OPINION OF THE COURT
BLACK V. UNITED STATES
561 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-876
CONRAD M. BLACK, JOHN A. BOULTBEE, and MARK S.
KIPNIS, PETITIONERS
v. UNITED STATES
on writ of certiorari to the united states court of
appeals for the seventh circuit
[June 24, 2010]
Justice Ginsburg delivered the
opinion of the Court.
In
Skilling v.
United States, decided today,
ante, p. __, we
vacated a conviction because the indictment rested, in part, on an
improper construction of the “honest services” component of the
federal ban on mail fraud, 18 U. S. C. §§1341, 1346. A similar
infirmity is present in this case. Here, too, the Government and
trial court advanced an interpretation of §1346 rejected by the
Court’s opinion in
Skilling. Nevertheless, the Government
urges, the convictions of the defendants below, petitioners here,
should be affirmed for an independent reason. At trial, the
Government pursued alternative theories: (1) money-or-property
fraud; and (2) honest-services fraud. To pinpoint whether the jury
based its verdict on money-or-property fraud, or honest-services
fraud, or both, the Government proposed special interrogatories to
accompany the verdict. The defendants resisted, preferring an
unelaborated general verdict, and the Government ultimately
acquiesced in that standard form of submission.
The Court of Appeals held that the defendants,
by opposing the Government-suggested special interrogatories,
forfeited their objection to the honest-services-fraud instructions
given to the jury. 530 F. 3d 596, 603 (CA7 2008). We reverse
that ruling. A criminal defendant, we hold, need not request
special interrogatories, nor need he acquiesce in the Government’s
request for discrete findings by the jury, in order to preserve in
full a timely raised objection to jury instructions on an
alternative theory of guilt.
I
Petitioners Conrad Black, John
Boultbee, and Mark Kipnis, as well as Peter Atkinson,[
Footnote 1] (collectively, Defendants) were
leading executives of Hollinger International, Inc. (Hollinger), a
publicly held U. S. company that, through subsidiaries, owned
newspapers here and abroad. In 2005, the Government indicted
Defendants on multiple counts, of prime concern here, three counts
of mail fraud in violation of §§1341 and 1346.[
Footnote 2] Two theories were pursued by the
Government on each mail-fraud count. The Government charged that
(1) Defendants stole millions from Hollinger by fraudulently paying
themselves bogus “noncompetition fees”; and that (2) by failing to
disclose their receipt of those fees, Defendants deprived Hollinger
of their honest services as managers of the company. App. to Pet.
for Cert. 24a–54a.
At the close of the four-month
trial, the U. S. District Court for the Northern District of
Illinois instructed the jury, discretely, on the
theft-of-money-or-property and honest-services deprivation theories
advanced by the Government.
Id., at 235a. As to the
latter, the District Court informed the jury, over Defendants’
objection, that a person commits honest-services fraud if he
“misuse[s] his position for private gain for himself and/or a
co-schemer” and “knowingly and intentionally breache[s] his duty of
loyalty.”
Id., at 235a–236a.
Before jury deliberations began, the
Government asked the District Court to employ a special-verdict
form, which would reveal, in the event that the jury voted to
convict on a mail-fraud count, the theory or theories accounting
for the verdict—money-or-property fraud, honest-services fraud, or
both. See App. 430a.[
Footnote
3] Defendants opposed the Government-proposed special
interrogatories and urged, instead, standard general-verdict forms.
Id., at 432a. Comprehending, however, that in the event of
a guilty verdict, “the jury’s specification of the [mail-]fraud
theory might [aid] appellate review,”
ibid., Defendants
proposed an accommodation: Upon return of a guilty verdict on any
mail-fraud count, jurors could be asked to specify the theory on
which they relied,
id., at 433a.
The Government objected to special
interrogatories presented to the jury postverdict, App. to Pet. for
Cert. 222a, and the District Court declined to adopt that
procedure,
id., at 225a.[
Footnote 4] When the court rejected postverdict
interrogatories, the Government represented that it would not
object to submission of the mail-fraud counts for jury decision by
general verdict.
Id., at 228a. The jury returned general
verdicts of “guilty” on the three mail-fraud counts;[
Footnote 5] it also found defendant Black
guilty of obstruction of justice in violation of 18 U. S. C.
§1512(c)(1), and it acquitted Defendants on all other charges.
On appeal, Defendants urged the invalidity of
the jury instructions on honest-services fraud. Under the rule
declared by this Court in
Yates v.
United States,
354 U. S. 298,
312 (1957), a general verdict may be set aside “where the verdict
is supportable on one ground, but not on another, and it is
impossible to tell which ground the jury selected.” Relying on that
rule, Defendants urged reversal of their mail-fraud convictions.
The Court of Appeals found no infirmity in the honest-services
instructions, 530 F. 3d, at 600–602, but further determined
that Defendants could not prevail even if those instructions were
wrong,
id., at 602–603. For this determination, the court
homed in on the Government’s special-verdict proposal.
