Inconsistent Verdicts While Tolerable Generally Must Not Be Invited (9/2/13)

Inconsistent verdicts are tolerated in the federal criminal system.  For example, if the defendant is charged with two crimes and guilt of the second crime requires or at least assumes guilt of the first, then acquittal of the first count will not require reversal of a guilty verdict on the second count.  But everyone recognizes that that tolerance for inconsistent verdicts needs to be narrowly prescribed, and in the context presented here, should not be encouraged.  In United States v. Moran-Toala, ___ F.3d ___, 2013 U.S. App. LEXIS 16605 (2d Cir. 2013), here, the Second Circuit held that, where the district court in its instructions to the jury in effect sanctioned inconsistent verdicts, the inconsistent guilty verdict must be reversed.

The situation in Moran-Toala may be summarized as follows:  The defendant was charged with narcotics conspiracy and with conspiracy to exceed authorized access to a government computer in furtherance of the narcotics conspiracy.  (Yes, the second is a crime, however oddly worded; for convenient reference I refer to this as the computer access conspiracy count)  The defendant was acquitted of the narcotics conspiracy count but found guilty of the computer access conspiracy count.  If that is all that occurred, there would be no reversible error because of the law, noted above, that consistency between and among verdicts is not required.

But, that is not all that occurred.  During its deliberations, the jury asked the judge whether consistency between the verdicts was required.  The judge answered that question no, although he struggled with the answer.  As you might suspect, the Government wanted a victory at all costs and thus wanted the no answer; the defendant wanted a win at all costs and, apparently suspecting that the question indicated the jury believed that the Government had overcharged the case, wanted a yes answer to the question.  At the Government's insistence, the Court answered the question no -- in essence telling the jury that it could render inconsistent verdicts.  That answer is, of course, the law.

On appeal, the defendant argued that the answer, while consistent with the law, invited the jury to render inconsistent verdicts and therefore should be reversed.  The Court agreed.  I will provide more on the Court's legal analysis below, but I think the predicate procedural posture is interesting. An inconsistent verdict of this nature might mean that, if the jury had known that it had to be consistent in its verdicts, it would have either convicted of both counts or acquitted of both counts.  If there is a reversal for retrial, the indicated solution might be to have another jury hear the evidence and render consistent verdicts (or at least, if it rendered inconsistent verdicts, the inconsistency would not be invited by the trial judge).  But, having been acquitted of the narcotics conspiracy count, the defendant could not be retried on that count by virtue of the Double Jeopardy guarantee.  Hence, if there is a retrial, it will be for the computer access conspiracy offense only.  (Of course, as sentencing afficionados will know, if the defendant on retrial is convicted of that offense, the acquitted offense can still be considered, but that is another discussion for another time.)

Now, let's look at the court's reasoning for reversing despite the clear law that inconsistent verdicts are not per se reversible.  The pertinent part of the opinion is not very long, so I just quote it:

I. The Supplemental Jury Instruction 

As we previously noted, whether the jury rendered inconsistent verdicts is not, in and of itself, the basis for this appeal. On the face of it, it does seem hopeless to try to reconcile the jury's acquittal as to the defendant's participation in the Espinal-Polanco narcotics conspiracy charged in Count One with the jury's conviction as to Count Two, the defendant's participation in a conspiracy to access TECS with the intent to further the Espinal-Polanco narcotics conspiracy. n4 But Moran-Toala does not directly challenge, nor could we review, the verdict for inconsistency. It has long been the law that "[c]onsistency in the verdict is not necessary." Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932). "[T]he jury, though presumed to follow the instructions of the trial court, may make its ultimate decisions 'for  impermissible reasons,' such as 'mistake, compromise, or lenity.'" United States v. Acosta, 17 F.3d 538, 545 (2d Cir. 1994) (quoting United States v. Powell, 469 U.S. 57, 63, 65, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984)). Inconsistent verdicts are unreviewable on appeal, even though "'error,' in the sense that the jury has not followed the court's instructions, most certainly has occurred," because "the possibility that the inconsistent verdicts may favor the criminal defendant as well as the Government militates against review of such convictions at the defendant's behest." Powell, 469 U.S. at 65.
   n4 By ultimately convicting Moran-Toala of the unlawful computer access conspiracy, the jury determined that: she agreed with Espinal to gain access to TECS, she committed an overt act in furtherance of the conspiracy, and she did so with the intent to advance the narcotics conspiracy. It is difficult to see how these findings would not compel the jury also to find that Moran-Toala agreed with Espinal to import narcotics and that she misused used her CBP computer to further that narcotics conspiracy. 

