I am going to step back and briefly address the question of why that is a high bar. Our legal myth is that the jury makes the right decision at least in most cases, so we will start out with the presumption that it did so in very case. That is a rebuttable presumption, the issue being the level of proof required to overcome the presumption. Why do we give the benefit of the doubt to a jury verdict where the jury does not even state why it reached its verdict, which would be required in order to assess properly whether the jury acted rationally. We just assume that, if the verdict could have been rational, it is rational. (By contrast, if the judge is the trier of fact in a civil case, Rule 52(a), FRCP, requires the judge to make findings of fact and conclusions of law that will, usually, indicate whether the judge acted rationally. But if it is the jury in a criminal inquiry, the question -- at least as articulated -- is not whether jury did make a rational verdict but if it possibly could have. Why? I offer an answer from a book I recently read, highly recommended. Kenji Yoshino, A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice (2012). The author develops concepts of justice presented in Shakespeare's major plays. Key points in his chapter on Othello are (I indent the following some of which are my own words; most of the words are quotes which I indicate with quotation marks):
"The great eighteenth-century legal commentator William Blackstone maintained that for every case that turned on an issue of law, over a hundred turned on an issue of fact. To live in such a world—as we always have and will—means justice will be driven by those who determine what happened. Law calls such personages “factfinders.”
In the factfinding process, the author develops differences between a rational factfinding process -- with focus on the process rather than a particular factfinding -- and supernatural factfinding (such as trial by ordeal) in which God becomes the factfinder to speak the truth.
"As legal historian George Fisher points out, we use the jury not because it is an infallible factfinder, but because it gives us closure in a world in which infallible factfinders do not exist. The jury permits us to evade the inherent difficulties of factfinding, because, like God, the jury need not respond to questions or justify its results. But if so, we have not traveled as far from the supernatural proofs as we may think."
"Juries are black boxes—they cannot be forced to explain their reasons or justify their decisions. As Fisher points out, this aspect of juries is a crucial one because it gives a closure to cases that would otherwise be hard to achieve. This makes the jury the proper human analog to God — inscrutable, unquestionable, final. Recall that Bartlett stated that the divine ordeal “was a device for dealing with situations in which certain knowledge was impossible but uncertainty was intolerable.” In a world that has moved away from divine to human proof, the jury may serve as that device.
But this brings us full circle to the divine proofs. We rejected the divine proofs because they were too mystical and irrational. We sought instead to perfect human factfinding. But given that this is impossible, we hide the imperfection so we can move on with our lives. We do not live with the facts as they are, but as they are given to us, from a body of peers that speaks from a black box. This may be why Shakespeare seems to have been so skeptical about the shift from divine to human proof. Then as now, it was not so great a shift.In other words, unless the jury verdict is demonstrably wholly irrational, the need for repose on the issue governs the need for perfect. What this means is that some verdicts will in fact be irrational and some innocent people will be convicted without any effective recourse. That is why in criminal convictions, effective sufficiency analysis is necessary to insure that the risk of wrongful conviction is minimized, although it can never be eliminated.
With that "editorial comment," I review the the panel's decision analyzing the sufficiency challenges. The analysis goes (I often omit internal quotes and case citations):
1. The verdict is sufficient if, from the evidence, "it can reasonably be inferred that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it."
2. "In the context of a conspiracy conviction, deference to the jury's findings is especially important . . . because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court." (This is the black box aspect which is particularly acute where, as in conspiracies and most tax crimes, inferences as to mes rea -- willfulness -- must be made because rarely subject to direct proof short of a confession.)
3. The panel first focuses on the defendant Shapiro who seems not to have been a major player. The Count One conspiracy against Shapiro alleged three objectives -- "(1) a Klein objective, an offense objective to commit tax evasion, and (1) to defraud the United States (the Klein conspiracy); (2) to evade taxes, in violation of 26 U.S.C. § 7201; and (3) to make false statements to the IRS, in violation of 18 U.S.C. § 1001." The Court analyzes Shapiro's conduct and finds it too equivocal as to his joining others with the agreement to commit the conduct alleged. The Court concludes (citations and quotation marks omitted):
Having reviewed the record and the arguments of counsel, we conclude that the evidence against Shapiro is insufficient to support his conviction on Count One. In reaching this conclusion, we are mindful that the absence of direct evidence is not dispositive, since the government is entitled to prove its case solely through circumstantial evidence. Nevertheless, if the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt." In this case, an essential element of the conspiracy charged in Count One required proof beyond a reasonable doubt that Shapiro joined the alleged conspiracy with the "specific intent" to violate the law. The evidence with respect to Shapiro's intent, viewed in the light most favorable to the Government, remains, at best, in equipoise. Because it would not satisfy the [Constitution] to have a jury determine that the defendant is probably guilty, we conclude that Shapiro's conviction on Count One must be reversed.5. The conspiracy conviction against Nissenbaum. Again, making a detailed analysis of the facts, the Court finds the evidence sufficiently equivocal that the conviction must be reversed. The Court concludes:
Having examined the evidence against Nissenbaum with respect to each of the three objectives of the § 371 conspiracy charged in Count One, we turn again to the task of looking at [the conspiracy] as a whole. Once again, our review of the record and the arguments of counsel compels the conclusion that the evidence against Nissenbaum is insufficient to support his conviction on Count One. Viewed in the light most favorable to the Government, the evidence with respect to Nissenbaum's intent gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence. Under these circumstances, a reasonable jury must necessarily entertain a reasonable doubt. Id. (quotation marks omitted).6. Notice how deftly the Court dealt with the "black box" nature of jury determinations.
7. In addressing Nissenbaum's conspiracy sufficiency challenge, the Court rejected the Government's argument for Pinkerton liability -- that Nissenbaum joined a conspiracy where tax evasion would have been within the scope of the conspiracy. The Court reviews the equivocal evidence and concludes:
The trouble with the Government's argument is that even Pinkerton liability is premised on a mental state." In other words, although Pinkerton may permit a broader scope of liability for established coconspirators, the doctrine does not dilute or erode the basic requirement that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it. The Government's only attempt to identify an affirmative act by Nissenbaum that would demonstrate the requisite criminal intent is the three-line March 2000 e-mail. That is simply not enough.8. The dissent, reading the evidence differently, would have affirmed the convictions of conspiracy.
1. The Court seems to have been troubled about the potential risks of criminal conspiracy charges. The risks are present in all conspiracy charges, but particularly in the defraud conspiracy (Klein conspiracy in a tax setting) because of the expansion of that criminality noted by the Court (see installment # 1, here).
2. I am impressed at the diligence with which the majority on the panel pursued this issue to guard against a wrongful conspiracy conviction. I am also impressed with the dissenters reading of the evidence. That would be the traditional rational trier analysis. I believe, just based on what is presented in the opinions, the majority makes the better case.
3. For those interested in my thoughts on conpiracy in a tax setting, I link for download the portion of my Federal Tax Crimes book on Conspiracy, here. In the excerpt, I offer some general criticisms that have been made about the conspiracy charge generally and the defraud / Klein conspiracy in particular.