdict was returned in March 1991. Defendants were found not guilty on approximately 120 counts and the jury hung on approximately 80 counts. Thereafter, a number of posttrial motions were filed, including various defendants' motions to dismiss the remaining counts. Most of those motions were denied in an order dated June 26, 1991. One of the defendants, Bailin, subsequently appealed the denial of his motion based on double jeopardy and the government filed a cross-appeal. The retrial was then postponed pending resolution of the appeals. The Seventh Circuit issued its ruling on October 1, 1992. See United States v. Bailin, 977 F.2d 270 (7th Cir. 1992). The mandate was returned on October 23, 1992.

 On October 27, 1992, a trial date of January 11, 1993 was set and a briefing schedule was set for any pretrial motions. On November 3, 1992, I recused myself from the case because of a conflict of interest with an attorney who had filed an appearance on behalf of a defendant. The case was reassigned to another judge who extended the briefing schedule. The attorney whose appearance had necessitated my recusal withdrew from the case. On November 18, 1992, the case was reassigned to me. A new trial date of February 8, 1993 was set and briefing was completed under the new schedule. The retrial of this case has been estimated to last 8 to 12 weeks or more.

 One of the motions filed was the government's motion to admit certain evidence, which included a request to admit evidence related to previously acquitted counts. It became fully briefed on January 14, 1993. The pending motions were ruled upon in an order dated January 22, 1993. At least five defendants have filed notices of appeal from the January 22 Order. Two defendants have moved to stay the proceedings pending resolution of the interlocutory appeal. At least one other defendant has expressly joined in that motion and no defendant has expressed opposition to a stay. As has been previously ordered, the motion for a stay is treated as being on behalf of all defendants. The government opposes the stay. For the reasons stated below, the motions for a stay of proceedings pending the interlocutory appeal are denied. *fn1"

  In an order dated January 22, 1993, this court held that the government was not precluded from using evidence related to counts on which defendants were acquitted in a prior trial. See January 22 Order at 4-7. *fn2" It was also found that such evidence would not be excluded as cumulative. Id. at 7-10. As of this writing, at least five defendants have filed notices that they are appealing that ruling. Defendants have moved to stay proceedings pending resolution of the interlocutory appeal. No defendant has opposed the request for a stay, but the government has. This case is set for trial beginning February 8, 1993.

 It is well established that criminal defendants may take an interlocutory appeal on the issue of whether double jeopardy precludes the prosecution of particular counts of an indictment. Abney v. United States, 431 U.S. 651 (1977); United States v. Bailin, 977 F.2d 270, 274 n.4 (7th Cir. 1992); United States v. Powers, 978 F.2d 354, 358 (7th Cir. 1992). That, however, is not the issue defendants seek to appeal in this case. First, defendants rely on issue preclusion or estoppel, not necessarily double jeopardy. In Bailin, the Seventh Circuit indicated that it was an open question whether issue preclusion or estoppel is part of a defendant's double jeopardy protections. Bailin, 977 F.2d at 274 n. 3. The Seventh Circuit found that the issue raised by Bailin *fn3" on appeal was a double jeopardy issue, not issue preclusion. Id. at 281. The Seventh Circuit held only that it had jurisdiction over defendant's interlocutory appeal of a double jeopardy issue. Id. at 274 n.4. The Seventh Circuit's consideration of issue preclusion was based on the government's right to appeal pretrial rulings under 18 U.S.C. ยง 3731. Bailin, 977 F.2d at 274 n.4.

 Defendants rely on United States v. Patterson, 782 F.2d 68 (7th Cir. 1986), as holding that estoppel can be a basis for an interlocutory appeal. In that case, the Seventh Circuit considered estoppel issues on an interlocutory appeal and indicated that such claims can be appealed on an interlocutory basis. See id. at 72 n.7. Other circuits are in accord. See United States v. Cejas, 817 F.2d 595, 596 (9th Cir. 1987); United States v. Mock, 604 F.2d 336, 338 (5th Cir. 1979) (collecting cases). Estoppel issues, therefore, can be a basis for an interlocutory appeal.

