APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.
Martin G. Weinberg, with whom David Z. Chesnoff, Chesnoff & Schonfeld, and Kimberly Homan were on brief, for appellant Juan Bravo-Fernandez.
Abbe David Lowell, with whom Christopher D. Man and Chadbourne & Park LLP were on brief, for appellant Hector Martí nez-Maldonado.
Vijay Shanker, United States Department of Justice, Criminal Division, Appellate Section, with whom Leslie R. Caldwell, Assistant Attorney General, David A. O'Neil, Acting Deputy Assistant Attorney General, and Peter M. Koski, United States Department of Justice, Criminal Division, Public Integrity Section, were on brief, for appellee.
Before Howard, Lipez, and Barron, Circuit Judges.
BARRON, Circuit Judge.
This appeal raises important and, in our Circuit, novel issues about when an acquittal in an earlier trial may be deemed to bar, under the Double Jeopardy Clause, a new prosecution on a related offense. The legal issues arise in connection with the federal bribery prosecutions of a former member of the Puerto Rico Senate and of the former president of a Puerto Rico private security firm.
We last considered these prosecutions two years ago following a trial at which the defendants had been convicted of federal program bribery under 18 U.S.C. § 666. See United States v. Fernandez, 722 F.3d 1 (1st Cir. 2013). At that time, we vacated the convictions because the jury had received improper instructions about what constituted " bribery" under that statute. Id. at 18-27. We thus remanded for a possible new trial based on a proper theory of liability under § 666. Id.
In this appeal, the defendants contend that the new trial may not begin because the renewed prosecutions violate the Double Jeopardy Clause, which provides that " [n]o person [may] be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. Amend. V. In pressing this contention, the defendants make two arguments.
The defendants first argue that the Double Jeopardy Clause bars the renewed prosecutions because the jury acquitted on closely related offenses in the earlier trial and, in doing so, necessarily found that the government failed to prove issues that the government would have to relitigate in the new prosecutions. Separately, the defendants contend that the Double Jeopardy Clause bars the renewed prosecutions because a line order that the District Court issued and then corrected days after we issued our mandate in the last appeal constituted a final and irrevocable order of acquittal on the renewed § 666 charges.
The District Court rejected both double jeopardy arguments, and so do we. We thus affirm the District Court.
For purposes of the issues before us in this appeal, it is the procedural history of the case that matters most. And so we provide the relevant details of that history here.
The § 666 charges are based on a trip from Puerto Rico to Las Vegas that defendant Juan Bravo-Fernandez took with defendant Hector Martí nez-Maldonado in May of 2005. The two men had traveled to Las Vegas to see boxer " Tito" Trinidad fight boxer " Winky" Wright. At the time, Bravo was the president of Ranger American, a private security firm in Puerto Rico. Martí nez was a member of the Puerto Rico Senate.
A grand jury indicted the defendants in June of 2010, finding probable cause for the government's allegations concerning the connection between Bravo's payment for the trip and Martínez's support for legislation beneficial to Bravo's company. The indictment contained a number of distinct counts. These counts included violations of the federal program bribery statute, 18 U.S.C. § 666, violations of the Travel Act, 18 U.S.C. § 1952(a)(3)(A), and conspiracy, 18 U.S.C. § 371.
The Travel Act prohibits travel in interstate commerce for a criminal purpose, 18 U.S.C. § 1952(a)(3)(A). In this instance, the government alleged that the criminal purpose was both to commit the bribery that § 666 prohibits and to violate Puerto Rico bribery law. The predicate offenses for the conspiracy counts were the Travel Act (in furtherance of, according to the indictment, violations of § 666 and Puerto Rico bribery law) and § 666.
