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September 29, 2016


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Dan Epps

Eric, the more I think about this the more confused I'm getting. But as I understand your position here, it's that in order to figure out the preclusive effect of the earlier acquittals, we have to look at the fact that the jury convicted as well. But isn't this just begging the very question at issue in the case? The whole question is whether we look at the vacated convictions, or if instead we treat them as if they don't exist (the same way we treat hung juries) and then just look at the acquittal and try to figure out what it meant. You seem to be insisting that the convictions must be relevant. Maybe the Court will agree with you, but that's the question at issue in the case.

As for whether the verdicts are inconsistent, I'm still having trouble understanding your argument. I understand the point that the travel and conspiracy charges contain elements that the substantive count doesn't. So you are unquestionably correct that a jury could rationally conclude that a defendant violated one but not the other. But in terms of figuring out whether a subsequent prosecution is barred, the analysis isn't that formalistic. Courts look at what evidence was presented, what was in dispute, and so on, in order to figure out what a jury must have concluded in acquitting the defendant. In Ashe, for example, it was logically possible that a second jury could find that the defendant robbed one of the victims but not the other. But the Court's analysis was more practical: it recognized that the disputed issue at the first trial had not been whether one victim in particular had been robbed, but whether the defendant was one of the robbers at all. So in trying to try him for a separate robbery charge, that would be relitigating an issue that must have been decided against the government previously.

Here, as I understand it, it's uncontested that the travel and conspiracy elements weren't disputed, so in acquitting the defendant on the travel and conspiracy charges the jury must have concluded that bribery wasn't proven. Or, at least, that is what that acquittal would mean, under Ashe, if the defendants hadn't been charged with, and convicted of, the separate substantive counts. Now, it may be that the fact that the jury convicted on the substantive counts means that the acquittals don't mean anything. But that's what this whole case is about.

Dan Epps

One more point. Your bolded point at the end about the instructional error strikes me as entirely backwards. The fact that the jury was improperly instructed on bribery could not, I think, deprive the acquittal of meaning it would otherwise have. If anything, the fact that the jury acquitted on the travel and conspiracy charges despite being told that it could find bribery based solely on a gratuity makes the case for the preclusive value of the acquittal _stronger_, not weaker (again, on the party's agreed framing that to have acquitted the defendants on the travel/conspiracy charges, it must have concluded that there was no bribery). That is, the instructions made the government's job easier on the bribery question--and even there, the jury arguably concluded it did not happen by acquitting on the travel and conspiracy charge.

Stan Adelman

This is why Double Jeopardy issues often make my head (and my students' heads) explode. What should be so simple has been made so needlessly complex. I still vote for DIG (cert Dismissed as Improvidently Granted) in this case.

Dan Epps

Eric, one last point. I don't think it's right to frame the defendants here as using Powell as a "tool." The defendants are relying on Ashe and Yeager. Powell is the _government's_ best case in Bravo-Fernandez. The defendants are saying, under Ashe, that in rejecting the travel and conspiracy charges, the jury must have concluded there was no bribery (because the defendants didn't dispute the travel or agreement elements). And the government is coming in and saying that no, under Powell, we can't treat the acquittal as standing for anything, because there's also a conviction, which suggests the jury did think there was bribery. So it's the government that is saying that the bribery washes out the acquittal--not the defendants saying the opposite.

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