Full opinion text
ORDER BOWEN, District Judge. Following a lengthy trial in the above-captioned criminal cases, the jury returned the following verdicts with respect to the above-named defendants on October 3, 1981: (1) defendant Robert A. Holliday was found not guilty of the charge alleged against him in Count One of indictment number 181 — 26 and was found not guilty of the charges alleged against him in Counts One, Two, Five and Six of indictment number 181-37; (2) defendant Harvey E. Hornsby was found not guilty of the charge alleged against him in Count One of indictment 181-26 and was found not guilty of the charges alleged against him in Counts One, Two, Five, Six, Nine and Ten of indictment number 181-37; and (3) defendant Anthony T. Mulherin, Jr. was found not guilty of the charges alleged against him in Counts Five, Six and Seven of indictment number 181-37. All remaining defendants were acquitted. The jury was unable to reach a verdict on several of the counts as to defendants Anthony T. Mulherin, Jr., Harvey E. Hornsby and Robert A. Holliday and the Court declared a mistrial: (1) on Counts One, Two, Three, Four and Five of indictment number 181 — 26 and Counts Eight, Nine and Ten of indictment number 181-37 as to defendant Anthony T. Mulherin, Jr.; (2) on Counts Two, Three, Four and Five of indictment number 181 — 26 and Counts Seven and Eight of indictment number 181-37 as to defendant Harvey E. Hornsby; and (3) on Count Two of indictment number 181-26 and Counts Three, Four, Seven and Eight of indictment number 181-37 as to defendant Robert A. Holliday. These defendants have been set for retrial. Fed.R.Crim.P. 31(b). The case is presently before the Court on the following post-trial motions filed on behalf of defendants Anthony T. Mulherin, Jr., Robert A. Holliday and Harvey E. Hornsby: 1. Motion for judgment of acquittal notwithstanding the mistrial, with supplemental brief. 2. Motion to reconsider order on motion to dismiss for failure of the government to comply with the Speedy Trial Act and motion to dismiss because of governmental vindictiveness. 3. Motion for reconsideration of the Court’s orders on (a) motion to dismiss indictments because of governmental misconduct, (b) motion to dismiss indictments against defendants for prosecutorial misconduct before the grand jury based on the failure of the government to disclose to the grand juries exculpatory material and (c) motion to require copies of the grand juries’ minutes to be transcribed, produced for the defendants and made a part of the record. 4. Motion for additional discovery and supplemental motion for additional discovery. These discovery motions will be considered by separate order. Several of these motions share common grounds and, for organizational purposes of this order, the Court will consider the motions according to the grounds asserted rather than the particular title of a motion. The substantive motions may be categorized into a single group, having a varied subset of supportive arguments and claims: Motion for judgment of acquittal, or, in the alternative for dismissal of one or both of the indictments GROUNDS: 1. Verdicts returned by the jury are inconsistent and repugnant to any alleged guilt of defendants on the remaining charges. 2. Renewal of motion for judgment of acquittal made at the close of the government’s cases and at the conclusion of trial. 3. Speedy Trial Act violation in bringing indictment number 181-37. 4. Governmental vindictiveness in bringing indictment number 181-37. 5. Prosecutorial misconduct before the grand jury. 6. Governmental misconduct (due process violation — entrapment as a matter of law). 7. Double jeopardy violation on the following bases: (a) Counts One and Two of indictment number 181-26 charge a “unified conspiracy.” (b) Collateral estoppel. (c) Prosecutorial misconduct. “INCONSISTENT VERDICTS” Defendants Anthony T. Mulherin, Jr., Robert A. Holliday and Harvey E. Hornsby seek judgment of acquittal notwithstanding the mistrial on the basis that the not guilty verdicts returned by the jury are “inconsistent and repugnant” to any alleged guilt of the defendants. In sum, defendants argue that, since they admitted the underlying acts alleged in the indictments and relied solely on the defense of entrapment, the acquittals evidence a jury finding of entrapment and thereby render inconsistent the remaining allegations of guilt. This argument is grounded on the erroneous premise that jury verdicts returned in a multicount-multidefendant criminal trial must evince an intrinsic consistency. The rule of law is well settled to the contrary — that, “[wjhile symmetry of result may be intellectually satisfying,” Standefer v. United States, 447 U.S. 10, 25, 100 S.Ct. 1999, 2008, 64 L.Ed.2d 689 (1980), consistency in criminal verdicts is not required. United States v. Fuiman, 546 F.2d 1155, 1157 (5th Cir. 1977) cert. denied 434 U.S. 856, 98 S.Ct. 176, 54 L.Ed.2d 127 (citing Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932)); see United States v. Bottom, 638 F.2d 781, 784 (5th Cir. 1981). As recently noted by the Fifth Circuit, criminal juries “are free to render ‘not guilty’ verdicts resulting from compromise, confusion, mistake, leniency or other legally and logically irrelevant factors.” United States v. Espinosa-Cerpa, 630 F.2d 328, 332 (5th Cir. 1980). While somewhat “discomforting,” see Standefer, 447 U.S. at 25, 100 S.Ct. at 2008, it is clear that “ ‘juries may indulge in precisely such motives or vagaries’.” United States v. Cargo Service Stations, Inc., 657 F.2d 676, 684 (5th Cir. 1981) [quoting United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48 (1943)]. Given the wide latitude accorded criminal juries in deriving verdicts of not guilty, it is apparent that “an acquittal is not to be taken as the equivalent of a finding of the fact of innocence; nor does it necessarily even reflect a failure of proof on the part of the prosecution.” United States v. Espinosa-Cerpa, 630 F.2d at 332; see generally United States v. Benton, 637 F.2d 1052,1058 (5th Cir. 1981). In this case, therefore, it is by no means a certainty that, in reaching its verdict of “not guilty” on various of the counts against defendants Anthony T. Mulherin, Jr., Holliday and Hornsby, the jury concluded that these defendants were victims of entrapment. To paraphrase the Espinosa-Cerpa court, supra, the jury could have premised its “not guilty” verdicts on mistake, sympathy, leniency or other logically irrelevant factors. Thus, the acquittals returned by the jury are not necessarily inconsistent with the remaining allegations of guilt against defendants. Furthermore, even if an apparent logical inconsistency existed, this would not provide a basis for attacking an otherwise valid retrial and, where adequately supported by the evidence, a conviction on the remaining counts. See United States v. Elliot, 571 F.2d 880, 887 n.5 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978) (acquittal on a substantive offense does not preclude a verdict of guilty on count charging conspiracy to commit such substantive offense). Accordingly, defendants’ motions for judgment of acquittal on this basis are DENIED. Renewal of motions for judgment