United States v. Bailin

United States v. Bailin

Opinion

 [*272]  ESCHBACH, Senior Circuit Judge. In this multi-defendant criminal case, the jury found the defendants not guilty on some counts, but could not reach a verdict on numerous other counts. The district court declared mistrials on the hung counts. The government wishes to retry the defendants on the mistried counts, presenting an issue on appeal which the Supreme Court has never decided. When a defendant is found not guilty of some counts relating to a given transaction, and the prosecution wishes to retry mistried counts that also arise from that transaction, is the prosecution estopped from proving facts that were necessarily decided in the defendant's favor in the initial trial? Put differently, does the doctrine of issue preclusion apply to retrials of mistried counts in criminal cases involving partial verdicts? The district court held that it does, and both the defendant Robert Bailin and the government appeal from aspects of the district court's order. We  [**2]  affirm the district court's order but dismiss one of the government's contentions on cross-appeal.

Facts

At the time of the events charged in the indictment, the defendants were floor brokers and local traders in the Japanese Yen pit of the Chicago Mercantile Exchange. The government charged the defendants with a variety of violations stemming from their trading practices there. According to the government's brief, "the defendants routinely engaged in a variety of illegal, non-competitive trading practices in order [to] misappropriate the profits and market opportunities of brokers' customers and to minimize brokers' personal liability for order-filling errors." Gov't. Br. at 6. The defendants' acts allegedly violated various sections of the Commodity Exchange Act ("CEA"), 7 U.S.C. §§ 6b, 6c, and 13c(a), the mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, as well as the substantive and conspiracy provisions of the Racketeering Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and (d).

Following a six-month trial, the jury considered 195 counts against the 12 defendants  [*273]  who had neither pled guilty nor had their trials severed. The 195 counts included [**3]  120 counts of CEA violations, 41 counts of mail fraud, 31 counts of wire fraud, 2 counts of substantive RICO violations, and 1 count of RICO conspiracy. See O.R. (91-2604) 408, 778, 828; Tr. 63-11,033, 63-11,063-66, 64-11,361. ¹ After deliberating for an entire month, the jury acquitted the defendants on 115 of the 195 counts, and was unable to reach a verdict on 76. On the other 4 counts, the jury acquitted one named defendant and failed to reach a verdict regarding the other. O.R. (91-2604) 907. The trial court declared a mistrial on the hung counts. Id.

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