Hoyle v. Ada County

• Decision Date: 02 August 2007
• Docket Number: No. 06-35509.,06-35509.
• Citation: 501 F.3d 1053
• Parties: Richard W. HOYLE, Petitioner-Appellant, v. ADA COUNTY, Idaho, District Court; Lawrence Wasden, Attorney General, State of Idaho, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

501 F.3d 1053

Richard W. HOYLE, Petitioner-Appellant, v. ADA COUNTY, Idaho, District Court; Lawrence Wasden, Attorney General, State of Idaho, Respondents-Appellees.

No. 06-35509.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2007.

Filed August 2, 2007.

Andrew Parnes, Ketchum, ID, for petitioner-appellant Richard W. Hoyle.

Jessica M. Lorello, Deputy Attorney General, Boise, ID, for respondents-appellees Ada County and the State of Idaho.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CV-05-00063-EJL.

Before: RONALD M. GOULD, RICHARD A. PAEZ, and JOHNNIE B. RAWLINSON, Circuit Judges.

GOULD, Circuit Judge:

Petitioner-Appellant Richard W. Hoyle was indicted in Idaho on state racketeering charges. By the time the case was submitted to the jury, two counts remained in addition to thirty alleged predicate acts for a third count involving a racketeering charge ("Count B"). After the jury told the trial judge that it could not agree on a number of predicate acts in Count B, the trial judge instructed the jury to note on a special verdict form where there was no agreement. The jury returned a not guilty verdict on the racketeering counts, but wrote "no agmt" next to seven predicate acts and wrote under the "not guilty" verdict, "except as to the seven predicate acts upon which we could not reach unanimous agreement." The trial court denied Hoyle's motion for acquittal, concluding that the jury qualified its verdict with respect to the seven excepted predicate acts in Count B, a ruling which the Court of Appeals of Idaho and the Idaho Supreme Court affirmed. Hoyle filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241(c)(3), claiming that the not guilty verdict served to acquit him of the entirety of Count B and that Respondent Ada County ("the State") was barred by the prohibition against double jeopardy from charging in a second prosecution that Hoyle committed five of the seven predicate acts as discrete and independent offenses. The district court denied relief because it found that the jury unambiguously excepted the seven predicate acts from its not guilty verdict. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

Hoyle owned and operated Hoyle & Associates Insurance, Inc. ("Hoyle Insurance") in Boise, Idaho from 1979 to 1995. On January 1, 1996, Hoyle sold Hoyle Insurance to First Security Insurance, which continued to operate the concern as Hoyle Insurance and employed Hoyle as Vice President and Sales Manager.

On June 12, 1997, Hoyle was indicted on eight felony counts that were predicated on 165 criminal acts allegedly committed in connection with his insurance company. When the case was submitted to the jury, the jury had left to consider just Count A alleging solicitation of destruction of evidence, Count E alleging solicitation of grand theft, and thirty alleged predicate acts under Count B for various racketeering conduct.¹ On June 11, 1999, after ten weeks of trial and three days of deliberation, the jury reached verdicts of not guilty on Counts A and E. With respect to the remaining Count B, the jury sent a note to the trial judge stating in relevant part: "As to Count B, we cannot reach a unanimous agreement on a number of predicate acts. Do you want us to note on [the] verdict form those predicate acts to which we cannot agree? We have made extensive effort to obtain an agreement and don't feel we can." After hearing from the jury that further deliberations would be fruitless, the trial judge instructed the jury to fill out the verdict form.... On those answers to charges, to questions, and to predicate acts on which you have unanimously agreed, . . . put in your decision or answers to those questions. On any questions or predicate acts on which you do not unanimously agree, please . . . write down next to that "NA" for no agreement.

These instructions to the jury comported with Idaho law, see Idaho Code Ann. § 19-2307, and with defense counsel's request. In light of the jury's note, however, Hoyle's counsel moved for a mistrial, which was taken under advisement pending the announcement of the verdict.