of acquittal made at trial At the close of the government’s case, defendants Anthony T. Mulherin, Jr., Holliday and Hornsby, by oral motion, sought judgment of acquittal pursuant to Fed.R.Crim.P. 29(a). Following a lengthy hearing, outside the presence of the jury, the Court denied these motions. Similarly, after due consideration, the Court denied the motions at the conclusion of trial. In the present renewal of these motions, defendants make no new arguments which would cause the Court to reconsider its pri- or rulings. Accordingly, the renewal of the motions for judgment of acquittal filed on behalf of defendants Anthony T. Mulherin, Jr., Harvey E. Hornsby and Robert A. Holliday are DENIED. See United States v. Becton, 632 F.2d 1294, 1295 (5th Cir. 1980) (“[J]udges are not to acquit unless the government has clearly failed to produce evidence supporting a conviction when viewed most favorable to the prosecution.”); United States v. Herberman, 583 F.2d 222, 231 (5th Cir. 1978) (“[A] trial judge has a duty to grant the motion for judgment of acquittal when the evidence, viewed in the light most favorable to the government, is so scant that the jury could only speculate as to defendant’s guilt.”); United States v. Brown, 587 F.2d 187, 190 (5th Cir. 1979) (“It is not properly the function of the court, in ruling on [a motion for judgment of acquittal], to assess the credibility of witnesses, weigh the evidence, or substitute its own judgment as to guilt or innocence for that of the jury.”). See generally United States v. Burns, 597 F.2d 939, 940 (5th Cir. 1979). “Speedy Trial Act violation in bringing indictment number 181-37” By written order entered September 2, 1981, the Court considered at length defendants’ contention that indictment number 181-37 failed to conform with the requirements of the Speedy Trial Act. 18 U.S.C. §§ 3161(b), 3162(a). The Court found that indictment number 181-37, returned on July 20, 1981, was timely under section 3161(b). Defendants’ motion for reconsideration of this ruling, currently pending, presents no new arguments. Accordingly, the motion for reconsideration of the Court’s ruling on defendants’ motion to dismiss indictment number 181 — 37 pursuant to 18 U.S.C. § 3162(a)(1) is DENIED. “Governmental vindictiveness in bringing indictment number 181-37” Defendants Anthony T. Mulherin, Jr., Robert A. Holliday and Harvey E. Hornsby were charged, along with certain other defendants, in a five-count indictment returned on April 30, 1981, in United States District Court for the Middle District of Florida. Counts One and Two of this indictment, number 181-26, alleged conspiracy, 18 U.S.C. § 371, 21 U.S.C. § 846, and Counts Three through Five alleged certain substantive offenses committed in Florida. By order entered June 16, 1981, granting defendants’ motion pursuant to Fed.R. Crim.P. 21(b), the case was transferred to the Southern District of Georgia. On July 20, 1981, in the Southern District of Georgia, the indictment in criminal action 181-37 was returned by the grand jury. The indictment contained eleven counts (one count was later dismissed by the Court) alleging possession and transfer of various unregistered firearms in violation of 26 U.S.C. §§ 5861(d), 5861(e). The criminal offenses alleged in the indictment are in part the underlying substantive offenses for the criminal conspiracy charge in Count Two of indictment 181-26. Indeed, several of the factual allegations made in indictment 181-37 parallel the alleged overt acts enumerated in Count Two of indictment 181-26. As noted earlier, at the conclusion of the trial on both indictments, the jury acquitted defendants Anthony T. Mulherin, Jr., Harvey E. Hornsby and Robert A. Holliday on several of the charges alleged in indictment 181-37. Since the jury was unable to reach a unanimous verdict on the remaining counts, the Court declared a mistrial, and defendants now seek dismissal of those counts of indictment 181-37 on the basis of prosecutorial vindictiveness. Defendants’ argument is based on two decisions of the Supreme Court, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and their progeny, which establish the principle “that the substantial discretion traditionally accorded state prosecutors in bringing defendants to trial on criminal charges is subject to the due process guarantees of the Fourteenth Amendment.” Miracle v. Estelle, 592 F.2d 1269, 1272 (5th Cir. 1979). See Longval v. Meachum, 651 F.2d 818, 820 (1st Cir. 1981); United States v. Hollywood Motor Car Co., Inc., 646 F.2d 384, 386 (9th Cir. 1981); United States v. Andrews, 633 F.2d 449, 452 (6th Cir. 1980) (en banc), cert. denied, 450 U.S. 927, 101 S.Ct. 1382, 67 L.Ed.2d 358 (1981); United States v. Burt, 619 F.2d 831, 836 (9th Cir. 1980); Hardwick v. Doolittle, 558 F.2d 292, 301 (5th Cir.), on petition for rehearing and rehearing en banc, 561 F.2d 630 (1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978). Succinctly stated, the traditional discretion accorded a prosecutor’s charging decision, see United States v. Cox, 342 F.2d 167 (5th Cir.) (en banc), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965), runs afoul of a defendant’s right to due process of law “where the Government increases the severity [or number] of alleged charges in response to the exercise of constitutional or statutory rights.” United States v. Hollywood Motor Car Co., Inc., 646 F.2d at 386. In order to place defendants’ contention in the proper analytical framework — and at the risk of reciting familiar law — it is necessary to delineate the progression of Supreme Court and Fifth Circuit precedent which articulate and develop the due process constraints on prosecutorial vindictiveness. Vindictiveness, as a violation of the due process clause, first arose in the context of court, as opposed to prosecutorial, action. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court held that, when a defendant successfully appeals his first trial and is subsequently convicted upon retrial, the trial judge may not impose a more severe sentence than imposed following the first trial unless the second sentence is “based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Id. at 726, 89 S.Ct. at 2081. The Court premised its holding on two tenets subsumed within the due process clause: Due process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. Id. at 725, 89 S.Ct. at 2080 (emphasis added). Thus, on a twofold basis, the due process clause delimits the sentencing discretion of a judge after retrial on remand from a successful appeal: (1) due process proscribes any judicial retaliation for defendant’s exercise of his statutory or constitutional rights, and (2) due process requires that, in pursuing his rights, a defendant must be free of an apprehension of retaliation. While Pearce, in the context of resentencing, was subsequently limited to its facts, see Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) (Pearce held inapplicable where sentencing process is by the jury); Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) (holding greater sentencing by different judge on trial de novo did not violate due process clause), its underlying rationale was extended to the other side of the bench