But it does not follow from judicial inability to disturb inconsistent verdicts after the fact that the district court may sanction potentially inconsistent verdicts ex ante. It is on that basis that Moran-Toala challenges the supplemental jury instruction: the court's single-word answer "No" to the note from the jury, which, she argues, wrongly gave the jury explicit permission to return inconsistent verdicts, at its discretion. 

A. The District Court's Supplemental Jury Instruction was Erroneous 

"A jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law." United States v. Al Kassar, 660 F.3d 108, 126 (2d Cir. 2011) (alterations and internal quotation marks omitted). Here, the court initially explained to the jury that its verdict on the narcotics conspiracy count should be "linked" to its findings with respect to the felony enhancement because Moran-Toala could be subject to the felony enhancement only if the government proved that she unlawfully used her CBP computer with the intent to further the narcotics conspiracy. This instruction reflected the considerable overlap in the legal elements of the two conspiracy charges, and the facts applicable to each. The jury clearly recognized the tension between a potential verdict acquitting Moran-Toala of participating in a narcotics conspiracy while finding that she agreed with another to misuse her CBP computer with the intent to further that narcotics conspiracy, or vice versa. We can think of no other coherent reason for the jury to send a note seeking judicial guidance, a note that we understand to be tantamount to a request for permission to unlink its verdicts by ignoring the intent requirement in the felony enhancement charge or by disregarding the majority of the narcotics conspiracy charge. The district court, in response, blessed the jury's clear desire to render verdicts it considered inconsistent, or not "in agreement," with the law and the evidence. 

Inconsistent verdicts are often characterized as a form of jury nullification. "Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court -- in the words of the standard oath administered to jurors in the federal courts, to render a true verdict according to the law and the evidence." United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997) (internal quotation marks omitted; emphasis in original). The case before us does not arise from jury nullification -- the jury followed the court's instruction that an inconsistent verdict was permissible. The jury's act would have been one of nullification had the district court answered "yes" to the jury's question as to whether inconsistent verdicts were prohibited and the jury nevertheless returned the same verdict. But irrespective of the jury's ultimate decision, the supplemental instruction cleared the way for the jury to return verdicts the jurors themselves could not reconcile in light of the court's charge of law and the evidence presented. 

In Thomas, "[w]e categorically reject[ed] the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent." Id. at 614. It plainly follows, as we have concluded, that there is no error in a district court's refusal to give a jury a charge that informs them of their right or ability to nullify. See United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996) (per curiam). Nor have we faulted a district court for instructing a jury that it has a "duty" to convict if the government proves a defendant's guilt beyond a reasonable doubt. United States v. Carr, 424 F.3d 213, 219-20 (2d Cir. 2005) ("Nothing in our case law begins to suggest that the court cannot also tell the jury affirmatively that it has a duty to follow the law, even though it may in fact have the power not to."). Thus "the power of juries to 'nullify' or exercise a power of lenity is just that -- a power; it is by no means a right." Thomas, 116 F.3d at 615. 

