UNITED STATES of America, Appellee, v. Juan BRAVO-FERNANDEZ and Hector Martinez-Maldonado, Defendants, Appellants.
Nos. 14-1089, 14-1091.
United States Court of Appeals, First Circuit.
June 15, 2015.
790 F.3d 41
III.
Contrary to the plaintiffs’ contentions, both DiFiore and Brown—which together hold that the Airline Deregulation Act preempts the claims before us—remain good law. We thus affirm the District Court‘s decision to dismiss the plaintiffs’ claims.
Abbe David Lowell, with whom Christopher D. Man and Chadbourne & Park LLP were on brief, for appellant Hector Martinez-Maldonado.
Vijay Shanker, United States Department of Justice, Criminal Division, Appel-
Before HOWARD, LIPEZ, and BARRON, Circuit Judges.
BARRON, Circuit Judge.
This appeal raises important and, in our Circuit, novel issues about when an acquittal in an earlier trial may be deemed to bar, under the Double Jeopardy Clause, a new prosecution on a related offense. The legal issues arise in connection with the federal bribery prosecutions of a former member of the Puerto Rico Senate and of the former president of a Puerto Rico private security firm.
We last considered these prosecutions two years ago following a trial at which the defendants had been convicted of federal program bribery under
In this appeal, the defendants contend that the new trial may not begin because the renewed prosecutions violate the Double Jeopardy Clause, which provides that “[n]o person [may] be subject for the same offense to be twice put in jeopardy of life or limb.”
The defendants first argue that the Double Jeopardy Clause bars the renewed prosecutions because the jury acquitted on closely related offenses in the earlier trial and, in doing so, necessarily found that the government failed to prove issues that the government would have to relitigate in the new prosecutions. Separately, the defendants contend that the Double Jeopardy Clause bars the renewed prosecutions because a line order that the District Court issued and then corrected days after we issued our mandate in the last appeal constituted a final and irrevocable order of acquittal on the renewed
The District Court rejected both double jeopardy arguments, and so do we. We thus affirm the District Court.
I.
For purposes of the issues before us in this appeal, it is the procedural history of the case that matters most. And so we provide the relevant details of that history here.
The
A grand jury indicted the defendants in June of 2010, finding probable cause for the government‘s allegations concerning the connection between Bravo‘s payment for the trip and Martinez‘s support for legislation beneficial to Bravo‘s company. The indictment contained a number of distinct counts. These counts included violations of the federal program bribery statute,
After a three week trial in 2011, the jury returned split verdicts as to each defendant. The jury convicted each defendant of federal program bribery under
In Fernandez, we considered the defendants’ appeal and reversed or vacated all of the convictions. Fernandez, 722 F.3d at 39. We reversed those of Bravo‘s convictions that were based on Puerto Rico bribery law as predicate offenses. We did so because we held that those bribery laws had been repealed before Bravo had committed the relevant acts underlying the convictions. Id. at 28–34.
We also vacated Bravo‘s and Martinez‘s convictions on the standalone
After holding that the jury instructions were improper in this respect, we further concluded that the evidence supported not only the correct exchange theory but also the improper gratuity theory. Id. at 26–27. We thus held that the error in the jury instructions was not harmless. Id. On that basis, we vacated the convictions on the standalone
Our mandate in Fernandez issued on October 23, 2013. The District Court assumed jurisdiction once again. Two days later, on October 25, unprompted by any party, the District Court entered a line order. That line order stated:
ORDER re 639 U.S.C.A. Judgment and 640 U.S.C.A. Judgment as to Juan Bravo-Fernandez and Hector Martinez-
Within hours, the government filed an emergency motion “to clarify” the District Court‘s line order. The government contended in that motion that the last clause of the line order was mistaken. The government explained—correctly, all parties to this appeal agree—that this Court‘s opinion in Fernandez, in vacating the standalone
Less than three hours after entry of the initial line order, and following the receipt of the government‘s motion, the District Court vacated that order. The District Court‘s new order specified that “[t]he defendants’ section 666 convictions are VACATED.”
