Petition by the United States for a writ of mandamus directing the United States District Court for the Southern District of New York Whitman Knapp, Judge) not to use special verdicts in an ongoing racketeering trial.
Timbers, Winter and Altimari, Circuit Judges. Altimari, Circuit Judge, dissenting.
This petition for a writ of mandamus involves an ongoing criminal RICO trial before Judge Knapp and arises because of the government's insistence that the jury, before determining guilt as to individual predicate acts, be informed that two such acts are necessary to sustain a RICO conviction. We denied the petition shortly after oral argument on February 5, 1988; this opinion sets out our reasons.
The fifteen-count indictment, Indictment S 87 Cr. 249 (WK), was filed on September 17, 1987 and charged ten defendants with having committed various crimes in connection with their alleged membership in "the Westies," a group hailing from the Hell's Kitchen neighborhood on the West Side of Manhattan. The first two counts of the indictment charged all ten defendants with participating in and with conspiring to participate in a racketeering enterprise, namely the Westies, in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1962(c) and (d) (1982). The RICO counts detailed thirty-two predicate acts of racketeering activity, including eight murders, three attempted murders, five conspiracies to commit murder, four kidnappings, and various acts of loansharking, extortion, narcotics trafficking, illegal gambling, mail fraud and counterfeiting. Trial of eight of the defendants (the other two being fugitives) began on October 5, 1987, and continues to this day. The government completed its case on January 14, 1988, the defense case began on January 19, and summations were scheduled for the week of February 8. The district court is expected to charge the jury at the end of the week.
On January 22 and 26 Judge Knapp distributed drafts of his proposed charge. The proposed instructions on Counts One and Two define a RICO enterprise, membership in the enterprise, and the jurisdictional requirement that the enterprise have an effect on interstate commerce. The proposed charge also would instruct the jury about the twenty-eight predicate acts that have not been either dismissed or otherwise redacted,*fn1 about the parties' contentions regarding those acts, and about the requirement that an act be "related to the enterprise." Proposed Charge (Second Draft) at 7; see Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 51 (2d Cir. 1987), cert. denied, 484 U.S. 1005, 108 S. Ct. 698, 98 L. Ed. 2d 650 (1988); United States v. Ianniello, 808 F.2d 184, 189-93 (2d Cir. 1986), cert. denied, 483 U.S. 1006, 107 S. Ct. 3229, 97 L. Ed. 2d 736 (1987). Notable by its omission, however, is any proposed instruction requiring the jury to make any finding as to whether the defendants participated in the affairs of a racketeering enterprise through a pattern of racketeering activity.
The district court's proposed charge thus does not ask the jury to render a general verdict on Counts One and Two. Instead, the jury is simply required to find, through special verdicts, whether the government has proven the existence of the enterprise, and, with respect to each defendant, whether the government has proven membership in the enterprise and guilt as to individual predicate acts beyond a reasonable doubt. Upon receipt of these special verdicts, Judge Knapp proposes to extrapolate each defendant's guilt on the RICO counts mechanically from the jury's findings. For example, if the jury finds both the existence of an enterprise and the defendants' membership therein, Judge Knapp would determine guilt or innocence on Counts One and Two merely by counting the number of predicate acts found by the jury to have been committed by each defendant. The requisite number for conviction, of course, is two. See United States v. Benevento, 836 F.2d 60, slip op. at 620 (2d Cir. 1987); Ianniello, 808 F.2d at 189-93; 18 U.S.C. § 1961(5) (1982).
Judge Knapp explained his proposed charge as follows:
In the first place, unless, as I said earlier, the defendants agree to this method, it's all over; if the government doesn't agree to it, they can try to persuade me to change it, but if the defendants don't agree that's the end of the matter, because I have adopted this method because I think it is beneficial to defendants, and it would be clearly improper if they object.
I believe a pattern of racketeering is established on two racketeering acts and they have to be related in some way. The jury is not asked to find out whether there is a pattern of racketeering. Usually in these charges they say you have got to find a pattern of racketeering, give a lot of vague language and if the jury wants to find a verdict, it does, and the appellate courts say, a pattern of racketeering, that's what the judge said and that's what you are entitled to, and if you object and if the government persuades me that I should do it anyway, that's what I will do; if you don't object, I will do it automatically.
What I am trying to work out is a Charge which merely asks the jury to find specific things, and those findings should be able to mathematically tell us whether the RICO statute has been violated or not.