in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1972). Blackledge concerned a defendant convicted in a state district court on a misdemeanor charge of assault with a deadly weapon. Following his conviction, defendant exercised his statutory right to obtain a trial de novo in a state court of general jurisdiction. Prior to the trial de novo, the prosecutor obtained an indictment from a grand jury charging defendant with the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury. In affirming the issuance of a writ of habeas corpus, the Blackledge Court concluded that Pearce precludes a prosecutor from retaliating against a defendant for the exercise of his statutory right to appeal. Writing for the Court, Justice Stewart noted that the central focus of the due process analysis in Pearce was on the “realistic likelihood of ‘vindictiveness’.” Id. at 27, 94 S.Ct. at 2102. Such a “realistic likelihood” was manifest in the return of the superseding indictment since the prosecutor had a “considerable stake” in discouraging convicted misdemeanants from appealing. Id. Recognizing that there was no evidence of “actual retaliatory motivation” on the part of the prosecutor, the Court bottomed its constitutional analysis on the second prong of the dual due process considerations set forth in Pearce-, “reasonable apprehension of retaliation.” Justice Stewart concluded: A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration .... Due process of law requires that such a potential for vindictiveness must not enter into [a state’s] two-tiered appellate process. Id. at 28, 94 S.Ct. at 2102 (emphasis added). In considering Pearce and Blackledge, the Fifth Circuit endeavored to strike a balance between two antithetical, but constitutionally protected, interests: (1) the due process right of the defendant to be free of apprehension that the state might subject him to an increased potential punishment if he exercises his right to make a direct or collateral attack on his conviction, and (2) the prosecutor’s broad discretion to control the decision to prosecute. Miracle v. Estelle, 592 F.2d at 1272. Like Blackledge, the Fifth Circuit formulated this balance of competing interests in the following archetypal context: indictment, conviction, successful appeal, reindictment on a new charge or additional charges, and conviction. See Id. at 1274. As gleaned from Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977) and Jackson v. Walker, 585 F.2d 139 (5th Cir. 1978), two seminal cases on “prosecutorial vindictiveness,” the concern of the Fifth Circuit, was to refine and limit to certain specific situations the per se rule enounced in Blackledge. See Jackson v. Walker, 585 F.2d at 143. The analysis of the Court of Appeals is premised on the axiom that “once a prosecutor exercises his discretion to bring certain charges against a defendant, neither he nor his successor may, without explanation, increase the number of or severity of those charges in circumstances which suggest that the increase is retaliation for the defendant’s assertion of statutory or constitutional rights.” Hardwick v. Doolittle, 558 F.2d at 301. Such an increase in the severity of the original charge subsequent to the successful exercise of defendant’s statutory or constitutional rights, accompanied by defendant’s claim of an apprehension of vindictiveness, establishes a prima facie case of vindictiveness. See Miracle v. Estelle, 592 F.2d at 1275-76. Depending on the balance judicially derived between the defendant’s interest, in pursuing his statutory and constitutional rights, and the prosecutor’s interests, in maintaining the freedom of charging discretion, defendant may prevail on his prima facie case upon a court finding of: (1) “reasonable apprehension of vindictiveness,” where the balance favors defendant, or (2) “actual vindictiveness,” where the balance favors the prosecutor. The Fifth Circuit summarized the requisite balancing process as follows: In deciding whether to require a showing of actual vindictiveness [instead of a mere apprehension of vindictiveness], a court must weigh the extent to which allowing the second indictment will chill the exercise of the defendants’ appeal rights against the extent to which forbidding the second indictment will infringe on the exercise of the prosecutor’s independent discretion. In other words, the court must weigh the need to give defendants freedom to decide whether to appeal against the need to give the prosecutors freedom to decide whether to prosecute. Jackson v. Walker, 585 F.2d 139, 145 (5th Cir. 1978). In Blackledge, defendant’s interest in pursuing his statutory appeal right clearly outweighed any prosecutorial interest served by increasing the original charge. Hence, defendant prevailed upon a court determination that a reasonable apprehension of vindictiveness existed. The distinguishing feature of Blackledge was that, based upon a single criminal event — an assault — the prosecutor fully exercised his discretion and decided to charge a misdemeanor offense. After defendant’s appeal, however, the' prosecutor reopened that previously completed exercise of discretion, see Jackson v. Walker, 585 F.2d at 144, and charged a felony offense based upon the same criminal episode. Since the prosecution’s initial charging discretion was unfettered, there was no prosecutorial interest served by the second charge to counterbalance the interests of defendant. Yet, in other “second charge” situations, the Supreme Court and the Fifth Circuit have indicated that the balance of competing interests favors the prosecutor. Such a favorable balance occurs when the second charge is possible only as a result of intervening events. See Blackledge v. Perry, 417 U.S. at 29 n.7, 94 S.Ct. at 2103 n.7 (increasing charge to homicide upon subsequent death of assault victim). Similarly, the prosecutor’s interests outweigh defendant’s interests when the second, more severe, charge relates to “different and distinct” criminal activities, from the acts covered in the first charge, even though the criminal events occurred in the same overall time interval. See Hardwick v. Doolittle, 558 F.2d at 302. Furthermore, the balance favors the prosecutor when the second charge is for different and distinct offenses which are a “different and distinct consequence” of the same basic criminal conduct alleged in the first charge. See Jackson v. Walker, 585 F.2d at 147. As in the foregoing examples, when the balance of competing interests favors the prosecutor, defendant’s prima facie showing of vindictiveness merely shifts the burden to the prosecutor to show that the motive in bringing the second charge was not vindictive. See Miracle v. Estelle, 592 F.2d at 1274. Once the prosecutor demonstrates legitimate reasons for the second charge, see Hardwick v. Doolittle, 558 F.2d at 301 (for a nonexhaustive list of such nonvindietive reasons), then the burden shifts to defendant to demonstrate “actual vindictiveness” on the part of the prosecutor in order to prevail. See Jackson v. Walker, 585 F.2d at 148. The present case presents a unique setting for application of the HardwickJackson balancing analysis. To begin with, the statutory right successfully exercised by