The defendants then moved to “reinstate” the by-then vacated line order. The defendants argued that the line order constituted a judgment of acquittal that, given the Double Jeopardy Clause, could not be taken back. But the District Court disagreed and denied the motion.
Shortly thereafter, the defendants filed a new motion for acquittal on the standalone
The defendants now appeal the District Court‘s denial of the two acquittal motions. We have appellate jurisdiction under our authority to review “pretrial orders rejecting claims” under the Double Jeopardy Clause. Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). We review the “constitutional questions” raised de novo. United States v. Lanoue, 137 F.3d 656, 661 (1st Cir.1998) (citing United States v. Aguilar-Aranceta, 957 F.2d 18, 21 (1st Cir.1992), abrogated on other grounds, Yeager v. United States, 557 U.S. 110, 119, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009)).
II.
We start by addressing the defendants’ arguments about the preclusive effect of the
This aspect of the Double Jeopardy Clause ensures that “when an issue of
To that end, Ashe instructs that we must “examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id. (quoting Daniel K. Mayers & Fletcher L. Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L.Rev. 1, 38–39 (1960)). And, if a review of all that material shows that a “rational jury,” as a practical matter, decided adversely to the government an issue to be relitigated in the new prosecution, then the defendant gets the benefit of collateral estoppel. See id. In other words, under the rule, the government may not “relitigat[e] any issue that was necessarily decided by a jury‘s acquittal in a prior trial,” even in a trial for a different offense. Yeager 557 U.S. at 119, 129 S.Ct. 2360 (discussing Ashe, 397 U.S. at 445–46).
Ashe supplies a good example of what it means to “set in a practical frame” the inquiry into what the jury necessarily decided. Id. at 444 (quoting Sealfon, 332 U.S. at 579). There, the jury had acquitted a defendant of the robbery of one victim in the basement of a home in a case that involved the robbery of multiple victims in that home at that same time. Id. at 437–38. The new prosecution of that defendant focused on a different one of the victims. Id. at 439–40. In that respect, the new prosecution involved a distinct offense. But the Court still concluded that the prior acquittal barred the government from going forward with the new prosecution. Id. at 446.
To reach that conclusion, Ashe undertook a careful review of the record in the first trial. See id. at 438–39. The review considered the evidence introduced, the arguments of counsel, and the jury instructions. See id. The Court concluded from that review that, in acquitting, the jury had necessarily decided that the defendant was not present at the home where the victims had been robbed. Id. at 445. The Court then concluded that the jury‘s resolution of that issue adversely to the government was as determinative of the government‘s ability to prove its case in the second prosecution
4. Bravo contends that Ashe‘s instruction for us to “examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter,” 397 U.S. at 444, applies only to acquittals based on a general verdict. And Bravo points out that the defendants’ trial involved a special verdict form. But while we agree with Bravo that the “special verdicts themselves must be considered” in undertaking the Ashe inquiry, in this case, as we will explain, the special verdict form alone does not provide enough information to resolve the defendants’ arguments. We therefore, for reasons provided below, must consider the materials that Ashe identifies along with the special verdict form to determine whether the acquittals the jury recorded in the special verdict form necessarily decided an issue adversely to the government that the government would have to relitigate in the renewed prosecutions on the standalone
There is, however, an important limitation on the application of the rule of collateral estoppel that, Ashe held, the Double Jeopardy Clause incorporates. And this limitation is of potential relevance to the collateral estoppel effect that we should accord to the acquittals on which the defendants rely here, in light of the convictions on the standalone
This limitation is set forth in the Supreme Court‘s decision in United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). There, the Supreme Court explained that where “the same jury reached inconsistent results[,] principles of collateral estoppel—which are predicated on the assumption that the jury acted rationally and found certain facts in reaching its verdict—are no longer useful.” Id. at 68. Relying on its prior holding to the same effect in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), Powell gave the following reason for this rule: “[W]here truly inconsistent verdicts have been reached, ‘[t]he most that can be said ... is that the verdict shows that either in the acquittal or the conviction 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 (quoting Dunn, 284 U.S. at 393).
