Black v. United States, No. 08–876.

• Decision Date: 24 June 2010
• Docket Number: No. 08–876.
• Citation: 561 U.S. 465,177 L.Ed.2d 695,130 S.Ct. 2963
• Parties: Conrad M. BLACK, John A. Boultbee, and Mark S. Kipnis, Petitioners, v. UNITED STATES.
• Court: U.S. Supreme Court

561 U.S. 465

130 S.Ct. 2963

177 L.Ed.2d 695

Conrad M. BLACK, John A. Boultbee, and Mark S. Kipnis, Petitioners,

v.UNITED STATES.

No. 08–876.

Supreme Court of the United States

Argued Dec. 8, 2009.

Decided June 24, 2010.

Miguel A. Estrada (argued), Washington, D.C., for petitioners.

Michael R. Dreeben, Washington, D.C., for respondent.

Richard A. Greenberg, Gustave H. Newman, Steven Y. Yurowitz, Newman & Greenberg, New York, NY, for Petitioner Boultbee in 2009 WL 3155001, 2009 WL 3615005, 2009 WL 2372920.

Ronald S. Safer, Patricia Brown Holmes, Neil Lloyd, Schiff Hardin LLP, Chicago, IL, Michael E. Swartz, Schulte Roth & Zabel LLP, New York, NY, for Petitioner Kipnis in 2009 WL 3155001, 2009 WL 3615005, 2009 WL 2372920.

Miguel A. Estrada, Counsel of Record, David Debold, Gibson, Dunn & Crutcher LLP, Washington, D.C., Ashley E. Johnson, Gibson, Dunn & Crutcher LLP, Dallas, TX, for Petitioner Black in 2009 WL 3155001, 2009 WL 3615005, 2009 WL 2372920.

Miguel A. Estrada, Counsel of Record, David Debold, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Petitioner Black in 2009 WL 4951318, 2009 WL 48714105.

Elena Kagan, Solicitor General, Counsel of Record, Lanny A. Breuer, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Matthew D. Roberts, Assistant to the Solicitor General, Joel M. Gershowitz, Department of Justice, Washington, D.C., for the U.S.

Opinion

Justice GINSBURG delivered the opinion of the Court.

In Skilling v. United States, decided today, ante, p. 2896, we vacated the Court of Appeals judgment and remand the case 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 (C.A.7 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,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 1346.² 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.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.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;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, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (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.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. 934, 129 S.Ct. 2863, 174 L.Ed.2d 575 (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. 2965. That holding renders the honest-services instructions given in this case incorrect,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, 73 S.Ct. 1077, 97 L.Ed. 1522 (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, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).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).⁹ Although not dispositive,¹⁰ the absence of a Criminal Rule authorizing special verdicts counsels caution.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...