At SCOTUSBLOG, Rory Little has written a very good summary of the Supreme Court's first case of the upcoming Term, Bravo-Fernandez v. United States. It's a double jeopardy case that involves what the parties describe as inconsistent criminal jury verdicts. The Court will hear arguments on this double jeopardy case on Tuesday, October 4.
The case is interesting to me because in what feels like a prior life, I published an article called The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts in the Harvard Law Review. It was about the relatively rare situation when a jury returns a criminal verdict that on its face reveals that the jury could not have applied the law correctly. Think of a conspiracy prosecution of two defendants – the only people allegedly involved – in a state that requires proof of agreement by both conspirators, and imagine that the jury convicts one and acquits the other. That’s an inconsistent verdict; it’s not legally possible for only one of the two conspirators to be guilty. My article (surprise!) disapproved of the Supreme Court’s approach (which is to treat the inconsistent conviction no differently from any not-inconsistent one) and proposed a different approach.
The case has been presented to the Court in what strikes me as an unwise and unhelpful way. I believe it’s a good deal simpler than the way it is being framed, and I’ll explain why here.
The facts and procedural history are complicated, but for purposes of the verdict inconsistency issues, the following will suffice. It’s a prosecution of two men. One was a member of the Senate of Puerto Rico. The other was the president of a company that was interested in the passage of certain legislation by the Puerto Rican Senate. They traveled from San Juan to Las Vegas for a boxing match and associated revelry; the company footed the bill for all of it. The desired legislation then got passed.
Simplifying things for present purposes, the two men were tried in federal court on charges of federal program bribery (one count against each of them separately), violation of the Travel Act (one count against each of them separately), and a joint count of conspiracy (to commit the federal program bribery separately charged). The nub of the Travel Act counts was that they traveled from Puerto Rico to Las Vegas in order to effectuate the bribery.
After a trial, a jury convicted each defendant on the federal program bribery count against him, and acquitted each defendant of the Travel Act and conspiracy charges.
The defendants went on appeal to the First Circuit, which overturned the federal program bribery convictions on the ground that the jury’s instructions had permitted them to convict the defendants on a flawed theory of liability.
The case returned to the district court for possible retrial of the bribery charges. At this point, though, the defendants invoked the Double Jeopardy Clause, specifically its “collateral estoppel” branch: they argued that the jury’s acquittals on the Travel Act and conspiracy counts precluded relitigation of the issue of whether they violated the bribery statute. That issue, they said, was resolved in their favor when the jury acquitted them of traveling to commit bribery and of conspiring to commit bribery. Although the defendants acknowledged that the acquittals and convictions were inconsistent, they emphasized that the underlying bribery was an element of both of the Travel Act and conspiracy offenses, and so the acquittals entailed a finding that the government didn’t prove the underlying bribery beyond a reasonable doubt. The district court rejected the defendants’ argument, as did the First Circuit on another appeal. Now the case is before the Supreme Court.
The issue before the Court is whether the (purportedly) inconsistent acquittals should have collateral estoppel effect to bar retrial of the (purportedly) inconsistent bribery charges, where the occasion for the retrial is that the Court of Appeals vacated convictions on those charges by due to instructional error at the first trial.
One thing that’s immediately striking in the way the parties have framed the issues in the Supreme Court is that both parties agree that the convictions on bribery charges and the acquittals on Travel Act and conspiracy charges present a true instance of logical inconsistency, the kind of inconsistency that invokes the Supreme Court’s inconsistent verdicts doctrine as articulated in United States v. Powell (1984). In my view, that’s pretty clearly untrue, and recognizing the untruth makes the legal issues now before the Court easier.
Let’s take a step back and think about the big picture before getting into doctrinal details.
Verdicts are how juries speak. Indeed, they are the only way juries speak. Jurors are (mostly) silent during trial; after hearing everything they go off to a private room and talk amongst themselves; and then they return to the courtroom and say “guilty” or “not guilty” as to each charge they were asked to consider. After they’ve spoken they go home, and we presume that they said what they meant.
We also presume that they followed their instructions and handled their decision-making task rationally. (If you want evidence of that presumption in action, look at the standard of appellate review in cases where a defendant claims the state’s evidence at trial was legally sufficient to prove guilt: the appeals court asks whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Note the word “rational.”))
(And if you want evidence that the jury speaks only through verdicts, look at the rule of evidence (606(b) in the federal rules) that refuses (with narrow exceptions) to admit testimony from jurors about what led to the verdict or what went on during deliberations. See no evil, hear no evil: the jury’s a black box and the only communication we accept from it is its verdict.)
There is only one circumstance in which we discard these presumptions. This is when what the jury says is gibberish, evidence of something other than the reasoned application of law to facts. That’s the situation of inconsistent verdicts. The Powell case provides a good example. Powell involved a compound federal crime, the crime of using a telephone to commit a federal drug felony. The crime is “compound” because it is a crime piggybacking on top of another crime: to be guilty of the telephone facilitation charge, the defendant must also be guilty of committing the underlying predicate drug felony. In Powell, the inconsistency arose because the jury acquitted the defendant of the underlying felony (conspiring to possess cocaine with the intent to distribute it), but convicted her of using a telephone to commit that very felony. The jury is instructed, in a case like Powell, that the underlying felony is an element of the telephone facilitation crime that must be proven beyond a reasonable doubt. When the jury in Powell delivered its inconsistent verdicts, it declared the underlying felony simultaneously proven and not proven, suggesting that the jury must have disregarded or misapplied the court's instructions.