The challenge to the honest-services
instructions would have become moot, the court observed, had the
jury received special-verdict forms separating money-or-property
fraud from honest-services fraud, and reported on the forms that
Defendants were not guilty of honest-services fraud. Defendants,
the Court of Appeals reasoned, bore responsibility for the
obscurity of the jury’s verdict. True, the court acknowledged, it
was not incumbent on Defendants to request special verdicts. But by
resisting the Government’s proposal for separate findings on
money-or-property fraud and on honest-services fraud, and
requesting general verdicts instead, the Seventh Circuit concluded,
Defendants had “forfeited their objection to the [honest-services]
instruction[s].”
Id., at 603. Defendants’ suggestion of
postverdict interrogatories did not, in the Court of Appeals’ view,
overcome the forfeiture, for “[q]uestioning the jurors after they
have handed down their verdict is not a good procedure and
certainly not one that a district judge is
required to
employ.”
Ibid.[Footnote
6]
We granted certiorari in this case, 556 U. S.
___ (2009), along with
Skilling v.
United States,
558 U. S. ___ (2009), and
Weyhrauch v.
United
States, 557 U. S. ___ (2009), to determine what conduct
Congress rendered criminal by proscribing, in §1346, fraudulent
deprivation of “the intangible right of honest services.” We also
agreed to consider in this case the question whether Defendants
forfeited their objection to the honest-services jury instructions
by opposing the Government’s request for special verdicts.
II
We decided in
Skilling
that §1346, properly confined, criminalizes only schemes to defraud
that involve bribes or kickbacks. See
ante, p. __. That
holding renders the honest-services instructions given in this case
incorrect,[
Footnote 7] and
brings squarely before us the question presented by the Seventh
Circuit’s forfeiture ruling: Did Defendants, by failing to
acquiesce in the Government’s request for special verdicts, forfeit
their objection, timely made at trial, to the honest-services
instructions?
In addressing this issue, we note
first the absence of any provision in the Federal Rules of Criminal
Procedure for submission of special questions to the jury. See
Stein v.
New York,
346 U. S. 156, 178
(1953) (“Our own Rules of Criminal Procedure make no provision for
anything but a general verdict.”), overruled on other grounds,
Jackson v.
Denno,
378 U. S. 368
(1964).[
Footnote 8] The sole
call for special findings in the Criminal Rules concerns nonjury
trials. Rule 23(c) provides: “If a party [in a case tried without a
jury] requests before the finding of guilty or not guilty, the
court must state its specific findings of fact in open court or in
a written decision or opinion.”
In contrast, the Federal Rules of Civil
Procedure provide for jury interrogatories of two kinds: special
verdicts, which instruct the jury to return “a special written
finding on each issue of fact,” Rule 49(a); and general verdicts
with answers to “written questions on one or more issues of fact,”
Rule 49(b).[
Footnote 9]
Although not dispositive,[
Footnote 10] the absence of a Criminal Rule authorizing
special verdicts counsels caution.[
Footnote 11]
While the Criminal Rules are silent on special
verdicts, they are informative on objections to instructions. Rule
30(d) “clarifies what … counsel must do to preserve a claim of
error regarding an instruction.” Advisory Committee’s Notes on 2002
Amendment on Fed. Rule Crim. Proc. 30(d), 18 U. S. C. App., p.
915. The Rule provides: “A party who objects to any portion of the
instructions or to a failure to give a requested instruction must
inform the court of the specific objection and the grounds for the
objection before the jury retires to deliberate.” Defendants here,
it is undisputed, complied with that requirement.[
Footnote 12]
The Court of Appeals, in essence, added a
further requirement for preservation of a meaningful objection to
jury instructions. It devised a forfeiture sanction unmoored to any
federal statute or criminal rule. And it placed in the prosecutor’s
hands authority to trigger the sanction simply by requesting a
special verdict. See 530 F. 3d, at 603.[
Footnote 13] To boot, the Court of Appeals
applied the sanction to Defendants, although they lacked any notice
that forfeiture would attend their resistance to the Government’s
special-verdict request. There is a Rule designed to ward off
judicial invention of the kind present here. Federal Rule of
Criminal Procedure 57(b) admonishes: “No sanction or other
disadvantage may be imposed for noncompliance with any requirement
not in federal law [or] federal rules … unless the alleged violator
was furnished with actual notice of the requirement before the
noncompliance.”
We hold, in short, that, by properly objecting
to the honest-services jury instructions at trial, Defendants
secured their right to challenge those instructions on appeal. They
did not forfeit that right by declining to acquiesce in the
Government-proposed special-verdict forms. Our decision in
Skilling makes it plain that the honest-services
instructions in this case were indeed incorrect. As in
Skilling,
ante, at 40–41, we express no opinion
on the question whether the error was ultimately harmless, but
leave that matter for consideration on remand.[
Footnote 14]
* * *
For the reasons stated, we vacate
the judgment of the Court of Appeals and remand the case for
further proceedings consistent with this opinion.