After a three week trial in 2011, the jury returned split verdicts as to each defendant. The jury convicted each defendant of federal program bribery under § 666. The jury acquitted each defendant of conspiracy to violate § 666 and of violating the Travel Act in furtherance of violating § 666. In addition, the jury convicted Bravo of two other offenses: conspiring to violate the Travel Act in furtherance of (according to the verdict form) unspecified " racketeering" activity, and violating the Travel Act in furtherance of violating Puerto Rico bribery law. The jury acquitted Martí nez of those last two offenses. The defendants appealed each of the convictions.
In Fernandez, we considered the defendants' appeal and reversed or vacated all of the convictions. Fernandez, 722 F.3d at 39. We reversed those of Bravo's convictions that were based on Puerto Rico bribery law as predicate offenses. We did so because we held that those bribery laws had been repealed before Bravo had committed the relevant acts underlying the convictions. Id. at 28-34.
We also vacated Bravo's and Martínez's convictions on the standalone § 666 counts. Id. at 27. Specifically, we concluded that § 666 required the government to prove that Bravo had paid for Martínez's trip to the boxing match " in exchange for" the future actions that Martí nez allegedly took with respect to the legislation favoring Bravo's company. Id. at 19. We concluded, however, that the jury instructions allowed the jury to find a violation of § 666 even if the government failed to prove this " exchange" theory and instead proved only what we called a " gratuity" theory. Id. at 26-27. Under this improper gratuity theory, the government needed only to prove that Bravo had given, and Martí nez had received, " a reward for" having already supported the two bills that favored Bravo's company. Id. at 20.
After holding that the jury instructions were improper in this respect, we further concluded that the evidence supported not only the correct exchange theory but also the improper gratuity theory. Id. at 26-27. We thus held that the error in the jury instructions was not harmless. Id. On that basis, we vacated the convictions on the standalone § 666 counts. Id. at 27. We then remanded for possible re-prosecution of the standalone § 666 counts under that same indictment. Id. at 27-28. In doing so, we explained that " [t]he government may not pursue a conviction" for the § 666 counts on a gratuity theory " if [d]efendants are retried." Id. at 28.
Our mandate in Fernandez issued on October 23, 2013. The District Court assumed jurisdiction once again. Two days later, on October 25, unprompted by any party, the District Court entered a line order. That line order stated:
ORDER re 639 U.S.C.A. Judgment and 640 U.S.C.A. Judgment as to Juan Bravo-Fernandez and Hector Martinez-Maldonado.
The mandate having been issued (Docket No. 641), in accordance with the Judgments of the Court of Appeals (Docket Nos. 639 and 640), a judgment of acquittal shall be entered as to defendant Martinez's conspiracy count, as to defendant Bravo's conspiracy conviction, and as to both defendants' section 666 convictions. Signed by Judge Francisco A. Besosa on 10/25/2013.
Within hours, the government filed an emergency motion " to clarify" the District Court's line order. The government contended in that motion that the last clause of the line order was mistaken. The government explained -- correctly, all parties to this appeal agree -- that this Court's opinion in Fernandez, in vacating the standalone § 666 convictions, " did not order [the District Court] to enter a judgment of acquittal on the § 666 convictions."
Less than three hours after entry of the initial line order, and following the receipt of the government's motion, the District Court vacated that order. The District Court's new order specified that " [t]he defendants' section 666 convictions are VACATED."
The defendants then moved to " reinstate" the by-then vacated line order. The defendants argued that the line order constituted a judgment of acquittal that, given the Double Jeopardy Clause, could not be taken back. But the District Court disagreed and denied the motion.
Shortly thereafter, the defendants filed a new motion for acquittal on the standalone § 666 charges. In this motion, the defendants focused on the split jury verdicts. The defendants contended that, under the Double Jeopardy Clause, the acquittals of the defendants for conspiracy to violate § 666 and for violating the Travel Act in furtherance of a § 666 offense precluded any renewed prosecution on the standalone § 666 counts. The District Court denied that motion, too.
