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* Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 92-1578
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVY HILLING,
Defendant-Appellant.
***************************************************
______________
No. 92-l579
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID P. NEUBAUER,
Defendant-Appellant.
_________________________
Appeals from the United States District Court
for the Northern District of Texas
(CR-3-89-024-R)
_________________________
May 6, 1993
Before WISDOM, DAVIS, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*

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on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
2
Davy Hilling and David Neubauer were indicted on nine counts
relating to the abuse of their positions of authority at Irving
Savings Association, Irving, Texas ("Irving Savings"). The
district court denied their pretrial motion to dismiss the
indictment on double jeopardy and collateral estoppel grounds, and
this interlocutory appeal ensued. We affirm.
I.
In 1983, Hilling and Neubauer acquired Irving Savings.
Hilling served as chairman of the board, while Neubauer was chief
of staff. On September 11, 1984, they consented to be removed from
these positions.
On July 24, 1986, Hilling and Neubauer were indicted in
federal court in the Western District of Washington. Count I
charged them )) together with five other defendants )) with
conspiracy to commit wire fraud in violation of 18 U.S.C. § 371.
Among the overt acts in furtherance of the conspiracy were the
following: (1) They caused $1,391,752.58 to be transferred to an
escrow account in the name of Tahoe Marina Development; (2) they
received a payment of $500,000 as a "kickback" for providing a
$5,000,000 loan to Tahoe Marina Development; and (3) they issued
three letters of credit without authorization to Raymond Gray in
order to benefit themselves financially. The alleged purpose of
the conspiracy was to obtain money from three financial institu-

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3
tions controlled by the co-conspirators through a series of
fraudulent loans and credits.
The Washington indictment also charged substantive offenses,
including (1) wire fraud in violation of 18 U.S.C. §§ 1343 and 2 in
count III and (2) interstate transportation of money obtained by
fraud in violation of 18 U.S.C. §§ 2314 and 2 in count IV. The
crux of these two counts was that Hilling and Neubauer caused the
fraudulent transfer of $2,346,000 by wire from Home Savings and
Loan Association, Seattle, Washington ("Home Savings"), to Alliance
Federal Savings and Loan Association, Irving, Texas ("Alliance
Federal"). Hilling and Neubauer were not charged with the
substantive offense of illegally transferring the $1,391,752.58,
receiving the $500,000 kickback in connection with the Tahoe Marina
Development loan, or issuing the three unauthorized letters of
credit to Gray.
In March 1987, a jury convicted Hilling and Neubauer of the
conspiracy count and acquitted them of the underlying substantive
offenses. They were sentenced to five years' imprisonment and were
ordered to make restitution of $17,559,910 jointly and severally
with the other defendants found guilty of participating in the
conspiracy. The Ninth Circuit reversed the conviction based solely
upon improper instruction of the jury under McNally v. United
States, 483 U.S. 350 (1987), and specifically stated that no
obstacle existed to retrial. United States v. Hilling, 863 F.2d
677, 681 (9th Cir. 1988).
On September 3, 1987, Hilling and Neubauer, along with another

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4
defendant, were indicted in federal court in the District of
Montana. The indictment did not charge the defendants with
engaging in a conspiracy but did allege the commission of various
substantive offenses, including bank bribery in violation of 18
U.S.C. § 215(a)(1) and making false statements to influence the
actions of a federally insured financial institution in violation
of 18 U.S.C. §§ 1343, 1006, and 2. The counts against Hilling and
Neubauer centered on loans they caused to be made to Virgil Jahnke
and Stephen McMullen that allegedly resulted in several kickbacks
to Hilling and Neubauer, ranging from $5,257.57 to $1,400,000. The
indictment, like the Washington indictment, did not charge Hilling
and Neubauer with the substantive offense of illegally transferring
the $1,391,752.58, receiving the $500,000 kickback in connection
with the Tahoe Marina Development loan, or issuing the three
unauthorized letters of credit to Gray.
Hilling and Neubauer moved to dismiss the Montana indictment
on the grounds that the double jeopardy clause of the Fifth
Amendment and collateral estoppel barred it. After the district
court denied their motion, Hilling and Neubauer filed an interlocu-
tory appeal. The Ninth Circuit affirmed the district court's
denial. United States v. Hilling, Nos. 88-3152 and 88-3153 (9th
Cir. Apr. 20, 1989). Hilling was subsequently convicted of the
charges, while Neubauer was acquitted.
On January 26, 1989, Hilling and Neubauer were indicted in the
case sub judice for various substantive offenses they allegedly had
committed during their tenure as Irving Savings; they were not