Powell acknowledged that it is, of course, possible that an acquittal that is inconsistent with a conviction still reflects a jury‘s finding of reasonable doubt as to guilt. Id. But Powell explained that “[i]t is equally possible that the jury, convinced of guilt, properly reached its conclusion on the [convicted] offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [acquitted] offense.” Id. at 65.
Powell for that reason rejected the argument that, under Ashe, an acquittal could, via collateral estoppel, invalidate a truly inconsistent conviction that was rendered by the same jury in the same proceeding. Id. at 64. In such a case, Powell concluded, there is no way to know without speculating which of the inconsistent verdicts—the acquittal or the conviction—“the jury ‘really meant.‘” Id. at 68. The government, of course, cannot challenge the acquittals on that basis—the acquittals must stand. See id. But the inconsistency makes the jury‘s findings indecipherable. See id. at 65–68. And so “principles of collateral estoppel“—which require a determination of what the jury necessarily decided—are impossible to apply. Id. at 68.
Thus, in light of Powell, the defendants do not deny that a true inconsistency in what the jury has done in acquitting on one offense while convicting on another can make unanswerable Ashe‘s question about what the jury necessarily decided in rendering the acquittal. And so long as that question cannot be answered, the acquittal cannot be given collateral estoppel effect such that it would bar a prosecution for a related offense.
Against this legal background, the defendants admit they need to show two things in order for their collateral estoppel argument to succeed and bar the renewed prosecutions on the standalone
III.
We begin by setting to one side the convictions on the standalone
We start with the defendants’ contention that the acquittals show that the jury found a failure of proof as to
In the abstract, as the government points out, an acquittal for conspiracy does not necessarily show that the jury found that the government failed to prove that the defendant committed the predicate offense. See, e.g., United States v. Marino, 277 F.3d 11, 39 (1st Cir.2002). Conspiracy requires proof of elements independent of the predicate offense, including the element that there be an agreement between “two or more persons.” See
Similarly, the Travel Act requires proof of elements, including interstate travel, that are independent of the predicate offense. See
But the defendants argue—and the government does not contend otherwise—that the independent elements of the conspiracy and Travel Act offenses are not material to the collateral estoppel analysis here. In support of that argument, the defendants point to the nature of the charged conduct for the predicate
We next consider the defendants’ contention that the acquittals show that the jury rejected the exchange theory of
But even if we were to accept each step in the defendants’ argument to this point, the defendants still would need to show one more thing.5 The defendants would
still need to show that the conspiracy and Travel Act acquittals do not lose the collateral estoppel effect that they otherwise might have in consequence of the convictions that the jury also rendered on the standalone
IV.
The defendants offer two reasons for concluding that the vacated convictions on the standalone
A.
The defendants’ first reason is that the convictions on the standalone
We do not agree, however, that we may not consider the vacated convictions as part of our collateral estoppel inquiry, under Ashe, into what the jury necessarily
There, the Court instructed that, for purposes of determining the collateral estoppel effect of acquittals, we must undertake a “practical” analysis based on the “record” of the prior proceeding, and with “‘an eye to all the circumstances of the proceedings.‘” Ashe, 397 U.S. at 444 (quoting Sealfon, 332 U.S. at 579). Like the acquittals on which the defendants rely, the convictions in this case are part of what the jury decided at trial. For that reason, Ashe‘s expansive instruction to consider what happened in the prior proceeding points strongly in favor of taking account of not only the acquittals but also the convictions, even though they have been vacated.
