Should a vacated conviction based on an improper jury instruction be given preclusive effect under the collateral estoppel prong of the Double Jeopardy clause?
Juan Bravo-Fernandez and Hector Martínez-Maldonado were involved in a federal program bribery scheme in which Bravo allegedly paid for Martinez’s trip to Las Vegas to attend a boxing match in exchange for Martínez pushing through beneficial legislation for Bravo’s private security company. A jury convicted both defendants of committing federal bribery in violation of 18 U.S.C. § 666 but acquitted them of other bribery-related charges. The convictions were later vacated due to a jury instruction error, and Bravo and Martínez were acquitted on remand. Bravo and Martínez argue that the jury acquittals retain preclusive effect under the Double Jeopardy Clause despite the fact that jury had originally returned inconsistent verdicts. The government counters that because the jury’s inconsistent verdicts do not allow Bravo and Martínez to show that the jury had decided in their favor, collateral estoppel does not apply. The outcome of this case could potentially affect prosecutorial theories and could disadvantage criminal defendants who face various predicate and conspiracy charges.
Questions as Framed for the Court by the Parties
Under Ashe v. Swenson and Yeager v. United States, can a vacated, unconstitutional conviction cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause?
Petitioner Juan Bravo-Fernandez traveled from Puerto Rico to Las Vegas, NV with petitioner Hector Martínez-Maldonado in May of 2005 to attend a boxing match. Bravo was the president of a private security firm in Puerto Rico and Martínez was a member of the Puerto Rico Senate. In June of 2010, a grand jury found probable cause for allegations connecting Bravo’s payment of the Las Vegas trip to Martínez's support for legislation beneficial to Bravo's company and indicted Bravo and Martínez on multiple counts, including violations of the federal program bribery statute, violations of the Travel Act, and conspiracy. The government alleged that the criminal purpose that violated the Travel Act was to commit bribery and to violate Puerto Rico bribery law.
In 2011, the jury returned mixed verdicts as to each defendant. The jury convicted both defendants of violating the federal program bribery statute and acquitted them of conspiracy to violate the bribery statute and of violating the Travel Act in furtherance of violating the bribery statute. Martínez was acquitted of all other charges, and Bravo was convicted of conspiring to violate the Travel Act in furtherance of unspecified “racketeering” activity and violating the Travel Act in furtherance of violating Puerto Rico bribery law. The First Circuit reversed Bravo’s convictions based on the Puerto Rico bribery law because the predicate laws had been repealed prior to Bravo’s actions. Bravo's and Martínez's convictions on the standalone bribery counts were also vacated because of improper jury instructions. The instructions allowed for a jury to find violation of the bribery statute if the government proved that Bravo had given, and Martínez had received, “gratuities” for support of past legislation favoring Bravo’s company rather than requiring evidence that Bravo had paid for Martínez to attend Las Vegas as a quid pro quo bribe for Martinez’s future support of legislation. The First Circuit found that the jury instruction was not a harmless error because the evidence supported both the quid pro quo theory and the gratuity theory. Thus, the First Circuit held that the government could not pursue a conviction for the bribery counts on a gratuity theory if the defendants were retried.
The First Circuit remanded the case and the district court granted a line order for acquittal in favor of Martínez's conspiracy count, Bravo's conspiracy conviction, and both defendants' bribery convictions. The government filed an emergency motion "to clarify" the district court's line order because the First Circuit had not reversed, but only vacated, the convictions on the standalone bribery charges. The district court subsequently vacated that order.
Bravo and Martínez filed a motion to reinstate the vacated line order on the basis that the line order constituted an acquittal, and given the Double Jeopardy Clause, it should not be restored. The district court denied the motion. Bravo and Martínez then filed a motion to preclude retrial and argued that the collateral estoppel prong of the Double Jeopardy clause barred the bribery charges because they had been acquitted of the charges of conspiracy and violations of the Travel Act. The court denied the motions. Bravo and Martínez are appealing the district court's denial of the two acquittal motions.
APPLICATION OF ASHE AND YEAGER: SHOULD COLLATERAL ESTOPPEL APPLY TO INCONSISTENT VERDICTS?
Bravo and Martínez argue that, under the Double Jeopardy Clause, they cannot be retried on charges of violating 18 U.S.C. § 666. Bravo and Martínez point out that, in Ashe v. Swenson, the Court held that Double Jeopardy not only bars the prosecution of past charges but also that it incorporates the rule of collateral estoppel and bars the re-litigation of any valid and final judgment. Bravo and Martínez contend that the jury’s acquittals at trial constituted valid and final judgments and that the jury had based those acquittals on its belief that Bravo and Martínez had not committed the underlying crime of violating § 666.
