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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH GORDON HAM, a/k/a
No. 94-5507
Kirtanananda, a/k/a K. Swami, a/k/a
Kirtanananda Swami Bhaktipada,
a/k/a Srila Bhaktipada, a/k/a
Number One,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert R. Merhige, Jr., Senior District Judge,
sitting by designation.
(CR-90-87)
Argued: March 6, 1995
Decided: June 20, 1995
Before RUSSELL, WIDENER, and HALL,
Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Russell wrote the opinion, in
which Judge Widener and Judge Hall joined.
_________________________________________________________________
COUNSEL
ARGUED: Nathan Z. Dershowitz, DERSHOWITZ & EIGER, P.C.,
New York, New York, for Appellant. Michael D. Stein, Assistant
United States Attorney, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee. ON BRIEF: Amy Adelson,
DERSHOWITZ & EIGER, P.C., New York, New York, for Appel-
lant. William D. Wilmoth, United States Attorney, Nina Goodman,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
_________________________________________________________________
OPINION
RUSSELL, Circuit Judge:
This appeal raises the issue of whether the Double Jeopardy Clause
bars retrial of the forfeiture count of a RICO indictment where the
district court, at the original trial, failed to instruct the jury to consider
a required issue and enter a special verdict pursuant to Rule 31(e) of
the Federal Rules of Criminal Procedure. Furthermore, this Court
must also decide whether the Double Jeopardy Clause bars the retrial
of certain RICO predicate acts where the original jury did not indicate
on the verdict form that it unanimously found the defendant guilty of
those predicate acts. We hold that double jeopardy does not apply in
either instance.
I.
Keith Gordon Ham, also known as Kirtanananda Swami Bhakti-
pada ("Swami"), is the spiritual leader of the New Vrindaban Hare
Krishna community in West Virginia. In May 1990, a federal grand
jury returned an indictment charging Swami with three counts of vio-
lating the RICO statute (18 U.S.C. § 1962), six counts of mail fraud,
and two counts regarding a related murder. 1 The indictment also
included a separate forfeiture count in which the government sought
forfeiture of all of the property owned by the New Vrindaban commu-
nity. After a trial, the jury convicted Swami on the RICO and mail
fraud counts but failed to reach a verdict on the murder counts.
A. The Forfeiture Count
Rule 31(e) of the Federal Rules of Criminal Procedure requires in
forfeiture trials that "a special verdict shall be returned as to the extent
of the interest or property subject to forfeiture, if any." The jury at
Swami's trial never rendered a special verdict on the extent of
Swami's interest or property subject to forfeiture.
Before the district court charged the jury at trial, Swami's defense
counsel requested that the court not submit the forfeiture count to the
jury until the jury returned a guilty verdict on any of the RICO counts.
The district court agreed with the suggestion and ruled that the jury
should decide only whether racketeering proceeds went into the prop-
erties subject to forfeiture. The district court did not have the jury
decide the extent of Swami's interest or property subject to forfeiture;
the court postponed consideration of that issue until it was clear that
the jury would convict on the RICO counts.
In response to the district court's ruling, Swami's attorney drafted
the following interrogatory to be answered if the jury found Swami
guilty of any of the RICO counts:
Did the defendant acquire an interest in, establish, and/or
operate New Vrindaban Community with income received
from racketeering acts as detailed in [the RICO counts]?
The jury answered this interrogatory in the affirmative, but the court
never held an evidentiary hearing on the extent of Swami's interest
or property subject to forfeiture. The district court discharged the jury
without its having rendered a special verdict as required by Rule
31(e).
At sentencing, Swami raised the government's failure to obtain a
special verdict on the extent of Swami's interest in the property sub-
ject to forfeiture. Although the government attempted to shift the bur-
den of securing the special verdict to the defendant, the district court
held that any failure to comply with Rule 31(e)"is the court's fault,
not the defendant's." Because the jury had not returned a special ver-
dict under Rule 31(e), the district court did not order the forfeiture of
any specific property but only entered a general order that "the defen-
dant Swami shall forfeit to the United States all of his interest in all
of the real estate identified by the United States in the forfeiture count
of the indictment . . . ." Nonetheless, the district court concluded that
a new jury could make the requisite findings under Rule 31(e) and
advised the prosecutor to "set it down for a jury."
