United States Court of Appeals

For the First Circuit

Nos. 14-1089

14-1091

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN BRAVO-FERNANDEZ and HECTOR MARTÍNEZ-MALDONADO,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Howard, Lipez, and Barron,

Circuit Judges.

Martin G. Weinberg, with whom David Z. Chesnoff, Chesnoff &

Schonfeld, and Kimberly Homan were on brief, for appellant Juan

Bravo-Fernandez. 

Abbe David Lowell, with whom Christopher D. Man and Chadbourne

& Park LLP were on brief, for appellant Hector Martínez-Maldonado. 

Vijay Shanker, United States Department of Justice, Criminal

Division, Appellate Section, with whom Leslie R. Caldwell,

Assistant Attorney General, David A. O'Neil, Acting Deputy

Assistant Attorney General, and Peter M. Koski, United States

Department of Justice, Criminal Division, Public Integrity Section,

were on brief, for appellee. 
June 15, 2015

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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 18 U.S.C. § 666. See United States

v. Fernandez, 722 F.3d 1 (1st Cir. 2013). At that time, we vacated

the convictions because the jury had received improper instructions

about what constituted "bribery" under that statute. Id. at 18-27. 

We thus remanded for a possible new trial based on a proper theory

of liability under § 666. Id.

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." 

U.S. Const. Amend. V. In pressing this contention, the defendants

make two arguments.

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,

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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 § 666 charges. 

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 § 666 charges are based on a trip from Puerto Rico to

Las Vegas that defendant Juan Bravo-Fernandez took with defendant

Hector Martínez-Maldonado in May of 2005. The two men had traveled

to Las Vegas to see boxer "Tito" Trinidad fight boxer "Winky"

Wright. At the time, Bravo was the president of Ranger American,

a private security firm in Puerto Rico. Martínez was a member of

the Puerto Rico Senate.

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 Martínez's

support for legislation beneficial to Bravo's company. The

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indictment contained a number of distinct counts. These counts

included violations of the federal program bribery statute, 18

U.S.C. § 666, violations of the Travel Act, 18 U.S.C.

§ 1952(a)(3)(A), and conspiracy, 18 U.S.C. § 371.

The Travel Act prohibits travel in interstate commerce

for a criminal purpose, 18 U.S.C. § 1952(a)(3)(A). In this

instance, the government alleged that the criminal purpose was both

to commit the bribery that § 666 prohibits and to violate Puerto

Rico bribery law.1 The predicate offenses for the conspiracy

counts were the Travel Act (in furtherance of, according to the

indictment, violations of § 666 and Puerto Rico bribery law) and

§ 666. 

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 § 666. The jury acquitted each

defendant of conspiracy to violate § 666 and of violating the

Travel Act in furtherance of violating § 666. In addition, the

jury convicted Bravo of two other offenses: conspiring to violate

the Travel Act in furtherance of (according to the verdict form2

)

unspecified "racketeering" activity, and violating the Travel Act

in furtherance of violating Puerto Rico bribery law. The jury

1

 See P.R. Laws Ann. tit. 33 §§ 4360, 4363 (repealed 2005).

2

 Unlike the indictment, the verdict form did not specify

§ 666 and Puerto Rico bribery law as the predicate offenses for the

conspiracy to violate the Travel Act charges. 

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acquitted Martínez of those last two offenses. The defendants

appealed each of the convictions.

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 Martínez's convictions on the

standalone § 666 counts. Id. at 27. Specifically, we concluded

that § 666 required the government to prove that Bravo had paid for

Martínez's trip to the boxing match "in exchange for" the future

actions that Martínez allegedly took with respect to the

legislation favoring Bravo's company. Id. at 19. We concluded,

however, that the jury instructions allowed the jury to find a

violation of § 666 even if the government failed to prove this

"exchange" theory and instead proved only what we called a

"gratuity" theory. Id. at 26-27. Under this improper gratuity

theory, the government needed only to prove that Bravo had given,

and Martínez had received, "a reward for" having already supported

the two bills that favored Bravo's company. Id. at 20.

After holding that the jury instructions were improper in

this respect, we further concluded that the evidence supported not

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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 § 666 counts. Id. at 27. We then

remanded for possible re-prosecution of the standalone § 666 counts

under that same indictment. Id. at 27-28. In doing so, we

explained that "[t]he government may not pursue a conviction" for

the § 666 counts on a gratuity theory "if [d]efendants are

retried." Id. at 28.

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-Maldonado. The mandate

having been issued (Docket No. 641), in

accordance with the Judgments of the Court of

Appeals (Docket Nos. 639 and 640), a judgment

of acquittal shall be entered as to defendant

Martinez's conspiracy count, as to defendant

Bravo's conspiracy conviction, and as to both

defendants' section 666 convictions. Signed

by Judge Francisco A. Besosa on 10/25/2013.