The defendants now appeal the District Court's denial of the two acquittal motions. We have appellate jurisdiction under our authority to review " pretrial orders rejecting claims" under the Double Jeopardy Clause. Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). We review the " constitutional questions" raised de novo. United States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998) (citing United States v. Aguilar-Aranceta, 957 F.2d 18, 21 (1st Cir. 1992), abrogated on other grounds, Yeager v. United States, 557 U.S. 110, 119, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009)).
We start by addressing the defendants' arguments about the preclusive effect of the § 666-based Travel Act and conspiracy acquittals. The defendants' arguments rely on " the rule of collateral estoppel" that " is embodied in the Fifth Amendment guarantee against double jeopardy." Ashe v. Swenson, 397 U.S. 436, 444-45, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Before considering whether that rule applies in this case, however, we need to say more about how the rule applies generally.
This aspect of the Double Jeopardy Clause ensures 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." Id. at 443. In Ashe, the Supreme Court made clear that the rule " is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book." 397 U.S. at 444. The inquiry, instead, " 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.'"
Ashe, 397 U.S. at 444 (quoting Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 92 L.Ed. 180 (1948)).
To that end, Ashe instructs that we must " 'examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" Id. (quoting Daniel K. Mayers & Fletcher L. Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 38-39 (1960)). And, if a review of all that material shows that a " rational jury," as a practical matter, decided adversely to the government an issue to be relitigated in the new prosecution, then the defendant gets the benefit of collateral estoppel. See id. In other words, under the rule, the government may not " relitigat[e] any issue that was necessarily decided by a jury's acquittal in a prior trial," even in a trial for a different offense. Yeager 557 U.S. at 119 (discussing Ashe, 397 U.S. at 445-46).
Ashe supplies a good example of what it means to " set in a practical frame" the inquiry into what the jury necessarily decided. Id. at 444 (quoting Sealfon, 332 U.S. at 579). There, the jury had acquitted a defendant of the robbery of one victim in the basement of a home in a case that involved the robbery of multiple victims in that home at that same time. Id. at 437-38. The new prosecution of that defendant focused on a different one of the victims. Id. at 439-40. In that respect, the new prosecution involved a distinct offense. But the Court still concluded that the prior acquittal barred the government from going forward with the new prosecution. Id. at 446.
To reach that conclusion, Ashe undertook a careful review of the record in the first trial. See id. at 438-39. The review considered the evidence introduced, the arguments of counsel, and the jury instructions. See id. The Court concluded from that review that, in acquitting, the jury had necessarily decided that the defendant was not present at the home where the victims had been robbed. Id. at 445. The Court then concluded that the jury's resolution of that issue adversely to the government was as determinative of the government's ability to prove its case in the second prosecution
as in the first. See id. at 445-46. And so the Court held that the second prosecution could not go forward even though the named victim was different. Id.
There is, however, an important limitation on the application of the rule of collateral estoppel that, Ashe held, the Double Jeopardy Clause incorporates. And this limitation is of potential relevance to the collateral estoppel effect that we should accord to the acquittals on which the defendants rely here, in light of the convictions on the standalone § 666 counts that this same jury also rendered.
This limitation is set forth in the Supreme Court's decision in United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). There, the Supreme Court explained that where " the same jury reached inconsistent results . . . [,] principles of collateral estoppel -- which are predicated on the assumption that the jury acted rationally and found certain facts in reaching its verdict -- are no longer useful." Id. at 68. Relying on its prior holding to the same effect in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), Powell gave the following reason for this rule: " [W]here truly inconsistent verdicts have been reached, '[t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.'"
Powell, 469 U.S. at 64-65 (quoting Dunn, 284 U.S. at 393).
Powell acknowledged that it is, of course, possible that an acquittal that is inconsistent with a conviction still reflects a jury's finding of reasonable doubt as to guilt. Id. But Powell explained that " [i]t is equally possible that the jury, convinced of guilt, properly reached its conclusion on the [convicted] offense, and then through mistake, compromise, or ...