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5
indicted for conspiracy. Discussing the object of their activi-
ties, count 1 alleged that Hilling and Neubauer engaged in a scheme
to defraud Irving Savings through a series of unsound and fraudu-
lent loans and credits. Specifically, count 1 charged that they
allegedly transferred $1,391,752.58 by wire from Irving Savings to
Nevada National Bank, Reno, Nevada ("Nevada National"), in
violation of 18 U.S.C. §§ 1343 and 2. Count 2 charged them with
misapplying the same $1,391,752.58 in violation of 18 U.S.C. §§ 657
and 2. Counts 3 and 4 focused on the $500,000 kickback they
received from Gray in violation of 18 U.S.C. §§ 2314, 1006, and 2.
Count 5 charged wire fraud in violation of 18 U.S.C. §§ 1343 and 2
for confirming by wire an unauthorized letter of credit for
$2,500,000 to Gray. Counts 6 through 9 alleged violations of 18
U.S.C. §§ 1006 and 2 for unauthorized commitments by Irving Savings
of $4,000,000 to the DeVille Casino in Las Vegas, $5,675,000 to
Harold Caldwell and Colorado Chain O'Mines, $5,000,000 to Woodson
Company, and $500,000 to the Pearl of Reno Timeshare Owners
Association.
Hilling and Neubauer moved to dismiss the Texas indictment
based upon double jeopardy and collateral estoppel arising from the
indictments and trials in the Washington and Montana cases. The
district court, calling their claims "baseless," denied the motion.
II.
Hilling and Neubauer argue that the Double Jeopardy Clause of
the Fifth Amendment forbids the Texas prosecution because the

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6
clause bars successive prosecutions for separate offenses arising
out of the same conduct. They maintain that although a Washington
jury acquitted them of the substantive acts of wire fraud and
illegal interstate transportation of funds obtained by fraud, the
government is prosecuting them in Texas once again for the same
substantive acts. In addition, they claim that the substantive
acts that the Texas indictment alleges they committed were
"specifically . . . overt act(s) alleged to have [been] performed
by Hilling and Neubauer as a substantive offense" in the Washington
indictment. A closer examination of the Washington indictment
shows that the overt acts referred to were not substantive
offenses, but rather were raised under the conspiracy count as
allegations of overt acts that they committed in furtherance of the
conspiracy. We assume that the defendants' argument is that they
may not be tried in Texas for substantive offenses that have served
previously as evidence of overt acts in furtherance of a conspiracy
of which they were tried in Washington.
A.
We tackle first the argument that the substantive offenses of
wire fraud and interstate transportation of funds obtained by
fraud, for which Hilling and Neubauer were indicted in Texas, are
the same as the allegations of wire fraud and interstate transpor-
tation of funds obtained by fraud in the Washington indictment. We
reject this argument.
In the Washington indictment, the wire fraud and interstate