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

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vacating the standalone § 666 convictions, "did not order [the

District Court] to enter a judgment of acquittal on the § 666

convictions." 

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 § 666 charges. In this motion, the

defendants focused on the split jury verdicts. The defendants

contended that, under the Double Jeopardy Clause, the acquittals of

the defendants for conspiracy to violate § 666 and for violating

the Travel Act in furtherance of a § 666 offense precluded any

renewed prosecution on the standalone § 666 counts. The District

Court denied that motion, too. 

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

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the Double Jeopardy Clause. Abney v. United States, 431 U.S. 651,

662 (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 (2009)).

II.

We start by addressing the defendants' arguments about

the preclusive effect of the § 666-based Travel Act and conspiracy

acquittals.3 The defendants' arguments rely on "the rule of

collateral estoppel" that "is embodied in the Fifth Amendment

guarantee against double jeopardy." Ashe v. Swenson, 397 U.S. 436,

444-45 (1970). Before considering whether that rule applies in

this case, however, we need to say more about how the rule applies

generally.

This aspect of the Double Jeopardy Clause ensures that

"when an issue of ultimate fact has once been determined by a valid

and final judgment, that issue cannot again be litigated between

3 The government does not argue that the defendants waived

this challenge by failing to raise it in Fernandez. See United

States v. Medina-Villegas, 700 F.3d 580, 585 (1st Cir. 2012) ("The

law of the case doctrine 'bars a party from resurrecting issues

that either were, or could have been, decided on an earlier

appeal.'" (quoting United States v. Matthews, 643 F.3d 9, 12-13

(1st Cir. 2011))). We thus address the challenge, as the

defendants' failure to raise it in Fernandez does not affect our

jurisdiction to consider it. See Cohen v. Brown Univ., 101 F.3d

155, 168 (1st Cir. 1996).

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the same parties in any future lawsuit." Id. at 443. In Ashe, the

Supreme Court made clear that the rule "is not to be applied with

the hypertechnical and archaic approach of a 19th century pleading

book." 397 U.S. at 444. The inquiry, instead, "'must be set in a

practical frame and viewed with an eye to all the circumstances of

the proceedings.'" Ashe, 397 U.S. at 444 (quoting Sealfon v.

United States, 332 U.S. 575, 579 (1948)).

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

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in a trial for a different offense.4 Yeager 557 U.S. at 119

(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

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 § 666

counts.

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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 as in the first. See id. at 445-46. And so the

Court held that the second prosecution could not go forward even

though the named victim was different. Id.

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 § 666 counts that

this same jury also rendered.

This limitation is set forth in the Supreme Court's

decision in United States v. Powell, 469 U.S. 57 (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

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same effect in Dunn v. United States, 284 U.S. 390 (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

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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 § 666 counts. The defendants need to show that the

acquittals on the Travel Act and conspiracy counts involving § 666

would, considered on their own, collaterally estop the renewed,

standalone § 666 prosecutions. The defendants further need to show

that, under Powell, the now-vacated convictions on those standalone

§ 666 counts do not strip the § 666-based Travel Act and conspiracy

acquittals of the collateral estoppel effect that they otherwise

might have. Although the defendants need to make both showings in

order to prevail, the arguments the defendants make with respect to

each showing are not unrelated to one another. In particular,

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understanding the defendants' arguments about what the acquittals

show on their own helps to set the stage for many of the

defendants' arguments about why those acquittals have collateral

estoppel effect notwithstanding the convictions that the jury also

rendered. We therefore consider each part of the defendants'

collateral estoppel argument in turn. 

III.

We begin by setting to one side the convictions on the

standalone § 666 counts and examining whether the acquittals on the

conspiracy and Travel Act counts involving § 666 would, considered

on their own, support the defendants' collateral estoppel argument. 

To make that argument, the defendants seek to demonstrate that the

jury, in acquitting on the conspiracy and Travel Act counts

involving § 666, necessarily decided that the government had failed

to prove that the defendants violated § 666. And the defendants

further contend that the jury's finding as to the failure of proof

concerned, in particular, the exchange theory of § 666 liability on

which the renewed prosecutions must depend. See Fernandez, 722

F.3d at 19-20, 28. 

We start with the defendants' contention that the

acquittals show that the jury found a failure of proof as to § 666. 

One obstacle the defendants face in making that showing arises from

the nature of the two offenses on which the jury acquitted. As to

each, § 666 was implicated only as a predicate offense. And so

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there is a question whether the jury's acquittals concerned the

predicate offense at all.

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 18 U.S.C. § 371. It is thus possible that a jury's acquittal

on conspiracy reflects only that jury's finding that the government

failed to prove one of those independent elements -- such as the

element of agreement -- rather than that the government failed to

prove a violation of the predicate offense.

