United States v. Farmer, 923 F.2d 1557 (11th Cir. 1991)

ANDERSON, Circuit Judge:

Appellant Edward Farmer appeals his conviction for depriving an individual of constitutional rights under color of law in violation of 18 U.S.C. §§ 2 and 242. Appellant also appeals from the district court's sentencing determination.

I. FACTS

The facts of this case were well stated in a prior opinion of this court in a related case, United States v. Sellers, 906 F.2d 597 (11th Cir.1990). Accordingly, we adopt the following statement of facts from that opinion:

II. PROCEDURAL HISTORY

On December 9, 1988, the United States filed an indictment charging appellant Farmer, along with Roach and Sellers, with

conspiracy to willfully deprive Hill of his civil rights, 18 U.S.C. § 241,1 (the “conspiracy count”), and with aiding and abetting the willful deprivation of Hill’s civil rights under color of state law, 18 U.S.C. §§ 2 and 2422 (the “substantive count”). The district court ordered Farmer to be tried separately from Roach and Sellers.3 Before trial, the district court granted Farmer’s motion to move the trial from Athens to Macon, Georgia. After a two-day trial beginning on March 27, 1989, the jury acquitted Farmer on the conspiracy count, but the substantive count resulted in a mistrial after the jury was unable to reach a verdict.

Aware that the government intended to retry him on the substantive count, Farmer filed a motion to dismiss the indictment on double jeopardy grounds, including the doctrine of collateral estoppel.4 The district court denied the motion to dismiss on July 7, 1989. On July 11, 1989, Farmer filed a notice of appeal from the district court’s

order denying the motion to dismiss,5 and simultaneously filed a motion in the district court seeking to stay the impendent trial pending the appeal. The district court denied the motion for stay, reasoning that it had jurisdiction to proceed with the trial because Farmer’s double jeopardy claim was frivolous within the meaning of United States v. Dunbar, 611 F.2d 985 (5th Cir.),6 cert, denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980) and United States v. Bizzard, 674'F.2d 1382 (11th Cir.), cert, denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). We denied Farmer’s motion for a stay pending appeal, clearing the way for the new trial on the substantive count. United States v. Farmer, No. 89-8544 (11th Cir. July 14, 1989).7

At the commencement of his second trial on July 17, 1989, Farmer renewed a previous motion for a change of venue from Athens to Macon, Georgia. Farmer cited the extensive publicity surrounding the case and the importance to his defense of

convincing the jurors that the state actors, Sellers and Roach, were not involved in the assault on Hill. Although the district court had granted a similar motion before the first trial, the court denied the motion and held the trial in Athens.8 The district court also refused to allow the defense to remove for cause those potential jurors who knew about the previous convictions and sentences of Sellers and Roach.

The district court also made several evi-dentiary rulings which are challenged by appellant. First, the district court excluded evidence that Farmer believed that Hill was the burglar of Farmer’s garage and that Hill was in fact the culprit. Second, the court excluded evidence that an unrelated charge was pending against Hill for theft from another employer. Third, the court refused to admit evidence that Hill was free on bond during the time of the events in this case. Fourth, the court excluded Hill’s record of past convictions on a series of petty offenses. Finally, the district court permitted three relatives and friends of Hill to testify as to what Hill told them on the night of the assault.

The jury returned a guilty verdict on July 18, 1989. Farmer was subsequently sentenced to twelve months of imprisonment and ordered to pay $778.00 in restitution. Although the twelve month prison term represented the maximum sentence allowed under the statute, the district court stated that it arrived at this sentence by enhancing Farmer’s offense level by two points for obstruction of justice under § 3C1.1 of the Sentencing Guidelines. Specifically, the district court found that appellant had obstructed justice by telling FBI agents investigating the incident that he did not hit Hill. Farmer’s trial testimony was inconsistent with those statements. R6-252. Appellant argues that the sentence enhancement was improper because his statements to the FBI officers constituted a mere denial of guilt. Farmer was denied bond pending appeal by this court on February 26, 1990, and has completed his sentence.

