4.26.2007

11th Circuit Discusses Circuit Split Re: Application of Collateral Estoppel to a Partial Verdict

Per United States v. Ohayon, --- F.3d ----, 2007 WL 1079999 (11th Cir. April 12, 2007):

This appeal by the United States involves the application of collateral estoppel to a partial verdict, which is an issue that has divided not only our sister circuits but panels of our circuit as well. The question presented is whether an acquittal on a charge of an attempted drug offense requires, under the Double Jeopardy Clause of the Fifth Amendment, the dismissal of a charge of a drug conspiracy on which the jury was unable to reach a verdict. Binyamin Ohayon was tried on charges of conspiracy to possess with intent to distribute and attempt to possess with intent to distribute MDMA, or ecstasy. 21 U.S.C. §§ 841(a)(1), 846. . . . A jury acquitted Ohayon of the attempt count but was unable to reach a unanimous verdict on the conspiracy count. The United States sought to retry Ohayon for conspiracy, but the district court concluded that Ohayon's acquittal of attempt collaterally estopped the government from retrying him on the conspiracy charge. Because it is clear that the jury found reasonable doubt that Ohayon knew that he was acquiring drugs, and a conviction for conspiracy would require the government to prove beyond a reasonable doubt that Ohayon knew that he was acquiring drugs, we hold that the government is collaterally estopped from retrying Ohayon for conspiracy to possess with intent to distribute those drugs. . . . The government . . . argues that the partial verdict itself is evidence that the jury did not acquit Ohayon based on his ignorance of the contents of the bags. The government argues that, if the jury had acquitted Ohayon of attempt because it found him to be unaware of the contents of the bags, it necessarily would have acquitted him of conspiracy as well. The government reasons that the failure of the jury to acquit Ohayon of the conspiracy charge establishes that the jury rested its acquittal of Ohayon on the attempt charge on some other ground. . . .

Our prior precedent, . . . establishes that a partial verdict can bar another prosecution of a mistried charge based on collateral estoppel. In United States v. Larkin, the defendant was charged with conspiring to embezzle funds and falsify records, and with several substantive counts of the same, based on the vicarious liability theory of Pinkerton v. United States, 328 U.S. 640 (1946). Larkin, 605 F.2d 1360, 1371 (5th Cir.1979), modified on other grounds, 611 F.2d 585 (5th Cir.1980). The jury acquitted Larkin of the vicarious liability counts but was unable to reach a verdict on the conspiracy count. Id., 605 at 1363. Applying Ashe v. Swenson, 397 U.S. 436, 444 (1970), we held that the government was estopped from retrying Larkin for conspiracy because, regardless of which of two potential issues served as the basis of the jury's verdict, the government would be required to prove a fact established against it by the acquittals to convict Larkin of conspiracy. Id. at 1371. . . . Although Larkin settles the issue, if we were writing on a clean slate, we would recognize that the argument of the government does not follow the standard established in Ashe. Ashe requires that we look at all potential bases of a verdict of a rational jury and ask what the record tells us about the basis for an acquittal, but the government asserts that we should search for the basis of a mistried count. The problem with the argument of the government is that the search for the basis of a mistried count will necessarily be in vain. The argument presumes that a mistried count, like an acquitted count, is a decision for which we can discern, or to which we can impute, a single basis. In truth, the failure of a jury to reach a verdict is not a decision; it is a failure to reach a decision. A partial verdict does not comprise two decisions that we must try to reconcile, because the mistried count is not a decision for which we can discern, or to which we can impute, a single, rational basis. The very essence of a mistried count is that the jury failed to reach agreement.

Consistent with this reasoning, two of the three of our sister circuits to have decided the issue have also concluded, as we did in Larkin, that a partial verdict can bar prosecution of mistried charges based on collateral estoppel. In United States v. Romeo, a jury acquitted on a charge of possession with intent to distribute marijuana but failed to reach a verdict on a charge of importation of marijuana. 114 F.3d 141, 142 (9th Cir.1997). The only contested element at trial was whether Romeo knew there was marijuana in the car he drove from Mexico into the United States. Id. Applying “ Ashe' s ‘realism and rationality’ approach,” the Ninth Circuit found that a rational jury could only have acquitted Romeo of the possession charge on the ground that he was unaware there was marijuana in the car. Id. at 143 (quoting Ashe, 397 U.S. at 444). The court concluded that, because Romeo's knowledge of the presence of marijuana in the car was “also an essential element of the [charge] remaining for retrial,” the government was estopped from retrying Romeo on the importation charge. Id. at 143-44.

The Sixth Circuit has likewise held that a partial verdict can bar another prosecution of a mistried charge based on collateral estoppel. In United States v. Frazier, a jury acquitted the defendants of a charge of misapplication of funds but failed to reach a verdict on a charge of making false entries. 880 F.2d 878, 885 (6th Cir.1989). The court concluded that the government was estopped from retrying the defendants for making false entries, because “[a] jury could not conclude that the defendants willfully caused false entries to be made ... without also finding that the defendants willfully and knowingly misapplied bank funds” as charged in the acquitted count. Id. at 886.

One of our sister circuits has held to the contrary. In United States v. White, the District of Columbia Circuit refused to apply collateral estoppel to another prosecution of a mistried charge based on the same reasoning we employed in Quintero and Bennett. The court in White concluded that, if the jury had acquitted White on the ground he asserted, it would not have failed to reach a verdict on the count the government sought to retry. 936 F.2d 1326, 1329 (D.C.Cir.1991) (citing United States v. Scott, 464 F.2d 832, 833 (D.C.Cir.1972)). See also Romeo, 114 F.3d at 145 (O'Scannlain, J., dissenting) (“[I]f the jury necessarily decided that Romeo did not know that drugs were in his trunk, the jury necessarily would have acquitted him of knowingly importing drugs into the United States.”). That reasoning, as we have already explained, is flawed.

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