Similarly, the Travel Act requires proof of elements,

including interstate travel, that are independent of the predicate

offense. See 18 U.S.C. § 1952. And thus, in theory, as the

government also notes, an acquittal on that offense might rest only

on a jury's finding that the government failed to prove one of the

independent elements and not on a finding that the government had

failed to prove the predicate offense itself. See, e.g., United

States v. Stafford, 831 F.2d 1479, 1482 (9th Cir. 1987).

But the defendants argue -- and the government does not

contend otherwise -- that the independent elements of the

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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 § 666 offense for the conspiracy and Travel Act counts. 

That conduct included a trip the defendants took from

Puerto Rico to Nevada to see a boxing match, in connection with

support for pending legislation. The defendants thus argue that

the charged conduct involved both travel and agreement. On that

basis, the defendants contend -- and, again, the government does

not argue to the contrary -- that the independent elements of

travel and agreement for the conspiracy and Travel Act counts

involving § 666 necessarily overlapped with elements of § 666

itself. Thus, the defendants argue, when the jury acquitted on

those counts, the jury necessarily rejected liability under § 666

itself, even though § 666 was only a predicate offense for the

conspiracy and Travel Act counts.

We next consider the defendants' contention that the

acquittals show that the jury rejected the exchange theory of § 666

liability in particular. Here, too, the defendants contend that

there is no problem. The defendants point out that the acquittals

show that the jury rejected every theory of § 666 liability that

the jury was given, including the exchange theory. In this way,

the defendants contend that the "record of the prior proceeding,"

Ashe, 397 U.S. at 444 (quoting Mayers & Yarbrough, supra), shows

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that the acquittals on the conspiracy and Travel Act counts for

which § 666 was the predicate offense do have collateral estoppel

effect on the renewed, standalone § 666 prosecutions.

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 § 666 counts. Accordingly, we now take up that issue.

IV.

The defendants offer two reasons for concluding that the

vacated convictions on the standalone § 666 convictions do not,

under Powell's limitation on the rule of collateral estoppel, strip

the acquittals on the conspiracy and Travel Act counts involving

§ 666 of collateral estoppel effect. Neither reason the defendants

offer, however, is persuasive.

5 The government does not argue that the acquittals the

defendants rely on rested on a rejection of the extra elements

involved in those offenses. But neither does the government

expressly concede that the acquittals did reject § 666 liability. 

Instead, the government argues that the acquittals are "at most

inconsistent" with the convictions on the issue of § 666 liability. 

As we find such an inconsistency, we need not decide whether the

acquittals did reject § 666 liability, or whether they instead

rested only on a rejection of some extra element. 

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A.

The defendants' first reason is that the convictions on

the standalone § 666 counts have been vacated and are no longer

final. See Fernandez, 722 F.3d at 27. The defendants thus argue

that the acquittals alone should be considered in determining what

the jury necessarily decided under Ashe. And, the defendants

further contend, because the acquittals, considered on their own,

show that the jury did reject § 666 liability, the Double Jeopardy

Clause bars the renewed prosecutions on the standalone § 666

counts.

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 decided. Our reasoning

on this point follows in large part from Ashe itself.

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

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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 (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 (1978). Thus, for purposes

of deciding whether the jury necessarily decided that the

government failed to prove that the defendants violated § 666, the

fact the jury also convicted the defendants of violating § 666

would seem to be of quite obvious relevance, even though the

convictions were later vacated.

We also do not agree with the defendants that, in

conducting the Ashe analysis, we should disregard vacated

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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.

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

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refusing to conclude that a hung count could create a "truly

inconsistent" verdict, Yeager also explained that "a jury speaks

only through its verdict," and that there was "no way to decipher

what a hung count represents" as a hung count represents not "a

jury's decision[]" but only "its failure[] to decide." Id. at 121-

122.

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. 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,

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"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.6 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),7 as well as the highest courts of New Jersey

and the District of Columbia, see State v. Kelly, 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

6

 To be clear, although we conclude that the vacated

convictions might prevent the acquittals from collaterally

estopping the renewed prosecutions, the acquittals themselves

remain inviolate. They forever bar the United States from

prosecuting the defendants for conspiracy and Travel Act offenses

based on the charged conduct and § 666 as a predicate offense. 

Likewise, our taking account of the vacated convictions does not 

undermine the defendants' victory in getting those convictions set

aside. The defendants still get the benefit of their appellate

victory in Fernandez, as the convictions have been vacated, and the

government in a second prosecution cannot present the impermissible

gratuity theory.

7

 Although Citron and Price predate Yeager, both the Second

and Fifth Circuits decided that vacated counts are relevant to the

Ashe analysis at a time when those circuits had already ruled that

hung counts should be disregarded for purposes of the Ashe inquiry. 

See United States v. Mespoulede, 597 F.2d 329, 332, 335-36 (2d Cir.

1979); United States v. Nelson, 599 F.2d 714, 716-17 (5th Cir.

