United States District Court, N.D. California
TRIAL ORDER NO. 1 RE: DEFENDANT'S MOTION IN
LIMINE NO. 4 RE: DKT. NO. 363
Gonzalez Rogers, United States District Court Judge
Motion in Limine No. 4 seeks to exclude evidence on
the basis of collateral estoppel relating to previously
litigated Counts Four and Five of the Indictment or, in the
alternative, for an instruction to the jury that defendant
has been found not guilty of Counts Four and Five. The motion
is Granted in Part and Denied in Part.
estoppel applies to criminal cases through the Fifth
Amendment protection against double jeopardy. Ashe v.
Swenson, 397 U.S 436, 443-46 (1970). The Supreme Court
has “defined the collateral-estoppel doctrine as
providing that ‘when an issue of ultimate fact has once
been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any
future lawsuit.'” Dowling v. United
States, 493 U.S. 342, 347 (1990) (quoting Ashe,
394 U.S. at 443). Therefore, “an individual who has
been adjudged not guilty may not be charged again for the
same offense or held to answer more than once for conduct
that the jury has decided he did not commit.”
United States v. Castillo-Basa, 483 F.3d 890, 896
(9th Cir. 2007). That said, to determine whether evidence is
permissibly allowed such that it does not run afoul of the
collateral estoppel issues, the Court must determine whether
the findings of a prior acquittal determine the ultimate
issue as to the counts for which the defendant is being
tried. See Dowling, 493 U.S. at 348.
argues that because he was acquitted of defrauding Matrix
through the conduct described in Counts Four and Five (Plains
All American project) the government is collaterally estopped
from introducing evidence of that conduct with respect to the
conspiracy to defraud Matrix in Count One. The Court
disagrees. Nothing in the findings as to Count Four and Five
are inconsistent with a finding of guilt as to Count 1. Said
differently, proof of Count 1 is separate and distinct from
Counts Four and Five and the Court's prior evaluation of
the evidence (and acquittal) with respect to Counts 4 and 5
does not preclude introduction of that evidence for a
different probative purpose.
regard, Federal Rule of Evidence 404(b) controls. The
collateral estoppel doctrine does not “exclude in all
circumstances . . . relevant and probative evidence that is
otherwise admissible under the Rule of Evidence simply
because it relates to alleged criminal conduct for which a
defendant has been acquitted.” Dowling, 493
U.S. at 348. Rather, in “the Rule 404(b) context,
similar act evidence is relevant only if the jury can
reasonably conclude that the act occurred and that the
defendant was the actor.” See Huddleston v. United
States, 485 U.S. 681, 689 (1988).
no genuine dispute exists that Rule 404(b) is
satisfied. See United States v. Fuches, 218
F.3d 957, 965 (9th Cir. 2000). The government seeks to
introduce evidence to “demonstrate Federico's
overarching plan to defraud Matrix, his knowledge that he had
[to] bid an amount beyond the amount Imperial would require
to make a profit at the job site, and what motivated him to
commit this fraud. . . .” (Dkt. 372 at 4:18-20 [to show
Federico's motive, knowledge, and plan].) Such evidence
is admissible and, in terms of overview and background to and
motive for the scheme generally is not more prejudicial than
probative. If the government attempts to go overboard in the
introduction of this evidence however, the Court will
entertain a motion at the time of trial. Accordingly, the
Court Denies the portion of defendant's
motion seeking to exclude all evidence related to Counts Four
and Five of the Indictment.
the Court finds that an instruction may likely be
appropriate, but the issue is not ripe. The nature of the
instruction depends upon the manner and extent to which the
evidence comes in. The Court finds it more prudent to make
the determination as to an appropriate instruction on a more
full record and will entertain proposals and arguments then.
See Ninth Circuit Manual of Model Criminal Jury
Instructions, No. 2.11; see also Dowling, 493 U.S.
at 353 (finding that admission of evidence of other acts for
which defendant was acquitted did not violate fundamental
fairness, “[especially in light of the limiting
instructions provided by the trial judge”).
Accordingly, the Court reserves and therefore Denies
without Prejudice the portion of defendant's
motion seeking such an instruction.
Order Terminates Docket Number 363.
Is So Ordered.
 This is not a case where any ambiguity
exists that Mr. Federico has a role in the events charged in
Counts Four and Five. Thus, the evidence supports the
fundamental premise that a jury might reasonably conclude
that Mr. Federico played a role even if that conduct did not
rise to a level of belief beyond a reasonable doubt that he
committed the crimes as charged. See Dowling, 493
U.S. 348-49; see also Charles v. Hickman, 228 F.3d
981, 986 (9th Cir. 2000) (noting that in Dowling,
the Supreme Court “held that the case fell within the
rule that an acquittal in a criminal case does not preclude
the Government from relitigating an issue when it is
presented in a subsequent action governed by a lower standard
of proof”) (internal quotations omitted).
 During the pretrial conference on
August 16, 2019, defense counsel conceded that the elements
of Rule 404(b), as construed by United States v.
Fuches - materiality, similarity, sufficient ...