B. The Predicate Acts
The verdict form that was submitted to the jury required, for most
of the counts, only that the jury decide whether the defendant was
guilty or not guilty. For the RICO conspiracy count (Count I) and one
of the substantive RICO counts (Count II), however, the verdict form
also stated the following inquiry:
IF YOU FIND THE DEFENDANT GUILTY OF [the
count] PLEASE CHECK THE PARTICULAR PREDI-
CATE ACTS YOU HAVE UNANIMOUSLY CON-
CLUDED HAVE BEEN PROVEN BY THE UNITED
STATES WITH RESPECT TO DEFENDANT SWAMI.
1) STEPHEN BRYANT MURDER ________
2) CHARLES ST. DENNIS MURDER ________
3) DEVON WHEELER KIDNAPPING ________
4) MAIL FRAUD: FUNDRAISING ________
5) MAIL FRAUD: ALLSTATE INSURANCE ________
The jury found Swami guilty of the RICO conspiracy count (Count
I) and checked all of the predicate acts except the Stephen Bryant
murder. The jury also found Swami guilty of the RICO substantive
count (Count II) but did not check either the Stephen Bryant murder
or the Charles St. Dennis murder as predicate acts.
C. Post-trial Proceedings
Swami appealed to this Court, and we vacated Swami's convictions
and remanded for a new trial. 2 United States v. Ham , 998 F.2d 1247
(4th Cir. 1993). This Court concluded that the district court erred in
admitting evidence of child molestation, homosexuality, and mistreat-
ment of women because the danger of unfair prejudice outweighed
the probative value of the evidence.
On remand to the district court, Swami moved, inter alia , to dis-
miss the forfeiture count and the two predicate acts that the jury did
not check on the verdict form. Swami argued that the Double Jeop-
ardy Clause of the Fifth Amendment bars retrial of the forfeiture
count because the district court failed to have the jury render a special
verdict under Rule 31(e). Swami also argued that the original jury, by
failing to check several of the predicate acts on the verdict form,
implicitly acquitted him of those acts; therefore, Swami contended
that double jeopardy bars the government from retrying him on those
predicate acts.
The district court denied both motions to dismiss. With regard to
the forfeiture count, the district court concluded that the jury's affir-
mative answer to the special interrogatory on the verdict form was
sufficient to comply with the requirements of Rule 31(e) even though
it did not specify the extent of Swami's interest or property subject
to forfeiture. With regard to the predicate acts, the district court con-
cluded that the failure to check a particular predicate act did not con-
stitute an implicit acquittal of that act. Swami now appeals to this
Court. We affirm the district court's denial of the motions to dismiss,
but our reasoning differs with respect to the forfeiture count.
II.
The Fifth Amendment provides that no person shall"be subject for
the same offence to be twice put in jeopardy of life or limb." U.S.
Const. amend. V. The Double Jeopardy Clause unequivocally prohib-
its the State from retrying a defendant after an acquittal. Arizona v.
Washington , 434 U.S. 497, 503 (1978). As the Supreme Court has
explained:
The underlying idea, one that is deeply ingrained in at least
the Anglo-American system of jurisprudence, is that the
State with all its resources and power should not be allowed
to make repeated attempts to convict an individual for an
alleged offense, thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live in a constant
state of anxiety and insecurity as well as enhancing the pos-
sibility that even though innocent he may be found guilty.
Green v. United States , 355 U.S. 184, 187-88 (1957). Thus, a verdict
of acquittal is final and a bar to all subsequent prosecution for the
same offense, even where the acquittal was based upon an egre-
giously erroneous foundation. Washington , 434 U.S. at 503 .
However, a verdict of guilt or innocence is not required for the
double jeopardy bar to apply. The Double Jeopardy Clause also pro-
tects a defendant's right to have his trial completed by the particular
tribunal he or she has chosen. Id . Jeopardy attaches once a defendant
is put to trial before a jury, and the Double Jeopardy Clause generally
bars retrial if the jury is discharged without the defendant's consent.
Green , 355 U.S. at 188 . "This prevents a prosecutor or judge from
subjecting a defendant to a second prosecution by discontinuing the
trial when it appears that the jury might not convict." Id . Thus, the
government is entitled to only "one fair opportunity to offer whatever
proof it [can] assemble." Burks v. United States , 437 U.S. 1, 16
(1978). If the government cannot meet its burden of proof at the first
trial, the Double Jeopardy Clause prevents the court from withholding
the issue from the jury and allowing the government to reprosecute
before a more favorable jury.