1979). And the Second Circuit has continued to follow Citron after

Yeager. See United States v. Bruno, 531 F. App'x 47, 49 (2d Cir.

2013) (unpublished). 

-23-
to the opposite judgment, we find the dissenting opinion in that

case more persuasive on this point. See People v. Wilson, 852

N.W.2d 134 (2014); see also id. at 142 (Markman, J., dissenting).8

Thus, in undertaking our Ashe inquiry into the collateral

estoppel effect that must be given to the acquittals on the

conspiracy and Travel Act counts involving § 666, we must consider

the now vacated, standalone § 666 convictions. Contrary to the

defendants' contention, the fact that those convictions were

overturned for trial error provides no basis for excluding them

from the record that Ashe requires us to consider.

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

8

 Martínez does cite an unreported decision of the Appellate

Division of the Superior Court of New Jersey in which that court

referred to its "inclination to regard the counts on which [it] had

reversed the defendant's conviction . . . as a nullity, analogous

to a situation where there is a hung jury on certain counts." 

State v. Hermalyn, No. 06-11-2085, 2012 WL 3000334, at *1 (N.J.

Super. Ct. App. Div. July 24, 2012) (per curium) (citing Yeager,

557 U.S. at 120). Hermalyn provides no explanation for that

"inclination," and it appears directly inconsistent with the New

Jersey Supreme Court's opinion in Kelly, which Hermalyn did not

cite. See Kelly, 992 A.2d at 789. In Kelly, which like this case

(and like Hermalyn) involved the retrial of vacated convictions,

the New Jersey Supreme Court held that "Yeager has no application

to a case . . . involving an inconsistent verdict of acquittals and

convictions returned by the same jury," as opposed to hung counts. 

Id. at 778, 789. 

-24-
contend, the trial record shows that the convictions on the

standalone § 666 counts are actually consistent with the acquittals

on those counts for which § 666 was a predicate offense. And,

further, the defendants contend that the verdicts on those counts

-- though involving both convictions and acquittals -- are

consistent in a way that shows that the acquittals did reject the

exchange theory of § 666 liability and thus should be given

collateral estoppel effect to bar the renewed standalone § 666

prosecutions. Thus, the defendants argue, the convictions do not

create "truly inconsistent" verdicts with respect to § 666 that

would implicate Powell's limitation on the collateral estoppel

rule. 469 U.S. at 64. 

To show how the convictions and acquittals may be

reconciled in this way, Martínez 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,

Martínez argues, "concluding that the jury found a gratuity and not

bribery [in convicting on the standalone § 666 counts] is the

logical way to reconcile the verdict." Or, as Bravo puts the point

in his brief, the "only logical conclusion is that the jury rested

its §[ ]666 convictions on a finding of gratuities, not §[ ]666

bribery [under the proper exchange theory], and that its verdicts

-25-
on the conspiracy and Travel Act counts necessarily rejected a

§[ ]666 bribery theory [under the proper exchange theory]."

In making this argument, the defendants rely solely on a

claim about how the jury was instructed.9 In particular, the

defendants contend that the District Court presented the improper

gratuity theory to the jury only as to the standalone § 666 counts. 

The defendants thus contend that -- consistent with the jury

instructions -- the jury could have convicted on the standalone

§ 666 counts on the gratuity theory without having to consider (and

9 The defendants offer no other argument for how the jury

rationally could have acquitted on the conspiracy and Travel Act

counts that involved § 666 in a way that rejected only the exchange

theory of § 666 liability and not the gratuity theory as well. 

Perhaps the defendants could have argued that a gratuity, unlike a

quid pro quo exchange, involves no agreement. If a gratuity need

not involve an agreement, then it could be argued that the § 666-

based conspiracy acquittals rejected only the exchange theory of

§ 666 liability. A gratuity theory of § 666 liability, by not

requiring that there be an agreement, would arguably not have

required the jury to find conspiracy liability. But the defendants

do not make such an argument for reconciling the verdicts, and so

we do not address whether there is any force to the argument. 

The reason the defendants do not make that additional

argument, moreover, is readily apparent. The argument does not

help with respect to the separate, § 666-based Travel Act

acquittals. In this case, the allegedly unlawful payment took the

form of an all-expenses paid interstate trip. Whether that trip

was given as a gratuity or as a quid pro quo exchange, it would

still involve interstate travel. And thus, if the jury concluded

the trip violated § 666 then the jury should also have found a

§ 666-based Travel Act violation. See 18 U.S.C. § 1952(a)(3)

(prohibiting interstate travel to "promote, manage, establish,

carry on, or facilitate the promotion, management, establishment,

or carrying on, of any unlawful activity"). Yet the jury did not

do so. Thus, if the defendants' differential jury instructions

argument does not hold up, then they are left with verdicts on

§ 666 that are unavoidably inconsistent with each other.

