United States v. Ackerly
| Citation | 323 F.Supp.3d 187 |
| Decision Date | 16 August 2018 |
| Docket Number | CRIMINAL ACTION NO. 16-10233-RGS |
| Parties | UNITED STATES v. Donna ACKERLY, Charles W. Garske, Richard J. Gottcent, and Michael Sedlak |
| Court | U.S. District Court — District of Massachusetts |
Stephen E. Frank, Eric S. Rosen, Assistant US Attorney, United States Attorney's Office MA, Boston, MA, for United States.
Michael Kendall, Yakov Malkiel, White & Case, LLP, Alexandra G. Watson, Anthony E. Fuller, Hogan Lovells US LLP, William J. Cintolo, Meredith G. Fierro, Thomas R. Kiley, Cosgrove, Eisenberg & Kiley, PC, William F. Sinnott, Barrett & Singal, P.C., Boston, MA, Michael W. Gibaldi, Pro Hac Vice, Justine Harris, Sher Tremonte LLP, Charlita Mays, Pro Hac Vice, David Spears, Pro Hac Vice, T. Josiah Pertz, Pro Hac Vice, Spears & Imes, LLP, New York, NY, for Donna Ackerly, Charles W. Garske, Richard J. Gottcent, and Michael Sedlak.
STEARNS, D.J.
When viewed from a higher orbit, the matter presently before the court involves a tension between rights conferred by the Federal Rules of Criminal Procedure and the United States Constitution. From a more earthly vantage, it involves the clash between a criminal defendant's interest in being free on the one hand from undue oppression by the State, and on the other, the Sovereign's interest in pursuing just punishment.
To begin: Federal Rule of Criminal Procedure 23(b)(2) permits a criminal jury trial to continue to a verdict with fewer than twelve jurors only with consent of all parties (and the court's approval), while the Fifth Amendment to the United States Constitution, among its other limitations on the power of the State, provides that "nor shall any person be subject for the same offence to be twice put in jeopardy of life of limb."1 As will be explained, despite the simplicity of its wording, the Double Jeopardy Clause of the Fifth Amendment has many facets. It protects a defendant not only from being subjected to multiple trials and multiple punishments for the same offense; it also preserves a defendant's "valued right to have the trial concluded by a particular tribunal," Arizona v. Washington , 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), including the right to "hav[e] his case finally decided by the jury first selected" to hear his case. Oregon v. Kennedy , 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).
The factual underpinning of this case can be summarized as follows. Over the weekend preceding what was expected to be the last day of evidence in a multi-week trial involving four alleged co-conspirators in a scheme to deprive a stock proxy tabulation firm of the honest services of one of its employees, the twelfth remaining juror was excused after his wife was stricken with a grave medical emergency.2 The government initially agreed to go forward with eleven jurors, but then added the condition that it would only agree if all four co-defendants also agreed. Three of the co-defendants did so, but one declined. After much back-and-forth over the weekend, the government and the fourth co-defendant refused to relent (positions iterated on Monday morning), leaving the court with no practicable option under the plain text of Rule 23 but to declare a mistrial.3
And so the question under the peculiar facts of this case is this: Does the Double Jeopardy Clause bar the government from retrying the three defendants -- Charles Garske, Richard Gottcent, and Michael Sedlak -- who sought to proceed to a verdict validated by eleven jurors? While the answer is a difficult one, the court concludes that it does, for reasons that will be explained, necessarily at some length.
This case arose out of an investigation involving an alleged bribery scheme affecting the proxy solicitation industry. Defendants were employees of Georgeson, Inc., a firm that specializes in advising clients on positions that institutional investors are likely to take in voting their proxies on the governance proposals offered by corporate management and shareholders. To enhance the quality of their predictions to their clients, defendants are alleged to have corrupted an insider at Institutional Shareholder Services, Inc. (ISS), a proxy advisory firm, by plying him with meals and tickets to sporting events and concerts.4 The object was to gain access to the proxy voting advice that ISS was giving to its institutional clients. The indictment was handed up on July 11, 2016. The court ruled on various pretrial motions, including, most notably for present purposes, two unsuccessful attempts by defendant Donna Ackerly to sever her trial from that of her three co-defendants. See Dkt # 235 (Nov. 14, 2017), Dkt # 331 (Feb. 21, 2018).
The trial began on February 26, 2018, with fourteen jurors impaneled. As previously noted, on March 1, 2018, the remaining alternate juror was excused for cause. In granting the excusal, the court, in an exercise of misplaced optimism, observed that Tr. Mar. 1, 2018, 163:8-10. Despite four interruptions caused by snow emergencies, the trial progressed to what proved to be its penultimate day on Friday, March 16, 2018. At a conference held after the jury had been excused for the weekend, defendants' counsel informed the court that they did not intend to call any witnesses, meaning that the case would go to the jury the coming Monday or Tuesday.
