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Возражение Соединённых Штатов на ходатайство (Brief for the United States in Opposition), Ham v. United States, Supreme Court [Верховный суд США], № 95-278 (октябрьская сессия 1995 г.)
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Возражение Соединённых Штатов на ходатайство (Brief for the United States in Opposition), Ham v. United States, Supreme Court [Верховный суд США], № 95-278 (октябрьская сессия 1995 г.)
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No. 95-278
In the Supreme Court of the United States
OCTOBER TERM, 1995
KEITH GORDON HAM, PETITIONER
Vv.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
DREW S. DAYS, III
Solicitor General
JOHN C,. KEENEY
Acting Assistant Attorney General
NINA GOODMAN
Attorney
Department of Justice
Washington, D.C. 20530
(202) 514-2217
QUESTION PRESENTED
Whether the Double Jeopardy Clause prevents the
government from seeking an order of forfeiture ina
second trial after reversal of petitioner's convictions
where the jury at petitioner's frost trial did not re-
turn a special verdict concerning the scope of
property subject to forfeiture.
(I)
TABLE OF CONTENTS
Page
Opinions below... .41
Jurisdiction. ...41
Statement... .2
Argument... . 6
Conclusion... . 12
TABLE OF AUTHORITIES
Cases:
Abney v. United States, 431 U. S. 651(1977) ....5
Alexander v. United States, 113 S. Ct. 2766(1993)
Arizona v. Rumsey, 467 U. S. 203(1984) .... 8
Bullington v. Missouri, 451 U.S. 430 (1981)... . 7, 8
Camden v. Circuit Court of Second Judicial Circuit,
892 F.2d 610 (7th Cir. 1989), cert. denied, 495 U.S.
921(1990) ... . 10
Glover v. McMackin, 950 F.2d 1236 (6th Cir. 1991) 11
Johnson v. Zerbst, 304 U. S. 458 (1938)... . 10
Jones v. Hogg, 732 F.2d 53(6th Cir. 1984)... . 411
Malinowsky v. Court of Common Pleas, 7F. 3d 1263
(6th Cir.1993), cert. denied, 114 S. Ct. 1300(1994) 12
Maula v. Freckleton, 972 F.2d 27(2d Cir. 1992),
cert. denied, 113 S. Ct. 1255 (1993)... . 10, 11
North Carolina v. Pearce, 395 U. S. 711(1969) .... 7
Poland v. Arizona, 476 U. S. 147(1986) ... . 7, 9
Schiro v. Farley, 114 S. Ct. 783 (1994)... . 7
United States v. Dinitz, 424 U. S. 600 (1976)... . 9, 10
United States v. DiPietro, 936 F.2d 6 (lst Cir.
1991)... . 10, 11
United States v. Ham, 998 F.2d 1247 (4th Cir.
1993) ....5
United States v. Nichols, 977 F.2d 972 (5th Cir.
1992), cert. denied, 114 S. Ct. 106(1993) ... . 9-10
United States v. Puleo, 817 F.2d 702 (llth Cir.),
cert. denied, 484 U.S. 978 (1987)... . 10
(III)
IV
Cases-Continued:
Pag e
United States v. White, 914 F.2d 747 (6th Cir.
1990) 11
Constitution, statutes and rule:
U.S. Const. Amend. V (Double Jeopardy Clause)
7, 8, 9, 10, 14
Racketeer Influenced and Corrupt Organizations Act,
18 U. Ss. C. 1961 et seq.
18 iS) 1962(a) 2
Oaanand>ononann
cccccrccce
18 S) 1962(c) 2
18 S 1962(d) 2
18 S 1963...
18 Ss. 1963(a)
18 S) 371... 2
18 S) 1341 . 2
18 S 1958 . 2
Fed. R. Crim. P. 31(e) 2, 5, 7, 11
In the Supreme Court of the United States
OCTOBER TERM, 1995
No. 95-278
KEITH GORDON HAM, PETITIONER
Vv.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-13)
is reported at 58 F.3d 78. The opinion of the district
court (Pet. App. 16-24) is unreported. The opinion of
the court of appeals in petitioner's prior appeal is
reported at 998 F.2d 1247.