-26-
thus reject) that same theory in acquitting on the conspiracy and

Travel Act counts that involved § 666. In this way, the defendants

argue, the verdicts concerning § 666 -- whether as a standalone or

predicate offense -- may be harmonized. The acquittals rejected

one theory of § 666 liability (the proper one) and the convictions

accepted another theory of § 666 liability (the improper one).

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

-27-
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 (1993) (describing "the almost invariable

assumption of the law that jurors follow their instructions"

(quoting Richardson v. Marsh, 481 U.S. 200, 206 (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 § 666 -- to determine whether the verdicts

involving § 666 may be reconciled in the way the defendants

propose. If it turns out from that review that the verdicts may be

reconciled by reference to the jury instructions and the arguments

of counsel, then the "assumption that the jury acted rationally and

found certain facts in reaching its verdict" will be restored, and

collateral estoppel principles will again be useful. See Powell,

-28-
469 U.S. at 68; Wilson, 852 N.W.2d at 151-52 n.12 (Markman, J.,

dissenting).

In taking up this inquiry, we are mindful that the

defendants bear the burden of showing that the jury necessarily

decided an issue adversely to the government that the government

needs to prove in order to convict on a related offense in a new

trial. See Schiro v. Farley, 510 U.S. 222, 232 (1994). But we are

also mindful that, if "any reasonable assessment of the verdict"

would lead to a reconciliation of the apparent inconsistency

between the convictions and the acquittals involving § 666, we

might be required to adopt that account. Fernandez, 722 F.3d at

34. As we put it in Fernandez, "[w]e will not bend over backwards

to formulate some route" to allow the government to re-prosecute. 

Id.

As we will explain, however, the record in this case

shows that the jury was offered the same theories of § 666

liability as to every count involving § 666, whether as a predicate

offense or a standalone crime. We therefore conclude that on this

record no reasonable assessment of the verdicts is available that

reconciles the verdicts in the way the defendants propose. And in

consequence of the inconsistency in those verdicts, we conclude

that, consistent with the Supreme Court's decision in Powell, the

defendants cannot meet their burden of showing that the acquittals

-29-
involving § 666 collaterally estop the renewed, standalone § 666

prosecutions.

1.

Consider the first pair of instructions that the jury

received regarding § 666. These were the ones that we held were

erroneous in Fernandez. 722 F.3d at 26-27. The District Court

began each erroneous instruction by explaining that "to find [each

defendant] guilty of bribery, you must be convinced that the

Government has proven each of the following things beyond a

reasonable doubt . . . ." (emphasis added). The instructions then

went on to define "bribery" in a way that included both the proper

exchange theory and the improper gratuity theory. See id.

Significantly, nothing in these instructions tied or

restricted that definition of "bribery" -- improper though it was

-- to the standalone § 666 counts in particular. And thus nothing

about these instructions suggests that the jury was offered the

gratuity theory only as to the standalone counts on which the jury

convicted, and not as to the other counts involving § 666, for

which § 666 was a predicate offense and on which the jury

acquitted.

The written version of these instructions, moreover, was

given to the jury under the heading "Bribery Concerning Programs

Receiving Federal Funds, 18 U.S.C. § 666(a)(2)." That heading also

tied the definition of bribery to § 666 as an offense without tying

-30-
that definition to the standalone § 666 counts specifically. And

thus, on its face, the heading did not exclude the improper

gratuity theory from applying to the other counts involving § 666

as a predicate crime -- namely, the counts that resulted in the

acquittals.

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 § 666. Thus, contrary to the defendants'

contention, the jury had no basis for applying a different

"bribery" definition in the Travel Act counts for which § 666 was

a predicate offense -- and on which the jury acquitted -- from the

-31-
"bribery" definition that the jury applied in the standalone § 666

counts -- on which the jury convicted.

The jury instructions on the conspiracy counts are no

different in this regard. The jury was told: 

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 to

Title 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 Title 18,

United States Code, Section 666" meant. And so with respect to the

conspiracy counts involving § 666, the jury was not given any cause

to apply a different definition of "bribery" in the conspiracy

counts from that which the jury had been instructed to apply to the

standalone § 666 counts.

Nor did the parties' closing arguments suggest that

different theories of § 666 liability applied. In its closing

argument, the government did use, in connection with the standalone

§ 666 counts, the "intent to influence or reward" language that we

held in Fernandez had allowed the jury to consider the

-32-
impermissible "gratuity" theory. See 722 F.3d at 18. But the

government, like the jury instructions, used that language in

defining what "bribery that involves federal funds" meant. The

government thus said nothing to suggest that the gratuity theory

was inapplicable to the Travel Act and conspiracy counts involving

§ 666.

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 § 666 counts applied exclusively to those counts. 