 The more important distinction between defendants' pending appeal and Abney and Patterson is that Abney and Patterson involve attempts to stop prosecution of particular charges, whereas defendants' pending appeals only involve the issue of estopping use of particular evidence. *fn4" No Supreme Court or Seventh Circuit case has been found that addresses the question of whether such an issue is appealable on an interlocutory basis. *fn5" However, a number of circuits have addressed the issue and consistently hold that evidentiary rulings involving estoppel are not appealable by defendants on an interlocutory basis. United States v. Head, 697 F.2d 1200, 1205 (4th Cir. 1982), cert. denied, 462 U.S. 1132 (1983); United States v. Mock, 604 F.2d 336, 339-40 (5th Cir. 1979); United States v. Lee, 622 F.2d 787, 791 (5th Cir. 1980), cert. denied, 451 U.S. 913 (1981); United States v. Levy, 803 F.2d 1390, 1399 n.45 (5th Cir. 1986); United States v. Gulledge, 739 F.2d 582, 586-87 (11th Cir. 1984); United States v. Mulherin, 710 F.2d 731, 740 n. 5 (11th Cir. 1983), cert. denied, 464 U.S. 964 (1983), & cert. denied, 465 U.S. 1034 (1984). See also Reimnitz v. State's Attorney of Cook County, 596 F. Supp. 47, 59-61 (N.D. Ill. 1984), aff'd, 761 F.2d 405 (7th Cir. 1985); United States v. Tom, 787 F.2d 65, 69 (2d Cir. 1986); United States v. Carney, 214 U.S. App. D.C. 246, 665 F.2d 1064, 1065 (D.C. Cir.), cert. denied, 454 U.S. 1081 (1981); United States v. Powell, 632 F.2d 754, 758 (9th Cir. 1980). It has also been held that double jeopardy claims that do not involve dismissal of a count are not appealable on an interlocutory basis. United States v. Witten, 965 F.2d 774, 776 (9th Cir. 1992); Tom, 787 F.2d at 69. See also United States v. Hornung, 785 F.2d 868, 870 (10th Cir. 1986). Where there is no Seventh Circuit precedent, this court should defer to the consistent precedents of other courts of appeal. See Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir. 1987). Moreover, this court finds the analysis contained in Mock, 604 F.2d at 339-40, highly persuasive. It is held that the ruling on the admission of acquitted evidence is not an appealable order.

 The order from which defendants have appealed is not appealable. Therefore, this court may proceed with the trial of this case. Mock, 604 F.2d at 340-41 (quoting United States v. Hitchmon, 602 F.2d 689, 694 (5th Cir. 1979) (en banc)).

 Even if the order as to admission of acquitted evidence were appealable, this court need not stay further proceedings if the issues raised are frivolous or do not raise any colorable double jeopardy issues. United States v. Powers, 978 F.2d 354, 358 (7th Cir. 1992); United States v. Cannon, 715 F.2d 1228, 1231 (7th Cir. 1983), cert. denied, 464 U.S. 1065 (1984). Even if one issue raises double jeopardy questions that are appealable, other issues that do not raise double jeopardy questions cannot be appealed at the same time. Abney, 431 U.S. at 662-63.

 Defendants point to this court's statement that the January 22 ruling involved a "close question." January 22 Order at 10. The close question, however, was not whether the acquitted evidence was admissible without violating estoppel. The close question was, once such evidence is determined to be otherwise admissible, whether the use of any of such evidence should be precluded as cumulative. That is an evidentiary question, not an estoppel or double jeopardy question. The estoppel issue is whether the prior acquittals bar use of the acquittal evidence.

 Whether use of the evidence was barred by estoppel was not a difficult question. Dowling v. United States, 493 U.S. 342, 110 S. Ct. 668, 672-73 (1990), is directly on point on the question of whether the acquitted evidence could be used as Fed. R. Evid. 404(b) evidence, and Bailin, supra, provided recent guidance in this case from the Court of Appeals. It clearly would have been frivolous to argue otherwise on the 404(b) issue and defendants did not. On the issue of use of acquitted evidence as 404(b) material, defendants argued only that such use would be cumulative or unduly prejudicial. See January 22 Order at 6-7. They raised only an evidentiary issue on the admission of 404(b) material; they did not raise any double jeopardy or estoppel issue. There is no colorable double jeopardy issue to consider as to use of the acquitted evidence as 404(b) material.

 On the question of using the acquitted evidence as direct evidence, it was found that the evidence would not constitute an "ultimate fact" in the retrial and therefore the government is not estopped from using it. January 22 Order at 4-5. The redacted version of the indictment will eliminate acquitted counts so that none can be considered a predicate racketeering act and therefore none will be an ultimate fact. *fn6" There is no colorable argument that the acquitted evidence is an ultimate fact. *fn7"

  The issue of the government using acquitted evidence is not an issue that can be appealed on an interlocutory basis. Alternatively, no colorable double jeopardy/estoppel issue exists for appeal. For these reasons, the upcoming trial will not be stayed.

 The appeal of defendant Greenfield presents an additional question. Greenfield contended that prosecution of the three remaining counts against him were barred by double jeopardy or estoppel. See January 22 Order at 3-4. Since he argued that the prosecution of entire counts were barred, he has an appealable issue. *fn8" Greenfield, however, has no colorable double jeopardy issue to present on appeal. He argued that the nonexistence of a scheme to defraud had been conclusively determined by the not guilty verdict on Count 2. A scheme to defraud, however, is not even a necessary element of the two Commodity Exchange Act counts pending against him. It is an element of the remaining mail fraud count. However, as to that count, it is frivolous to argue that any of the not guilty verdicts conclusively established that the jury found no scheme to defraud. Greenfield's appeal of this issue does not raise a colorable double jeopardy claim. It is also concluded that a stay should be denied because this issue could have been appealed when a similar motion was denied prior to the first interlocutory appeal. See United States v. Bizzard, 674 F.2d 1382, 1385 (11th Cir.), cert. denied, 459 U.S. 973 (1982). Cf. United States v. Tucker, 646 F. Supp. 1543 (N.D. Ala. 1986).

 IT IS THEREFORE ORDERED that the pending motions for a stay of trial are denied.


 William T. Hart


 Dated: JANUARY 29, 1993

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