The issue-preclusion component of the Double Jeopardy Clause does not bar the Government from retrying defendants after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency.
(a) Because petitioners’ trial yielded incompatible jury verdicts, petitioners cannot establish that the jury necessarily resolved in their favor the question whether they violated §666. In view of the Government’s inability to obtain review of the acquittals, the inconsistent jury findings weigh heavily against according those acquittals issue-preclusive effect. The subsequent vacatur of petitioners’ bribery convictions does not alter this analysis. The critical inquiry is whether the jury actually decided that petitioners did not violate §666. Ashe instructs courts to approach that task with “realism and rationality,” in particular, to examine the trial record “with an eye to all the circumstances of the proceedings.” The jury’s verdicts convicting petitioners of violating §666 remain relevant to this practical inquiry, even if the convictions are later vacated on appeal for unrelated trial error.
Petitioners could not be retried if the Court of Appeals had vacated their §666 bribery convictions because of insufficient evidence, or if the trial error could resolve the apparent inconsistency in the jury’s verdicts. But the evidence here was sufficient to convict petitioners on the quid pro quo bribery theory the First Circuit approved. And the instructional error cannot account for the jury’s inconsistent determinations, for the error applied equally to every §666-related count.
Petitioners argue that vacated judgments should be excluded from the Ashe inquiry because vacated convictions, like the hung counts in Yeager, are legal nullities that “have never been accorded respect as a matter of law or history.” That argument misapprehends the Ashe inquiry. 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.
Petitioners further contend that, under Yeager, the §666 convictions are meaningless because the jury was allowed to convict on the basis of conduct not criminal in the First Circuit—payment of a gratuity. But Yeager did not rest on a court’s inability to detect the basis for a decision the jury in fact rendered. Rather, when a jury hangs, there is no decision, hence no inconsistency. By contrast, a verdict of guilt is a jury decision, even if subsequently vacated, and therefore can evince jury inconsistency. That is the case here. Petitioners gained a second trial on the standalone bribery charges, but they are not entitled to more. Issue preclusion is not a doctrine they can commandeer when inconsistent verdicts shroud in mystery what the jury necessarily decided.
As a criminal defense attorney, the Court’s opinion is consistent with my first instinct. Demonstrably inconsistent verdicts seem more akin to a hung jury than a definitive acquittal or conviction. The state can retry cases that hung, at least twice before the doctrine of fundamental fairness may require a dismissal with prejudice. While the Court did not address how many times a case could be re-tried due to inconsistent verdicts, it is probably a moot point, at least for now. Unlike hung juries, demonstrably inconsistent verdicts are relatively rare and unlikely to re-occur in succession, with the same case, and against the same defendant(s).
