The Wisconsin Prosecutor January 2017 A Newsletter for Wisconsin’s Prosecutors Published by the Wisconsin Department of Justice In This Issue: Recent Decisions Highlights 1 Recent Decisions Below are brief summaries of the significant holdings in the criminal law decisions handed down by the United States and Wisconsin Supreme Courts, Highlights and ordered published by the Wisconsin Court of Appeals, between December 1 and 31, 2016. In parentheses after the name of each summarized 3 WDAA Executive case, you will find the following information: the court deciding the case, the Board Meeting date the case was decided (for the United States and Wisconsin Supreme Courts) or ordered published (for the Wisconsin Court of Appeals), and, with 4 respect to Wisconsin decisions, the case number, the county out of which the Prosecutors Job Mart case arose, and the assistant attorney general or district attorney who handled the case for the State. New Attorney General The reader should be aware of the following. First, the summaries below do Opinions not necessarily include all of the criminal law decisions of the United States Supreme Court during the period covered. Those decisions of the Supreme Personal Mention Court that address issues that do not affect Wisconsin criminal prosecutions, e.g., decisions addressing the interpretation of federal criminal statutes, 5 decisions setting out the law governing imposition of the death penalty, etc., Criminal Jury are omitted. Second, the following summaries do not address each and every Instructions holding in the decisions summarized; no matter how insignificant (as Committee Meeting indicated above, this article only covers the significant holdings in the decisions summarized). Finally, with respect to the holdings covered, the 7 summaries do not provide an exhaustive description of the facts the appellate Pending Appeals court confronted, the law the appellate court invoked, or the reasoning the Unit Criminal Cases in the appellate court used, in reaching a particular holding. For that, the reader Wisconsin Supreme Court will need to review the decision itself. The decision can be accessed in one of two ways: (1) if the newsletter is being read on the reader’s computer, the 10 reader can simply click on the name of the decision at the end of the summary, Legislative Updates which will trigger a hyperlink that will take the reader to the full text of the decision; (2) the reader can go to the website of the appellate court that handed 11 Prosecutors’ Toolbox down the decision and, using the information about the decision provided at the end of the summary (in particular, for Wisconsin decisions, the case number), pull up the decision. 12 Training and This issue of the Wisconsin Prosecutor Newsletter offers opinions from the Conference Notes United States Supreme Court only. The Wisconsin Supreme Court has and Wisconsin Court of Appeals have issued no opinions or criminal appeals summaries . The Supreme Court of the United States unanimously held that where a jury returns irreconcilably inconsistent verdicts of conviction and acquittal, and the convictions are later vacated on appeal due to legal error unrelated to the inconsistency, the Double Jeopardy Clause does not bar the defendant’s retrial on the charges underlying the vacated convictions. This case involved the bribery prosecution of petitioners Juan Bravo-Fernandez and Hector Martinez-Maldonado. The government alleged that Bravo, an entrepreneur, gave Martinez, a senator of Puerto Rico, an all-expenses-paid trip to Las Vegas in exchange for Martinez’s help in shepherding legislation favorable to Bravo’s enterprises through the Puerto Rico Senate. A jury convicted petitioners of bribery in violation of 18 U.S.C. §666, but acquitted them of conspiring to violate §666 and of violating the The Wisconsin Prosecutor is published monthly by: Travel Act. Petitioners appealed their §666 convictions, and the First Circuit vacated the convictions on Statewide Prosecutor instructional-error grounds. On remand, petitioners Education and Training moved for judgment of acquittal on the stand-alone Program (SPET) Wisconsin §666 charges. They argued that the issue-preclusion Department of Justice prong of the Double Jeopardy Clause barred retrial on Brad D. those charges because the jury necessarily decided that Schimel they had not committed bribery when it acquitted them of the related conspiracy and Travel Act counts. The district court denied petitioners’ motion, and the First Circuit affirmed. In an opinion by Justice Ginsburg, the It is distributed free of charge to all Wisconsin Court affirmed. district attorneys and their assistants. It is also This case builds upon three of the Court’s prior available free of charge upon request from other decisions on the scope of the Double Jeopardy Clause. interested parties. First, in Ashe v. Swenson, 397 U.S. 436 (1970), the Court held that the Clause incorporates principles of issue If you wish to