Jury Must Be Unanimous that RICO Predicate Was Not Proved to Yield an Acquittal; Lack of Unanimity Results in Hung Jury

United States v. John A. Gotti, Docket No. 05-6872-cr (Walker, Leval, Sotomayor): This is the opinion the Court promised in February when it rejected Gotti, Jr.’s interlocutory appeal. Gotti claimed that his retrial on two RICO counts was barred by the Double Jeopardy Clause because the jury at his first trial could not unanimously agree that the Government had proved the existence of at least two predicate racketeering acts. Gotti argues that because the Government thus failed to prove the “pattern of racketeering activity” element of the RICO offense, he was entitled to acquittal on the RICO charges (and thus could not be re-prosecuted on these charges at a new trial under the Double Jeopardy Clause).

The Circuit rejects this “extraordinary argument,” adhering to the general rule that jury unanimity is required for either conviction or acquittal. Op. 6 (citing Fed. R. Crim. P. 31(a) (“The verdict must be unanimous.”). Thus, “lack of unanimity as to two predicate acts results in a hung jury and a mistrial, not a judgment of acquittal.” Id.