III. ISSUES ON APPEAL

Farmer presents the following five issues on this appeal:

A. Whether the second trial on the substantive count was barred by double jeopardy and/or collateral estoppel.

B. Whether, the district court lacked jurisdiction to proceed with the second trial pending the interlocutory appeal.

C. Whether the district court’s refusal to dismiss certain jurors for cause constituted error.

D. Whether certain of the district court’s evidentiary rulings were erroneous.

E. Whether the district court improperly enhanced the sentence by two levels under the Sentencing Guidelines for obstruction of justice.

IV. DISCUSSION

A. The Double Jeopardy and Collateral Estoppel Claims

Appellant Farmer argues that Double Jeopardy9 and the included doctrine of collateral estoppel barred the retrial on the substantive count after his prior acquittal on the conspiracy count. Farmer argues that, as a private citizen, he could not have acted under color of state law for purposes of § 242 in the absence of a conspiracy. Because he was acquitted of conspiring with state officers in the first proceeding, Farmer argues that the second trial was barred because the substantive count was the same offense as the conspiracy count for purposes of double jeopardy under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).10

Farmer’s collateral estoppel argument is essentially the same. Farmer argues that the prior acquittal on conspiracy prevents relitigation of what he contends is the same issue: whether appellant acted “under col- or of - state law.”

We need not reach the substance of Farmer’s double jeopardy argument. It is clear that the Double Jeopardy Clause protects a criminal defendant against successive, rather than simultaneous, prosecutions. See United States v. Larkin, 605 F.2d 1360, 1367-68 (5th Cir.1979).11 In Larkin, our predecessor circuit squarely held that double jeopardy does not bar re-prosecution after the first trial resulted in a mistrial even where the first trial also resulted in an acquittal on other counts considered the same offense under Block-burger. Larkin at 1367-68. The Larkin court reached this conclusion by applying the concept of “continuing jeopardy” to procedural facts identical to the instant case. Id. at 1368-69. In other words, the reprosecution on the substantive count in the instant case, as in Larkin, is not a successive prosecution barred by double jeopardy but rather, a mere continuation of the initial prosecution. Therefore, the second prosecution of Farmer on the substantive count does not implicate the Double Jeopardy Clause.12

We now turn to Farmer’s collateral es-toppel argument. “In order to successfully invoke collateral estoppel, a party must demonstrate: (1) that the issue in question [13] was actually raised and litigated in the prior proceeding; (2) that the determination was a critical and necessary part of the final judgment in the earlier litigation; and (3) that the issue in the later proceeding is the same as that involved in the prior action.” Delay v. Dugger, 890 F.2d 285, 314 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2628, 110 L.Ed.2d 648 (1990) (citing Deweese v. Town of Palm Beach, 688 F.2d 731, 733 (11th Cir.1982); IB J. Moore, J. Lucas & T. Currier, Moore’s Federal Practice ¶ 0.443[1], at 759 (1988)). Because we hold that the color of law issue in the second proceeding is not the same as the conspiracy issue in the first proceeding, we reject Farmer’s collateral estoppel claim.

On the substantive count in the indictment, Farmer was charged with aiding and abetting acts under color of state law

in violation of 18 U.S.C. §§ 2 and 242. In United States v. Lynch, 94 F.Supp. 1011, 1013 (N.D.Ga.1950), aff'd, 189 F.2d 476 (5th Cir.), cert. denied, 342 U.S. 831, 72 S.Ct. 50, 96 L.Ed. 629 (1951), the court held that “private citizens who aid and abet state officers may be guilty under Sec. 242” if they act under color of state law.14 In Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954), the Court stated that “[a]iding, abetting, and counseling are not terms which presuppose the existence of an agreement.” See also United States v. Bright, 630 F.2d 804, 813 (5th Cir.1980) (“The essence of a conspiracy is proof of a conspiratorial agreement while aiding and abetting requires there be a ‘community of unlawful intent’ between the aider and abettor and the principal. While a community of unlawful intent is similar to an agreement, it is not the same.”). Accordingly, we hold, that as a general proposition, aiding and abetting acts under color of state law is not the same as conspiring with state officials for purposes of collateral estoppel.

