throbber
No. 15-537
`
`IN THE
`Supreme Court of the United States
`————
`JUAN BRAVO-FERNANDEZ AND
`HECTOR MARTÍNEZ-MALDONADO,
`Petitioners,
`
`v.
`UNITED STATES OF AMERICA,
`Respondent.
`
`————
`On Writ of Certiorari to the
`United States Court of Appeals
`for the First Circuit
`————
`BRIEF FOR PETITIONERS
`————
`
`ABBE DAVID LOWELL
`CHRISTOPHER D. MAN
`CHADBOURNE & PARKE LLP
`1200 New Hampshire Ave., NW
`Washington, DC 20036
`(202) 974-5600
`Counsel for Hector
`Martínez-Maldonado
`
`LISA S. BLATT
`Counsel of Record
`ANTHONY J. FRANZE
`R. STANTON JONES
`ELISABETH S. THEODORE
`ARNOLD & PORTER LLP
`601 Massachusetts Ave., NW
`Washington, DC 20001
`(202) 942-5000
`lisa.blatt@aporter.com
`Counsel for Juan
`Bravo-Fernandez
`
`June 10, 2016
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
`
`

`

`QUESTION PRESENTED
`
`Whether, under Ashe v. Swenson, 397 U.S. 436
`(1970), and Yeager v. United States, 557 U.S. 110
`(2009), a vacated, unconstitutional conviction can
`strip an acquittal of its preclusive effect under the
`collateral estoppel prong of the Double Jeopardy
`Clause.
`
`(i)
`
`

`

`TABLE OF CONTENTS
`
`QUESTION PRESENTED ..................................
`TABLE OF AUTHORITIES ................................
`INTRODUCTION ................................................
`OPINIONS BELOW ............................................
`JURISDICTION ..................................................
`CONSTITUTIONAL PROVISION INVOLVED ....
`STATEMENT ......................................................
`SUMMARY OF ARGUMENT .............................
`ARGUMENT ........................................................
`I. A Jury’s Acquittal Retains Preclusive
`Effect Under the Double Jeopardy Clause
`Regardless of an Inconsistent Vacated
`Conviction .................................................
`A. Ashe Bars Re-Litigation of an Issue
`That an Acquittal Already Decided in
`the Defendant’s Favor .........................
`B. Under Yeager, a Vacated Conviction
`Does Not Strip an Acquittal of
`Preclusive Effect ..................................
`1. Yeager Holds That Hung Counts
`Are
`Irrelevant
`in
`the Ashe
`Analysis ..........................................
`2. Vacated Convictions Are Equally
`Irrelevant in the Ashe Analysis .....
`
`Page
`
`i
`v
`1
`4
`4
`4
`5
`11
`15
`
`15
`
`15
`
`18
`
`19
`
`20
`
`(iii)
`
`
`
`

`
`iv
`TABLE OF CONTENTS—Continued
`
`
`
`Page
`
`C. Powell Confirms That a Vacated
`Conviction Cannot Strip an Acquittal
`of Preclusive Effect ..............................
`1. Powell Holds That One Valid
`Verdict Cannot Impugn Another
`Valid Verdict ..................................
`2. A Fortiori, an Invalid Conviction
`Cannot Impugn a Valid Acquittal .
`3. The Government Cannot Attribute
`Irrationality to Jury Acquittals .....
`II. A Vacated, Unconstitutional Conviction
`Cannot Deprive a Defendant of an
`Otherwise Applicable Constitutional
`Right ..........................................................
`III. The Decision Below Invites Prosecutorial
`Abuse .........................................................
`A. Overcharging and Overbroad Inter-
`pretations of Criminal Statutes Are
`Rampant ..............................................
`B. The Decision Below Exacerbates
`Government Overreaching ..................
`CONCLUSION ....................................................
`
`30
`
`31
`
`32
`
`35
`
`38
`
`43
`
`44
`
`50
`52
`

