Monday, July 29, 2013

Juror Unanimity and Predicate Facts (7/29/13)

Jury unanimity is required as to the elements of an offense.  Thus, if the crime requires elements 1, 2 and 3 and the jury reaches unanimity only as to elements 1 and 2, then the jury cannot -- well, should not -- convict.  But, I have just given you the easy case as to jury unanimity.  What if element 3 had some subsidiary facts required to constitute element 3.  Must the jury be unanimous as to the same subsidiary facts constituting element 3?

Consider this from Eric S. Miller, Compund-Complex Criminal Statutes and the Constitution:  Demanding Unanimity as to Predicate Acts, 104 Yale L.J. 2277 (1995) (footnotes omitted):
In his first judicial act, Daniel, who would become one of the Hebrew Bible's most respected judges, saved an innocent woman from a death sentence.  Susanna, wife of the wealthy and respected Joakim, went to her garden to bathe. In the garden, two lecherous elders trapped her alone and demanded that she have sex with them. If she refused, they threatened to accuse her publicly of having sex with a man other than her husband, a crime whose punishment was death. Susanna did refuse, and the next day the elders accused her of adultery, telling the judges that they saw a young man lying with her in her garden. The judges believed the elders and sentenced Susanna to death. 
As Susanna was being led to her execution, Daniel cried out, "Are you such fools, O Israelites! To condemn a woman of Israel without. . . clear evidence?"  Questioning the elders separately, Daniel asked each, "[U]nder which tree did you see them together?"  One elder answered, "Under a mastic tree";  the other answered, "Under an oak."  On the basis of this lack of agreement, Susanna was freed. "Thus was innocent blood spared that day . . . And from that day onward Daniel was greatly esteemed by the people." 
In modern criminal procedure terminology, Daniel was confronted with a problem of verdict specificity. To Daniel, a determination that the accused was guilty of the crime charged was not enough. Instead, he demanded "clear evidence" of how the crime was committed. Without such evidence, Daniel said, the judges were "passing unjust sentences" and "condemning the innocent."  
Like Daniel, the United States Constitution demands a certain level of verdict specificity. The Sixth Amendment requires that convicting jurors in federal criminal trials be unanimous not solely as to the ultimate question of guilt or innocence, but also as to the principal factual elements of the crime charged. 
The question is one of specificity.

With this in mind, in 2012, Vernon K. Newson, a Las Vegas tax preparer, was convicted of aiding and assisting the preparation of false returns.  Accoridng to the press release from USAO DLV, here:
According to the court records, Newson operated a business in Las Vegas called Perdiem, Inc., dba "The Money Man," and provided payday loans, bill-paying services, DMV registration, and tax return preparation. Between the 2002 and 2006 tax years, Newson filed 22 false tax returns for 10 clients. Newson padded customers' tax returns with false deductions and credits, invented businesses to create business losses, and inflated W-2 wages and itemized deductions. Newson also attempted to cover up his activities by telling clients to lie to auditors, and presented two other false tax returns in 2006 for "undercover" businesses which were being tracked by the IRS. The tax loss to the government was determined by the court to be approximately $142,949.
Newson appealed, urging that the trial court erred in not giving the specific unanimity instruction he requested.  In United States v. Newson, 2013 U.S. App. LEXIS 14925 (9th Cir. 2013), here, an unpublished opinion, the Ninth Circuiit rejected his argument,.  The opinion is somewhat cryptic, so I quote it is full to give readers -- students and new practitioners -- a feel for the genre of the argument and its resolution (footnotes omitted):
Newson asserts that the district court erred when it refused to instruct the jury that the jurors had to unanimously agree that a particular deduction was willfully false before they could agree that he had willfully assisted in preparing or presenting an income tax return with false matter. See id. We disagree. 
Certainly a defendant cannot be convicted of a crime unless the jury's verdict is unanimous, which means that the jurors must agree that all elements of the offense have been proved. However, that does not mean that the jurors must agree on the "'preliminary factual issues which underlie the verdict."' Schad v. Arizona, 501 U.S. 624, 632, 111 S. Ct. 2491, 2497, 115 L. Ed. 2d 555 (1991). Of course, jurors cannot be instructed that a defendant can be convicted of an offense if he committed, for example, crime A or crime B, unless they are also instructed that there must be unanimous agreement on which crime it was. See Richardson v. United States, 526 U.S. 813, 818-20, 824, 119 S. Ct. 1707, 1710-11, 1713, 143 L. Ed. 2d 985 (1999); United States v. Anguiano, 873 F.2d 1314, 1319-20 (9th Cir. 1989). And, even if the jurors are not presented with that stark a choice, if the presentation of the case leads to juror confusion, the confusion must be eliminated. See United States v. Echeverry, 719 F.2d 974, 975 (9th Cir. 1983). That can be accomplished by use of a specific unanimity instruction. See Richardson, 526 U.S. at 817-20, 824, 119 S. Ct. at 1710-11, 1713; Anguiano, 873 F.2d at 1319. 
Again, however, the mere fact that jurors might agree that the crime was committed while not agreeing on the specific underlying facts is not a sufficient reason to require a specific unanimity instruction. See Schad, 501 U.S. at 631-32, 644-45, 111 S. Ct. at 2497, 2503-04 (jury need not agree on whether a murder was premeditated or a killing in the course of committing another felony); id. at 649-50, 111 S. Ct. at 2506 (Scalia, J., concurring); United States v. Lyons, 472 F.3d 1055, 1068-69 (9th Cir. 2007) (mail fraud); United States v. Woods, 335 F.3d 993, 998-99 (9th Cir. 2003) (same); United States v. Carlson, 235 F.3d 466, 471 (9th Cir. 2000) (tax evasion); United States v. Kim, 196 F.3d 1079, 1082-83 (9th Cir. 1999) (aiding and abetting). Here, the crime in question was the preparation of a return, which "is false as to  any material matter" for presentation to the government. 26 U.S.C. § 7206(2) (emphasis added); See also United States v. Salerno, 902 F.2d 1429, 1431-32 (9th Cir. 1990) (elements of 26 U.S.C. § 7206(2) offense). That does not spell out a separate crime for each materially false fact within a return, nor do jurors have to agree on any single materially false fact; rather, "'different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.'" Schad, 501 U.S. at 631-32, 111 S. Ct. at 2497. And there was little or no chance of jury confusion; that leads to the final insurmountable revetment faced by Newson. 
Whether a specific unanimity instruction should have been given or not, Newson's attack fails because on this record any error was harmless beyond a reasonable doubt. See United States v. Nobari, 574 F.3d 1065, 1081-83 (9th Cir. 2009); Southwell, 432 F.3d at 1053; cf. United States v. Montalvo, 331 F.3d 1052, 1056-57 (9th Cir. 2003). The evidence against him was overwhelming. Numerous individuals for whom he prepared returns testified to his methods and to the fact that he made up nonexistent businesses and then made up false business deductions for those nonexistent ventures. In short, "the overall picture of [Newson's] conduct [was] crystal clear." Carlson, 235 F.3d at 471. 

No comments:

Post a Comment

Please make sure that your comment is relevant to the blog entry. For those regular commenters on the blog who otherwise do not want to identify by name, readers would find it helpful if you would choose a unique anonymous indentifier other than just Anonymous. This will help readers identify other comments from a trusted source, so to speak.