The fact that a vacated conviction has been “nullified,” Bullington v. Missouri, 451 U.S. 430, 442, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), moreover, does not require a different conclusion. “When a court vacates a conviction, it sets aside or nullifies the conviction and its attendant legal disabilities; the court does not necessarily attempt to erase the fact of the conviction.” United States v. Crowell, 374 F.3d 790, 792 (9th Cir.2004). And it is the “fact of the conviction,” and not its “attendant legal disabilities,” id., that is relevant to the Ashe analysis of what the jury‘s verdicts show that the jury necessarily decided.
In addition, the convictions at issue here were vacated only for trial error. See Fernandez, 722 F.3d at 26–27. But a “reversal for trial error ... does not constitute a decision to the effect that the government has failed to prove its case.” Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Thus, for purposes of deciding whether the jury necessarily decided that the government failed to prove that the defendants violated
We also do not agree with the defendants that, in conducting the Ashe analysis, we should disregard vacated convictions because they are not meaningfully different from hung counts, which are counts on which the jury reached no verdict at all. The defendants rely for their contention on the Supreme Court‘s decision in Yeager v. United States, 557 U.S. 110, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009).
In Yeager, the Court held that hung counts are, for purposes of performing Ashe‘s collateral estoppel inquiry into what a jury necessarily decided, “not a ‘relevant’ part of the ‘record of [the] prior proceeding.‘” Id. at 121 (quoting Ashe, 397 U.S. at 444). In reaching that conclusion, Yeager explained that Powell relied on the need to respect the finality of an otherwise valid verdict in refusing to overturn a conviction that seemingly conflicted with an acquittal. Yeager, 557 U.S. at 124. Yeager reasoned in this regard that the same concern about respecting final verdicts applied equally to respecting the finality of an acquittal. See id. Yeager thus declined to allow a hung count—which was not a final verdict—to create a conflict with an acquittal—which was. Id.
But we do not believe Yeager supports treating vacated convictions like hung counts under Ashe. For while a vacated conviction, like a hung count, is not a final jury verdict, Yeager did not rely solely on a respect-for-finality rationale to explain why hung counts should not be considered for Ashe purposes. Nor did Yeager hold that a verdict that lacked finality could never bear on an acquittal‘s collateral estoppel effect. Instead, in refusing to con-
This line of reasoning in Yeager suggests that, under Ashe, vacated counts should be treated differently from hung counts. After all, vacated convictions, unlike hung counts, are jury decisions, through which the jury has spoken. In other words, vacated convictions are still part of what the jury did decide at trial. For that reason, vacated convictions on some counts do potentially bear on the question whether the jury, in acquitting on other counts, necessarily decided an issue in a manner contrary to what the government would have to prove in renewed prosecutions. See Yeager, 557 U.S. at 115. And that is because Powell‘s “prudent acknowledgment” that inconsistent verdicts make it impossible to determine what a jury necessarily decided, 469 U.S. at 65, 68, is not undermined by the mere fact that a potentially conflicting conviction has been vacated.6 Rather, a vacated conviction may still suggest that an acquittal with which that conviction conflicts was the result of “mistake, compromise, or lenity.” Id. at 65. And so unless the inconsistency can be resolved, “principles of collateral estoppel ... are no longer useful.” Id. at 68.
We thus conclude that vacated convictions, unlike hung counts, are relevant to the Ashe inquiry into what a jury necessarily decided when acquitting on counts related to the vacated convictions.7 In doing so, we join the only other circuits to have decided the issue, see United States v. Citron, 853 F.2d 1055, 1059 (2d Cir.1988); United States v. Price, 750 F.2d 363, 366 (5th Cir.1985), as well as the highest courts of New Jersey and the District of Columbia, see State v. Kelly, 201 N.J. 471, 992 A.2d 776, 789 (N.J.2010); Evans v. United States, 987 A.2d 1138, 1141–42 (D.C.2010). And although a divided Michigan Supreme Court recently came to the opposite judgment, we find the dissenting opinion in that case more persuasive on this point. See People v. Wilson, 496 Mich. 91, 852 N.W.2d 134 (2014); see also id. at 142 (Markman, J., dissenting).8
B.
