on Sep 5th, 2009Conrad Black and Special Verdicts
The Conrad Black case, now in the Supreme Court, has received a great deal of recent attention largely because the Court has agreed to revisit the scope of 18 U.S.C. § 1346 (which states that “the term ‘scheme or artifice to defraud’” as used in the mail and wire fraud statutes “includes a scheme or artifice to deprive another of the intangible right of honest services”). Black’s petition, however, also presents a second question that the Court has agreed to review: “Whether a court of appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules.” That question, which has received little or no scrutiny by the media, implicates an important set of issues that all criminal trial lawyers will want to follow closely.
Black, once one of the largest newspaper magnates in the world, was charged in a high-profile indictment with defrauding his former employer, Hollinger International, and obstructing justice. In 2007, a federal jury in Chicago acquitted him on numerous counts but convicted him on certain fraud and obstruction charges. On appeal, Black’s lawyers raised a number of important issues. Among others, the lawyers asserted that Black was entitled to a new trial on two of the fraud charges. Although the government’s theories were somewhat opaque, the government had asserted at trial that Black conspired fraudulently to deprive his employer of (1) money or property and (2) his honest services in connection with certain payments that benefited him. According to Black’s counsel, the “honest services” instruction to the jury was erroneous because it allowed the jury to convict him without concluding that he contemplated economic harm to his employer and that the harm was at his employer’s expense. Furthermore, Black’s counsel argued, the convictions on those counts were subject to reversal under Yates v. United States, 354 U.S. 298 (1957) even if the money/property theory was valid because the honest services instruction was flawed and thus allowed the jury to return a guilty verdict solely on a legally invalid ground.
The case was argued on June 5, 2008 before a panel that included Judge Richard A. Posner. Judge Posner authored an opinion that was issued on June 25, 2008 — fewer than three weeks after the argument. The opinion affirmed the conviction and sentence in all respects. Judge Posner did not pause in rejecting the honest services argument. Nor did he pause in stating that Black had forfeited his right to the Yates argument, even if Black’s honest services argument was correct, because Black had objected, before jury deliberations, to a special verdict form proposed by the government that would have had the jury specify the theory of conviction (honest services or money/property) underlying its verdict on those counts.
Black filed his petition for certiorari on January 9, 2009. The first question presented concerns the scope of the honest services statute. The second question presented, as framed by the petition, is “[w]hether a court of appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules.” On May 18, 2009, the Supreme Court granted the petition on both questions presented.
The second question presented, which concerns the special verdict issue, has broad importance for criminal trial lawyers. Federal prosecutors use conspiracy charges as powerful tools in pursuit of convictions. As a “darling of the modern prosecutor’s nursery[,]” Harrison v. United States, 7 F.2d 259, 263 (2d Cir.1925) (L. Hand, J.), a conspiracy charge provides enormous leverage to the government in a criminal case. From the standards governing admission of co-conspirator hearsay evidence (Bourjaily v. United States, 483 U.S. 171 (1987)) to the fact that a conspiracy count may charge multiple objects (Braverman v. United States, 317 U.S. 49 (1942)), the federal law governing the use of conspiracy charges is very favorable to the government. Yates stands as a (relatively modest) check on that power in the sense that a forward-thinking prosecutor will reflect before including a weak theory in a multiple-object conspiracy count. A weak theory may increase the likelihood of a conviction but will also increase the risk of reversal down the road.
The federal rules of criminal procedure do not specify the form that a verdict must take. A general verdict form does not require a jury to specify the ground for its conviction. A special verdict form or special interrogatories, in contrast, may require a jury to identify (to some extent) the rationale for its decision. In a criminal case, a special verdict forms or special interrogatories may run a serious risk of interfering with the jury’s deliberations in violation of a defendant’s Sixth Amendment right to have the jury make the ultimate determination of guilt because the questions may have the effect of guiding the jury to its conclusion.
In the ordinary multiple-object conspiracy case, a prosecutor takes his or her chances. The theories are chosen and stated in the indictment, the evidence is presented, and the jury returns a general verdict subject to the rule in Yates. In the Black case, however, the prosecutors proposed a special verdict form (of sorts) by which the jury would specify for the conspiracy count whether its conviction was based on the honest services fraud theory or the money/property deprivation theory. As one might predict, the defense lawyers objected on the ground that such a form would unfairly skew deliberations. By holding that Black had forfeited his right to complain about the honest services instruction under Yates because he could have accepted the special verdict form, the panel created an election rule. The judges apparently believed that Black unfairly was trying to have it both ways by avoiding the special verdict form at trial and then taking refuge in Yates on appeal.
The basic legal problem with Judge Posner’s approach, as stated by the second question presented in Black’s petition, is that it is not rooted in any federal rule. More broadly, it risks undue pressure on the jury’s deliberations and thus threatens the criminal defendant’s Sixth Amendment rights. The election rule created by Judge Posner may have some superficial appeal as an equitable principle in litigation. But the rule actually gives rise to more inequity. The Seventh Circuit’s opinion fails to appreciate that the election rule creates a disincentive for federal prosecutors to choose the theories in a multiple-object conspiracy count carefully. From that perspective, it could be called a non-election rule — one that increases the already-profound prosecutorial leverage in the conspiracy context against the interests of criminal defendants. Although the focus on the Black case will continue to be on the honest services issue, the special verdict issue deserves close attention as well.