It is so ordered.
Footnote 1
Peter Atkinson is a respondent in support of
petitioners who qualifies for relief under this Court’s Rule 12.6.
See Letter from Michael S. Schachter to the Clerk of Court (July
29, 2009).
Footnote 2
Section 1341 criminalizes use of the mails to
further “any scheme or artifice to defraud, or for obtaining money
or property by means of false or fraudulent pretenses,
representations, or promises.” Section 1346 defines the §1341 term
“scheme or artifice to defraud” to include “a scheme or artifice to
deprive another of the intangible right of honest services.”
Footnote 3
The Government proposed this language for
each defendant on each mail-fraud count:
“If you find the defendant … Guilty with respect to [this
Count], you must answer the following question by checking the
applicable lines.
“With respect to [this Count], we, the jury,
find the following has been proven beyond a reasonable doubt (check
all that apply):
“Defendant engaged in a scheme to defraud
[Hollinger] and its shareholders of money or property ____
“Defendant engaged in a scheme to defraud
[Hollinger] and its shareholders of their intangible right to
honest services ____.” App. 430a.
Footnote 4
In her years at the bar and on the bench, the
trial judge commented, she had “absolutely” never seen the
postverdict procedure used. App. to Pet. for Cert. 225a.
Footnote 5
The District Court later granted Kipnis’
motion for judgment of acquittal on one of these counts.
Footnote 6
See,
e.g., Jacobs Mfg. Co.
v.
Sam Brown Co., 19 F. 3d 1259, 1267 (CA8 1994)
(“Postverdict interrogatories may imply the jury’s verdict is
unjustified and cause the jury to answer the interrogatories in a
manner inconsistent with the verdict.”); cf.
Yeager v.
United States, 557 U. S. ___, ___ (2009) (slip op., at 11)
(“Courts properly avoid … explorations into the jury’s sovereign
space.”).
Footnote 7
The scheme to defraud alleged here did not
involve any bribes or kickbacks.
Footnote 8
The absence of a special verdict or
interrogatory provision in the Criminal Rules is hardly accidental.
See
Skidmore v.
Baltimore & Ohio R. Co.,
167 F. 2d 54, 70 (CA2 1948) (L. Hand, J., concurring) (“I
should like to subject a verdict, as narrowly as was practical, to
a review which should make it in fact, what we very elaborately
pretend that it should be: a decision based upon law. In criminal
prosecutions there may be, and in my judgment there are, other
considerations which intervene to make such an attempt
undesirable.”).
Footnote 9
Although the special interrogatories
requested by the Government in this case have been called “special
verdicts” by the parties and the courts below, they more closely
resemble what Civil Rule 49(b) describes as “general verdict[s]
with answers to written questions.” (Capitalization omitted.)
Footnote 10
See Fed. Rule Crim. Proc. 57(b) (when there
is no controlling law, “[a] judge may regulate practice in any
manner consistent with federal law, these rules, and the local
rules of the district”).
Footnote 11
By calling for caution, we do not mean to
suggest that special verdicts in criminal cases are never
appropriate. See
United States v.
Ruggiero, 726
F. 2d 913, 922–923 (CA2 1984) (in complex Racketeer Influenced
and Corrupt Organizations Act cases, “it can be extremely useful
for a trial judge to request the jury to record their specific
dispositions of the separate predicate acts charged, in addition to
their verdict of guilty or innocence”);
id., at 927
(Newman, J., concurring in part and dissenting in part) (“[A]
District Court should have the discretion to use a jury
interrogatory in cases where risk of prejudice to the defendant is
slight and the advantage of securing particularized fact-finding is
substantial.”).
Footnote 12
The Government asserts that Defendants’
opposition to a special verdict resulted in forfeiture not of their
jury-instruction objection, but of their “
Yates argument”
that any instructional error may “requir[e] reversal.” Brief for
United States 52, and n. 21 (internal quotation marks
omitted). The Government thus appears to concede that Defendants
preserved their instructional challenge, but maintains that they
are powerless to ask a court to assess the prejudicial effect of
any error they may be able to demonstrate. See Reply Brief 29,
n. 10 (on Government’s view, “[Defendants] could still ‘claim’
they were wrongly convicted, they just could not ask a court to do
anything about it”). We see little merit in the Government’s
attempt to divorce preservation of a claim from preservation of the
right to redress should the claim succeed.
Footnote 13
Rendering the Seventh Circuit’s forfeiture
ruling all the more anomalous, at the time the trial court settled
on the general verdict form, the Government was no longer pressing
its special-verdict request. See App. to Pet. for Cert. 228a.
Footnote 14
Black contends that spillover prejudice from
evidence introduced on the mail-fraud counts requires reversal of
his obstruction-of-justice conviction. Brief for Petitioners 47–49.
That question, too, is one on which we express no opinion.
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