JURISDICTION
The judgment of the court of appeals was entered on
June 20, 1995. A petition for rehearing was denied on
(1)
July 18, 1995. Pet. App. 14-15. The petition for a writ
of certiorari was filed on August 17, 1995. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATEMENT
1. An indictment returned in the United States
District Court for the Northern District of West
Virginia charged petitioner with conspiring to
conduct and participate in the affairs of an enterprise
through a pattern of racketeering activity, in viola-
tion of 18 U.S.C. 1962(d); conducting the affairs of an
enterprise through a pattern of racketeering activity,
in violation of 18 U.S.C. 1962(c); investing income
derived from a pattern of racketeering activity in the
operation of an enterprise, in violation of 18 U.S.C.
1962(a); conspiring to travel in interstate commerce
to commit murder, in violation of 18 U.S.C. 371; aiding
and abetting travel in interstate commerce to commit
murder, in violation of 18 U.S.C. 1958; two counts of
conspiring to commit mail fraud, in violation of 18
U.S.C, 371; and four counts of mail fraud, in violation
of 18 U.S.C. 1341. Pet. App. 2 n. 1; C.A. App. 17-63.
The indictment also alleged that petitioner's interest
in certain property was subject to forfeiture pursuant
to 18 U.S.C, 1963. Pet. App. 2-3; C.A. App. 64-157.
Rule 31(e) of the Federal Rules of Criminal
Procedure provides that "[i]f the indictment * * *
alleges that an interest or property is subject to
criminal forfeiture, a special verdict shall be returned
as to the extent of the interest or property subject to
forfeiture, if any." Petitioner's counsel requested
that the court not submit the issue of forfeiture to the
jury “unless and until the jury returns a verdict in
the case, which would make forfeiture an issue." C.A.
3
App. 189; see Pet. App. 3. In accord with that request,
the district court ruled that the jury initially need
decide only whether racketeering proceeds were
invested in the property that was alleged to be subject
to forfeiture. Ibid.; C.A. App. 192-193. In response to
the court's ruling, petitioner's counsel drafted an
interrogatory to be answered if the jury found
petitioner guilty on any of the Racketeer Influenced
and Corrupt Organizations Act (RICO) counts. Pet.
App. 3. The interrogatory, which was included in the
verdict form submitted to the jury, asked the jurors:
"Did the defendant acquire an interest in, establish,
and/or operate [specified property] with income re-
ceived from racketeering acts as detailed in [the
RICO counts]?" Id. at 4; C.A. App. 231.
The jury convicted petitioner on the RICO and mail
fraud counts of the indictment but failed to reach a
verdict on the murder counts. The jurors also
checked "yes" in response to the forfeiture interroga-
tory. Pet. App. 3-4; C.A. App. 230-233. After the clerk
read the jury's verdict and polled the jurors, the
district court thanked the members of the jury for
their time and effort, apologized for their inconven-
ience, and wished them happy Easter. 1. Pet. App. 9.
(footnotes)
1 The court stated:
Ladies and gentlemen of the jury, I am not going to
delay you very much longer. But I would be remiss if I
didn't express to you the fact that [it is] people like you
that make the system work.
I have been at it a Long time, and been on the bench
almost 25 years. I have never gone away from a case in
which I didn't think juries had done what they thought
was right, which makes it right. But I have never seen a
jury take the time and make the effort that you have. And
we are very very grateful for that.
4
The court then dismissed the jury without objection
from either counsel. Pet. App. 4, 9-10.
At the sentencing hearing, petitioner's counsel
pointed out that the government had failed to obtain a
special verdict regarding the extent of the property
subject to forfeiture. Pet. App. 4; C.A. App. 236-237.
The district court concluded that a new jury could
make the requisite findings and advised the pro-
secutor to "set it down for a jury." Pet. App. 4; C.A.
App. 245. The court then entered a general order
requiring petitioner to forfeit to the government "all
of his interest" in property identified in the forfeiture
count of the indictment, but did not order forfeiture of
any specific property. Pet. App. 4; C.A. App. 8,246.
Petitioner appealed his convictions and sentence.
The court of appeals vacated his convictions and re-
manded for a new trial, holding that the district court
had erred in admitting evidence of child molestation,
homosexuality, and mistreatment of women because
the danger of unfair prejudice outweighed the proba-
(footnotes)
Miss Mallow will go to the office now, and some of you
may need a slip or something, and she will take care of it.
I have other matters to do. But all of us are ever so
grateful to you for your time, you have done your civic
duty. And if you are called within the next year and you
don't want to serve, I hope you will, but if you don't, you
just tell them you have been excused. Because you have
done yeoman's work.