Nonetheless, the Double Jeopardy Clause does not automatically
bar retrial when a criminal proceeding is terminated without a final
resolution on the merits of the charges. As the Supreme Court has
explained:
Because of the variety of circumstances that may make it
necessary to discharge a jury before a trial is concluded, and
because those circumstances do not invariably create unfair-
ness to the accused, his valued right to have the trial con-
cluded by a particular tribunal is sometimes subordinate to
the public interest in affording the prosecutor one full and
fair opportunity to present his evidence to an impartial jury.
Washington , 434 U.S. at 505 . The Supreme Court has long since for-
mulated the following rules for determining whether double jeopardy
bars reprosecution after a mistrial. If a judge declares a mistrial over
the defendant's objection or without the defendant's consent, the
defendant cannot be retried unless there was "manifest necessity" for
the termination of the first trial. Arizona , 434 U.S. at 509 -10; Green ,
355 U.S. at 188 ; United States v. Perez , 22 U.S. (9 Wheat.) 579
(1824); United States v. Council , 973 F.2d 251, 255 (4th Cir. 1992).
However, if the defendant moved for mistrial or otherwise consents
to the mistrial, the defendant can be reprosecuted unless he can dem-
onstrate that the prosecutor or judge provoked the mistrial. Oregon v.
Kennedy , 456 U.S. 667, 676 (1982).
In this case, the district court did not declare a mistrial; instead, the
district court completed most of the trial but failed to try a discrete
issue required for conviction of the forfeiture count. Under Rule
31(e), a district court cannot enter an order of forfeiture unless a jury
has entered a special verdict regarding the extent of the defendant's
interest or property subject to forfeiture. The district court below
never held an evidentiary hearing on the extent of Swami's interest
and never directed the jury to enter a special verdict on the issue. The
jury issued a verdict on all the issues presented to it, thus completing
those portions of the trial. But, the trial never even began on the Rule
31(e) forfeiture issue.
We hold that the double jeopardy rules that apply in mistrial situa-
tions also apply when a court fails to try a discrete portion of the case
before the original jury. If the failure to try a discrete issue occurs
over the defendant's objection or without the defendant's consent, the
court cannot try that issue before a second jury unless there was
"manifest necessity" for withholding it from the original jury. On the
other hand, if the failure to try the discrete issue occurs at the defen-
dant's request or otherwise with the defendant's consent, the court
can try that issue before a second jury unless the defendant can dem-
onstrate that the prosecutor or judge improperly provoked the defen-
dant's request or consent.
Swami did not expressly consent to the dismissal of the jury before
it decided the Rule 31(e) forfeiture issue. Nonetheless, Swami's con-
sent may be implied from his failure to object to the district court's
dismissal of the jury. In mistrial situations, a number of circuits have
held that a defendant impliedly consents to a mistrial if the defendant
had an opportunity to object to the mistrial but fails to do so. See
United States v. DiPietro , 936 F.2d 6, 9-10 (1st Cir. 1991) (implied
consent where defendant did not object to mistrial even though defen-
dant should have anticipated declaration of mistrial and where trial
judge remained in courtroom afterward to discuss case with attor-
neys); Camden v. Circuit Court of Second Judicial Dist., Crawford
County, Ill. , 892 F.2d 610, 614-18 (7th Cir. 1989) (implied consent
where defendant did not object to mistrial although"[d]efense counsel
should have anticipated the possibility of a mistrial and been prepared
to object or suggest more acceptable alternatives when the trial judge
announced his ruling"), cert. denied , 495 U.S. 921 (1990); United
States v. Puleo , 817 F.2d 702, 705 (11th Cir.) (implied consent where
trial judge expressed clear intent to declare mistrial and defense coun-
sel had opportunity to object but did not), cert. denied , 484 U.S. 978
(1987); United States v. Smith , 621 F.2d 350, 352 (9th Cir. 1980)
(implied consent where defendant did not object after declaration of
mistrial although, before dismissal of jury, court and attorneys dis-
cussed instructions to jury upon dismissal and schedule for retrial),
cert. denied , 449 U.S. 1987 (1981); United States v. Goldstein , 479
F.2d 1061, 1067 (2d Cir.) ("Consent need not be express, but may be
implied from the totality of circumstances attendant on a declaration
of mistrial."), cert. denied , 414 U.S. 873 (1973). But see Glover v.
McMackin , 950 F.2d 1236 (6th Cir. 1991) (holding that consent
should be implied "only where the circumstances positively indicate
a defendant's willingness to acquiesce in the [mistrial] order"); United
States v. White , 914 F.2d 747, 753 (6th Cir. 1990) (same). 3 However,
a defendant's failure to object does not constitute implied consent if
he had no opportunity to object.