OK, that’s Powell. Now let’s return to the case at hand, Bravo-Fernandez. It’s pretty obvious that the Powell doctrine doesn’t apply. In Powell, the jury convicted on the compound offense and acquitted on the predicate. Because the predicate was subsumed in the compound, the jury’s pronouncement was unintelligible. in Bravo-Fernandez, the situation is exactly the opposite: the jury acquitted on the compound offense and convicted on the predicate. This isn’t gibberish at all. It isn’t evidence that the jury disregarded anything or misunderstood anything or acted irrationally. It is perfectly intelligible: the defendants are guilty of committing bribery (the predicate offense) but not guilty of agreeing or traveling to do it (the compound offense).
This presumptively rational, law-applying jury must have found something unsatisfying about the government’s case on the elements of travel and agreement. Their verdict gives us no reason to think otherwise.
So Bravo-Fernandez isn’t an inconsistent verdicts case at all. The jury spoke through their verdicts, and what they said contained nothing to cause us to cast aside our presumptions that they acted rationally and applied facts to law. The acquittals and the convictions are all presumptively valid, just like any other verdict in any other case. There is simply no reason – from the face of the jury’s verdicts – to conclude that the acquittal on the compound offenses (Travel Act and conspiracy) entailed an acquittal on the predicate offense (bribery).
This means that there is no Double Jeopardy problem in this case. We have no reason to apply collateral estoppel to anything; there is no bribery-guilt-resolving acquittal in the case to apply it to. As the new trial resumes in the district court, the question of whether the defendants committed federal program bribery is an open one, and the government should be permitted the opportunity to prove to a now-properly-instructed jury that they’re guilty of the crime beyond a reasonable doubt.
It's true that the collateral estoppel doctrine tells us that in figuring out which issues a jury necessarily decided in reaching an acquittal, we must "examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter.” (That’s from Ashe v. Swenson (1970).) We are to set all of that stuff in “a practical frame” (also from Ashe) when we do that.
And so the defendants in Bravo-Fernandez say, “Just look at the evidence: obviously we traveled and worked together; the only thing that wasn’t obvious and that the jurors actually had to resolve was whether the fancy meals and hotels and boxing match tickets and legislation amounted to bribery.” I haven’t reviewed the record, so I don’t know whether the government had them dead-to-rights on travel (for the Travel Act) and agreement (for the conspiracy).
But we’re supposed to be “practical” in examining the “pleadings, evidence, charge, and other relevant matter,” so let’s be practical. It's true that we might speculate about something we can’t know, which is how the jurors perceived and weighed the evidence about traveling and agreeing.
But we don’t have to speculate about whether they saw the defendants’ doings as bribery, because there’s a conviction to prove that they did. And that conviction is presumptively valid, like any other conviction, for the reasons I already explained.
So if I'm going to be practical, well, as between the uncertainty of speculating about the jurors’ assessment of evidence and the certainty of a verdict they actually announced, I’m going to go with the verdict.
The case has made it this far on the theory that the verdicts are inconsistent. The merits briefs are in. It may be too late to turn the ship around. But if the Court accepts the proposition that these are inconsistent verdicts, it’s going to make a mess … and work too hard in doing so.
UPDATE, 9/28/16: My UNC colleague Carissa Hessick has picked up on another important clue (grounded in substantive law) about why the acquittals may not mean what they are asserted to mean. With her permission, I reproduce what she wrote me:
I think that you are correct that the conviction and the two acquittals are not inconsistent. You explain that bribery is the predicate offense, and that acquittals on two compound offenses (conspiracy to commit bribery and traveling to commit bribery in violation of the Travel Act) could simply signal proof problems about elements associated with conspiracy or travel.
Your explanation is even more convincing because of the facts/crimes at issue in this case. Remember, the First Circuit initially reversed the bribery convictions. The trial court mistakenly instructed the jury that the decision to accept the trip could have occurred after the official acts were taken. That erroneous instruction would have allowed the jury to convict for bribery even though the government hadn’t shown a quid pro quo. Quid pro quo-- a specific intent to give or receive something of value in exchange for an official act--the Supreme Court has told us, is the sine qua non of bribery.
If the jury relied on that mistaken instruction to convict on bribery—that is to say, if they convicted even though they didn’t find a quid pro quo—then they may have been more likely to convict on bribery and acquit on the conspiracy charge. After all, I could imagine that the same evidence that would show a quid pro quo would also tend to show agreement. That is because whatever evidence might have proven the exchange of the official act for the trip probably would have also shown a meeting of the minds (e.g., a conspiracy)—such as if the business man told the official, “if you pass this legislation, I’ll bring you on a fancy trip to Las Vegas.” But if the business man decided to take the official on a trip as a reward for the official passing the legislation (and the businessman intended to accept the trip for that reason), I could imagine that the two individuals could each have that reason for giving/accepting the trip without discussing it. And if they didn’t discuss it, then they didn’t agree, and thus didn’t have a conspiracy.
NOTE: I have a bit more to say about this case here.
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