`
`

`
`v
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`27
`
`23
`
`45
`
`48
`
`26
`
`23
`
`Alabama v. Smith,
`490 U.S. 794 (1989) ...................................
`Arizona v. Fulminante,
`499 U.S. 279 (1991) ...................................
`Ashe v. Swenson,
`397 U.S. 436 (1970) ..................................passim
`Blockburger v. United States,
`284 U.S. 299 (1932) ...................................
`Bond v. United States,
`134 S. Ct. 2077 (2014) ...............................
`Boston Mun. Court v. Lydon,
`466 U.S. 294 (1984) ...................................
`Brady v. Maryland,
`373 U.S. 83 (1963) .....................................
`Bullington v. Missouri,
`451 U.S. 430 (1981) ....................... 22, 26, 39, 41
`Burks v. United States,
`437 U.S. 1 (1978) .......................................
`Butler v. Eaton,
`141 U.S. 240 (1891) ...................................
`Chambers v. United States,
`555 U.S. 122 (2009) ...................................
`Cleveland v. United States,
`531 U.S. 12 (2000) .....................................
`Dodrill v. Ludt,
`764 F.2d 442 (6th Cir. 1985) .....................
`
`43
`
`39
`
`48
`
`49
`
`39
`
`
`
`
`
`

`
`vi
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`32
`
`23
`
`Dunn v. United States,
`284 U.S. 390 (1932) ...................................
`Evans v. Michigan,
`133 S. Ct. 1069 (2013) ........................... 9, 11, 34
`Fiswick v. United States,
`329 U.S. 211 (1946) ..................................passim
`Foster v. Chatman,
`— S. Ct. — (2016) .....................................
`Garces v. U.S. Att’y Gen.,
`611 F.3d 1337 (11th Cir. 2010) .................
`Gentry v. Deuth,
`456 F.3d 687 (6th Cir. 2006) .....................
`Gideon v. Wainwright,
`372 U.S. 335 (1963) ...................................
`Green v. United States,
`355 U.S. 184 (1957) ............................. 43, 48, 51
`Johnson v. Mississippi,
`486 U.S. 578 (1988) ................................... 40, 43
`Johnson v. United States,
`544 U.S. 295 (2005) ...................................
`Jones v. United States,
`526 U.S. 227 (1999) ...................................
`Jones v. United States,
`529 U.S. 848 (2000) ................................... 48, 49
`Lafler v. Cooper,
`132 S. Ct. 1376 (2012) ............................... 45, 46
`
`41
`
`41
`
`23
`
`41
`
`34
`
`
`

`
`

`
`vii
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`40
`
`22
`
`40
`
`Loper v. Beto,
`405 U.S. 473 (1972) ...................................
`N. Carolina v. Pearce,
`395 U.S. 711 (1969) ................................... 13, 22
`Neder v. United States,
`527 U.S. 1 (1999) .......................................
`People v. Wilson,
`852 N.W.2d 134 (Mich. 2014) ...................
`Poland v. Arizona,
`476 U.S. 147 (1986) ................................... 22, 39
`Pollard v. United States,
`352 U.S. 354 (1957) ...................................
`Price v. Georgia,
`398 U.S. 323 (1970) ...................................
`Quercia v. United States,
`289 U.S. 466 (1933) ...................................
`Richardson v. United States,
`468 U.S. 317 (1984) ................................... 24, 25
`Rose v. Clark,
`478 U.S. 570 (1986) ...................................
`Sibron v. New York,
`392 U.S. 40 (1968) .....................................
`Simpson v. Motorists Mut. Ins. Co.,
`494 F.2d 850 (7th Cir. 1974) .....................
`Skilling v. United States,
`561 U.S. 358 (2010) ...................................
`
`41
`
`30
`
`23
`
`23
`
`41
`
`40
`
`48
`
`
`