United States v. Jorn
,
400 U.S. 470,
487
abruptly discharged jury, offering no opportunity for defendant to
object to mistrial); United States v. Bates , 917 F.2d 388, 393 (9th Cir.
1990) (no implied consent where defense counsel, immediately after
judge declared mistrial, requested to talk to judge outside jury's pres-
ence, but judge did not grant request); Lovinger v. Circuit Court of
the 19th Judicial Circuit, Lake County, Ill. , 845 F.2d 739 (7th Cir.)
(no implied consent where judge, immediately after declaring mis-
trial, left courtroom and "was gone before the defense had any reason-
able opportunity to consider the import of his statement and act upon
it"), cert. denied , 488 U.S. 851 (1988).
Similarly, if a defendant has an opportunity to object to the trial
court's dismissal of the jury before it decides a discrete portion of the
case, but fails to do so, the defendant impliedly consents to the jury's
dismissal and cannot raise a double jeopardy defense to further prose-
cution before a second jury. The record in this case shows that, after
the clerk read the verdict and the defendants polled the jury, the dis-
trict judge thanked the members of the jury for their time and effort,
apologized for their inconvenience, and wished them a Happy Easter.
With these short remarks, the district judge was clearly dismissing the
jury. Swami's counsel could have interrupted the judge before he dis-
charged the jury and reminded him that the jury had not completed
the forfeiture phase of the trial. If Swami had wanted the original jury
to decide the Rule 31(e) forfeiture issue, he should have informed the
court of this desire before it dismissed the jury. 4
Although Swami had a right to have the original jury decide the
Rule 31(e) forfeiture issue, he could have asserted this right and pre-
vented the district court from prematurely dismissing the jury. He did
not do so. Swami cannot avoid a second trial on the forfeiture count
on double jeopardy grounds and thereby profit from his failure to act.
The actions of Swami's attorneys suggest that the double jeopardy
argument was a mere afterthought that one of Swami's attorneys con-
jured up long after the district court dismissed the original jury. Cf .
Camden , 892 F.2d at 618 (concluding that defendant's double jeop-
ardy argument was "merely an afterthought that took form long after
the first trial ended in a mistrial").
We conclude that Swami impliedly consented to the district court's
dismissal of the jury and, therefore, that the district court can try the
Rule 31(e) forfeiture issue before a second jury without a showing of
manifest necessity. We hold that double jeopardy does not bar retrial
of the forfeiture count of Swami's indictment.
III.
We turn now to Swami's contention that double jeopardy bars
retrial of the RICO predicate acts that the original jury did not check
on the verdict form. Swami argues that the original jury had an oppor-
tunity to render a verdict on the Stephen Bryant and Charles St. Den-
nis murders, 5 and that its failure to check those predicate acts on the
verdict form should be treated as an implied acquittal.
Swami finds support for his argument in Green v. United States ,
355 U.S. 184 (1957). In that case, Green was tried for both first and
second degree murder; the jury convicted Green of second degree
murder, but the verdict was silent on the first degree murder charge.
Id . at 186. Green successfully appealed his second degree murder
conviction, and on remand for a new trial, Green argued that the Dou-
ble Jeopardy Clause barred retrial of the first degree murder charge.
The Supreme Court concluded that the "second trial for first degree
murder placed Green in jeopardy twice for the same offense in viola-
tion of the Constitution." Id . at 190.
The Supreme Court reasoned that Green had been forced to run the
gauntlet once on the charge of first degree murder and that the jury
had refused to convict him. Id . The jury had the choice between con-
victing him on first or second degree murder, and it chose the latter.
Id . The Supreme Court regarded the jury's verdict as an implied
acquittal on the first degree murder charge. Id . It relied on the fact
that the jury had been dismissed without Green's consent and without
its having returned an express verdict on the first degree murder
charge. Id . at 191. The Supreme Court reasoned that the jury "was
given a full opportunity to return a verdict and no extraordinary cir-
cumstances appeared which prevented it from doing so." Id . There-
fore, the Court concluded that "Green's jeopardy for first degree
murder came to an end when the jury was discharged so that he could
not be retried for that offense." Id .