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1 Compare the similar language of the two sections. Section 2314
states,
Transportation of stolen goods, securities, moneys, fraudulent
State tax stamps, or articles used in counterfeiting
Whoever transports, transmits, or transfers in interstate or
foreign commerce any goods, wares, merchandise, securities or
money, of the value of $5,000 or more, knowing the same to have
been stolen, converted or taken by fraud; or
Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises,
(continued...)
7
transportation allegations were based upon the wire transfer of
$2,346,000 from Home Savings to Alliance Federal on September 27,
1984. The Texas indictment charges Hilling and Neubauer not with
the substantive offense of transferring this $2,346,000 but with
the substantive offenses of transferring by wire $1,391,752.58 from
Irving Savings to Nevada National on February 2, 1984, in counts 1
and 2, the $500,000 kickback in counts 3 and 4, and the wire
confirmation of an unauthorized letter of credit of $2,500,000 to
Gray in count 5.
While the Washington and Texas indictments allege violations
of 18 U.S.C. §§ 1343 and 2314, the underlying transactions in the
respective indictments are different. In United States v. Lemons,
941 F.2d 309, 318 (5th Cir. 1991) (per curiam), we stated that
section 1343 "expressly punish[es] separate acts in execution of a
scheme to defraud . . . . [E]ach act in execution of a scheme is
a punishable offense under the . . . wire fraud statute . . . ."
Likewise, the language of section 2314 is similar enough to that of
section 1343 that it is obvious that each interstate transportation
is a separate, punishable offense.1

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(...continued)
transports or causes to be transported, or induces any person or
persons to travel in, or to be transported in interstate or
foreign commerce in the execution or concealment of a scheme or
artifice to defraud that person or those persons of money or
property having a value of $5,000 or more; . . .
. . . .
Shall be fined not more than $10,000 or imprisoned not more
than ten years, or both.
. . . .
Section 1343 states,
Fraud by wire, radio, or television
Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises,
transmits or causes to be transmitted by means of wire, radio, or
television communication in interstate or foreign commerce, any
writings, signs, signals, pictures, or sounds for the purpose of
executing such scheme or artifice, shall be fined not more than
$1,000 or imprisoned not more than five years, or both. If the
violation affects a financial institution, such persons shall be
fined not more than $1,000,000 or imprisoned not more than 30
years, or both.
8
It is also obvious that the test for double jeopardy under
Blockburger v. United States, 284 U.S. 297, 304 (1932), is met.
There, the Court stated,
The applicable rule is that where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other
does not.
Id. (citation omitted).
First, we note that the same act or transaction is not at
issue in both cases. Rather, the Texas indictment alleges entirely
distinct transactions from those in the Washington indictment.
Moreover, the Washington indictment requires proof of facts that
the Texas indictment does not, namely, that in the Washington

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2 As for the Montana indictment, Hilling and Neubauer admit that "the
Montana case was concerned with specific loan or credit transactions which do
not overlap the Washington or Texas indictments." The Montana indictment
centers on illegal loans made to Jahnke and McMullen, substantive offenses not
alleged in the Texas indictment. Therefore, the Texas indictment is not
barred by double jeopardy as a result of the Montana indictment.
9
indictment proof of the wire transfer of $2,346,000 from Home
Savings to Alliance Federal is required )) proof of a fact
irrelevant to the Texas indictment. The defendants' argument
fails, because the Texas indictment includes only allegations of
substantive offenses not included as substantive offenses in either
the Washington or Montana indictment.2
In Grady v. Corbin, 495 U.S. 508, 521 (1990), the Court
refined the Blockburger test for cases involving successive
prosecutions by declaring that the
Double Jeopardy Clause bars any subsequent prosecution in
which the government, to establish an essential element
of an offense charged in that prosecution, will prove
conduct that constitutes an offense for which the
defendant has already been prosecuted . . . . As we have
held, the presentation of specific evidence in one trial
does not forever prevent the government from introducing
that same evidence in a subsequent proceeding. [Footnote
and citation omitted.]
Although the government has presented evidence in the Washington
indictment that overlaps substantially with the nine counts alleged
in the Texas indictment, the conduct that the government must prove
in the Texas trial is not conduct that "constitutes an offense for
which the defendant has already been prosecuted." On the contrary,
neither Hilling nor Neubauer was prosecuted in Washington for
substantive offenses based upon their conduct of transferring by
wire the $1,391,752.58 from Irving Savings to Nevada National or