defendants was a pre-trial change of venue, discretionary with the Court, rather than a Blackledge-type post-trial appeal of right. Moreover, following the venue change, the government added additional substantive charges arising out of the same overall conduct for which defendants had been originally charged for conspiracy and certain substantive counts occurring in Florida. In contrast to Blackledge, the prosecutor did not substitute a more severe charge for a less severe charge. Indeed, the second charge, in and of itself, is less severe than the first charge. Finally, the additional charges were brought by separate indictment, not by a superseding indictment, although the government clearly anticipated a trial together of the two indictments. While these factors do not negate due process questions raised by the second indictment, they eliminate applicability of the Blackledge per se rule and provide a significant government counterweight in the balance of competing interests. The initial inquiry on a claim of prosecutorial vindictiveness is whether the second charge is actually more severe than the first charge. See Jackson v. Walker, 585 F.2d at 146 (“[T]he sine qua non of a prosecutorial vindictiveness claim is that the second charge is in fact harsher than the first.”). Since severity is measured by the “potential punishment for the offense,” Miracle v. Estelle, 592 F.2d at 1275, it is clear that the added substantive counts in indictment number 181-37, when viewed in combination with indictment number 181— 26, as a result of the government’s motion for trial together, constitute a more severe charge than that originally brought. Given the increased severity of the original charge subsequent to the change of venue, and in light of defendants’ claimed apprehension of vindictiveness, the Court finds a prima facie showing of prosecutorial vindictiveness. Having made this determination, the next issue “is whether, for a finding of unconstitutional vindictiveness, [the] [C]ourt will require a determination of actual vindictiveness, or just a finding of the reasonable apprehension of vindictiveness.” Jackson v. Walker, 585 F.2d at 139. In deriving the pertinent standard, the Court must engage in the balancing of interests mandated by the Jackson court. This case involves two conspiracies and related substantive offenses allegedly committed over a span of several months in the Southern District of Georgia and the Middle District of Florida. Under constitutional and statutory venue provisions, the government could indict for the substantive offenses only in the district in which such crimes were committed, see United States v. White, 611 F.2d 531, 534 (5th Cir.), cert. denied, 446 U.S. 992, 100 S.Ct. 2978, 64 L.Ed.2d 849 (1980), while indictment for the alleged conspiracies could be brought in either district. See United States v. DeLeon, 641 F.2d 330, 336 (5th Cir. 1981). It is clear that on April 30, 1981, the government made the initial decision to prosecute the defendants for the alleged substantive offenses committed in the Middle District of Florida and for two counts of conspiracy. Yet, in making this decision, the government did not exhaust the full range of its charging discretion. Regardless of the disposition of indictment 181-26, the government maintained the discretion to seek an indictment in the Middle District of Georgia for the alleged substantive offenses committed therein. See United States v. Mulherin, 521 F.Supp. 824, at 826-827 (S.D.Ga.1981). On these facts, then, the interest of the prosecutor is akin to that articulated in Hardwick: the discretion to institute a new prosecution when a defendant is initially indicted for less than all the distinct violations arising from his alleged criminal activity. See Hardwick v. Doolittle, 558 F.2d at 302 (finding this interest sufficient to require showing of actual vindictiveness). See also Miracle v. Estelle, 592 F.2d at 1276 (“[The government’s] adopting of a ‘different approach to prosecutorial duty’ is a critical facet of prosecutorial freedom and its presence tipped the scales in favor of the prosecution.”) Counterbalanced against this interest is defendants’ interest to be free from any chilling effect upon the exercise of their statutory venue rights engendered by the prosecutorial action. An initial, and in this case dispositive, focus, in assessing the relative weight of this interest, is on the nature of the “right” asserted. Here, the right to file a motion for change of venue pursuant to Fed.R.Crim.P. 21(b) is entirely distinct from the right to appellate review at issue in Blackledge, Jackson and Hardwick. With respect to avenues of appellate review in criminal cases, “it is . . . fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.” Blackledge v. Perry, 417 U.S. at 25 n.4, 94 S.Ct. at 2101 n.4. In contrast, the grant or denial of a Rule 21(b) motion for transfer to another district rests solely within the broad discretion of the district court. See United States v. Alvarado, 647 F.2d 537, 539 (5th Cir. 1981); United States v. Juarez, 573 F.2d 267, 280 (5th Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 289, 58 L.Ed.2d 262 (1978). Cf. United States v. DeMarco, 550 F.2d 1224 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977) (considering claim of prosecutorial vindictiveness where defendant in tax prosecution case exercised his absolute right to venue in district in which he resided pursuant to 18 U.S.C. § 3237(b)). Certainly, this pre-trial permissive Rule 21(b) option to seek change of venue is less “weighty” than the absolute right to criminal appellate review. When measured against the aforesaid prosecutorial interests in bringing the second charge, the interests of defendants arising under Rule 21(b) do not tip the Hardwick-Jackson scale in favor of defendants. See Jackson v. Walker, 585 F.2d at 148 (“Under the circumstances of this case we find a very limited due process interest balanced against a moderate’s weights prosecutorial independence interest.”) Thus, defendants’ prima facie showing serves to shift the burden to the government to articulate a legitimate nonvindictive reason for bringing the second charge. If the government carries this burden, then defendants must demonstrate actual vindictiveness. At a pre-trial hearing on the issue of defendants’ Speedy Trial Act claim, the government stated, in response to questions by the Court, that the return of indictment 181-37 was based upon the transfer of the ease to the Southern District of Georgia. The prosecutor could have brought the second charges at any time as a dual prosecution, but once the case was transferred, the government thought it more probable that the cases could be tried together. Defendants claim that this colloquy evidences a vindictive motivation on the part of the prosecutor. “Vindictiveness,” as that term is used in the context of a claim for prosecutorial vindictiveness, means the imposition of some punishment against defendant in retaliation for defendant’s exercise of a legal right. See United States v. Walker, 514 F.Supp. 294, 311-12 (E.D.La.1981). In this case it is apparent, on review of the pre-trial hearing, that the government had an array of