The precipitating event leading to the mistrial came on the evening of Friday, March 16, 2018. Juror No. 125 contacted the Chief Law Clerk to report that his wife had just been diagnosed with a brain tumor
and required immediate surgery. The juror, who was in a state of shock and understandable anguish, stated that he had an urgent need to attend to his wife and children and was unable to continue his jury service.
The next morning, Saturday, March 17, I instructed the Chief Clerk to email the parties and inform them of the turn of events. I also asked her to relay my observation that Federal Rule of Criminal Procedure 23(b)(2)(B)"allows a reduction to 11 jurors with the written consent of the parties and the judge," and to advise the parties that I was "prepared to make the necessary finding of good cause and [that I] look[ed] to the parties to agree." See Dkt # 416-2. At 10:32 a.m. she did so. Counsel for defendant Gottcent replied at 10:38 a.m. stating that his client was prepared to go forward with eleven jurors. Dkt # 416-3. The government replied at 12:18 p.m. stating that it consented to "proceed with 11" jurors. See Dkt # 416-5. At 2:44 p.m., counsel for defendant Sedlak agreed to proceed with eleven jurors. See Dkt # 416-6. The government then sent an email at 2:52 p.m. to all parties "clarifying" its original assent and announcing that "the government's consent is conditioned on all four defendants consenting." See Dkt # 416-7. Counsel for Garske forwarded her client's consent at 3:06 p.m.
The bump in the road was felt at 4:15 p.m., when counsel for Ackerly wrote to all parties stating that his client was "not comfortable consenting to go with only 11 jurors." See Dkt # 416-9. The email referenced Ackerly's previous attempts to have her case severed from her three co-defendants, arguing that the government's remaining witnesses would "not offer any evidence against her," id. , and that the evidentiary record was complete with respect to her planned motions for a directed verdict, or alternatively, to exclude certain of the out-of-court statements of her alleged co-conspirators pursuant to United States v. Petrozziello , 548 F.2d 20 (1st Cir. 1977). She requested a hearing on these motions the following Monday morning. The government responded thirteenminutes later, objecting to the assertion that the record as it pertained to Ackerly was complete and stating that it was See Dkt # 416-10.
The court denied Ackerly's request to be heard on the directed verdict and Petrozziello motions, see Dkt # 416-11, and then explained to the parties that, in light of "the government's second email [from 2:52 p.m., see Dkt # 416-7] that they only consent if all four defendants consent ... the court feels it has no other choice than to declare a mistrial on Monday morning." See Dkt # 416-12. The following day, Sunday, March 18, 2018 at 12:36 p.m., counsel for Ackerly wrote in an email (purportedly on behalf of all four defendants) that "the Government's change in position that it will refuse to proceed with the trial against the three defendants if Ackerly exercises her right to a jury of 12, will create a double jeopardy problem that would prevent the retrial of the other three defendants." See Dkt # 416-13. In that email, Ackerly again requested a severance and proposed that the "three other defendants and the government should be ready to proceed with trial at 9 am tomorrow [Monday]." Id. Counsel for Garske replied to the email, stating that Ackerly "does not speak for defendants Garske, Gottcent and Sedlak," and emphasizing that these three defendants "have consented to a jury of eleven ... and their decisions were made without regard to [Ackerly's] possible course of action." See Dkt # 416-14. The court responded that it understood the parties' respective positions. See Dkt # 416-15.
Court convened Monday morning, March 19, 2018, without the jury present. The Chief Law Clerk summarized her conversations with Juror No. 12. I then explained to the parties that "consistent with [Fed. R. Crim. P.] Rule 26.3," I had considered other possibilities than a mistrial, but the "only alternative I can think of is to just indefinitely postpone the trial and try to resume at some point in the future."...
To continue reading
Request your trial
-
United States v. Ackerly
...from retrying Garske, Gottcent, and Sedlak and dismissed the indictment against them with prejudice. See United States v. Ackerly, 323 F. Supp. 3d 187, 200-03 (D. Mass. 2018). Following the government's appeal, we reversed. See Garske, 939 F.3d at 327, 336.While that appeal was pending, the......
-
United States v. Garske
...who thirsts for more exegetic detail may wish to consult the district court's comprehensive account. See United States v. Ackerly, 323 F. Supp. 3d 187, 190-92 (D. Mass. 2018).On August 10, 2016, a federal grand jury sitting in the District of Massachusetts returned an indictment charging fo......