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10
receiving the $500,000 kickback they allegedly received from Gray.
Evidence of that conduct was presented in Washington merely to show
the existence of overt acts in furtherance of a conspiracy, not to
prosecute them for the substantive acts themselves.
B.
We next examine the defendants' contention that because the
substantive offenses alleged in the Texas indictment constitute
overt acts in furtherance of the conspiracy that the Washington
indictment alleged, the double jeopardy clause bars the Texas
prosecution. Basically, they argue that since they initially were
convicted of a conspiracy that was composed of several overt acts,
they cannot be tried again for the substantive offenses of which
the conspiracy was comprised. We do not accept this argument.
In United States v. Kalish, 734 F.2d 194, 195 (5th Cir.),
cert. denied, 469 U.S. 1207 (1984), two defendants were indicted
for a conspiracy to possess with intent to distribute marihuana and
also for possession with intent to deliver marihuana. The
defendants claimed that the Double Jeopardy Clause precluded the
government from first prosecuting them for conspiracy to commit a
crime, and then, in a separate proceeding, charging the same
defendants with the underlying substantive offense that was an
object of the conspiracy. Id. at 196. We rejected the defendants'
argument, holding that "the offenses of conspiracy to commit a
crime and the crime itself are separate offenses." Id. at 198
(citing Iannelli v. United States, 420 U.S. 770 (1975)).

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11
Under Kalish, we must reject Hilling's and Neubauer's claim
that the Double Jeopardy Clause precludes the government from
prosecuting them in Texas for the substantive offenses that formed
the overt acts in furtherance of a conspiracy for which they were
tried in Washington. Hilling and Neubauer were not tried in
Washington for the substantive offenses that the Texas indictment
now alleges they committed. The Washington indictment simply
listed these acts as overt acts committed in furtherance of a
conspiracy for which they were tried. Since they have not been
tried for the substantive offenses in either Washington or Montana,
no bar exists to the government's present indictment of Hilling and
Neubauer in Texas for the substantive offenses.
III.
As a final claim, Hilling and Neubauer maintain that the
principle of collateral estoppel bars the Texas indictment. In
Ashe v. Swenson, 397 U.S. 436, 443 (1970), the Court stated that
collateral estoppel means "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." The Court went on to decide that a defendant who robbed
six men engaged in a poker game, and was first tried and acquitted
for the robbery of one of the participants in the poker game, could
not be then prosecuted in a separate proceeding for the robbery of
another participant. Id. at 445. The Court also instructed
reviewing courts to apply the rule of collateral estoppel with

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12
"realism and rationality" and to examine the prior proceeding to
determine "`whether a rational jury could have grounded its verdict
upon an issue other than that which the defendant seeks to
foreclose from consideration.'" Id. at 444 (citation omitted).
Hilling and Neubauer assert that since they were acquitted in
Washington of "general allegations" of wire fraud and interstate
transportation of funds obtained by fraud, they may not be tried in
Texas for the "same conduct on later loans." Unfortunately for the
defendants, the Texas indictment charges them with conduct
different from the substantive offenses of which they were
acquitted in Washington. As distinguished from its efforts, in
Ashe, the government does not now seek to try Hilling and Neubauer
for illegal actions surrounding the same loans at issue in the
substantive charges in Washington )) specifically, the illegal wire
and transportation of the $2,346,000 loan from Home Savings to
Alliance Federal on September 27, 1984. Instead, the Texas
indictment centers on illegal action concerning a different set of
loans )) the illegal wire and transportation of the $1,391,752.58
from Irving Savings to Nevada National on February 2, 1984.
Ashe basically prohibits the government from relitigating an
issue against the same parties once that specific issue has already
been decided in one suit. In this case, no jury previously has
decided the substantive issues contained in the Texas indictment.
Therefore, the defendants' collateral estoppel argument fails.
IV.

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13
Since we conclude that neither the Double Jeopardy Clause of
the Fifth Amendment nor collateral estoppel precludes the govern-
ment from prosecuting Hilling and Neubauer under the Texas
indictment, we AFFIRM the district court's denial of the defen-
dants' motion to dismiss the indictment.

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