`
`

`
`viii
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`23
`
`23
`
`34
`
`47
`
`45
`
`Strickland v. Washington,
`466 U.S. 668 (1984) ...................................
`Sullivan v. Louisiana,
`508 U.S. 275 (1993) ...................................
`Tibbs v. Florida,
`457 U.S. 31 (1982) .....................................
`United States v. Anderson,
`783 F.3d 727 (8th Cir. 2015) .....................
`United States v. Armstrong,
`517 U.S. 456 (1996) ...................................
`United States v. Crowell,
`374 F.3d 790 (9th Cir. 2004) ..................... 41, 42
`United States v. DiFrancesco,
`449 U.S. 117 (1980) ...................................
`United States v. Flanders,
`752 F.3d 1317 (11th Cir. 2014) .................
`United States v. Garcia,
`754 F.3d 460 (7th Cir. 2014) .....................
`United States v. Goyal,
`629 F.3d 912 (9th Cir. 2010) .....................
`United States v. Martin Linen Supply Co.,
`430 U.S. 564 (1977) ............................... 1, 16, 34
`United States v. Morgan,
`346 U.S. 502 (1954) ...................................
`United States v. Newman,
`773 F.3d 438 (2d Cir. 2014) ......................
`
`34
`
`48
`
`47
`
`49
`
`41
`
`49
`
`
`

`
`

`
`ix
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`23
`
`40
`
`United States v. Olano,
`507 U.S. 725 (1993) ...................................
`United States v. Oppenheimer,
`242 U.S. 85 (1916) .....................................
`United States v. Powell,
`469 U.S. 57 (1984) ....................................passim
`United States v. Russell,
`221 F.3d 615 (4th Cir. 2000) .....................
`United States v. Scott,
`437 U.S. 82 (1978) .....................................
`Yates v. United States,
`135 S. Ct. 1074 (2015) ...............................
`Yeager v. United States,
`557 U.S. 110 (2009) ..................................passim
`
`40
`
`34
`
`48
`
`CONSTITUTIONAL PROVISIONS
`
`U.S. Const. amend. V. ..................................
`
`4
`
`STATUTES
`
`6
`18 U.S.C. § 371 .............................................
`18 U.S.C. § 666 ............................................passim
`18 U.S.C. § 1512(b)(3)...................................
`6
`18 U.S.C. § 1952(a)(3)(A) ..............................
`6
`28 U.S.C. § 1254(1) .......................................
`4
`
`
`
`
`

`
`

`
`x
`TABLE OF AUTHORITIES—Continued
`
`OTHER AUTHORITIES
`
`Page(s)
`
`46
`
`47
`
`44
`
`Albert W. Alschuler, The Prosecutor’s Role
`in Plea Bargaining, 36 U. Chi. L. Rev. 50
`(1968) ......................................................... 45, 46
`Andrew D. Leipold & Hossein A. Abbasi,
`The Impact of Joinder and Severance on
`Federal Criminal Cases: An Empirical
`Study, 59 Vand. L. Rev. 349 (2006) ..........
`Carrie Leonetti, When the Emperor Has No
`Clothes III: Personnel Policies and
`Conflicts of Interest
`in Prosecutors’
`Offices, 22 Cornell J. L. & Pub. Pol’y 53
`(2012) .........................................................
`Darryl K. Brown, Democracy and
`Decriminalization, 86 Tex. L. Rev. 223
`(2007) .........................................................
`Federal Judicial Caseload Statistics (Mar.
`31, 2014), Table D-4, http://www.uscou
`rts.gov/file/10657/download ......................
`John S. Baker, Jr., Revisiting the Explosive
`Growth of Federal Crimes, Legal
`Memorandum
`(Heritage Foundation),
`June 16, 2008 ............................................
`Julie R. O’Sullivan, The Federal Criminal
`“Code”
`Is a Disgrace: Obstruction
`Statutes as Case Study, 96 J. Crim. L. &
`Criminology 643 (2006)............................. 44, 45
`Restatement (Second) of Judgments § 27....
`39
`Tim Wu, American Lawbreaking, Slate
`(Oct. 14, 2007), http://goo.gl/AFsWXl .......
`
`50
`
`44
`
`45
`

`
`

`
`xi
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`U.S. Gov’t Accountability Off., GAO-04-
`422, Report to Congressional Requesters,
`U.S. Attorneys: Performance-Based
`Initiatives Are Evolving (2004) ................
`William J. Stuntz, The Pathological Politics
`of Criminal Law, 100 Mich. L. Rev. 505
`(2001) ......................................................... 46, 47
`
`47
`
`
`

