Politician Facing Retrial Loses Double-Jeopardy Challenge

WASHINGTON (CN) – Double jeopardy does not bar federal prosecutors from retrying a Puerto Rican lawmaker who successfully appealed a mixed verdict on bribery charges.

The case stems from a trip Sen. Hector Martinez-Maldonado took in 2005 for a Las Vegas boxing match. U.S. prosecutors say Juan Bravo-Fernandez, the president of Puerto Rican private-security firm Ranger American, paid for the trip in exchange for a legislative favor.

Though a jury convicted both men on a federal bribery charge, it acquitted them of conspiring and traveling to commit bribery under Section 666 of Title 18.

The First Circuit, a federal appeals court based in Boston, later vacated the convictions for an instructional error.

When it remanded for possible retrial of the bribery counts under Section 666 of Title 18, the men claimed that the double-jeopardy clause required acquittal.

The trial court disagreed, however, as did the First Circuit, leading to the appeal before the Supreme Court.

Just over a month after oral arguments, the high court was unanimous Tuesday in for the government.

“Petitioners urge that, just as a jury’s failure to decide has no place in issue-preclusion analysis, so vacated guilty verdicts should not figure in that analysis,” Justice Ruth Bader Ginsburg wrote for the court. “We hold otherwise.

“One cannot know from the jury’s report why it returned no verdict,” the opinion continues. “‘A host of reasons’ could account for a jury’s failure to decide — ‘sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few.’ But actual inconsistency in a jury’s verdicts is a reality; vacatur of a conviction for unrelated legal error does not reconcile the jury’s inconsistent returns. We therefore ... affirm the judgment of the Court of Appeals, which held that issue preclusion does not apply when verdict inconsistency renders unanswerable ‘what the jury necessarily decided.’”

Ginsburg noted that the court is bracketing this case with the 1984 opinion in U.S. v. Powell, which says an acquittal gains no preclusive effect if the verdicts are rationally irreconcilable.

Inapplicable, however, is the 2009 case Yeager v. U.S., which says a jury’s acquittal verdict has preclusive effect if the same jury in the same proceeding fails to reach a verdict on a different count turning on the same critical issue.

“It is undisputed that petitioners’ convictions are invalid judgments that may not be used to establish their guilt,” Ginsburg’s 19-page opinion states. “The question is whether issue preclusion stops the government from prosecuting them anew. On that question, Bravo and Martínez bear the burden of showing that the issue whether they violated §666 has been ‘determined by a valid and final judgment of acquittal.’ To judge whether they carried that burden, a court must realistically examine the record to identify the ground for the §666-based acquittals. A conviction that contradicts those acquittals is plainly relevant to that determination, no less so simply because it is later overturned on appeal for unrelated legal error: The split verdict — finding §666 violated on the standalone counts, but not violated on the related Travel Act and conspiracy counts — tells us that, on one count or the other, ‘the jury [did] not follo[w] the court’s instructions,’ whether because of ‘mistake, compromise, or lenity.’ Petitioners’ acquittals therefore do not support the application of issue preclusion here.”

Justice Clarence Thomas complained in a concurring opinion about Yeager, saying it represented the “erroneous[] and illogical[]” extension of the 1970 decision Ashe v. Swenson.

Quoting from Yeager, Thomas said “Ashe held only that the [double-jeopardy] clause sometimes bars successive prosecution of facts found during ‘a prior proceeding.’”

“Yeager, however, ‘bar[red] retrial on hung counts after what was not . . . a prior proceeding but simply an earlier stage of the same proceeding,’” Thomas added, quoting a dissent from the late Justice Antonin Scalia. “In an appropriate case, we should reconsider the holdings of Ashe and Yeager. Because the court today properly declines to extend those cases, and indeed reaches the correct result under the clause’s original meaning, I join its opinion.”

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