Thank you, and I apologize for all of the inconvenience.
But if people weren't willing to do it, as you have, then
the whole system would fall apart. Have a happy Easter.
Thank you.
All right, Marshal, take the jury.
C.A. App. 216-217.
5
tive value of the evidence. Pet. App. 5; see United
States v. Ham, 998 F.2d 1247 (4th Cir. 1993).
On remand, petitioner moved to dismiss the for-
feiture count of the indictment. Because the district
court had failed to submit the forfeiture issue to the
jury at the first trial, petitioner contended, the
Double Jeopardy Clause barred the government from
seeking forfeiture in the second prosecution. Pet.
App. 5. The district court denied the motion, con-
cluding that the jury's affirmative answer to the for-
feiture interrogatory was sufficient to comply with
the requirements of Rule 31(e). Pet. App. 5-6, 23-24.
2. Pursuant to Abney v. United States, 431 U.S.
651 (1977), petitioner filed an interlocutory appeal
The court of appeals affirmed. Pet. App. 1-13. Noting
that the jury at petitioner's first trial had not been
asked to determine the scope of the property subject
to forfeiture, the court of appeals found that "trial
never even began on the Rule 31(e) forfeiture is sue.”
Id. at 7-8. The court held that "the double jeopardy
rules that apply in mistrial situations also apply when
a court fails to try a discrete portion of the case
before the original jury." Id. at 8. Thus, the court
stated, "if a defendant has an opportunity to object to
the trial court's dismissal of the jury before it decides
a discrete portion of the case, but fails to do so, the
defendant impliedly consents to the jury's dismissal
and cannot raise a double jeopardy defense to further
prosecution before a second jury." Id. at 9.
The court of appeals determined that petitioner
could have asserted his right to have the original jury
decide the forfeiture issue before the jurors were
6
dismissed. Pet. App. 9-10. 2. By failing to object, the
court of appeals concluded, petitioner impliedly con-
sented to the dismissal of the jury. Id. at 10. The
court of appeals therefore held that the Double
Jeopardy Clause did not bar submission of forfeiture
issues to the jury at petitioner's second trial. Ibid.
ARGUMENT
Petitioner contends (Pet. 12-24) that submission of
forfeiture issues to the jury at his second trial would
violate the Double Jeopardy Clause. That claim is
without merit and does not warrant this Court's re-
view.
1. Criminal forfeiture is properly regarded as a
punishment, not as an element of the RICO offense or
as a free-standing crime. See, e.g., 18 U.S.C. 1963(a)
("The court, in imposing sentence on [any person
convicted of a RICO violation] shall order, in addition
to any other sentence imposed pursuant to this sec-
tion, that the person forfeit to the United States all
property described in this subsection."); Alexander v.
United States, 113 S. Ct. 2766,2775-2776 (1993) ("The
in personam criminal forfeiture [authorized by
RICO] is clearly a monetary punishment no different,
for Eighth Amendment purposes, from a traditional
'fine.' "). 3. When a criminal conviction is reversed on
(footnotes)
2 The court noted that petitioner "probably had strategic
reasons for not reminding the court" that the jury had not
returned a special verdict on the forfeiture question, since it
was "unlikely that [petitioner] wanted the same jury that had
just convicted him of nine of the eleven counts also to decide
the remaining forfeiture issue." Pet. App. 10 n.4.
3 The government's brief in No. 94-7427, Libretti v. United
States (argued October 3, 1995), explains in greater detail why
criminal forfeiture is properly characterized as a punishment
appeal, the Double Jeopardy Clause generally does not
prohibit the imposition at a second trial of penalties
that were not imposed at the first. See, e.g., Schiro v.
Farley, 114 S. Ct. 783, 789 (1994). Rather, the "usual
rule * * * when a defendant obtains reversal of his
conviction on appeal” is that "the original conviction
has been nullified and 'the slate wiped clean’ [and that]
* * * if the defendant is convicted again, he con-
stitutionally may be subjected to whatever punish-
ment is lawful, subject only to the limitation that he
receive credit for time served." Poland v. Arizona,
476 U.S. 147, 152 (1986) (quoting Bullington v.
Missouri, 451 U.S. 430, 442 (1981)). Accord, e.g.,
North Carolina v. Pearce, 395 U.S. 711, 720 (1969) ("a
corollary of the power to retry a defendant [after a
conviction has been set aside] is the power, upon the
defendant's reconviction, to impose whatever sen-
tence may be legally authorized, whether or not it is
greater than the sentence imposed after the first
conviction"). Thus, the jury's failure to render a Rule
31(e) special verdict at petitioner's initial trial would
not prevent the imposition of a criminal forfeiture
penalty if petitioner is again convicted.