`
`

`

`INTRODUCTION
`
`Respect for a jury’s acquittal is “[p]erhaps the most
`fundamental rule in the history of double jeopardy
`jurisprudence.” United States v. Martin Linen Supply
`Co., 430 U.S. 564, 571 (1977). When a jury renders a
`verdict of not guilty, the Double Jeopardy Clause
`treats that verdict as a sacrosanct, final judgment,
`immune from any subsequent impeachment. Half a
`century ago, the Court held that this immunity does
`not simply bar a second prosecution on the exact
`charge of which a defendant was acquitted. In Ashe v.
`Swenson, 397 U.S. 436 (1970), this Court construed
`the Double Jeopardy Clause to incorporate a rule of
`collateral estoppel, barring a second prosecution on
`any charge that depends on a fact necessarily decided
`in the defendant’s favor by an earlier acquittal. This
`case is about the reach of Ashe’s collateral estoppel
`rule.
`In 2011, a jury acquitted petitioners Juan Bravo-
`Fernandez and Hector Martínez-Maldonado of con-
`spiring and traveling to violate 18 U.S.C. § 666, which
`prohibits bribery involving a federal program. The
`acquittals, it is undisputed, logically depended on a
`jury finding that petitioners did not violate § 666;
`petitioners did not contest any other element of the
`charges. Thus, under a straightforward application of
`Ashe, the acquittals preclude any second prosecution
`for violating § 666.
`The government nonetheless seeks to persuade a
`second jury, at a second trial, that petitioners violated
`§ 666. And the First Circuit held that it could. Here
`is why: In addition to acquitting petitioners of
`conspiring and traveling to violate § 666, the jury at
`the 2011 trial convicted them of standalone § 666
`charges. In 2013, those convictions were vacated as
`
`
`

`
`2
`unconstitutional, because the district court’s instruc-
`tions had invited the jury to convict based on conduct
`that does not actually violate § 666. But in the First
`Circuit’s view, the vacated, unlawful convictions were
`still a relevant part of the Ashe analysis, i.e., part
`of what the jury necessarily determined at trial. The
`court held that the vacated convictions were incon-
`sistent with the acquittals and thus stripped the
`acquittals of any preclusive effect under Ashe.
`If this all sounds familiar, it should. In Yeager v.
`United States, 557 U.S. 110 (2009), this Court held
`that an inconsistent hung count does not strip a
`simultaneously rendered acquittal of its preclusive
`effect. Because hung counts are legal nullities, Yeager
`held, they are totally irrelevant in the Ashe analysis.
`This case is Yeager all over again—just substitute
`“vacated convictions” for “hung counts.” Vacated
`convictions are legal nullities every bit as much as
`hung counts. Collateral estoppel applies only to valid
`and final judgments, and vacated convictions, like
`hung counts, are neither. If the government cannot
`use hung counts to strip acquittals of preclusive effect,
`it cannot use vacated convictions either. All that
`matters is the acquittals, and the Double Jeopardy
`Clause does not allow the government to look beyond
`their four corners. The government does not get to try
`to prove at a second trial what the jury rejected at the
`first.
`Not only is Yeager controlling, but the government’s
`position in this case is antithetical to a fair system of
`criminal justice. The government should never benefit
`from having obtained an unlawful conviction. This
`Court held 70 years ago that a defendant whose
`conviction has been vacated “must stand in the
`position of any man who has been accused of a crime
`
`

`
`3
`but not yet shown to have committed it”—no collateral
`consequences can flow from the vacated conviction.
`Fiswick v. United States, 329 U.S. 211, 223 (1946). A
`vacated, unconstitutional conviction certainly cannot
`deprive defendants of other constitutional rights.
`The decision below would also encourage the very
`prosecutorial abuses that Ashe and Yeager sought to
`stamp out. Overlapping, duplicative charges have
`become an epidemic. They pressure defendants to
`take pleas and dramatically increase the odds of at
`least one conviction when cases go to trial. Collateral
`estoppel exists to prevent this sort of abuse. But under
`the decision below, prosecutors could bring duplicative
`charges without fear of consequence, secure in the
`knowledge that a split jury decision would eliminate
`the preclusive effect of any acquittal and pave the way
`for a retrial—a retrial that double jeopardy would
`forbid had the government started with a compact
`indictment. And where the government has a weak
`case, the decision below creates perverse incentives to
`pursue a conviction on an unlawfully broad theory
`rather than risk a hung count under proper
`instructions, because a vacated conviction would allow
`the government to try again.
`This prosecution well illustrates the point. The
`government piled duplicative charge on top of duplica-
`tive charge, and, to boot, advocated an erroneously
`expansive interpretation of § 666. The result was four
`acquittals and two unconstitutional convictions. Then
`the government successfully opposed release pending
`appeal, so petitioners spent a combined 18 months in
`a federal penitentiary. Worse, the government also
`charged petitioners with violating other statutes that
`had been repealed. Fortunately for petitioners, the
`district court corrected that mistake—but only after
`
`