Upon review of the record, we conclude that, under the specific facts of the instant case, the prosecution attempted to prove aiding and abetting and was not attempting to prove the same conduct underlying the conspiracy in the retrial of the substantive count.15 That the prosecution used the same evidence to prove that Farmer acted under color of state law is immaterial. See Grady v. Corbin, — U.S.-, -, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548 (1990).16 The prosecution did not seek to prove to the second jury an agreement in order to establish that Farmer acted under color of state law.

That the jury was not presented with the same issue — i.e., whether there was an agreement — is supported by the district court’s jury charge, which is not challenged on appeal. The district court instructed the jury that “if a private citizen aids and abets a state law enforcement officer in violating the Federal law in question, the private citizen is also acting under color of state law.... Where a law enforcement officer or officers and a private citizen act together to achieve a common purpose, they act jointly, even if the means or the methods of achieving the goal are not unanimously agreed upon.” R6-321-22 (emphasis added).

For the foregoing reasons, we hold that there was no double jeopardy or collateral estoppel bar to the second trial of the substantive count.

B. Did the District Court have Jurisdiction to Proceed with the Trial Following Farmer’s Notice of Appeal?

In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Supreme Court ruled that an order denying a motion to dismiss an indictment on double jeopardy grounds is immediately appeal-able. The filing of a notice of appeal generally strips the district court of jurisdiction as to the matters appealed. United States v. Rogers, 788 F.2d 1472, 1475 (11th Cir.1986) (citing Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1985)). However, the Abney Court approved the establishment by the lower courts of procedures designed “to weed out frivolous claims of former jeopardy.” Abney, 431 U.S. at 662 n. 8, 97 S.Ct. at 2042 n. 8. Our predecessor circuit responded to the Supreme Court’s invitation in United States v. Dunbar, 611 F.2d 985 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). See also United States v. Bizzard, 674 F.2d 1382, 1385 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). Under Dunbar, the district court is not divested of jurisdiction if it makes written findings that the double jeopardy claim is frivolous or dilatory. Dunbar, 611 F.2d at 988.

In the instant case, the district court denied Farmer’s pretrial motion to dismiss on double jeopardy grounds and refused to stay the second trial pending appeal. The district court found appellant’s claims to be frivolous within the meaning of Dunbar. Although we have rejected Farmer’s double jeopardy claims in this opinion, this does not necessarily mean that Farmer’s double jeopardy arguments were frivolous. Farmer argues that we must vacate his conviction for want of jurisdiction despite our holding rejecting the double jeopardy and collateral estoppel claims on the merits.

Employing the concept of dual jurisdiction, the Dunbar court held that if an appellant’s double jeopardy claim is “found [by the appellate court] not to have merit, jurisdiction for the trial which occurred during the [interlocutory] appeal would be affirmed.” Dunbar, 611 F.2d at 989. We interpret the procedure outlined in Dunbar to be as follows. If the district court makes written findings that a double jeopardy claim is frivolous or dilatory, then the interlocutory appeal does not divest the district court of jurisdiction, thus permitting the retrial to proceed. The double jeopardy claim is properly heard on appeal from the defendant’s conviction on retrial. If the appellate court rejects the double jeopardy claim on the merits, the jurisdiction of the district court with respect to the retrial is affirmed, without the necessity of examining whether or not the double jeopardy claim was in fact frivolous. This procedure adequately protects defendant’s double jeopardy interest in not running the gauntlet of a second trial because the defendant may Seek an appellate stay of the retrial in connection with the interlocutory appeal permitted under Abney. The appellate court’s expedited procedures permit consideration before retrial of the district court’s finding of frivolousness; i.e., the defendant may file in the appellate court an emergency motion to stay the retrial pending consideration of the interlocutory appeal.17

In light of our rejection of Farmer’s double jeopardy claim on the merits, the district court’s assúmption of jurisdiction to try Farmer on the substantive count after it made written findings that Farmer’s double jeopardy claim was frivolous is affirmed.