submit an item for publication or to preclusion, and that the government therefore may not receive this publication please e-mail the SPET try a defendant on charges based on facts that a jury Director. necessarily rejected when it acquitted the same defendant in a prior prosecution. Ashe further held that the defendant bears the burden of demonstrating “that determine “which of the inconsistent verdicts—the the issue whose relitigation he seeks to foreclose was acquittal[s] or the conviction[s]—the jury really meant” actually decided” by the prior acquittal. Second, in (internal quotation marks omitted). Although United States v. Powell, 469 U.S. 57 (1984), the Court held petitioners’ initial bribery convictions were later that a defendant cannot meet this burden when the vacated for instructional error, this does not change the same jury returns irreconcilably inconsistent verdicts analysis. We still do not know which of the inconsistent (i.e., it acquits the defendant on one count and, verdicts the jury really meant—“[i]ndeed, the jurors in inconsistent with that, convicts on another count). This this case might not have acquitted on the Travel Act is so because in such cases it is impossible to determine and conspiracy counts absent their belief that the §666 which verdict the jury “really meant,” which means a bribery convictions would stand.” The government court cannot discern which issues were actually acknowledged that it could not retry on the §666 count decided by the jury for purposes of issue preclusion. if the instructional error “account[ed] for the jury’s Finally, in Yeager v. United States, 557 U.S. 110 (2009), contradictory determinations,” but that was not the the Court held that where a jury acquits on some case; “the error applied equally to” the charges that counts and, inconsistent with that acquittal, hangs on resulted in the acquittals. others, Powell’s rule on inconsistent verdicts does not The Court rejected petitioners’ argument that the apply. The Court reasoned that “a hung count reveals vacated convictions, like the hung counts in Yeager, nothing more than a jury’s failure to reach a decision”; should play no role in the issue-preclusion analysis thus “the acquittal, and only the acquittal, counts for because both are “a legal nullity.” Finding that this preclusion purposes.” “argument misapprehends the Ashe inquiry,” the The Court concluded that Powell, not Yeager, Court explained that “a court must realistically controlled this case. As in Powell, it is impossible to examine the record to identify the ground for the §666- 2 The Wisconsin Prosecutor based acquittals.” And “a conviction that contradicts those acquittals is plainly relevant to that determination, no less so simply because it is later Wisconsin Lawyers Assistance overturned on appeal for unrelated legal error.” Nor Program does it matter, held the Court, that just as with hung counts “there is no way to decipher” what vacated The Wisconsin Lawyers Assistance Program convictions represent. Yeager relied on the fact that (WisLAP) is a member service of the State Bar “when a jury hangs, there is no decision. A verdict of of Wisconsin which provides confidential guilt, by contrast, is a jury decision, even if assistance to lawyers, judges, law students and subsequently vacated on appeal.” Justice Thomas filed their families in coping with alcoholism or other a short concurring opinion restating his view that the addictions, mental illness, or other problems Double Jeopardy Clause, as originally understood, related to or affecting the practice of law. The does not have an issue-preclusion prong. He program is designed to help members build on nonetheless joined the Court’s opinion because it their strengths and provide support through the “reaches the correct result under the Clause’s original enhancement of physical, mental and emotional health. Confidential support is available 24/7 by meaning.” 49TBravo-Fernandez v. United States, 15-537.49T calling 800-543-2625. The Supreme Court Of The United States Unanimously Held That 18 U.S.C. §1344(1)— Which Makes It A Crime “Knowingly [To] Execute A showing of ultimate financial loss nor a showing of Scheme . To Defraud A Financial Institution”— intent to cause financial loss.” In so holding, the Court Applies To A Scheme To “Cheat A Bank Depositor, noted that the crime of theft has never been excused Not A Bank.” because the victim was insured. Nor, held the Court, Petitioner Lawrence Shaw obtained the numbers of does it matter whether Shaw knew the bank had a Stanley Hsu’s account with Bank of America. Shaw property interest in Hsu’s account. Criminal liability used those numbers to transfer funds from Hsu’s does not turn on “legal knowledge of th[at] kind.” account to accounts Shaw controlled at other financial Shaw fourth argued that the government must institutions. Shaw was convicted of violating §1344(1), prove that harming the bank’s property interest was and the Ninth Circuit affirmed.