`
`4
`petitioners stood trial, and were convicted, for offenses
`that the legislature had eliminated.
`Once was enough. The Double Jeopardy Clause
`prevents the government from asking a second jury, at
`a second trial, to part ways with the jury that
`acquitted petitioners in 2011. The government
`overcharged this case, overreached with the jury
`instructions at the first trial, and forced petitioners to
`serve significant prison time despite the absence of a
`valid conviction. This is hardly the case for retreating
`from Ashe and Yeager and making the government
`better off because it secured an unconstitutional
`conviction instead of a hung jury.
`
`OPINIONS BELOW
`The First Circuit’s opinion is reported at 790 F.3d 41
`and reproduced at Pet. App. 1a-40a. The district
`court’s opinion is reported at 988 F. Supp. 2d 191 and
`reproduced at Pet. App. 41a-53a.
`
`JURISDICTION
`The First Circuit issued its decision on June 15,
`2015. Pet. App. 1a. Petitioners filed a timely petition
`for rehearing en banc, which the court denied on July
`27, 2015. Pet. App. 134a-135a. This Court has
`jurisdiction under 28 U.S.C. § 1254(1).
`
`CONSTITUTIONAL PROVISION INVOLVED
`The Double Jeopardy Clause of the Fifth Amend-
`ment provides: “nor shall any person be subject for the
`same offense to be twice put in jeopardy of life or limb.”
`U.S. Const. amend. V.
`
`
`

`
`5
`STATEMENT
`1. On June 22, 2010, a federal grand jury indicted
`petitioners Bravo and Martínez on a series of multiple,
`overlapping bribery-related charges in connection
`with their trip to a Las Vegas boxing match in May
`2005. Bravo is the president of a private security firm
`in Puerto Rico, and Martínez was then a member of
`the Puerto Rico senate. The government alleged that
`Bravo paid some of Martínez’s and another Puerto
`Rico senator’s expenses for the trip in connection with
`the senators’ support of two uncontroversial bills
`related to the security industry in Puerto Rico. Pet.
`App. 3a, 61a-63a. Those expenses—totaling perhaps
`a few thousand dollars—included Martínez’s plane
`ticket, both senators’ tickets to the boxing match, a
`single dinner, Martínez’s hotel room one of the two
`nights in Las Vegas, and both senators’ rooms at a
`Marriott hotel in Florida when their flight home laid
`over. Id.
`Notwithstanding the government’s theory that
`Bravo intended the trip as a bribe, the second senator
`paid for his own hotel room both nights in Las Vegas,
`and for Martínez’s room the second night. Id. at
`62a. The jury heard evidence that Bravo had invited
`Martínez only as a last-minute replacement because
`one of Bravo’s friends was hospitalized after a motor-
`cycle accident and had to cancel. COA Joint App. 257-
`58. And Martínez had already supported the proposed
`legislation before he even heard about the trip. Pet.
`App. 90a; COA Joint App. 279. The Puerto Rico senate
`passed the bills by votes of 26-1 and 24-1. COA Joint
`App. 246, 250.
`2. The government charged petitioners with a
`panoply of federal crimes based on this two-day trip:
`committing federal program bribery, in violation of 18
`
`

