In United States v. Hicks, No. 19-590 (2d Cir. July 16, 2021), the defendant was tried for conspiracy to distribute marijuana, conspiracy to distribute cocaine and cocaine base, a 924(c) violation, and a RICO conspiracy. He was convicted of the marijuana conspiracy but acquitted of both the conspiracy to distribute cocaine and cocaine base and the 924(c) count. The jury hung on the RICO conspiracy count, which was retried. At the second trial, the government relied “on substantially the same evidence” as it presented in the first trial, including “the same evidence that it had used unsuccessfully in the first trial to convict Hicks of engaging in a cocaine conspiracy.” The defense objected to this on double jeopardy grounds, but the second jury was allowed to convict on this evidence.
The Second Circuit held there was no double jeopardy violation. First, it held that double jeopardy did not bar retrial for RICO conspiracy because its elements were different from the elements of the acquitted narcotics conspiracy offense. On the more difficult question of “issue preclusion” – using the same evidence of narcotics conspiracy that was used to prove the acquitted count – the Court looked to whether the jury verdict “necessarily decided” in the defendant’s favor an issue that is an essential element of the charge in the second prosecution. This is the standard established by the Supreme Court in Yeager v. United States, 557 U.S. 110, 119 (2009). The Second Circuit went further, adding its own additional requirement from United States v. Zemlyansky, 908 F.3d 1, 11 (2d Cir. 2018) that the defendant must show the Government sought “to reuse the [challenged] evidence for the specific purpose of proving conduct of which he was previously acquitted.” The court concluded that the Zemlyansky standard was not met because the government did not “appear” to have used the prior evidence for the “specific purpose” of proving that Hicks had joined a cocaine conspiracy.
The objects of the charged RICO conspiracy at the second trial “included cocaine trafficking, as well as murder and use of firearms.” The Court of Appeals viewed the prior verdict as showing only that the jury found either that the cocaine conspiracy did not exist or that Hicks never joined it, and that Hicks’ involvement in any particular cocaine or cocaine base transaction was not “necessarily decided in his favor by a the prior verdict.” That is why evidence of substantive transactions could be admitted. However, the Court concluded that all the evidence of a cocaine conspiracy was admissible as well because the first jury did not necessarily decide that the conspiracy did not exist, but “could have found that the conspiracy existed but that Hicks had not joined it.”
The Court adhered to its conclusion that the government did not use the prior evidence for the “specific purpose” of proving a cocaine conspiracy even though the government argued in summation that the accomplice’s testimony about conversations establishing the cocaine conspiracy “established their agreement then. [Hicks] knew that he was a member, knew what he was getting into.” Although a “close call,” the Court concluded that the prosecutor could have been pointing the jury to the RICO conspiracy, not the cocaine conspiracy. In any event, the Court treated this as a separate prosecutorial summation issue, which was not objected to and therefore was reviewed for plain error. Under this standard, the Court held that the prosecutor’s argument did not affect the outcome of the retrial or the defendant’s substantial rights.