We conclude that, in its very brief and extemporaneous late-afternoon response to the jury's question regarding a possible inconsistent verdict on the narcotics conspiracy count and the felony enhancement, the district court was effectively inviting them so to rule, contrary to law. Such an "explicit instruction . . . conveys an implied approval that runs the risk of degrading the legal structure . . . ." United States v. Dougherty, 473 F.2d 1113, 1137, 154 U.S. App. D.C. 76 (D.C. Cir. 1972). Thus, the district court's instruction misled the jury as to its duty to follow the law.

JAT Comment:  This is well-written and tightly reasoned.  My question from the trial judge's perspective is that he was between a rock and a hard place.  The jury's question was straight-forward:  ""Count 2: must the verdict be in agreement with Count #1? (I have omitted some extraneous words.)  The question was a yes or no answer.  From a legal perspective, the correct answer is no and that is the answer the judge gave.  Is the Second Circuit suggesting that the district judge should have answered the question yes, or even should not have answered it?

The Court then had to deal with whether the trial judge's error was reversible and held that it was reversible because the error was not harmless.  The Court's resolution of that issue turned upon the distinction betwen trial errors and structural errors.  I also quote that discussion because the analysis is encountered on criminal appeals generally and criminal tax appeals specifically.

B. Nature of the Error 

1. Structural Error. "The Supreme Court has distinguished two kinds of errors that can occur at, or in relation to, a criminal proceeding: so-called 'trial errors,' which are of relatively limited scope and which are subject to harmless error review, and 'structural defects,' which require reversal of an appealed conviction because they 'affect[] the framework within which the trial proceeds.'" United States v. Feliciano, 223 F.3d 102, 111 (2d Cir. 2000) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-10, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)). "Errors are properly categorized as structural only if they so fundamentally undermine the fairness or the validity of the trial that they require voiding its result regardless of identifiable prejudice." Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir. 1996). 

Courts have recognized a limited number of structural errors, all involving the violation of bedrock constitutional rights, such as total deprivation of the right to counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); United States v. Triumph Capital Grp., Inc., 487 F.3d 124, 131 (2d Cir. 2007); exclusion of jurors on the basis of race, see Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); Tankleff v. Senkowski, 135 F.3d 235, 240 (2d Cir. 1998); and improper closure of a courtroom to the public, see Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984); United States v. Gupta, 699 F.3d 682, 688 (2d Cir. 2012). 

The category of recognized structural errors with regard to jury instructions is even more limited. Thus, as a general proposition, "harmless-error analysis applies to instructional errors so long as the error at issue does not categorically 'vitiate all the jury's findings.'" Hedgpeth v. Pulido, 555 U.S. 57, 61, 129 S. Ct. 530, 172 L. Ed. 2d 388 (2008) (quoting Neder v. United States, 527 U.S. 1, 11, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (alteration omitted) (emphasis in original)). 

The instructional error here does not cross that threshold, nor does it implicate the overall fundamental fairness of Moran-Toala's otherwise well-tried case. In the event of inconsistent verdicts, to the extent they occurred in this case, "[t]he most that can be said . . . is that the verdict shows that either in the acquittal [on Count One] or the conviction [on Count Two] the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt." Powell, 469 U.S. at 64-65 (internal quotation marks omitted). An instruction permitting inconsistent verdicts calls into doubt only one of the jury's verdicts -- which one we cannot say -- but not both. Because the supplemental instruction did not infect all of the jury's findings, we employ harmless error review. Cf. United States v. Bunchan, 626 F.3d 29, 33-34 & n.2 (1st Cir. 2010) reviewing for plain error defendant's unpreserved challenge to instruction that jurors "don't have to follow my instructions anymore . . . . [W]e close the door, and we can't tell whether or not you're doing what we ask you to do," and declining to reach the question of structural error). 

2. Harmless Error. Since the error in the charge was not structural, we are required to review it for harmlessness. "We review a district court's jury instructions de novo, reversing only where appellant can show that, viewing the charge as a whole, there was a prejudicial error." Carr, 424 F.3d at 218 (citations and internal quotation marks omitted). "An erroneous instruction, unless harmless, requires a new trial." Id. (internal quotation marks omitted). Instructional error is harmless only if it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Neder, 527 U.S. at 18. 