C. The District Court’s Refusal to Dismiss Certain Jurors for Cause

Appellant seems to argue that the district court erred by empaneling three jurors who knew that Sellers and Roach had been convicted and sent to prison. However, our reading of the record reveals that those jurors, potential jurors Amour, Burks and Albertson, were peremptorily dismissed.18 Rl-150. Thus, appellant must really be arguing that the district court’s failure to dismiss these jurors for cause meant that “[wjhen the exercise of preemptory [sic] strikes began, then, the cards were stacked against the defense.” Brief of Appellant at 33.

Farmer’s argument that the district court’s failure to strike jurors for cause forced him to “use up” peremptory strikes has been rejected by the Supreme Court. In Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), the Court rejected the argument, at least outside of the death penalty context in Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987),19 that the loss of a peremptory strike constitutes reversible error on both Sixth and Fourteenth Amendment grounds. The defendant had argued that the trial court’s error in refusing to dismiss a juror for cause forced him to use a peremptory strike to correct the error, which ultimately led to a different jury composition. The Court rejected “the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury.” Id., 487 U.S. at 88, 108 S.Ct. at 2278. Appellant’s claim that his “jury was not impartial, therefore, must focus ... on the jurors who ultimately sat.” Id. at 86, 108 S.Ct. at 2277.20

D. The Evidentiary Rulings

With regard to the district court’s evidentiary rulings, appellant first argues that the court erred by refusing to allow defense counsel to cross-examine Hill concerning Hill’s role in the burglary of Farmer’s business. Appellant argues that this evidence should have been allowed because it tended to show that Farmer’s beating of Hill was spontaneous and unforseeable by Roach and Sellers, thus undermining the government’s contention that Farmer was acting under color of state law. Farmer also argues that the disallowed cross-examination would have established “a motive for Hill to lie about suffering abuse at the hands of law enforcement in order to deflect attention from his guilt of the burglary.” Brief of Appellant at 14.

We find that the district court did not abuse its discretion when it prevented this cross-examination.21 Even though defense counsel was not allowed to question Hill regarding his participation in the burglary, the fact that Hill was a suspect was amply conveyed to the jury at other points in the

trial. Counsel initially made the jury aware of Hill’s possible involvement in his opening statement. SRI-3 to 4. During the prosecution’s direct examination of Hill, Hill stated that he accompanied Roach to the sheriff’s office to answer “a few questions about Mr. Farmer’s theft.” R5-74. Farmer’s counsel also elicited from Hill during cross-examination that Hill was at the sheriff’s office in connection with the burglary. R5-95. In addition, the government’s cross-examination of Farmer revealed that Farmer knew that Hill had been transported to the sheriff’s office as a suspect in the burglary of Farmer’s business. R6-264. Thus, the jury was well aware that Hill was a suspect, and that Farmer knew that. Therefore, the district court did not abuse its discretion by excluding the cross-examination.

