Wednesday, June 5, 2024

On Unanimity - the Trump NY False Documents Conviction and Federal Conspiracy Law (6/5/24)

I will post at least this blog dealing with conceptual overlaps from the Trump trial and conviction in the New York Supreme Court (trial level).

Readers surely recall that Trump’s false records case, generally a misdemeanor, was elevated to a low-level New York felony if the records were falsified with an intent to commit or conceal another crime. The other crimes are called “predicate’ crimes. See Josh Gernstein, Judge: To convict Trump of felonies, jury does not need to unanimously agree on what 'predicate' crime he committed (Politico 5/21/24), here. At trial, the prosecutors asserted three possible other crimes: “a tax crime and violations of state or federal election law.” Id. Readers of this blog should be thoroughly familiar with use of falsified records as tax crimes. The backdrop of the underlying facts made “state or federal election law” crimes possibilities. The judge ruled and so instructed the jury that, in order to convict for the felony, the jury had to find for each count a predicate crime but need not be unanimous as to the predicate crime.

There is an analog to this holding in federal criminal law of conspiracy. Conspiracy requires, among other elements, an object to commit an offense (offense conspiracy) or defraud the Government (defraud/Klein conspiracy. 18 USC § 371, here. In the infamous Leona Helmsley criminal tax trial, the indictment charged a single count alleging both an offense conspiracy and a defraud conspiracy. United States v. Helmsley, 941 F.2d 71, 91 (2d Cir. 1991), cert. denied, 502 U.S. 1091 (1992), here.  The Court rejected the argument that, as charged, the jury did not have to be unanimous as to the type of conspiracy. The Court held that any confusion was cured by the jury instructions requiring unanimity  on “the specific object the defendant agreed to try to accomplish”). See Michael Saltzman and Leslie Book, IRS Practice and Procedure (Thomsen Reuters), current online edition at ¶ 12.03[1][c][vi][A].

There is another analog federal conspiracy law. Conspiracy requires, among other elements, an overt act. I quote the following from Michael Saltzman and Leslie Book, ¶ 12.03[1][c][vi][A] General conspiracy statute:

What does it mean to say that an overt act is required for conviction of a general conspiracy (including a Klein conspiracy)? Certainly, the indictment must plead the overt act element and the jury must find the existence of the element in order to convict. But many indictments merely plead generally the existence of at least one overt act in furtherance of the conspiracy, without specifying the overt act itself; the jury then finds in a general guilty verdict that at least one unspecified overt act occurred. Must the indictment be more specific as to the precise overt act or acts alleged to support conviction? Must the jury specifically find and reach unanimity  as to one or more overt acts that support the general verdict of conviction? The sparse authority addressing the issue directly seems to support the proposition that the jury need not be unanimous  as to any overt act.286
   286 United States v. Kozeny, 667 F3d 122 (2d Cir. 2011)  (jury needs to agree unanimously  that at least one overt act was committed, but jury need not be unanimous  as to which overt act; no unanimity instruction appropriate); United States v. Sanderson, 966 F2d 184, 187 (6th Cir. 1992) (same); United States v. Sutherland, 656 F2d 1181, 1202 (5th Cir. 1981) (same). Indeed, for example, if the indictment alleges and there is proof of two overt acts and the jury convicts in a general verdict, the general verdict will stand even if the proof as to one of the two overt acts is found insufficient on appeal. Griffin v. United States, 502 US 46 (1991) (limiting the prior holding in Yates v. United States, 354 US 298 (1957) , which held that if the statute on one of the two overt acts had expired, a general verdict of guilty must be reversed because it cannot be determined where the jury relied upon the statutorily barred overt act). The presumption presumably is that except in cases of legal insufficiency, the jury acted properly. See United States v. Mann, 161 F3d 840, 857 (5th Cir. 1999), reh'g denied, 168 F3d 488 (5th Cir. 1999), cert denied, 526 US 1117 (1999) 
          Thus, conceivably, each of the twelve members of the jury could find a separate overt act to support conviction. Compare the affirmative act requirement for tax evasion as to which the jury must be unanimous. Holland v. United States, 2014 US Dist. LEXIS 88504 (D. Conn. 2014) . 

I am the principal author of the Saltzman and Book Chapter 12, titled Criminal Penalties and the Investigation Function. As I re-read the above quote, I misspoke in stating that a general allegation of at least one overt act would suffice without alleging at least one specific overt act. The conspiracy charges I have seen do allege specific overt acts, often ad nauseum. I will do such further research as required and correct as appropriate in the next update of this Chapter in the Saltzman & Book Treatise. 

Although the quote above is from the Saltzman & Book Treatise, similar language and citations appear in my Federal Tax Crimes, 2013 book (downloadable from SSRN here), at pp. 205 n. 401. (Most of the discussion in the book is still good, but obviously there have been developments since 2013 and, as illustrated here, some corrections are needed.

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