More generally, the Supreme Court held in Green that "the double
jeopardy clause precludes a prisoner's retrial for a greater offense
after reversal of his conviction of a lesser included offense." United
States v. Johnson , 537 F.2d 1170, 1174 (4th Cir. 1976); see also
United States v. Tateo , 377 U.S. 463, 465 n.1 (1964) ( Green "holds
only that when one is convicted of a lesser offense included in that
charged in the original indictment, he can be retried only for the
offense of which he was convicted rather than that with which he was
originally charged.").
Swami argues that he has been forced to run the gauntlet on all five
predicate acts, and that the jury did not convict him on the predicate
acts regarding the Bryant and St. Dennis murders. Swami urges this
Court to conclude, like the Green Court, that the failure to return a
verdict on those predicate acts constitutes an implied acquittal, thus
barring a second prosecution on those acts. Swami also argues that,
although he was prosecuted on RICO charges with five predicate acts,
he was convicted of lesser included offenses, namely a RICO conspir-
acy conviction with four predicate acts and a substantive RICO con-
viction with three predicate acts. Having successfully appealed these
RICO convictions, Swami contends that he can be retried only on the
lesser included offenses.
We do not agree. The jury's failure to check a predicate act does
not constitute an implied acquittal of that act. The verdict form
required the jury to "check the particular predicate acts you have
unanimously concluded have been proven by the United States with
respect to defendant Swami." The failure to check a predicate act may
signify either that the jury unanimously concluded that Swami did not
commit that act, or that the jury could not agree on a verdict for that
act.
A jury's failure to decide an issue will be treated as an implied
acquittal only where the jury's verdict necessarily resolves an issue
in the defendant's favor. See Schiro v. Farley , 114 S. Ct. 783, 792
(1994) ("The failure to return a verdict does not have collateral estop-
pel effect . . . unless the record establishes that the issue was actually
and necessarily decided in the defendant's favor."). In Green , for
instance, the failure to issue a verdict on the first degree murder
charge was treated as an implied acquittal because"Green's convic-
tion of second-degree murder established the existence of a fact (the
state of mind required for that offense) that was inconsistent with his
being guilty of first-degree murder . . . ." Kennedy v. Washington , 986
F.2d 1129, 1134 (7th Cir. 1993), cert. denied , 114 S. Ct. 876 (1994).
Nothing in the jury's verdict in Swami's case establishes a fact incon-
sistent with a finding of guilt on the predicate acts.
We conclude that the Double Jeopardy Clause does not bar retrial
of the predicate acts regarding the Stephen Bryant murder and the
Charles St. Dennis murder.
IV.
For the reasons stated herein, we affirm the judgment of the district
court.
AFFIRMED
conduct and participate in the affairs of an enterprise through a pattern
of racketeering activity in violation of 18 U.S.C.§ 1962(d) (Count I),
conducting the affairs of an enterprise through a pattern of racketeering
activity in violation of 18 U.S.C. § 1962(c) (Count II), investing income
derived from a pattern of racketeering activity in the operation of an
enterprise (Count III), two counts of conspiring to commit mail fraud in
violation of 18 U.S.C. § 371 (Counts VI and VIII), four counts of sub-
stantive mail fraud in violation of 18 U.S.C. § 1341 (Counts VII, IX, X,
and XI), one count of conspiring to murder in violation of 18 U.S.C.
§ 371 (Count IV), and one count of aiding and abetting to commit mur-
der in violation of 18 U.S.C. § 1958 (Count V).
Terry Sheldon was a co-defendant in the RICO conspiracy count, the
substantive RICO counts, the conspiracy to commit murder count, and
the aiding and abetting to commit murder count. Terry Sheldon and Ste-
ven Fitzpatrick were co-defendants in one of the mail fraud conspiracy
counts and one of the substantive mail fraud counts.
convictions of Steven Fitzpatrick.
First Circuit has concluded that the Sixth Circuit has actually not set a
different standard. "Even where courts have held that the failure to object
did not foreclose a good double jeopardy plea, they have generally done
so because there was no opportunity to object." DiPietro , 936 F.2d at 10.
The First Circuit noted that, in United States v. White , 914 F.2d 747 (6th
Cir. 1990), the defendant's failure to object to the mistrial did not waive
the double jeopardy bar to a new trial because the defense had no time
to object. DiPietro , 936 F.2d at 10-11.
the court. It is unlikely that Swami wanted the same jury that had just
convicted him of nine of the eleven counts also to decide the remaining
forfeiture issue.
for the RICO conspiracy count (Count I). It did not check it as a predi-
cate act for the substantive RICO count (Count II). Swami argues that
double jeopardy bars retrial of the St. Dennis murder only as to the sub-
stantive RICO count.