This Court has identified two exceptions to the
general rule, but neither is applicable to the present
case. First, the Court has recognized that "[d]ue
process of law * * * requires that vindictiveness
against a defendant for having successfully attacked
his first conviction must play no part in the sentence
he receives after a new trial." Pearce, 395 U.S. at
725. Petitioner does not contend that such vindictive-
(footnotes)
for criminal activity, not as an element of the offense or as a
separate crime. See Br. 19-24. We have provided counsel for
petitioner with a copy of our brief in Libretti.
8
ness influenced either the government's effort to
obtain an order of forfeiture at his second trial or the
district court's willingness to submit that issue to
the jury. No such contention would be plausible.
Indeed, the government sought an order of forfeiture
at petitioner's initial trial, and the district court
indicated that the issue should be presented to a jury,
before petitioner obtained a reversal of his first
conviction. See Pet. App. 4.
This Court has also recognized, in the context of
Capital sentencing, that a judge or jury's decision not
to impose a sentence of death may sometimes reflect
an implicit determination that the government has
"failed to prove its case" regarding the appropriate-
ness of that punishment. See Bullington, 451 U.S. at
438-446 (where defendant was convicted and sentenced
to life imprisonment, and his conviction was reversed
on appeal, Double Jeopardy Clause forbade imposition
of a capital sentence if defendant was reconvicted at a
second trial); Arizona v. Rumsey, 467 U.S. 203, 209-
210 (1984) (same). Even assuming that the same prin-
ciple may sometimes apply to non-capital sentencing,
it would not be applicable here. As petitioner ac-
knowledges (Pet. 7-8), the jury at his first trial was
"never asked to and did not render a verdict" as to the
extent of the property subject to forfeiture. The jury
made no finding that the prosecution had failed to
prove its case with respect to the scope of property
subject to forfeiture; instead, "the trial never even
began on the Rule 31(e) forfeiture issue.” Pet. App.
8. 4. Accordingly, the Double Jeopardy Clause does not
(footnotes)
4 The jury's only finding on the forfeiture question was
its determination that. petitioner had invested racketeering
proceeds in the property alleged to be subject to forfeiture.
bar imposition of criminal forfeiture if petitioner is
retried and reconvicted. See Poland, 476 U.S. at 154-
157 (Double Jeopardy Clause did not bar capital
sentence at second trial where neither the trial nor
the appellate court in petitioner's initial prosecution
had determined that a capital sentence was inappro-
priate).
2. The court of appeals treated the district court's
dismissal of the jury as analogous to a declaration of a
mistrial with respect to the issue of forfeiture. See
Pet. App. 8. For the reasons stated above, we believe
that petitioner's claim is more appropriately analyzed
by reference to the legal principles governing the
imposition, at a second trial, of penalties greater than
those imposed at the first. Even if the court of ap-
peals' analogy were valid, however, there would be no
double jeopardy bar to submission of forfeiture issues
to the jury at petitioner's retrial, since petitioner
impliedly consented to the dismissal of the jury at the
initial trial.
The Double Jeopardy Clause does not bar retrial
after a mistrial "granted at the defendant's request or
with his consent." United States v. Dinitz, 424 U.S.
600, 608 (1976). The courts of appeals have con-
sistently held that a defendant's consent may be
inferred when the defendant has an opportunity to
object to the declaration of a mistrial but fails to do
so 5. See, e.g., United States v. Nichols, 977 F.2d 972,
(footnotes)
Pet. App. 3-4. Thus, the jury found petitioner guilty on the
RICO counts and agreed that he had invested racketeering pro-
ceeds in forfeitable property, without being asked to determine
the extent of the forfeitable property.
5 Contrary to petitioner's suggestion (Pet. 21-23), this
Court made clear in Dinitz that it had "implicitly rejected the
contention that the permissibility of a retrial following a
10
974-975 (5th Cir. 1992), cert. denied, 114 S. Ct. 106
(1993); United States. v. DiPietro, 936 F.2d 6, 9-12 (lst
Cir. 1991); Camden v. Circuit Court of Second
Judicial Circuit, 892 F.2d 610, 614-618 (7th Cir. 1989),
cert. denied, 495 U.S. 921 (1990); United States v.
