On Tuesday, in Bravo-Fernandez v. United States, the Court decided that, when a jury has returned inconsistent verdicts in a multi-count criminal case—acquittals on some counts but a conviction on another—and the conviction is subsequently vacated on appeal because of erroneous jury instructions, the double jeopardy clause does not preclude the government from retrying the defendant on the count that produced the conviction. Because “inconsistent verdicts shroud in mystery what the jury necessarily decided,” the Court ruled, the issue preclusion doctrine of Ashe v. Swenson cannot be applied.
The defendants were indicted in separate counts for federal bribery, conspiracy to commit that bribery, and traveling in furtherance of the bribery. Because the defendants conceded that they had both agreed and travelled, “the only contested issue at trial” was whether the offense of bribery had in fact been committed. At trial, the jury acquitted on the conspiracy and travel counts but returned a verdict of guilty on the substantive bribery count. Then on appeal, the First Circuit vacated the convictions on the bribery count, ruling that the jury instructions had erroneously permitted conviction on a “gratuity” theory when the relevant statute permits conviction only for quid pro quo bribes, not gratuities. But because the evidence would have been sufficient to sustain a bribery conviction under proper instructions, the case was remanded for retrial.
On remand, the defendants argued that the double jeopardy clause prohibited their retrial, because the jury’s acquittals demonstrated that the jury had “necessarily decided” that they had not committed bribery. They invoked Ashe, which held that when a defendant was acquitted of robbing one player in a six-player poker game, and identity was the only disputed issue, the government was precluded from trying the defendant for the same robbery of the other five players. This preclusive doctrine, called “collateral estoppel” in Ashe but now referred to as “issue preclusion,” was extended in 2009 in Yeager v. United States to acquittals that are accompanied by a hung jury “on a different count turning on the same critical issue.” A jury’s failure to reach a verdict is a “legal nullity,” the Yeager Court concluded, which cannot be considered in assessing what the jury “necessarily decided,” so acquittals can collaterally bar retrial even on the hung count. Bravo and Martinez argued that a vacated conviction should be treated the same way as the hung count in Yeager, that is, as a legal nullity not to be considered, in which case the jury’s acquittals should control.
The lower courts rejected the defendants’ argument. They noted that the Supreme Court had also ruled, in United States v. Powell, that when acquittal and conviction verdicts in the same case are logically inconsistent, both verdicts stand. “Inconsistent verdicts make it impossible to determine what the jury necessarily decided,” the First Circuit concluded based on Powell. Because convictions that are vacated are still a “reality” that is part of the “complete record” that Ashe directs courts to consider in a “practical appraisal,” Powell rather than Yeager should control, and a retrial on the vacated conviction count, even if inconsistent with acquittals on related counts, should not be constitutionally barred.
The Supreme Court affirmed, ruling that defendants have “the burden of demonstrating that the jury necessarily resolved in their favor” critical issues that might bar retrial, and that “a defendant cannot meet that burden where the trial yielded incompatible jury verdicts.” “The ordinary consequence of vacatur … is a new trial shorn of the error” on which vacatur was based—not preclusion under the double jeopardy clause—under a “continuing jeopardy rule” that “reflects the reality that the criminal proceedings have not run their full course.”
“That petitioners’ bribery convictions were later vacated for trial error does not alter our analysis,” said the Court, because “realism and rationality” are required under Ashe, and even a vacated conviction is a “reality” that should be “appropriately considered.” Here, the inconsistency in the jury’s verdicts could have resulted from jury leniency and compromise rather than “necessarily decided” factual decisions about the defendants’ innocence. These are factors that can forestall issue preclusion in civil cases—and so too here.
For defense practitioners looking for some bright spots, the Court noted two possible “safe harbors” in which double jeopardy would apply even when guilty verdicts are returned but subsequently vacated on appeal. First, if a conviction is vacated for insufficient evidence, a defendant “could not be retried … of course,” because reversal for insufficient evidence “is equivalent to an acquittal,” which is unreviewable. Similarly, if the error that caused vacatur “could resolve the apparent inconsistency in the jury’s verdicts,” a retrial also would not “be tolerable,” because the inconsistency which “shrouds in mystery what the jury necessarily decided” would be wiped away. But neither of those safe harbors applied in the case at bar.