The defendants do have a fallback position. They argue that, even if the convictions must be considered as part of the Ashe inquiry, the convictions do not deprive the acquittals of collateral estoppel effect. That is because, the defendants contend, the trial record shows that the convictions on the standalone
To show how the convictions and acquittals may be reconciled in this way, Martinez explains that “[a] ‘rational’ jury could conclude a defendant had not committed bribery [under an exchange theory] ... while at the same time convicting the same defendant under a gratuity theory under Section 666.” And so, Martinez argues, “concluding that the jury found a gratuity and not bribery [in convicting on the standalone
In making this argument, the defendants rely solely on a claim about how the jury was instructed.9 In particular, the
The Supreme Court in Powell—in holding that an acquittal lacks collateral estoppel effect when truly inconsistent with an accompanying conviction—did not directly confront an argument like this one. The defendant in Powell was arguing that the verdicts were inconsistent in order to compel the reversal of a conviction in consequence of a supposedly contradictory acquittal. 469 U.S. at 60. And the government, in defending the conviction against such challenge, did “not dispute the inconsistency.” Id. at 69. The Supreme Court thus did not need to address in Powell how courts should determine whether verdicts are inconsistent when a defendant seeking to benefit from the collateral estoppel effect of an acquittal denies that the acquittal really is in conflict with a conviction that the jury also rendered. See id. Nor has the Supreme Court had occasion to address that issue in any subsequent case.
Because Ashe governs the defendants’ underlying collateral estoppel argument, however, we believe that Ashe‘s instruction to consider the record in the prior proceeding in determining what the jury necessarily decided is fully applicable to this aspect of the collateral estoppel inquiry. Moreover, we agree with the defendants that jury instructions are relevant to the review of the record that Ashe requires. See 397 U.S. at 444 (explaining that the inquiry should consider the “charge” to the jury); United States v. Brown, 983 F.2d 201, 202 (11th Cir.1993) (listing “jury instructions” as among the “relevant matters” to be considered in the Ashe inquiry); see also United States v. Olano, 507 U.S. 725, 740, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (describing “the almost invariable assumption of the law that jurors follow their instructions” (quoting Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987))). Relevant as well to the Ashe inquiry are the parties’ “closing arguments.” Brown, 983 F.2d at 202.
And so, to evaluate the defendants’ fallback argument, we review the trial record—and, in particular, the jury instructions and the arguments that the parties made to the jury about the meaning of
As we will explain, however, the record in this case shows that the jury was offered the same theories of
1.
Consider the first pair of instructions that the jury received regarding
Significantly, nothing in these instructions tied or restricted that definition of “bribery“—improper though it was—to the standalone
The written version of these instructions, moreover, was given to the jury under the heading “Bribery Concerning Programs Receiving Federal Funds,
An examination of the jury instructions with respect to the Travel Act counts reinforces the point. The District Court instructed the jury that the government had to prove “[f]irst, that the Defendants travelled [sic] in interstate commerce; [and] [s]econd, that they did so with the intent to promote, manage, establish, carry on, or facilitate ... an ‘unlawful activity,’ here, a violation of Federal or Puerto Rico law regarding criminal bribery.” The District Court then explained that “[t]he elements of bribery in violation of the bribery laws of the United States—specifically, Title 18, United States Code, Section 666(a)(1)(B) and 666(a)(2)—are discussed elsewhere in these instructions.” In other words, the instructions on the Travel Act counts explicitly incorporated by reference the later, erroneous instructions on what was needed to convict the defendants of “bribery” under
For you to find Defendants Bravo and Martinez guilty of conspiracy, you must be convinced that the Government has proven each of the following beyond a reasonable doubt: First, that the agreement specified in the Indictment, and not some other agreement or agreements, existed between at least two people to: Commit bribery concerning federal funds, pursuant to
Title 18, United States Code, Section 666 , or; Travel in interstate commerce in aid of racketeering, pursuant toTitle 18, United States Code, Section 1952 ....