Finally, Martínez's counsel in his closing argument

underscored the equivalence between "bribery" as used in the

standalone § 666 counts and as used in the conspiracy and Travel

Act counts involving § 666. Martínez's counsel argued that the

jury should apply only the exchange theory of bribery. But he made

that argument with respect to "Counts 1, 2, 3, and 4, and 5" -- in

other words, with respect to all of the counts (conspiracy, Travel

-33-
Act, and standalone) involving § 666. Nothing Martínez's counsel

said, therefore, suggested any difference between the definition of

"bribery" the jury was to use as to any of these counts, even

though the jury convicted on some and acquitted on others.10

We therefore conclude that the District Court instructed

the jury to consider the gratuity theory of § 666 liability not

only on the standalone § 666 counts, but also on the Travel Act and

conspiracy counts for which § 666 was a predicate offense. And

further, we conclude that the closing arguments by counsel accord

with this same understanding of how the jury was to be instructed.

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 § 666. 

In Fernandez, we did observe that the jury received a correct

bribery instruction, which allowed only the exchange theory,

alongside the improper one that allowed both the exchange and the

gratuity theories. Id. at 20. In doing so, we explained that this

proper instruction "applied to both the Puerto Rico and federal

bribery counts," whereas the erroneous instructions setting forth

the gratuity theory were "instructions on the § 666 counts

themselves." Id.

10 Bravo's counsel also gave a closing argument, but his

argument did not address the definition of bribery. 

-34-
The defendants argue that this quoted language -- by

referring to the "§ 666 counts" -- shows that we held in Fernandez

that the jury received the improper gratuity instruction only for

the standalone § 666 counts, and not for those counts involving

§ 666 that resulted in acquittals, each of which involved § 666

only as a predicate offense. In this way, the defendants contend

that Fernandez supports their argument that the jury's apparently

inconsistent verdicts can be reconciled by reference to the

instructions the jury received.

But the defendants overread the quoted language. 

Fernandez did not decide whether "the § 666 counts" to which we

said the erroneous instructions applied included only the

standalone § 666 counts. See id. In context, it seems clear that

by "the § 666 counts" we meant to distinguish those counts that

involved § 666 from those counts that involved Puerto Rico bribery

law. See id. We were not drawing a distinction among the "§ 666

counts," counts that in fact included the Travel Act and conspiracy

counts for which § 666 was a predicate offense.

Indeed, we had no occasion in Fernandez to consider

whether the erroneous instructions on the meaning of § 666 also

applied to the Travel Act and conspiracy counts for which § 666 was

a predicate offense. The acquittals on those counts were,

obviously, not under review in that appeal. See id. at 8.

-35-
Moreover, it is not surprising that the erroneous

instructions offering up the gratuity theory applied to all the

counts involving § 666, and not just to the standalone § 666

counts. As we explained in Fernandez, courts have divided with

respect to whether § 666 does or does not criminalize gratuities. 

See id. at 23-27. And while we held in Fernandez that § 666 does

not criminalize gratuities, id. at 27, the District Court, in

giving the erroneous instructions over the defendants' objections,

evidently had determined that § 666 did criminalize gratuities. No

party argued to the District Court, however, that § 666

criminalizes gratuities when the defendant is prosecuted for § 666

violations themselves, but not when § 666 serves as a predicate

offense for conspiracy or Travel Act violations. Nor do the

defendants advance any such argument on appeal.

For that reason, it makes perfect sense that the District

Court's instructions on what § 666 prohibited were given as to all

counts involving that offense, both when § 666 served as a

predicate offense and when it stood alone. And, as we have just

explained, the record shows that the instructions setting forth the

erroneous gratuity theory of § 666 liability applied broadly to all

counts involving § 666. As discussed, explicit and implicit crossreferences in the jury instructions show that the erroneous

instructions on § 666 were given as to all the counts that involved

-36-
§ 666 as a predicate offense, including the counts involving § 666

on which the jury rendered acquittals.

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 § 666

convictions solely on a gratuity theory, then the jury should have

considered that same gratuity theory and found the defendants

guilty when the jury issued its verdicts on at least the Travel Act

charges for which § 666 was a predicate offense.11 After all, the

instruction allowing the gratuity theory applied, by its terms, to

all § 666-related counts. And yet the jury found the defendants

not guilty on those § 666-based Travel Act charges. The verdicts

are thus inconsistent with respect to § 666 liability, even

11 In referring to the § 666-based Travel Act charges, we do

not include the conspiracy to violate the Travel Act charges. We

set those conspiracy charges, as well as the charges for conspiracy

to violate § 666, to one side even though, as noted above, supra

note 9, the defendants make no argument distinguishing the

conspiracy charges from the Travel Act charges in attempting to

reconcile the verdicts. We limit our focus in this way because,

even if the § 666-based conspiracy acquittals could be squared with

the standalone § 666 convictions on the ground that a gratuitytheory § 666 violation need not have involved an agreement, see

id., the § 666-based Travel Act acquittals not involving conspiracy

are not subject to any such squaring. The result is that the

§ 666-based Travel Act acquittals suffice on their own to create

truly inconsistent verdicts concerning § 666 liability, and thus to

prevent the defendants from meeting their burden under Ashe to show

what the jury necessarily decided.