`
`6
`U.S.C. § 666; conspiring to violate § 666, in violation of
`18 U.S.C. § 371; traveling in interstate commerce to
`further violations of § 666, in violation of 18 U.S.C.
`§ 1952(a)(3)(A); traveling in interstate commerce to
`further violations of Puerto Rico bribery statutes, also
`in violation of § 1952(a)(3)(A); and conspiring to travel
`in interstate commerce in aid of racketeering (i.e., the
`alleged bribery), also in violation of § 371. Pet. App.
`3a-4a, 63a. The government also charged Martínez
`with obstruction of justice, in violation of 18 U.S.C.
`§ 1512(b)(3). Pet. App. 63a.
`At the government’s urging and over petitioners’
`objection, the court instructed the jury that § 666
`criminalizes not only quid pro quo “bribes” in which a
`person gives “something of value in exchange for an
`official act,” but also mere “gratuities” in which a
`person gives “a reward … for a past act that [a public
`official] has already taken.” Id. at 88a-89a. Two
`instructions “told the jury that Bravo could be
`convicted under § 666 for agreeing to give Martínez a
`gratuity, and that Martínez could be convicted under
`§ 666 for agreeing to accept the same.” Id. at 89a. A
`third instruction told the jury that “the government
`need not prove that Bravo offered or agreed to give
`Martínez anything of value before the transaction
`that was the subject of the ‘payment’ took place, and
`that it is sufficient for conviction to show that Bravo
`‘offered, or agreed to give the thing of value after
`the transaction.’” Id. (alterations omitted). The
`government’s closing argument further invited the
`jury to convict on the theory that Bravo paid Martínez
`a gratuity in violation of § 666 by “emphasizing that ‘it
`doesn’t matter if the trip was offered after official acts
`were taken.’” Id. (alterations omitted).
`
`

`
`7
`On March 7, 2011, after a three-week trial, the jury
`acquitted Bravo and Martínez of conspiring to violate
`§ 666. The jury likewise acquitted them of traveling
`in interstate commerce to further a violation of § 666.
`But the jury convicted both petitioners on the
`standalone § 666 charges. The jury also convicted
`Bravo of conspiring to travel in interstate commerce to
`further “unspecified
`‘racketeering’ activity,” and
`traveling in interstate commerce to further a violation
`of Puerto Rico bribery statutes. The jury acquitted
`Martínez of those interstate travel offenses. The jury
`also acquitted Martínez of obstruction. Id. at 4a, 64a.
`The district court granted Bravo’s motion for
`judgment of acquittal on the charge of traveling in
`interstate commerce to further a violation of Puerto
`Rico bribery statutes, because the Puerto Rico
`legislature had repealed those bribery statutes before
`petitioners traveled to Las Vegas. Id. at 110a-111a.
`On March 1, 2012, the district court sentenced each
`petitioner to 48 months in prison, and imposed a fine
`of $175,000 on Bravo and $17,500 on Martínez. The
`government opposed petitioners’ motions for bail
`pending appeal, and the district court denied those
`motions. As a result, Martínez began serving his
`sentence on March 1, 2012, and Bravo began serving
`his sentence on May 7, 2012. Pet. App. 64a & n.4.
`3. On June 26, 2013, the First Circuit reversed or
`vacated each remaining conviction. Pet. App. 4a, 60a.
`Key here, the court vacated Bravo and Martínez’s
`convictions on the standalone § 666 charges, because
`they resulted from unlawful jury instructions. Id. at
`5a, 81a-105a. The court held that § 666 criminalizes
`only quid pro quo “bribes,” not mere “gratuities.” Id.
`at 102a-103a. The district court’s instructions,
`however, “improperly invited the jury to convict both
`
`