The District Court then provided instructions on the requirements for finding an agreement, but said nothing at all at that time about what “bribery concerning federal funds, pursuant to
Nor did the parties’ closing arguments suggest that different theories of
In fact, when the government turned in its closing argument to the Travel Act counts, the government said only as to the meaning of bribery that the defendants must have traveled “with the intent to commit a crime. And here, the crime‘s bribery.” Further, when the government turned to the conspiracy counts, the government argued expressly that “the agreement has to be to commit one of the two crimes we‘ve already talked about: Federal program bribery or interstate travel in aid of racketeering” (emphasis added). The government‘s closing argument, therefore, did not suggest that the definition of bribery discussed with respect to the standalone
Finally, Martinez‘s counsel in his closing argument underscored the equivalence between “bribery” as used in the standalone
We therefore conclude that the District Court instructed the jury to consider the gratuity theory of
2.
The defendants do seize on one bit of language from Fernandez in support of their contention that the jury received different instructions as to some of the counts involving
The defendants argue that this quoted language—by referring to the ”
But the defendants overread the quoted language. Fernandez did not decide whether “the
Indeed, we had no occasion in Fernandez to consider whether the erroneous instructions on the meaning of
Moreover, it is not surprising that the erroneous instructions offering up the gratuity theory applied to all the counts involving
For that reason, it makes perfect sense that the District Court‘s instructions on what
3.
This fact about the counts to which the jury instructions—and the arguments of counsel—applied is incompatible with the defendants’ account of what the jury did. If, as the defendants contend, the jury based the now-vacated, standalone
11. In referring to the
same gratuity theory and found the defendants guilty when the jury issued its verdicts on at least the Travel Act charges for which
If, on the other hand, the jury interpreted the instructions’ conflicting definitions of “bribery” to allow for only an exchange theory of
For that reason, the argument that we must read the verdicts consistently if pos-
convictions on the ground that a gratuity-theory
Of course, it is possible that the jury did actually find the defendants guilty on the standalone
So, too, here. Nothing about the instructions or the record in the prior proceeding suggests that the jury did what the defendants necessarily contend that the jury did—depart from the District Court‘s instructions and rely on different theories of
C.
The defendants do make one final argument on behalf of their attempted reconciliation of the acquittals and the convictions that involve
But our analysis in Fernandez does not compel a finding of collateral estoppel here. In fact, if anything, our analysis of the collateral estoppel issue in Fernandez shows why, in light of this record, a finding of collateral estoppel here would be unwarranted given Powell‘s rule against speculating about what a jury did in the case of truly inconsistent verdicts.
The collateral estoppel issue arose in Fernandez in the following way. The jury had convicted Bravo of conspiring to violate the Travel Act in furtherance of unspecified “racketeering” activity. 722 F.3d at 34. We had vacated that conviction. Id. We did so because of the possibility that the “racketeering” activity the jury found had concerned violations of the Puerto Rico bribery law—a law that had been repealed before the relevant actions the defendants had undertaken—rather than violations of
Bravo then sought to foreclose his future prosecution for conspiracy to violate the Travel Act in furtherance of
To resolve Bravo‘s collateral estoppel argument, we decided we needed to determine what “racketeering” activity the jury had decided Bravo engaged in when the jury convicted him of conspiracy to violate the Travel Act. Id. at 34. And the two possibilities we identified were a
Our inquiry into which of those offenses was the “racketeering” activity on which the vacated conspiracy conviction rested turned out to be an easy one. The jury had acquitted Bravo on the charge that he had conspired to violate
Taking a “practical, realistic view” of the verdicts, we concluded from these other verdicts that Bravo‘s (facially ambiguous) conspiracy to violate the Travel Act conviction had been based on Puerto Rico bribery law violations, and not
Fernandez does show that the defendants’ approach of using acquittals on separate counts to clarify the basis for an ambiguous conviction has potential force. But the parties in Fernandez did not raise, and so Fernandez did not address, the question that is the crucial one in this appeal: whether the conspiracy and Travel Act acquittals based on
The government made no such argument in Fernandez. Rather, the government‘s sole Powell-based argument in Fernandez was the contention that Powell showed that Bravo‘s conviction for conspiracy to violate the Travel Act was still valid even if that conviction was inconsistent with other verdicts. And so, in concluding that the
In this case, by contrast, the government squarely raises the argument that, under Powell, the convictions on the standalone
In consequence of this conflict in the verdicts, we may not speculate that the facially inconsistent verdicts nonetheless necessarily reflect a rejection of
V.