-37-
assuming, as the defendants contend, that the convictions on the

standalone § 666 counts relied only on the jury's acceptance of the

gratuity theory.

If, on the other hand, the jury interpreted the

instructions' conflicting definitions of "bribery" to allow for

only an exchange theory of § 666 liability, then the verdicts would

still be irreconcilable. And that is again because the same

instructions on the meaning of bribery in § 666 were given as to

all counts involving § 666. The convictions on the standalone

counts would thus show that the jury found the defendants guilty

under the proper, exchange theory of § 666. In contrast, the

acquittals on the Travel Act counts based on the § 666 predicate

offense would show that the jury found the defendants not guilty

under that same exchange theory of § 666. Once again, the

acquittals would be inconsistent with the convictions with respect

to the defendants' liability under § 666.

For that reason, the argument that we must read the

verdicts consistently if possible does not, on this record, help

the defendants meet their burden under Ashe. And that is because

no consistent reading of the verdicts is available -- given this

record -- that would support, under Ashe's practical inquiry, the

defendants' favored conclusion: namely, that the jury acquitted

the defendants on the exchange theory of § 666 and convicted the

defendants only on the gratuity theory.

-38-
Of course, it is possible that the jury did actually find

the defendants guilty on the standalone § 666 counts only on the

basis of a gratuity theory and not on the basis of an exchange

theory. And it is also possible that the jury considered (and

rejected) only the exchange theory in acquitting on the Travel Act

counts involving § 666. But it was equally possible in Powell that

the jury "really meant" to acquit rather than to convict, when the

jury did both, and yet that mere possibility did not lead the Court

to give the acquittal collateral estoppel effect. Powell, 469 U.S.

at 68.

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

§ 666 liability in assessing the different counts involving that

offense. We could therefore come to such a conclusion only by

engaging in the sort of "pure speculation" or "inquiries into the

jury's deliberations" that Powell forbids. Id. at 66. And such a

speculative exercise could hardly suffice to satisfy the

defendants' burden under Ashe of showing that "the issue whose

relitigation [they] seek[] to foreclose was actually decided" in

the prior proceeding. Schiro, 510 U.S. at 233.

-39-
C.

The defendants do make one final argument on behalf of

their attempted reconciliation of the acquittals and the

convictions that involve § 666. The defendants point to this

Court's handling of a separate collateral estoppel issue in

Fernandez. See 722 F.3d at 29-33. The defendants argue that this

aspect of our decision in Fernandez supports the conclusion that

the jury's acquittals of the defendants on the counts for which

§ 666 is a predicate offense were consistent with the jury having

convicted the defendants on the standalone § 666 counts. See id.

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

-40-
actions the defendants had undertaken -- rather than violations of

§ 666. Id.

Bravo then sought to foreclose his future prosecution for

conspiracy to violate the Travel Act in furtherance of § 666

violations specifically. See id. at 33. We interpreted Bravo's

argument against such a future prosecution as being based on the

collateral estoppel rule contained in Ashe. Id. at 33 & n.25. 

Specifically, Bravo contended that his acquittals on the same

offenses on which the defendants now rely -- conspiracy to violate

§ 666 and a Travel Act violation based on § 666 -- barred his

future prosecution for conspiracy to violate the Travel Act in

furtherance of a § 666 violation. See id. at 33-34.

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 § 666 violation and a violation

of Puerto Rico bribery law. Id. at 29. Only if the unspecified

"racketeering" activity underlying the conviction had been based on

a violation of Puerto Rico bribery law rather than of § 666 could

Bravo succeed in pressing his collateral estoppel argument against

being retried for conspiring to violate the Travel Act in

furtherance of a § 666 violation. See id. at 34.

-41-
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 § 666 and on the

charge that he had violated the Travel Act in furtherance of a

§ 666 violation. Id. In contrast, the jury had convicted Bravo on

the charge of violating the Travel Act in furtherance of a

violation of Puerto Rico bribery law. Id.

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 § 666. Only

that conclusion, we explained, harmonized the verdicts without

creating any inconsistency among them. Id. at 34. And, in

consequence of that conclusion about what the jury had done, we

concluded that the conspiracy to violate the Travel Act conviction

-- at least if we assumed the jury had acted rationally -- did not

contradict the acquittal on the Travel Act and conspiracy charges

that had § 666 as a predicate offense. Id. We then held that the

latter acquittals did collaterally estop Bravo's renewed

prosecution for conspiring to violate the Travel Act in furtherance

of violating § 666. Id.