Harmless error review in this case is complicated by the factual, if not legal, inconsistency in the jury's verdicts. The very reason such verdicts are unreviewable in and of themselves is because we could do no more than "try to guess which of the inconsistent verdicts is the one the jury really meant." Acosta, 17 F.3d at 545 (internal quotation marks omitted). We might speculate as to what the jury actually had in mind in order to seek to reconcile the two verdicts: perhaps the jury found that Moran-Toala had insufficient knowledge of the narcotics conspiracy to support a conviction on Count One, in which case a properly instructed jury likely would have also rejected the felony enhancement. Or the jury might have found that Moran-Toala's intent to further the narcotics conspiracy by misusing her CBP computer also proved her membership in the narcotics conspiracy, but it did not wish to convict on such a serious charge without evidence that she personally imported or sold drugs; in that case, a properly instructed jury likely would have applied the felony enhancement. The problem with either speculation, though, beyond the fact that they are speculations, is that they do not account for the jury's query: "Count 2: must the verdict in #4 be in agreement with Count #1?" This note strongly suggests that the jury itself could not reconcile the verdicts on the two counts and was seeking (and obtained) permission to render its contemplated verdicts despite the inconsistency. 

There is thus no serious doubt that the erroneous instruction contributed to any inconsistency in the verdicts inasmuch as it explicitly permitted them. n5 We are not unaware of the fact that the district court's instruction ultimately resulted in a highly favorable verdict for Moran-Toala, who was convicted of the less serious charge and acquitted of the more serious one. But, in light of the dearth of evidence of Moran-Toala's knowledge of the Espinal-Polanco airport conspiracy, it is nevertheless possible that a jury would have acquitted her of the narcotics conspiracy and declined to apply the felony enhancement had the supplemental instruction been correct and informed the jury that inconsistent verdicts are impermissible. We therefore cannot say with any confidence that it is clear beyond a reasonable doubt that a properly instructed jury would have convicted Moran-Toala of felony-level unlawful computer access conspiracy. Accordingly, the conviction on Count Two must be vacated and the case remanded to the district court for retrial, should the government be inclined to pursue the charge.
   n5 Of course, the jury instruction also permitted the jury to return a verdict convicting Moran-Toala on the narcotics conspiracy charge, but declining to elevate the unlawful computer access conspiracy conviction from a misdemeanor to a felony. That the jury chose otherwise is to Moran-Taola's substantial benefit.

 JAT Comment:  Note that in reversing the Court seems to signal that, although the Government might have the right to retry the computer access conspiracy count, perhaps the better part of wisdom would be not to retry it.

Finally, although unnecessary to its result, the Court did express its views on a FRE 404(b) evidentiary issue at the original trial.  The Court says it was offering its opinion -- the purest of dictum -- because it was briefed and might come up at retrial.  As summarized by the Court,

Rule 404(b)(1) of the Federal Rules of Evidence provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Prior crime evidence may, however, be admissible "for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). This Circuit "follows the 'inclusionary' approach, which admits all 'other act' evidence that does not serve the sole purpose of showing the defendant's bad character and that is neither overly prejudicial under Rule 403 nor irrelevant under Rule 402." United States v. Curley, 639 F.3d 50, 56 (2d Cir. 2011) (citation omitted).

The Court said that the trial court had properly balanced this rule with Rule 403 undue prejudice concern and signaled to the judge that, on remand, he can do what he will with this type of evidence:

"Only rarely -- and in extraordinarily compelling circumstances -- will we, from the vista of a cold appellate record, reverse a district court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect." United States v. Awadallah, 436 F.3d 125, 134 (2d Cir. 2006) (internal quotation marks omitted). This not such an extraordinary case, and we find no abuse of discretion in the district court's evidentiary ruling.