That brings us to the defendants’ final, separate double jeopardy argument. This argument relies on the District Court‘s October 25, 2013, line order. The District Court entered that line order two days after this Court‘s mandate in Fernandez issued. The line order directed entry of a judgment of acquittal on the standalone
12. The government does not argue in this case that the October 25 order lacked double jeopardy effect because that order was entered before a new jury had been sworn following this Court‘s remand. Cf. United States v. Tobin, 552 F.3d 29, 31 (1st Cir.2009) (“[J]eopardy (here, after a vacatur of a conviction and a remand) does not attach until a jury has been sworn.“). We therefore do not address that issue.
irreversible acquittal of the defendants of those counts under the Double Jeopardy Clause.
The defendants base this challenge on the well-established rule that “the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is ‘based upon an egregiously erroneous foundation.‘” Evans v. Michigan, 133 S.Ct. 1069, 1074, 185 L.Ed.2d 124 (2013) (quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962)). And that rule, the Supreme Court has held, prohibits even the court that entered a judgment of acquittal from reconsidering that judgment under at least some circumstances. See Smith v. Massachusetts, 543 U.S. 462, 469–75, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005).
Whether an order counts as an “acquittal,” however, is a question of substance and not of name.12 See Evans, 133 S.Ct. at 1078. The determinative question is thus “whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977).
Here, the District Court‘s October 25 line order is not an acquittal under the substantive test that Evans and Martin Linen require that we apply. In Martin Linen, the Supreme Court found an acquittal where the district court ruled for the defendant on a motion for judgment of acquittal that the defendant made under
No such evaluation by the District Court is “plain,” or even hinted at, by the record in this case. The line order itself states that it was entered “in accordance with” this Court‘s mandate. That statement suggests that the line order was merely intended as a ministerial act to carry out this Court‘s instructions—whatever they may have been—and not an application of law to fact regarding the defendants’ “lack of criminal culpability.” Evans, 133 S.Ct. at 1077 (quoting United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978)). For that reason, the line order does not amount to a substantive acquittal by the District Court under Evans and Martin Linen.
The District Court confirmed as much in its opinion denying the defendants’ motion to reinstate that order. The District Court characterized the line order‘s reference to acquittals—in carrying out this Court‘s mandate—as “an error of transcription, not an error of law.” The District Court further explained that “[t]he very use of a line order, which contained no analysis and indicated the Court‘s mere intent to follow the First Circuit Court of Appeals’ directives, exemplifies that the [District] Court did not intend to sua sponte acquit defendants of the section 666 charges.” And the circumstances of the order—which came immediately after this Court‘s mandate, and unprompted by any party and thus not in response to an acquittal motion—are consistent with the District Court‘s characterization of its line order.13 We thus conclude that the District Court‘s line order did not constitute an acquittal under the Double Jeopardy Clause, and thus the Double Jeopardy Clause did not prevent the District Court from reconsidering it.14
VI.
For the foregoing reasons, the District Court‘s denials of the defendants’ motions to “reinstate” the October 23 line order and to enter a judgment of acquittal on the standalone