For example, I don't tell them they have to find two RICO counts as to each defendant. I just tell them what they have to do as to each RICO count, find whether it was established or not. We can easily look at the things and find out what if they found 2.
What is my theory in that? My theory is if they have to look at each count and decide whether or not that count, racketeering act, has been established, they will look at that act. If they are told they've got to have 2 to find a defendant guilty, they may go back and say, gee, if we need 2, we better be careful not to acquit, and I don't see why the government should have that benefit.
The defendants consented to the district court's instructions and its use of special verdicts. The government, however, objected vigorously, arguing that the district court was obligated to instruct the jury on the requirement of finding a "pattern of racketeering activity." The government also made a request, which was denied on January 26, that the jury be required to return a general verdict. On January 27, the government sought, and the district court denied, reconsideration of the court's ruling.
On Monday, February 1, the government filed the instant petition for a writ of mandamus pursuant to 28 U.S.C. § 1651 (1982) and Fed. R. App. P. 21. Because of the imminence of closing arguments and jury deliberations in the trial below, we scheduled oral argument for Friday, February 5. We denied the petition by order shortly after argument.
It is settled, of course, that "mandamus is an extraordinary remedy, the 'touchstones' of which are 'usurpation of power, clear abuse of discretion and the presence of an issue of first impression.'" In re United States, 680 F.2d 9, 12 (2d Cir. 1982) (quoting American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277, 283 (2d Cir. 1967)); see also In re Weisman, 835 F.2d 23, 27 (2d Cir. 1987); In re IBM Corp., 687 F.2d 591, 599 (2d Cir. 1982). "An appellate court should not issue mandamus to correct even gross error, but should issue the writ when necessary 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.'" Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 652 (2d Cir. 1987) (citation omitted) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 87 L. Ed. 1185, 63 S. Ct. 938 (1943)). The government, protesting what it believes to be an "egregious usurpation of power" by Judge Knapp, Gov't Br. at 31, asserts that mandamus should issue here because its petition "raises significant questions of the proper exercise of judicial power and the administration of criminal justice in the federal courts that would evade review if not considered at this time." Id. (quoting United States v. Werker, 535 F.2d 198, 200 (2d Cir.), cert. denied, 429 U.S. 926, 97 S. Ct. 330, 50 L. Ed. 2d 296 (1976)).
The government asserts that Judge Knapp's proposed charge constitutes an extraordinary usurpation of power for two reasons. First, the government contends that Judge Knapp proposes to deprive it of its right to a general verdict on a defendant's guilt or innocence. Second, the government contends that the charge infringes upon its jury-trial rights by failing to instruct the jury on the existence of a "pattern of racketeering activity," an essential element of the RICO charges.
We do not believe the government's characterization of the issues is entirely accurate. At oral argument, we asked the government whether it would have any objection to the use of a procedure that would separate the jury's deliberations on the commission of predicate acts from its deliberations on the general RICO counts. Under the method suggested, the jury would answer special interrogatories*fn2 as to the predicate acts committed by each defendant before being told how many such acts were necessary to a RICO conviction. The jury would then be instructed as to the definition of a RICO pattern*fn3 and the existence of an enterprise and would be asked to return general verdicts of guilty or not guilty on the RICO counts. The defendants agreed to such a procedure at oral argument, and presumably the district court would utilize it if so asked by the government. However, the government stated that its objections to Judge Knapp's procedure were applicable to our suggestion as well because the special interrogatories would cause the jury to view the predicate acts in an unconnected fashion.
In view of the fact that our suggestion would cure the claimed defects in Judge Knapp's method by both affording a general verdict by the jury of guilty or not guilty and including the usual charge on the "pattern" element, we understand the government to be complaining only that the jury may not under any procedure deliberate on the predicate acts without being told that two such acts are necessary to sustain a RICO conviction. In other words, what the government seeks to protect is the possibility of its obtaining guilty verdicts through prejudicial spillover from the numerous violent and otherwise criminal acts before it. When examined in this light, the government's position is not simply that it is entitled to a general verdict but that it has a right, enforceable by mandamus, to prevent any and all use of special interrogatories separately from a general verdict no matter how necessary they may be to the protection of a defendant's rights.
