Thursday, September 15th, 2005

The Nullification Power Curtailed Again: Jury Can Be Told that It Must Convict if Government Proved Guilt beyond a Reasonable Doubt

United States v. Sean Carr, Docket No. 04-0546-cr (2d Cir. Sep. 14, 2005) (Feinberg, Sack, and Katzmann) (Op. by Sack): Despite its glorious role in our early history, the jury’s power of nullification has long been viewed with great disfavor by the Circuit. In this decisions, the Court clarifies that a district court does not error when it affirmatively tells the jury that it has “the duty to convict” if it finds that the Government has proved the defendant’s guilt beyond a reasonable doubt. This outcome should not come as a great surprise, given that a trial court is not required to inform a jury of its power to nullify, e.g., United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996), and given the Court’s general view of nullification as a lawless and regrettable exercise of naked power, e.g., United States v. Thomas, 116 F.3d 606, 608 (2d Cir. 1997). And to anyone who has practiced in the local district courts, the “duty to convict” language is familiar fare.

The decision also contains an interesting discussion of the jury unanimity requirement for finding predicate acts under the RICO statute. Although the law is clear that (1) the defendant must commit at least two predicate acts to satisfy the “pattern of racketeering activity” requirement under the RICO statute, and (2) the jury must agree unanimously on each predicate act (and must agree on two such acts) to convict the defendant, the law is apparently quite unclear as to what sort of unanimity is required for acquittal (as opposed to a hung jury). Specifically, the question arose during the jury’s deliberation as to whether, in order to acquit the defendant, the jury must unanimously agree, on each predicate act, that the Government had not proven its existence beyond a reasonable doubt, or whether it is sufficient for acquittal that the jury unanimously agreed, as a general matter, that the Government had not proven the existence of two predicates, even if the jurors disagree as to which predicates had been proven and which had not.

The district court told the jurors that they had to examine each of the predicate acts individually and separately, and decide unanimously whether the Government had proven or not proven its existence beyond a reasonable doubt. And to return a “not guilty” verdict, they had to unanimously agree that two of the three alleged acts had not been proven. If the jury unanimously agreed only as a general matter that the Government had not proved the existence of 2 of the 3 acts, but were not unanimous as to which were proven and which were not, then the jury should merely declare itself at an impasse.

The Circuit expressed grave doubt about this instruction: “We have our doubts . . . as to whether, had the jury agreed unanimously that the government had failed to prove two of the predicate acts beyond a reasonable doubt, without agreeing specifically as to which two had been ‘not proved,’ it should necessarily have reported itself as being at an impasse, rather than returning a verdict of acquittal.” Op. at 20. As it explained,

“The fact that the jury ‘must agree unanimously and separately’ as to every element of an offense, . . . in this case two predicate acts, in order to convict may or may not imply that the jury ‘must agree unanimously and separately’ that the government had not proven its case beyond a reasonable doubt as to two specific predicate acts in order to acquit.”

Op. at 21 (emphases in original).

The Court ultimately did not resolve this question, however, because under the particular circumstances of the case, any “error plainly had no effect on the verdict.” Op. at 21. This was so because the questionable charge was delivered in response to a jury’s question, toward the end of deliberations, as to what it should do given that it has unanimously agreed on two predicates but had not yet done so on the third. Thirty minutes after the charge was given, the jury returned a guilty verdict that included a specific finding that each of the 3 RICO predicates had been proved. Under these circumstances, the Court concluded, any error in the Court’s instructions on the type of unanimity required for acquittal could not possibly have prejudiced Carr.

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