The district court also did not err in refusing to allow the cross-examination to show that Hill had a motive to lie about the events in question. At trial and on this appeal, appellant has relied on Fed.R.Evid. 404(b) to argue that the cross-examination should have been allowed for this purpose. Although Rule 404(b) does allow evidence of “other crimes, wrongs, or acts ... as proof of motive ...,” the word “motive” as used in the rule does not refer to a motive to testify falsely. See United States v. Sampol, 636 F.2d 621, 659 n. 24 (D.C.Cir.1980) (“The witness’s motive to testify falsely ... is merely an aspect of credibility [controlled by Fed.R.Evid. 608]. ‘Mo-five’ in the context of Rule 404(b) refers to the motive for the commission of the crime charged.”).22

Appellant next argues that the district court improperly refused to allow defense counsel to cross-examine Hill regarding his prior criminal record and his pending charges for theft from another employer. However, these rulings were well within the district court’s discretion under Fed. R.Evid. 608 and 609. Prior misdemeanor theft convictions are usually not sufficiently probative of veracity to be admissible under Fed.R.Evid. 609(a)(2). See United States v. Sellers, 906 F.2d 597, 603 (11th Cir.1990) (“It is established in this Circuit ... that crimes such as theft, robbery, or shoplifting do not involve ‘dishonesty or false statement’ within the meaning of Rule 609(a)(2).”). See also United States v. Barnes, 622 F.2d 107, 109 (5th Cir.1980) (prior shoplifting conviction not probative of truthfulness); United States v. Ashley, 569 F.2d 975, 979 (5th Cir.), cert. denied, 439 U.S. 853, 99 S.Ct. 163, 58 L.Ed.2d 159 (1978) (same).23

Finally, appellant challenges the district court’s decision to allow testimony from three witnesses regarding what Hill told them when he arrived home after the assault at the sheriff’s office. These witnesses all testified that Hill said that he had been struck repeatedly and that Roach and Sellers had stood idly by during the beating. The district judge allowed this testimony over a hearsay objection on the ground that it was permissible rebuttal, under Fed.R.Evid. 801(d)(1)(B),24 to defense

counsel s charge that Hill s testimony was recently fabricated. We will not disturb this ruling “absent a clear showing of an abuse of discretion." United States v. Reed, 887 F.2d 1398, 1405 (11th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990).

Under the circumstances of this case, we find no such abuse of discretion. The district judge was not required to find an express charge of recent fabrication to admit prior consistent testimony. United States v. Mock, 640 F.2d 629, 632 (5th Cir. Unit B 1981). The rule itself provides that a prior consistent statement is admissible to rebut an implied charge of recent fabrication. Fed.R.Evid. 801(d)(1)(B). In the instant case, an implication that Hill fabricated Sellers’ and Roach’s involvement and the severity of the beating “fairly arises from the line of questioning ... pursued.” United States v. Baron, 602 F.2d 1248, 1253 (7th Cir.1978), cert. denied, 444 U.S. 967, 100 S.Ct. 456, 62 L.Ed.2d 380 (1979). Furthermore, appellant's argument that the prior consistent statements were inadmissible because they were not made before the motive to fabricate arose has repeatedly been rejected by this circuit. See United States v. Pendas-Martinez, 845 F.2d 938, 942 n. 6 (11th Cir.1988) (citing United States v. Anderson, 782 F.2d 908, 915-16 (11th Cir.1986); United States v. Parry, 649 F.2d 292, 296 (5th Cir. Unit B 1981)).

E. The Sentencing Issue

Appellant argues that the district court improperly enhanced his sentence by two levels under the Sentencing Guidelines for obstruction of justice. However, the district court ordered appellant to begin serving his twelve month sentence on October 31, 1989. Rl-156. Appellant’s motion for bond pending appeal was denied by this court. United States v. Farmer, No. 89-8868 (Feb. 26, 1990). Appellant has completed his sentence and, therefore, his appeal on this issue is moot. See O’Neal v. United States, 399 F.2d 635 (5th Cir.1968); Walker v. United States, 387 F.2d 90 (5th Cir.1967). Furthermore, appellant has not advanced any argument that “there may be benefits ... in having his sentence reduced after he has already served that sen-tence_” North Carolina v. Rice, 404 U.S. 244, 248, 92 S.Ct. 402, 405, 30 L.Ed.2d 413 (1971).

AFFIRMED.