The government argues that it possesses a right to a jury trial that is coextensive with the corresponding right possessed by a criminal defendant. That position, however, defies both history and logic. For example, Fed. R. Crim. P. 29 specifically allows a district court in a jury trial to "order the entry of [a] judgment of acquittal . . . if the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a); see id. 29(c). But the trial court, of course, is not empowered to enter a judgment of conviction. As the Supreme Court has explained,
in a jury trial the primary finders of fact are the jurors. Their overriding responsibility is to stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction. For this reason, a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict, see Sparf & Hansen v. United States, 156 U.S. 51, 105, 39 L. Ed. 343, 15 S. Ct. 273 (1895); Carpenters v. United States, 330 U.S. 395, 408, 91 L. Ed. 973, 67 S. Ct. 775 (1947), regardless of how overwhelmingly the evidence may point in that direction. The trial judge is thereby barred from attempting to override or interfere with the jurors' independent judgment in a manner contrary to the interests of the accused.
Such a limitation on the role of a trial judge, however, has never inhibited his ruling in favor of a criminal defendant.
United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977). Thus, although the government has the right to insist on a trial by jury, see, e.g., Singer v. United States, 380 U.S. 24, 36-37, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965); Patton v. United States, 281 U.S. 276, 312, 74 L. Ed. 854, 50 S. Ct. 253 (1930); United States v. Moon, 718 F.2d 1210, 1217-1218 (2d Cir. 1983), cert. denied, 466 U.S. 971, 80 L. Ed. 2d 818, 104 S. Ct. 2344 (1984), the right to a jury trial remains "principally for the benefit of the accused." Singer, 380 U.S. at 33 (citing Patton, 281 U.S. at 312). Even if the government is entitled to symbolic benefits flowing from a jury declaring guilt or innocence, that interest is in no way inconsistent with the use of special interrogatories regarding discrete issues to avoid prejudicial spillover.
Moreover, the criminal law's historical preference for general verdicts, much like its traditional distaste for special interrogatories, stems from the unique rights of the criminal defendant. As Judge Newman has observed with respect to special interrogatories:
Various considerations underlie the opposition to jury interrogatories in criminal cases. There is apprehension that eliciting "yes" or "no" answers to questions concerning the elements of an offense may propel a jury toward a logical conclusion of guilt, whereas a more generalized assessment might have yielded an acquittal. The possibility also exists that fragmenting a single count into the various ways an offense may be committed affords a divided jury an opportunity to resolve its differences to the defendant's disadvantage by saying "yes" to some means and "no" to others, although unified consideration of the count might have produced an acquittal or at least a hung jury . . . . In general, those opposing interrogatories fear that any particularization of the jury's decision-making will risk interference with the jury's romantic power of nullification, or as Learned Hand felicitously phrased it, "tempering [the law's] rigor by the mollifying influence of current ethical conventions." United States ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir.), rev'd on other grounds, 317 U.S. 269, 87 L. Ed. 268, 63 S. Ct. 236 (1942). Though courts refuse to inform a jury of this prerogative, United States v. Dougherty, 154 U.S. App. D.C. 76, 473 F.2d 1113, 1130-37 (D.C. Cir. 1972); United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969), cert. denied, 397 U.S. 991, 25 L. Ed. 2d 398, 90 S. Ct. 1124 (1970), some condemn interrogatories because they may impair an opportunity the jury is not told it has. See United States v. Spock, 416 F.2d [165,] 182 [(1st Cir. 1969)].
Ruggiero, 726 F.2d 913, 927 (2d Cir.) (Newman, J., concurring in part and dissenting in part) (footnote and citations omitted), cert. denied, 469 U.S. 831, 105 S. Ct. 118, 83 L. Ed. 2d 60 (1984). The government clearly cannot point to any comparable considerations in support of its asserted right to prevent the use of special interrogatories as a means of preventing prejudicial spillover. The government can hardly argue, for instance, that the use of special interrogatories would in any way impair the "legitimate interest" of the "government, as a litigant," in obtaining a trial "before the tribunal which the Constitution regards as most likely to produce a fair result." Singer, 380 U.S. at 36. We note as well that it is not clear that even a defendant has the absolute right to prevent any and all use of special interrogatories. See Ruggiero, 726 F.2d at 925-28 (opinion of Newman, J.). Most importantly, however, the government, unlike a defendant, may not rightfully seek the benefit of an irrational verdict; although juries may freely temper the rigor of the law, they surely may not enhance it. Again, we emphasize that the government at oral argument rejected any use of special interrogatories to prevent spillover whether or not followed by a full charge on each element and by a general verdict.
Because it is thus clear that the government's objection to Judge Knapp's suggested procedure is based solely on its view that the jury should know how many predicate acts are necessary for a RICO conviction before considering those acts, we cannot say that Judge Knapp so abused his discretion as to ...