possible substantive charges for acts committed in two states and that the prosecution considered a two-district prosecution. Yet, for reasons based upon convenience, economics and prosecutorial resources, the government chose to bring an indictment in the Middle District of Florida. Once the case was transferred, these reasons for not pursuing a two-district prosecution were eliminated, and the government proceeded with the second indictment. Such reasons for bringing the second charge are legitimate and do not manifest a purposeful governmental retaliation for defendants’ exercise of a legal right. Given this legitimate nonvindictive reason for returning indictment number 181-37, the “[C]ourt should not interfere with the prosecutor’s exercise of discretion unless a determination of actual vindictiveness is made.” Jackson v. Walker, 585 F.2d at 148. Here, the Court finds no evidence of actual prosecutorial vindictiveness in response to the change of venue. Accordingly, defendants’ motion to dismiss indictment number 181-37 on the basis of prosecutorial vindictiveness is DENIED. "Prosecutorial misconduct before the grand jury” Defendants seek dismissal of both indictments because of alleged prosecutorial misconduct before the grand jury, and assign as grounds: (1) failure to disclose to the grand jury evidence which was favorable to defendants; (2) failure to disclose to the grand jury evidence adverse to the credibility of certain government witnesses; (3) failure to disclose to the grand jury evidence supportive of defendants’ entrapment ■claim; and (4) there is “ample evidence” that certain key government witnesses perjured themselves during trial, thus, it can only be assumed that such witnesses perjured themselves before the grand jury. In assessing these grounds for dismissal, it is well settled that “ ‘an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence’.” United States v. Sullivan, 578 F.2d 121, 124 (5th Cir. 1978) (quoting United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)); see United States v. Georgalis, 631 F.2d 1199, 1206 (5th Cir. 1980); United States v. Johnson, 615 F.2d 1125, 1127 (5th Cir. 1980). Furthermore, “[t]he Government is under no duty to present to a grand jury evidence bearing on the credibility of witnesses,” United States v. Brown, 574 F.2d 1274,1276 (5th Cir. 1978), cert. denied, 439 U.S. 1046, 99 S.Ct. 720, 58 L.Ed.2d 704. Additionally, “an indictment is [not] flawed simply because it is based on testimony that later may prove to be questionable.” United States v. Sullivan, 578 F.2d at 124. Finally, dismissal of an indictment on the basis of prosecutorial misconduct is required only in “flagrant” cases — “[i]t must be shown that the prosecutor’s conduct significantly infringed upon the ability of the grand jury to exercise its independent judgment.” United States v. Cederquist, 641 F.2d 1347, 1353 (9th Cir. 1981). In light of these authorities, the Court finds no basis for dismissal of the indictments on the above-enumerated grounds, one through three. With respect to ground number four, the Fifth Circuit has indicated that proof of actual perjury before the grand jury by a government witness may provide a basis for dismissing a returned indictment. See United States v. Cathey, 591 F.2d 268, 272 (5th Cir. 1979). The Court, in camera, has thoroughly reviewed the transcribed testimony of government witnesses before the grand jury, with careful attention to the testimony of special employee Gary A. Peacock. Of course, all the testimony was on direct examination and essentially consisted of a narrative of the alleged criminal activity. The Court finds no evidence of perjury. Accordingly, defendants’ motion to dismiss the indictments on the basis of prosecutorial misconduct before the grand jury is DENIED. FURTHER ORDER that defendants’ motion for production of the transcribed proceedings before the grand jury is DENIED. “Governmental misconduct (due process violation — entrapment as a matter of law)” By order entered August 27, 1981, the Court considered defendants’ motion to dismiss on grounds that the governmental involvement in the offenses charged reach such a demonstrable level of outrageousness as to bar prosecution on a due process basis. Defendants now urge the Court to reconsider its denial of the prior motion. On the basis of the law set forth in the Court’s earlier order, defendants’ motion for reconsideration is DENIED. However, the Court deems it appropriate — and perhaps essential, given the circumstances of this case — to set forth certain findings of fact regarding the conduct of the government from the inception of its undercover operation through the trial of these defendants. Since these findings are intertwined with, although legally distinct from, the required findings of the Court in considering defendants’ prosecutorial misconduct double jeopardy claim, the findings will be made under the final double jeopardy heading of this order. Cf. United States v. Rey, 641 F.2d 222, 224 (5th Cir. 1981) (denial of due process claim is not subject to an interlocutory appeal). Double jeopardy violation on the following bases: (a) “Counts One and Two of indictment number 181-26 charge a ‘unified conspiracy’.” At the conclusion of the trial in this case, the jury returned a verdict of “not guilty” on the charges alleged against defendants Harvey E. Hornsby and Robert A. Holliday in Count One of indictment number 181-26. This count alleged conspiracy, under 21 U.S.C. § 846, to possess and to possess with intent to distribute controlled substances. The jury was unable to reach a unanimous verdict with respect to Hornsby and Holliday on the charge of conspiracy, under 18 U.S.C. § 371, to violate certain provisions of The National Firearms Act. Defendants Hornsby and Holliday now assert that retrial on Count Two is barred by the double jeopardy clause because “only one alleged agreement was in fact set out in Counts One and Two.” In considering a double jeopardy claim, the Supreme Court has noted that “the decisional law in the area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator.” Albernaz v. United States, 450 U.S. 336,101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981). Yet, the Court has established certain beacons to guide the wayward judicial seafarer. As a general matter, the double jeopardy clause “ ‘protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the offense after conviction. And it protects against multiple punishments for the same offense’.” Id. 101 S.Ct. at 1145 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)). Here, defendants Hornsby and Holliday claim that a retrial on the charges alleged in Count One would constitute a prosecution on the same offense alleged in Count Two for which they were acquitted. A review of the Supreme Court’s decision in Albernaz last term shows that defendants’ argument is without merit. Albernaz v. United States, 450 U.S. 336, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). There, the Court considered whether cumulative punishment for a defendant convicted of conspiracy to import marihuana, in violation of 21 U.S.C. § 963, and of conspiracy to distribute marihuana, in violation of 21 U.S.C. § 846, was