`
`8
`Martínez and Bravo for conduct involving gratuities
`rather than bribes.” Id. at 104a. Likewise, “the
`government’s closing argument improperly invited the
`jury to convict the [petitioners] on the proscribed
`‘gratuity theory.’” Id. The court rejected the govern-
`ment’s argument that the error was harmless, because
`“the evidence presented at trial could support a
`finding that the ‘payment’ Bravo gave and Martínez
`received constituted a gratuity.” Id. at 104a-105a.
`The § 666 convictions—premised on erroneous instruc-
`tions that permitted the jury to find guilt based on
`lawful conduct—thus “violate[d] due process.” Id. at
`105a (quoting Fiore v. White, 531 U.S. 225, 228 (2001)).
`The court also reversed Bravo’s conviction for
`conspiring to travel in interstate commerce to further
`“‘racketeering’ activity.” Id. at 4a, 108a-120a. The
`only predicate “racketeering activity” the government
`had identified was bribery in violation of § 666 and
`Puerto Rico law, id. at 109a, but the Puerto Rico law
`had been repealed, and the court could not discern
`which predicate the jury had accepted, id. at 116a-
`117a. The government sought a remand to retry Bravo
`on a conspiracy-to-travel-to-violate-§-666 charge. But
`the collateral estoppel prong of the Double Jeopardy
`Clause, the court held, precluded retrial. The jury had
`acquitted Bravo of conspiring and traveling to violate
`§ 666, and
`those acquittals,
`the court held,
`“necessarily decided” that Bravo did not conspire to
`travel to violate § 666. Id. at 118a-120a. At the time,
`the government did not argue that the inconsistent
`vacated convictions on the standalone § 666 charges
`stripped the acquittals on the conspiracy and travel
`charges of preclusive effect.
`After oral argument but before issuing a decision,
`the First Circuit ordered the petitioners’ release on
`
`

`
`9
`bail. In the meantime, Bravo served 8 months in
`prison and Martínez served 10 months in prison on the
`basis of the unlawful convictions. Id. at 64a-65a n.4.
`4. On October 23, 2013, the First Circuit issued its
`mandate. Two days later, the district court entered a
`line order granting Bravo and Martínez a “judgment
`of acquittal” on all counts. Pet. App. 5a-6a. Later the
`same day, at the government’s request, the court
`vacated its line order, noting that the First Circuit had
`not reversed, but only vacated, the convictions on the
`standalone § 666 charges. Id. at 6a. The district court
`denied petitioners’ motion to reinstate the acquittals
`on the ground that the Double Jeopardy Clause barred
`the court from retracting them under Evans v.
`Michigan, 133 S. Ct. 1069 (2013). Pet. App. 37a, 54a-
`58a.
`Thereafter, petitioners moved to preclude retrial of
`the § 666 charges under the Double Jeopardy Clause’s
`separate collateral estoppel prong. Petitioners argued
`that collateral estoppel barred retrial on those charges,
`because a rational jury could not have acquitted
`petitioners of conspiring and traveling to violate § 666
`without necessarily deciding that they did not violate
`§ 666. The court denied the motions. Pet. App. 41a-
`53a.
`5. The court of appeals affirmed. Petitioners
`argued—and the government did not dispute—that,
`standing alone, the jury’s acquittals on the charges
`of conspiring to violate § 666 and traveling to violate
`§ 666 necessarily depended on a finding that neither
`petitioner violated § 666. Pet. App. 12a-15a & n.5. In
`other words, “a rational jury could [not] have grounded
`its verdict upon an[y] [other] issue.” Ashe v. Swenson,
`397 U.S. 436, 444 (1970). Under an ordinary double
`jeopardy analysis, petitioners urged, the Fifth
`
`

`
`10
`Amendment prohibited the government from re-
`prosecuting petitioners on the standalone § 666
`charges.
`But the court of appeals held that the Double
`Jeopardy Clause did not bar retrial. The court
`reasoned that the § 666 convictions—which were
`vacated because they were obtained unlawfully, in
`violation of the Due Process Clause—divested
`petitioners of their double jeopardy rights. Pet. App.
`15a-33a. The vacated convictions, the court stated,
`were “part of what the jury did decide at trial” and
`factored into the double jeopardy analysis. Id. at 18a-
`20a. The court relied on United States v. Powell, 469
`U.S. 57 (1984), which held that in a single trial, a
`defendant cannot challenge a valid conviction on the
`ground that it was inconsistent with a simultaneously
`rendered acquittal. The court of appeals explained
`that the vacated convictions here were inconsistent
`with the acquittals because a rational jury could not
`have acquitted petitioners of conspiring and traveling
`to violate § 666 without also acquitting them of the
`standalone § 666 charges. The court thus held that
`the vacated convictions “strip the acquittals … of
`collateral estoppel effect.” Pet. App. 15a.
`The First Circuit acknowledged Yeager’s holding
`that an acquittal retains its preclusive effect even if
`the jury acted inconsistently and irrationally in
`acquitting on some counts but hanging on others. Id.
`at 17a-18a. Because “a jury speaks only through its
`verdict” and not through hung counts, Yeager held,
`hung counts are irrelevant in assessing what the jury
`necessarily decided in an Ashe analysis. Id. at 18a
`(quoting Yeager, 557 U.S. at 121-22). But the court
`below deemed vacated convictions “meaningfully
`different”
`from hung counts, because “vacated
`
`