Fernandez does show that the defendants' approach of

using acquittals on separate counts to clarify the basis for an

-42-
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 § 666 may be given

any collateral estoppel effect at all given their inconsistency

with the standalone § 666 convictions. 

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 § 666-based conspiracy and Travel Act

acquittals precluded a future prosecution for conspiracy to violate

the Travel Act, our analysis did not address the standalone § 666

convictions, or their relevance to the collateral estoppel effect

that the § 666-based Travel Act and conspiracy acquittals should be

given.

In this case, by contrast, the government squarely raises

the argument that, under Powell, the convictions on the standalone

§ 666 counts are inconsistent with the acquittals on the § 666-

based conspiracy and Travel Act charges, and thus deprive those

acquittals of the collateral estoppel effect that the defendants

ask us to give them. And so we have been obliged to consider the

effect of the standalone § 666 convictions. As we have explained,

-43-
however, those convictions, unlike the conviction for conspiracy to

violate the Travel Act based on unspecified "racketeering" activity

at issue in Fernandez, cannot be reconciled with the jury's

decision to acquit on at least the § 666-based Travel Act offense. 

Our earlier discussion of the jury instructions and the parties'

arguments shows why.

In consequence of this conflict in the verdicts, we may

not speculate that the facially inconsistent verdicts nonetheless

necessarily reflect a rejection of § 666 exchange-theory liability,

when they equally could reflect a finding of such liability. See

Powell, 469 U.S. at 66. Our consideration of the convictions

therefore prevents us from concluding that there is an available

consistent reading of all of the jury's verdicts that would lead us

to give the collateral estoppel effect to the Travel Act and

conspiracy acquittals based on § 666 that the defendants now seek

in this appeal. We therefore affirm the District Court's denial of

the defendants' motion for a judgment of acquittal.

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 § 666 counts. The defendants thus contend that this

-44-
line order constituted an irreversible acquittal of the defendants

of those counts under the Double Jeopardy Clause.

The defendants base this challenge on the wellestablished 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 (2013) (quoting Fong Foo v. United

States, 369 U.S. 141, 143 (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

(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 (1977).

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. 

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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

Federal Rule of Criminal Procedure 29(c). 430 U.S. at 571-72. The

district court had "plainly granted the Rule 29(c) motion on the

view that the Government had not proved facts constituting criminal

contempt." Id. at 572. It was thus "plain that the District Court

. . . evaluated the Government's evidence and determined that it

was legally insufficient to sustain a conviction." Id.

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 (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

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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

13 We note that the defendants do not identify any action they

took in their cases in reliance on the District Court's order

before the District Court vacated it. See Smith, 543 U.S. at 474

("Double-jeopardy principles have never been thought to bar the

immediate repair of a genuine error in the announcement of an

acquittal, even one rendered by a jury."); United States v. Hill,

643 F.3d 807, 867 (11th Cir. 2011) (reconsideration permitted where

"[n]othing was done, or could have been done, in reliance on the

acquittal ruling between the time that ruling was announced and the

time it was rescinded"); United States v. Lucas, 516 F.3d 316, 338

(5th Cir. 2008) (no double jeopardy violation where the district

court granted acquittals and then, after a weekend recess, changed

its mind, as reconsideration came "before the trial progressed any

further"). Nor could the defendants possibly do so, as nothing

happened in the District Court in the interim. We also need not

consider here whether a concrete showing of reliance unconnected to

the proceedings themselves could be relevant to our analysis, as

the defendants have not made any such showing here.

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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 § 666 counts

are affirmed.

14 The defendants contend that the District Court lacked

authority under Federal Rule of Criminal Procedure 36 to reconsider

its line order. That Rule allows courts to correct "at any time

. . . a clerical error . . . arising from oversight or omission." 

Fed. R. Crim. P. 36. But whether or not Rule 36 applied in this

context, district courts have the inherent authority to reconsider

their interlocutory orders outside the sentencing context. See,

e.g., United States v. Aguirre, 214 F.3d 1122, 1124 (9th Cir. 2000)

("[D]istrict courts generally have 'inherent authority' to decide

motions for reconsideration and rehearing of orders in criminal

proceedings." (quoting United States v. Barragan-Mendoza, 174 F.3d

1024, 1028 (9th Cir. 1999))). In any event, the defendants' Rule

36 argument is not grounded in the Double Jeopardy Clause, and so

we lack appellate jurisdiction to address that argument in this

appeal. See Abney v. United States, 431 U.S. 651, 663 (1977); see

also United States v. MacDonald, 435 U.S. 850, 860 n.7 (1978)

("Admittedly, there is value -- to all but the most unusual

litigant -- in triumphing before trial, rather than after it,

regardless of the substance of the winning claim. But this truism

is not to be confused with the quite distinct proposition that

certain claims (because of the substance of the rights entailed,

rather than the advantage to a litigant in winning his claim

sooner) should be resolved before trial.").

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