proscribed by the Fifth Amendment. In a footnote applicable to the issue in this case, Justice Rehnquist commented: Petitioners’ contention that a single conspiracy which violates both § 846 and § 963 constitute the “same offense” for double jeopardy purposes is wrong. We noted in Brown v. Ohio, [432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)], that the established test for determining whether two offenses are the “same offense” is the rule set forth in Blockburger [v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 520 (1932) ] — the same rule on which we relied in determining congressional intent .... [Conspiracy to import marijuana in violation of § 963 and conspiracy to distribute marijuana in violation of § 846 clearly meet the Block-burger standard. It is well settled that a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause .... This is true even though the “single transaction” is an agreement or conspiracy. Id. 101 S.Ct. at 1145 n. 3 (citations omitted) (emphasis added). Cf. United States v. Henry, 661 F.2d 894, at 897 (5th Cir. 1981) (holding that, for successful double jeopardy claim on two overlapping drug conspiracy charges under section 846, “the evidence must show that the participants shared a continuing, common illegal goal and that the operations of the conspiracy followed an unbroken, repetitive pattern.”) United States v. Futch, 637 F.2d 386 (5th Cir. 1981) (first and second indictment charged section 846 conspiracy); United States v. Marable, 578 F.2d 151 (5th Cir. 1978) (same section 846 conspiracy charged in both indictments but for different controlled substances); United States v. Ruigomex, 576 F.2d 1149 (5th Cir. 1978) (two indictments charged single, continuing conspiracy to purchase and distribute marihuana). In the present case, the two conspiracy counts in indictment 181-26 allege violations of separate statutes. The elements of conspiracy under section 846 of Title 21 are: (1) that two or more persons in some way or manner, positively or tacitly, came to a mutual understanding to try to accomplish a common and unlawful plan to distribute and possess with intent to distribute a controlled substance; and (2) that the defendant knowingly and willfully became a member of the conspiracy. In contrast, the elements of conspiracy under section 371 of Title 18: (1) that two or more persons, in some manner, whether positively or tacitly, came to a mutual understanding to try to accomplish a common and unlawful plan — in this case to violate certain provisions of The National Firearms Act; (2) that the defendant knowingly and willfully became a member of such conspiracy; (3) that one of the conspirators during the existence of the conspiracy knowingly committed at least one of the overt acts described in the indictment; and (4) that such overt act was knowingly committed in furtherance of the conspiracy. Thus, to borrow the language of Albernaz, even if the underlying acts alleged in counts one and two constitute a single transaction, such acts gave rise to distinct offenses under separate statutes which required proof of different facts and elements. See United States v. Colmenares-Hernandez, 659 F.2d 39, at 43 (5th Cir. 1981) (“If one charge requires proof of a fact not required for the other charge, double jeopardy does not apply.”); United States v. Anderson, 651 F.2d 375, 378-79 (5th Cir. 1981); United States v. Martino, 648 F.2d 367, 382-83 (5th Cir. 1981). Accordingly, the motion of defendants Hornsby and Holliday for “judgment of acquittal” on Count Two of indictment number 181-26 is DENIED. (b) “Collateral estoppel” While “collateral estoppel” has been termed an “awkward phrase,” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970), and its doctrine has been characterized as a “slippery concept indeed,” United States v. Mock, 604 F.2d 341, 343 (5th Cir. 1979), it is firmly established that the law of collateral estoppel in a criminal case “is a protection embodied in the fifth amendment guarantee against double jeopardy.” United States v. Henry, 661 F.2d 894, at 897 (5th Cir. 1981). As defined by the Supreme Court, collateral estoppel “means simply 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.” Ashe v. Swenson, 397 U.S. at 443, 90 S.Ct. at 1194. The concept is distinct from double jeopardy in the sense that “the traditional bar of double jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from relitigating certain facts in order to establish the fact of the crime.” United States v. Mock, 604 F.2d at 343-4'4. See United States v. Caucci, 635 F.2d 441, 448 (5th Cir. 1981) (“Although double jeopardy necessarily includes collateral estoppel, collateral estoppel does not equate with or include double jeopardy.”). The doctrine of collateral estoppel may affect a subsequent criminal prosecution in two distinct ways: (1) it may completely bar a subsequent prosecution; or (2) although the subsequent prosecution may proceed, it may operate to bar the introduction or argumentation of certain facts necessarily established in a prior proceeding. United States v. Caucci, 635 F.2d at 488; see United States v. De La Torre, 639 F.2d 245, 248 (5th Cir. 1981) (“The doctrine affects the introduction of evidentiary facts necessarily determined in a prior lawsuit, as well as reprosecution.”). In this case, defendants seek to invoke collateral estoppel to preclude the government from instituting a reprosecution or, in the alternative, to prevent the relitigation of certain evidentiary facts which the jury determined adversely to the prosecution. Of immediate importance, for present purposes, is whether the doctrine of collateral estoppel serves as a bar to retrial of defendants on the mistried counts. In the event of retrial, the applicability of collateral estoppel to preclude the introduction or argumentation of certain facts necessarily established in the prior proceeding, see United States v. Lee, 622 F.2d 787, 790 (5th Cir. 1980), is properly determined on a defense motion in limine to suppress evidence. See id. at 791 (“[A] question of the admissibility of evidence arising from the application of collateral estoppel is not an appealable order.”). In support of the collateral estoppel motion to bar retrial, defendants argue that, since they relied solely on the defense of entrapment, the “not guilty” verdicts on several counts demonstrate that the jury necessarily found that defendants were entrapped. Thus, it is contended that the government is collaterally estopped from contesting the issue of entrapment on the remaining counts for which a mistrial was declared, and, therefore, a reprosecution on these counts is barred. Before considering the merits of this argument, it is useful to first chronicle the proceedings in this case and then set the framework for the Court’s analysis of the collateral estoppel question. Defendants were tried in a single trial on two multicount-multidefendant indictments. The indictments alleged two conspiracies, 18 U.S.C. § 371 and 21 U.S.C. § 846, and numerous substantive offenses. The defense of entrapment was individually asserted by defendants Anthony T. Mulherin, Jr., Harvey E. Hornsby and Robert A. Holliday as to each of the counts against