Puleo, 817 F.2d 702,705 (Llth Cir.), cert. denied, 484
U.S. 978 (1987). Cf. Maula v. Freckleton, 972 F.2d 27,
28-29 (2d Cir. 1992) (reprosecution of defendant on
weapons charges did not violate Double Jeopardy
Clause when defendant had failed to object to trial
court's announcement at first trial that it would not
submit weapons counts to jury), cert. denied, 113 S.
Ct. 1255 (1993).
In this case, the court of appeals correctly con-
cluded that petitioner's consent to the dismissal of
the jury at his first trial could be inferred from his
failure to object. As the court of appeals observed
(Pet. App. 9-10), it was clear from the district court's
remarks after the jury returned its verdict that the
court was preparing to dismiss the jurors. 6. Peti-
tioner's counsel could simply have reminded the court
(footnotes)
mistrial * * * depends on a knowing, voluntary, and intel-
ligent waiver of a constitutional right." 424 U.S. at 609 n.11
(citing cases). The Court explained that it was error to "treat[]
the defendant's interest in going forward before the first jury
as a constitutional right comparable to the right to counsel,"
and that reliance on the waiver standard of Johnson v. Zerbst,
304 U.S. 458 (1938), was misplaced in that context. Dinitz, 424
U.S. at 609 n.11.
6 Thus, petitioner's claim (Pet. 20) that the district court
dismissed the jury with "no forewarning" is without merit. In
any event, petitioner's disagreement with the court of appeals’
determination that he had an adequate opportunity to raise the
Rule 31(e) issue before the jury was dismissed does not raise
any issue of general importance warranting this Court's
review.
11
that the jury had not yet made the determination
required by Rule 31(e). By failing to bring the omis-
sion to the district court's attention, petitioner
consented to the dismissal of the jury without its
having considered the forfeiture issue. See Maula v.
Freckleton, 972 F.2d at 29 (defendant's consent to
trial court's failure to submit weapons counts to jury
could be inferred from his "strategic choice" not to
object).
As petitioner points out (Pet. 17-18), the Sixth
Circuit has stated that "[c]onsent to a mistrial order
should only be implied where the circumstances
positively indicate a defendant's willingness to acqui-
esce in the order." United States v. White, 914 F.2d
747, 753 (6th Cir. 1990) (quoting Jones v. Hogg, 732
F.2d 53, 57 (6th Cir. 1984)). Petitioner cites no case,
however, that holds that the Double Jeopardy Clause
bars the government from retrying a defendant fol-
lowing a mistrial where the defendant had an opportu-
nity to object to the mistrial but failed to do so.
Instead, as the First Circuit has noted, "where courts
have held that the failure to object did not foreclose a
good double jeopardy plea, they have generally done
so because there was no opportunist y to object."
DiPietro, 936 F.2d at 10-11 & nn.25-27 (distinguishing
white); see Glover v. Mcmackin, 950 F.2d 1236, 1240
(6th Cir. 1991) ("Summary nature of the trial court's
actions" in declaring mistrial and immediately dis-
missing jury and adjourning court "rendered an
objection both unlikely and meaningless"); White, 914
F.2d at 754 (jury was discharged before defense
counsel "had any reasonable opportunity to consider
the import of the declaration of the mistrial and act
upon it"). Cf. Jones v. Hogg, 732 F.2d at 57 (record on
appeal failed to show whether defendant objected to
12
declaration of mistrial and whether defense counsel
"was afforded an adequate opportunity to be heard on
the question of mistrial") 7. In this case, the court of
appeals' conclusion that petitioner had consented to a
mistrial was based cm its determination (Pet. App. 10)
that petitioner "could have * * * prevented the
district court from prematurely dismissing the jury.”
Thus, there is no conflict between the decision helow
and the cases on which petitioner relies.
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.
DREW S. DAYS, III
Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney General
NINA GOODMAN
Attorney
OCTOBER 1995
(footnotes)
7 In the other Sixth Circuit decision on which petitioner
relies (Pet. 18), Malinovsky v. Court of Common Pleas, 7 F.3d
1263 (6th Cir. 1993), cert. denied, 114 S. Ct. 1300 (1994),
court noted that the defendant had expressly "objected to the
trial court's dismissal" of the charges. 7 F.3d at 1272.