`
`11
`convictions, unlike hung counts, are jury decisions,
`through which the jury has spoken.” Id. at 17a-18a.
`The First Circuit recognized that its holding was
`inconsistent with its 2013 decision holding that
`petitioners’ acquittals barred re-prosecution on the
`conspiracy-to-travel-to-violate-§-666 charges.
` The
`court explained that the government in the first
`appeal had not raised, and so the court “did not
`address” at that time, whether the vacated § 666
`convictions strip the acquittals of preclusive effect.
`Pet. App. 35a.1
`
`SUMMARY OF ARGUMENT
`Acquittals retain their preclusive effect under the
`Double Jeopardy Clause even
`if they appear
`inconsistent with the same jury’s vacated, unlawful
`conviction.
`I. Under a straightforward application of the double
`jeopardy collateral estoppel rule of Ashe v. Swenson,
`397 U.S. 436 (1970), the jury’s acquittals at the
`original trial preclude the government from retrying
`petitioners for violating 18 U.S.C. § 666. Under Ashe,
`the government may not re-litigate an issue that an
`earlier jury’s acquittal necessarily decided in the
`defendant’s favor. Double jeopardy applies unless “a
`rational jury” could have grounded its verdict of
`acquittal on an issue other than the one the defendant
`seeks to preclude. Ashe, 397 U.S. at 444. Here, the
`jury acquitted petitioners of both conspiring to violate
`§ 666 and traveling in interstate commerce to violate
`§ 666. The “single rationally conceivable issue in
`
`
`1 The First Circuit also rejected petitioners’ separate double
`jeopardy argument based on Evans, 133 S. Ct. 1069. This Court
`denied certiorari with respect to that question.
`
`

`
`12
`dispute,” id. at 445, was whether petitioners violated
`§ 666, and the acquittals necessarily determined that
`they did not. The acquittals accordingly preclude the
`government from trying to convince a second jury, at a
`second trial, that petitioners violated § 666.
`The acquittals do not lose their preclusive effect
`because they may be inconsistent with the jury’s
`vacated, unconstitutional convictions on the stand-
`alone § 666 charges. In Yeager v. United States, 557
`U.S. 110 (2009), this Court held that an acquittal
`retains its preclusive effect despite any inconsistency
`with a hung count. The court rejected the notion that
`hung counts are part of the record of the prior trial for
`purposes of the Ashe analysis. Rather, Yeager held,
`the Ashe analysis considers only valid and final
`verdicts through which the jury expresses its judg-
`ment in a manner that is entitled to respect. Hung
`counts are irrelevant because they are not valid jury
`decisions that have ever been accorded respect;
`because they are insignificant nonevents for purposes
`of the continuing jeopardy aspect of double jeopardy;
`and because it is impossible to decipher what a hung
`count represents.
`All this is true of invalid, vacated convictions, and
`Yeager therefore controls this case. Vacated convic-
`tions are the antithesis of valid, final verdicts. They
`are legal nullities that command no respect. They are
`equally insignificant for purposes of continuing
`jeopardy. And it is impossible to decipher what the
`vacated convictions represent, because petitioners
`received a fundamentally flawed trial tainted by faulty
`instructions.
`United States v. Powell, 469 U.S. 57 (1984), confirms
`that a vacated conviction cannot strip an acquittal of
`preclusive effect. Powell held that, in a single trial, a
`
`

`
`13
`defendant cannot overturn a jury’s valid conviction on
`one count as inconsistent with the same jury’s valid
`acquittal on another count. The First Circuit extended
`Powell to hold that, because the jury acted inconsist-
`ently by acquitti

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