August 25, 2019

Tenth Circuit: Double Jeopardy Does Not Apply Although Inconsistent Verdicts Raise Collateral Estoppel Issues

The Tenth Circuit Court of Appeals issued its opinion in Owens v. Trammell on Tuesday, July 7, 2015.

Kenyon Owens, Joe Sanders, and Brandi Lindsey were involved in a plan to rob two brothers, Jesus and Javier Carranza. The brothers followed Lindsey home after her shift at a strip club, and Sanders demanded money from the men. They turned and ran, and Sanders shot them. Owens removed Jesus’ wallet and keys as he lay wounded, then Sanders shot Javier again, killing him, and took his wallet. Owens was charged with four counts — first degree felony murder of Javier with the predicate felony as robbery of Javier, shooting with intent to kill of Jesus, robbery of Javier with a dangerous weapon (the predicate felony for the felony murder charge), and robbery of Jesus with a dangerous weapon. The jury, after exchanging notes with the judge evidencing its confusion about the charges, convicted Owens of murder of Javier but acquitted him of the predicate felony robbery charge. He was convicted also on the charge of robbery of Jesus but acquitted on the charge of shooting Javier.

On Owens’ first appeal, the Oklahoma Court of Criminal Appeals (OCCA) addressed two sufficiency arguments: first, that the evidence presented at trial could not sustain the murder conviction or Jesus robbery conviction, and second, that the evidence must have been insufficient to convict him of felony murder because he was acquitted on the predicate felony. As to the first argument, the OCCA did not hesitate to conclude that the evidence was sufficient to support both convictions. The OCCA interpreted the second argument as a claim that the verdict was logically inconsistent, and, citing Supreme Court precedent, found that the logical inconsistency in the verdicts did not impugn the validity of the murder conviction, but relying on the jury’s notes ruled that it was far from clear that the jury chose to render an inconsistent verdict. The OCCA reversed and remanded, finding the cumulative effect of the open ended jury instruction and the judge’s failure to adequately respond to jury questions raised a substantial possibility that the jury may have convicted Owens based on a crime that was not charged, i.e., basing the felony murder on the robbery of Jesus instead of Javier.

On remand, Owens moved to dismiss the murder charge based on a Double Jeopardy violation. The trial court denied the motion, and Owens was again convicted of felony murder. Owens appealed to the OCCA, again contending that his second trial on the murder charge violated the Double Jeopardy Clause and relying on two main arguments. First, Owens argued that because greater and lesser included offenses are the “same offense” for jeopardy purposes, the acquittal on the lesser robbery charge terminated jeopardy not only as to that charge but also to the greater felony murder charge. Second, Owens argued the retrial was barred by collateral estoppel, contending the jury’s acquittal on the Javier robbery charge necessarily determined an issue of ultimate fact. The OCCA rejected both arguments, finding that although jeopardy was terminated for the robbery charge it continued for the felony murder charge, and finding that collateral estoppel could not apply because it was impossible to know what the jury intended in acquitting Owens of the Javier robbery charge while convicting him of felony murder.

Owens then filed a federal habeas petition, reasserting his double jeopardy claims. The district court denied the petition and a COA, but the Tenth Circuit granted the COA, specifically requesting the parties to address whether the prosecution for felony murder in the second trial, despite the acquittal of the underlying felony robbery charge, violate any aspect of the Double Jeopardy Clause. The Tenth Circuit appointed new counsel for Owens.

Owens made three arguments as to why the OCCA’s denial of his claim was an unreasonable application of Supreme Court precedent: (1) the OCCA failed to undertake the proper Powell analysis in determining whether the verdicts from the first trial were inconsistent; (2) the OCCA unreasonably extended the Supreme Court’s collateral estoppel analysis to his case, and (3) the OCCA unreasonably relied on the principle of continuing jeopardy and short-circuited the collateral estoppel analysis. The Tenth Circuit addressed each argument in turn, giving deference to the provisions of AEDPA.