them. The jury acquitted defendants Holliday and Hornsby of the section 846 conspiracy allegation and of several substantive offense allegations. Defendant Anthony T. Mulherin, Jr., was acquitted of three substantive offense allegations. The jury was unable to reach a verdict on the two conspiracy counts against Anthony T. Mulherin, Jr. and the section 371 conspiracy count against defendants Hornsby and Holliday. Additionally, the jury was unable to reach a unanimous verdict on several of the substantive counts against the three defendants. While collateral estoppel ordinarily arises in the context of a subsequent prosecution for an offense, legally distinct from but factually similar to, an offense charged in a prior prosecution, it is settled that the doctrine also applies in the situation of a retrial on counts which were mistried in a prior proceeding on a multicount indictment where the jury hung on some counts and acquitted on the remaining counts. See United States v. Larkin, 605 F.2d 1360 (5th Cir. 1979), modified on rehearing, 611 F.2d 585, cert. denied, 446 U.S. 939, 100 S.Ct. 2160, 64 L.Ed.2d 793 (1980); United States v. Mespoulede, 597 F.2d 329, 336-37 (2d Cir. 1979). Cf. United States v. Caucci, 635 F.2d at 448 (holding that doctrine of collateral estoppel does not apply in the context of a single trial). In assessing defendants’ collateral estoppel claim: the court’s task is to decipher exactly what facts have been or should be deemed to have been determined at the first trial. In making such a determination the court should apply “realism and rationality,” and its inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” The doctrine of collateral estoppel precludes the subsequent prosecution only if the jury could not rationally have based its verdict on an issue other than the one the defendant seeks to foreclose. When a “fact is not necessarily determined in a former trial, the possibility that it may have been does not prevent re-examination of that issue.” United States v. Lee, 622 F.2d at 787 (citations omitted) (emphasis added); see United States v. Griggs, 651 F.2d 396, 399 (5th Cir. 1981). The burden to establish that a fact was necessarily determined in a former trial rests with the defendant. United States v. Giarratano, 622 F.2d 153, 156 n.4 (5th Cir. 1980). In the present case, the issue is whether the defense of entrapment asserted by defendants “should be deemed to have been determined at the first trial” in favor of defendants on all counts. Briefly stated, “entrapment occurs ‘when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute’.” United States v. Webster, 649 F.2d 346, 348 (5th Cir. 1981) (en banc). “The visceral issue is whether the defendant had the intent or predisposition to commit the crime, a factual inquiry for jury resolution.” United States v. Bradsby, 628 F.2d 901, 903 (5th Cir. 1980). Although the rule has been the subject of much criticism, see United States v. Brooks, 611 F.2d 614, 618 (5th Cir. 1980), it is established in this circuit that, as a general principle, “a defendant cannot both plead entrapment and deny committing the acts on which the prosecution is predicated.” United States v. Sedigh, 658 F.2d 1010, 1014-15 (5th Cir. 1981); see United States v. Greenfield, 554 F.2d 179, 181 (5th Cir.), cert. denied, 439 U.S. 860, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978); United States v. Ramirez, 533 F.2d 138, 141 (5th Cir.), cert. denied, 429 U.S. 884, 97 S.Ct. 235, 50 L.Ed.2d 165 (1976). Of course, the admission of the physical acts alleged, as a predicate to pleading entrapment, “is not equivalent to a confession of guilt.” United States v. Sedigh, 658 F.2d at 1015. Moreover, a defendant need not make an admission in all instances. The Fifth Circuit has recognized that “if the government’s own case in chief injects substantial evidence of entrapment into the case, the defendant is entitled to raise the defense of entrapment [and deny the acts charged].” United States v. Greenfield, 554 F.2d at 182 (citing Sears v. United States, 343 F.2d 139 (5th Cir. 1965)). Additionally, “the defense of entrapment is available where a defendant denies that he was a party to or knew of a conspiracy with which he is charged, but admits commission of one of the alleged overt acts.” Id. (citing Henderson v. United States, 237 F.2d 169 (5th Cir. 1956)). Furthermore, the court of appeals has intimated that the defense of entrapment is not inconsistent with a defense of lack of criminal intent or guilty knowledge, id. at 183, that is, a defendant may plead entrapment and simultaneously claim that he lacked the requisite criminal intent as an element of the offense charged. It is important to note that the defense of entrapment does not relieve the government of the burden of proving every essential element of the offense charged beyond a reasonable doubt. This burden always remains with the prosecution. Once a defendant, pleading entrapment, carries his “initial burden of going forward with evidence of governmental involvement and inducement,” United States v. Wolffs, 594 F.2d 77, 80 (5th Cir. 1979), then, the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged. See United States v. Hill, 626 F.2d 1301 (5th Cir. 1980); United States v. Dickens, 524 F.2d 441 (5th Cir. 1975), cert. denied, 425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819. Ordinarily, a prosecutor may not adduce proof of criminal predisposition, see United States v. Mack, 643 F.2d 1119, 1121 (5th Cir. 1981); however, the defense of entrapment, when properly raised, effectively adds an element of “predisposition” to the other (statutory) essential elements of the offense charged. See generally United States v. Tobias, 662 F.2d 381, at 384 (5th Cir. 1981). Of course, failure of the prosecution to prove any essential element beyond a.reasonable doubt directs an acquittal. Neither defendants nor the Court has found any federal case law considering the applicability of collateral estoppel to the issue of entrapment. Defendants, however, cite a decision of the New York Court of Appeals in support of their position. In People v. Smith, 48 N.Y.2d 477, 423 N.Y. S.2d 862, 399 N.E.2d 894 (1979), defendant was on parole for a prior offense when he was subsequently indicted on new charges. Upon indictment, defendant was served with a parole violation notice based upon the same alleged offenses. At trial on the indictment, defendant asserted the defense of entrapment and was acquitted on all counts. Thereafter, at a parole revocation hearing, defendant invoked the doctrine of collateral estoppel, contending that his acquittal amounted to a complete defense to the parole violation charges. The New York Court of Appeals concluded that the doctrine of collateral estoppel applied with respect to the issue of entrapment and barred the Board of Parole from proceeding on the charges against defendant. Upon review of the Smith decision, it is clear that the court grounded its holding on the failure of the Parole Board and the state to contest in any fashion that defendant’s acquittal constituted a finding of entrapment. See People v. Smith, 399 N.E.2d at 895 (“[F]or the purposes of the disposition of the present appeal we