Tuesday, July 12, 2011
The 11th Circuit remanded a case, Cabrera, premised on Skilling, vacating all counts of the conviction. But it allowed the lower court to determine whether a retrial was possible or whether the Fifth Amendment prohibited a retrial. Obviously, on remand the court prohibited the retrial as it would violate the Fifth Amendment's double jeopardy provisions.
It is interesting to contrast the initial portion of this case with the cases of Conrad Black, Jeffrey Skilling, and former Governor Ryan. In the Cabrera case, the jury was instructed on honest services. It was not limited to acts of bribery or kickbacks. The jury limited their decision to the scheme to defraud being premised on an alleged defrauding of investors of the intangible right to honest services. The government admitted in their sentencing memo that the "jury had not convicted defendant of a scheme to defraud investors of money." But the government in the Cabrera case tried to use this acquitted conduct for sentencing.
Then came the Skilling decision and having stretched the statute beyond its limits, the government in the Cabrera case was caught in a bind. The Court admitted in Skilling that this "'flaw' [not limiting the statute to bribes and kickbacks] did not necessarily require reversal of the conviction because it could have been harmless error." And in Skilling, the case was sent back on remand for consideration, which the Fifth Circuit found harmless for Skilling. In contrast, in the Eleventh Circuit in Cabrera, the court found the jury instructions incorrect and vacated the conviction. One could stop here and note that the differences in harmless error analysis may be an interesting question for later Court decisions.
But what is more interesting is that the government conceded the evidence in Cabrera did not meet 1346 as interpreted under Skilling. Why didn't they take this same posture in Ryan, Black and Skilling? Did the special verdicts work in this case, just because the jury had only checked the honest services box? Did the government not want this case to be the testing ground should a case go up on appeal?
But the government then attempted to retry the Cabrera case, despite their concessions that a Skilling reversal was warranted.. The court on remand in Cabrera starts its analysis with "The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides in relevant part: '[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The order provides a wonderful double jeopardy analysis.
Court's Order -Download Samir Cabrera