The Tenth Circuit first addressed Owens’ argument that the OCCA erred in determining that the verdicts in the first trial were “truly inconsistent” and thus erred in relying on that inconsistency to reject his collateral estoppel argument. The Tenth Circuit noted that it had appointed Owens new counsel for this appeal, and counsel’s argument was well-reasoned and compelling, but it had not been raised below and was therefore waived. The Tenth Circuit nonetheless rejected Owens’ argument, finding that resolving Owens’ argument would require inquiries into the jury’s deliberations, and the court would not undertake such an inquiry. Because the law was not clearly established regarding how to determine whether a verdict is “truly inconsistent,” the Tenth Circuit deferred to AEDPA’s “generous rules of deference” and rejected the argument. The Tenth Circuit noted that if this were a direct review the outcome might be different for Owens on this claim.

The Tenth Circuit next addressed Owens’ argument that the OCCA erred in its application of Ashe‘s collateral estoppel principles to his case. The Tenth Circuit agreed with the State that the OCCA did not rely on Ashe in its collateral estoppel analysis but rather based its decision entirely on Powell. The Tenth Circuit found that the Powell truly inconsistent test could defeat the preclusive effect of the acquittal, and rejected Owens’ argument.

Finally, the Tenth Circuit considered Owens’ claim that he was not subject to continuing jeopardy on the felony murder charge. The Tenth Circuit again rejected his arguments, finding that Owens misunderstood the ruling of the OCCA.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Collateral Estoppel Bars Relitigation of Claims Decided in Other Federal Courts

The Tenth Circuit Court of Appeals issued its opinion in Stan Lee Media Inc. v. Walt Disney Co. on Tuesday, December 23, 2014.

In October 1998, legendary comic book artist Stan Lee entered into an employment agreement (“1998 agreement”) with a Colorado company he formed to create new characters, Stan Lee Entertainment, Inc. (the predecessor to Stan Lee Media). At the time, Lee had worked for Marvel for approximately 60 years, and the agreement expressly recognized he would continue to work for Marvel. In November 1998, Lee entered into a similar agreement with Marvel, transferring to Marvel essentially the same rights he had transferred to Stan Lee Media through the 1998 agreement. In 2001, Stan Lee repudiated the 1998 agreement, contending Stan Lee Media committed material breach and reclaiming ownership of the intellectual property rights. Over five years later, Stan Lee Media recorded the 1998 agreement with the U.S. Copyright Office, asserting in a cover letter that the 1998 agreement transferred to Stan Lee Media ownership rights in many famous characters, including Spider-Man and Iron Man.

Meanwhile, Marvel exploited the comic book universe by selling and licensing the character rights to major production companies in order to create, sell, and distribute motion pictures. These included 2002’s Spider-Man movie, which has grossed over $800 million worldwide. Despite Marvel’s success, Stan Lee Media did not assert ownership interests over the characters until 2007, at which time it filed lawsuits across the country. Many courts have considered Abadin v. Marvel Entm’t, Inc., No. 09 Civ. 0715 (PAC), 2010 WL 1257519 (S.D.N.Y. Mar. 31, 2010) (Abadin I) binding precedent, including the lower court in this action.

Stan Lee Media filed a claim against Disney in the U.S. District Court for the District of Colorado, alleging a single cause of action for federal copyright infringement. The district court granted Disney’s motion to dismiss, relying on Abadin I as precluding the Colorado litigation. Since the district court’s decision, the Ninth Circuit has issued a decision in a related suit. The U.S. District Court for the Central District of California dismissed Stan Lee Media’s claims on res judicata grounds, but the Ninth Circuit affirmed on different grounds, finding that Stan Lee Media failed to state a claim that is plausible on its face.

The Tenth Circuit reviewed the Ninth Circuit decision, the briefing in the Ninth Circuit and the Central District of California, and supplemental briefing submitted in the Tenth Circuit, and found that none of the elements of collateral estoppel can be reasonable debated, because each are present in the Tenth Circuit case.

The Tenth Circuit found that only the fourth element of collateral estoppel was seriously contested — Stan Lee Media alleges it did not have a full and fair opportunity to litigate the ownership issue. However, the Tenth Circuit rejected that argument. Stan Lee Media devoted five full pages in a response explaining how its claims met the Iqbal/Twombly and Rule 8 standards. Further, the Ninth Circuit’s decision was a dismissal with prejudice, so there is no point in allowing Stan Lee Media to amend its complaint. Finally, the Ninth Circuit’s singular and readily discernible rationale for dismissal — that Stan Lee Media’s claims are “simply implausible,” — clears all remaining obstacles to the application of collateral estoppel.

The Tenth Circuit affirmed the district court’s dismissal of Stan Lee Media’s complaint for failure to state a claim.