The government counters that because the jury’s inconsistent verdicts at trial prevent Bravo and Martínez from being able to show that the jury decided the case in their favor, collateral estoppel does not apply. The government maintains that defendants bear the burden of showing that the jury had actually decided the issue that defendants now wish to give preclusive effect to. The government further argues that defendants cannot satisfy that burden where there may be multiple explanations for the jury’s acquittal.
Bravo and Martínez cite the more recent case of Yeager v. United States in support of their position, in which the Court had applied to Ashe analysis to a mixed verdict of acquittals and hung counts and held that inconsistencies between a jury’s verdict on multiple counts does not affect an acquittal’s preclusive force. Bravo and Martínez contend that hung juries are like vacated convictions, as both are legal nullities, and thus cannot negate the preclusive effect of simultaneously rendered acquittals.
The government argues that the defendants are mistaken in relying on Yeager and that hung counts and acquittals must be viewed differently than inconsistent verdicts. The government argues that inconsistent verdicts are inapplicable to collateral estoppel because it is impossible to determine what the jury agreed upon from the court’s decision. The government further asserts that excluding inconsistent verdicts from triggering collateral estoppel aligns with the principle of the doctrine, which is based on the assumption that any previous litigation is correct. Thus, when a jury acts irrationally by issuing inconsistent verdicts, the jury fails to articulate a clear factual determination necessary for collateral estoppel.
APPLICATION OF POWELL: DOES COLLATERAL ESTOPPEL APPLY TO VACATED CONVICTIONS?
Bravo and Martínez assert that the First Circuit’s decision in United States v. Powell confirms that a vacated conviction on one charge does not negate the preclusive effect of an acquittal on another charge. The Court in Powell held that one valid verdict cannot call into question another valid verdict handed down by the same jury. Accordingly, a defendant cannot object to a valid conviction on one count by claiming it is inconsistent with a valid acquittal on another count. , . Bravo and Martínez maintain that if a valid verdict cannot be used to challenge the soundness of another valid verdict then, under Yeager, a hung count cannot be used to destroy the preclusive effect of a valid acquittal because the hung count is neither valid nor final. Therefore, Bravo and Martínez argue, a vacated conviction, which is akin to a hung count, cannot then be used to challenge the preclusive effect of an acquittal.
The government claims that Bravo and Martínez’s understanding of Powell undermines the main point of the court’s decision when it ruled that it was impossible to determine how a jury necessarily decided when the jury returns inconsistent verdicts. The government argues that Powell placed an “important limitation” on collateral estoppel by refusing to give preclusive effect to inconsistent jury verdicts. The government contends that when a jury acquits on some counts, but convicts on others, the acquittals lack preclusive effect because the jury acted irrationally. The government also asserts that the Powell court refused to give preclusive effect because it would be unfair to either party since it is “equally possible” that the jury verdicts would favor one side over the other. The government claims that Powell’s reasoning does not change just because a conviction was vacated due to legal error because such an error does not clarify how the jury necessarily decided.
DENYING PRECLUSIVE EFFECT ENCOURAGES OVERCHARGING AND SUCCESSIVE PROSECUTIONS
The Double Jeopardy clause aims to combat prosecutorial abuse so that the State’s resources are not exhausted in repeated attempts to convict an individual. , The Cato Institute, in support of Bravo and Martínez, argues that if vacated convictions do not have preclusive effect, the government faces no incentive to prosecute appropriate legal theories. Rather, the government will be able to select aggressive theories of liability with the knowledge that any vacated conviction can be recharged in the future. Furthermore, according to the Cato Institute, the government would be able to retry the case with new information based on what they learned in earlier trials. The Cato Institute asserts that this is especially problematic given the disproportionate resources that most governments have compared to criminal defendants. The National Association for Public Defense further claims that the evolution of the criminal justice system has resulted in an abundance of overlapping statutory offenses. As a result, the government often pushes concurrent charges that stem from the same underlying behavior and enjoys multiple attempts to prosecute the same actions.
The government argues that there is no support for the contention that without collateral estoppel, prosecutors will be enticed to overcharge defendants. The government notes that the defendants fail to cite persuasive evidence that prosecutors routinely overcharge cases so they can avoid collateral estoppel in subsequent prosecutions. Rather, the government suggests that prosecutors avoid overcharging for fear of confusing jurors or prompting jurors to acquit out of leniency. Furthermore, the government notes that in this case, all charges were brought in a single prosecution with no evidence that there was any attempt to avoid preclusive effect.
- Lawrence Hurley, U.S. Supreme Court Takes Up Puerto Rico Bribery Case, Reuters (Mar. 28, 2016).
- Garrett Epps, The Trouble With Double Jeopardy, The Atlantic (Sept. 13, 2016).