take it as established that the acquittal in. the criminal action did indeed constitute a determination that [defendant] had provided the affirmative defense of entrapment.”). The state appellate court never engaged in any Ashe mandated analysis. See United States v. Lee, 622 F.2d at 790. One might conjecture that such a conclusional finding would not have been made if the jury in the criminal trial had acquitted on some counts and deadlocked on others. Unlike the truncated analysis of the Smith court, the task before the Court in this case is more formidable. The complexities and nuances of collateral estoppel in the context of a retrial on mistried counts are aptly described by Judge Goldberg: The intelligent application of collateral estoppel requires that we atomize the charges; we must examine the various counts, the testimony, the jury’s verdict. Each requires a parsing in comparison with the other in order to come to a conclusion whether or not collateral estoppel is applicable to one or more of the issues which are to be covered in the second trial. The complicating factors here are the multi-count indictment in the first trial, the inability of the jury to agree, and the findings by the jury of not guilty with respect to some aspects of the charges. But these complicating elements and components do not relieve us of our judicial duty to determine whether collateral estoppel is applicable to one or more of the components involved. While we do not test ourselves as three more jurors in the case, we are compelled to determine as best we can what makes the jury’s verdict cohere: The geodetics required of us is not an easy one; we must examine the record with great care. United States v. Larkin, 605 F.2d at 1369. To aid the Court in the “geodetics” required of it, the following chart outlines the charges against the three defendants and the judgments entered based upon the verdicts returned by the jury. The foregoing results of defendants’ trial on the charges alleged in indictment numbers 181-26 and 181-37 suggest five possible permutations which may explain the manner in which a “rational” jury could have proceeded: (1) The government proved all statutory essential elements of the offense charged in each count, but, by unanimous finding, failed to prove predisposition beyond a reasonable doubt for the offense charged in the “not guilty” counts, and, by a finding of at least one but not all of the jurors, failed to prove predisposition beyond a reasonable doubt for the offenses charged in the “mistried” counts. (2) The government proved predisposition for the offense charged in each count, but, by unanimous finding, failed to prove at least one of the statutory essential elements of the offense charged in the “not guilty” counts beyond a reasonable doubt, and, by a finding of at least one but not all of the jurors, failed to prove at least one of the statutory essential elements of the offense charged in the “mistried” counts beyond a reasonable doubt. (3) The government proved all statutory - essential elements of the offense charged in the “not guilty” counts and proved predisposition for the offense charged in the “mistried” counts, but, by unanimous finding, failed to prove predisposition beyond a reasonable doubt for the offense charged in the “not guilty” counts and, by a finding of at least one but not all of the jurors, failed to prove at least one of the statutory essential elements of the offense charged in the “mistried” counts beyond a reasonable doubt. (4) The government proved predisposition for the offense charged in the “not guilty” counts and proved all the essential elements of the offense charged in the “mistried” counts, but, by unanimous finding, failed to prove at least one of the statutory essential elements of the offense charged in the “not guilty” counts beyond a reasonable doubt, and, by a finding of at least one but not all of the jurors, failed to prove predisposition beyond a reasonable doubt for the offense charged in the “mistried” counts. (5) By unanimous finding, the government both failed to prove predisposition beyond a reasonable doubt for the offense charged in the “not guilty” counts and failed to prove at least one of the statutory essential elements of the offense charged in the “not guilty” counts beyond a reasonable doubt, and, by a finding of at least one but not all of the jurors, both failed to prove predisposition beyond a reasonable doubt for the offense charged in the “mistried” counts and failed to prove at least one of the statutory essential elements of the offense charged in the “mistried” counts beyond a reasonable doubt. On the basis of these possible jury findings, defendants urge that the government is collaterally estopped from retrying them on the mistried counts. Essentially, defendants’ argument is bottomed on the following syllogism: (a) the jury necessarily found that defendants were entrapped for the offenses charged in the “not guilty” counts; and (b) the fact or issue of entrapment is a constant, that is, it is identical for all counts (“Entrapment is entrapment is entrapment.” Defendants’ Supplemental Brief, at 11); therefore (c) the issue of entrapment was necessarily decided in favor of defendants on the “mistried” counts. This argument is faulty in several respects. To begin with, as a matter of actuality, the jury did not unanimously find that defendants were entrapped for the offense charged in the “mistried” counts. Otherwise, the jury would have acquitted on-these counts. Leaving the realm of actuality, however, the Ashe -type inquiry is whether the jury could have rationally based its “not guilty” verdict on an issue other than entrapment, and, if not, whether the issue of entrapment was necessarily determined adversely to the prosecution on all counts. The Court finds that the jury could rationally have based its acquittal on a finding other than the failure of the government to prove predisposition beyond a reasonable doubt. For example, with respect to the acquittal of defendants Hornsby and Holliday on the drug conspiracy charge alleged in Count One of indictment 181-26, the jury may have rationally concluded that neither Hornsby or Holliday intended to join and participate in an agreement to distribute or to possess with intent to distribute the controlled substances at issue. Similarly, the jury may have concluded that the weapon at issue in the possession and transfer Counts One, Two, Five and Six, of indictment 181-37 were not “firearms” within the proscriptive ambit of the National Firearms Act. Furthermore, the jury could have found that the government failed to prove the requisite element of possession beyond a reasonable doubt for the offense charged in Count Seven of indictment 181-37. Additionally, the jury could have determined that the government failed to prove the statutory essential elements for the possession and transfer charges alleged against defendant Hornsby in Counts Nine and Ten of indictment 181— 37 or failed to prove that Hornsby aided and abetted the offense charged. Even assuming, however, that the jury found that defendants were entrapped for some or all of the offenses charged in the “not guilty” counts, the Court