At 12:47 a.m., on June 12, 1999, the jury returned its verdict to the judge, who read its contents into the record and polled the jury to confirm its verdict as to the matters on which the jury had and had not agreed. The verdict form as to Count B, with italicized text to reflect the jury's action and any handwritten comments on the form, reads in relevant part:

1A. — Did the defendant commit at least two incidents of racketeering conduct? The jury checked "No," but noted "except as to the seven predicate acts upon which we could not reach unanimous agreement."

1B. — Check the appropriate box to reflect your verdict with respect to each of the following predicate acts. The jury checked the "not guilty" boxes for twenty-three predicate acts, but wrote "no agmt" beside the boxes provided for Predicate Act Numbers 9, 10, 11, and 62 (which pertained to grand theft); and Predicate Act Numbers 108, 115, and 118 (which pertained to insurance fraud).

1C. — Did the incidents of racketeering conduct that you find were proven have the same or similar incidents, results, victims, methods of commission or were they otherwise so interrelated by distinguishing characteristics that they were not isolated incidents? The jury provided no answer.

1D. — (If your answer to either question 1A or 1C is "NO," then you must answer both parts of 1D "NOT GUILTY.") Considering your answers to the foregoing questions under the heading "Count B," and considering all the other required elements of the crime of racketeering, you must decide whether the state proved or failed to prove beyond a reasonable doubt that the defendant committed the crime of racketeering under the "investment" theory and the "participation" theory. The jury checked the "not guilty" box as to both the investment and participation theories, but wrote underneath its verdict "except as to the seven predicate acts upon which we could not reach unanimous agreement."²

The trial court entered a judgment of acquittal on Counts A and E and twenty-three predicate acts under Count B. Hoyle then filed a Motion for Judgment of Acquittal on Count B, and the State filed a Motion for a New Trial on Count B. On August 11, 1999, the Idaho district court denied Hoyle's Motion for Judgment of Acquittal and granted the State's Motion for a New Trial, ruling that the jury had not returned a verdict on the entirety of Count B in light of the seven predicate acts on which it could not agree.

On August 17, 2000, the State informed the trial court that it would not proceed to retrial on Count B because it was filing a second prosecution under Case No. H0000795 ("Case 795"). Case 795 charged Hoyle with five of the seven predicate acts as separate and independent offenses. The State indicated that it would move to amend the indictment in Case 795, and, if granted, would move to dismiss the first case involving the racketeering charges in Count B. On the date of retrial, September 11, 2000, the trial court denied Hoyle's renewed Motion for Judgment for Acquittal and dismissed the racketeering charges without prejudice.

The Court of Appeals of Idaho held that the trial court did not abuse its discretion in denying the Motion for Judgment of Acquittal based on the determination that the jury did not return a unanimous verdict on all the predicate acts under Count B. The Idaho Supreme Court granted Hoyle's petition for discretionary review on the issue, and, in a 3-2 decision, affirmed the decision of the appeals court. State v. Hoyle, 140 Idaho 679, 688, 99 P.3d 1069, 1073, 1078 (Idaho 2004). Stating that the majority had not addressed Hoyle's double jeopardy claim, Justice Eismann concluded in dissent that the annotated verdict form was ambiguous about the basis on which the jury reached its not guilty verdict because the jury might have determined that the State did not prove an element of racketeering (such as the pattern of racketeering activity). See id. at 1080 (Eismann, J., dissenting). Given this ambiguity, the dissent continued, Hoyle's subsequent prosecution in Case 795 should be barred under the Double Jeopardy Clause because the independent charges were lesser included offenses of racketeering, as charged in Count B, for which Hoyle was acquitted with the "not guilty" verdict. See id. at 1081-82 (Eismann, J., dissenting). Justice Eismann's dissent prompted a petition for rehearing on the double jeopardy issue, which the Idaho Supreme Court summarily denied.

Hoyle next filed a petition for writ of habeas corpus under 28 U.S.C. § 2241(c)(3) in the United States District Court for the District of Idaho.³ The district court denied the petition on the ground that the verdict form did not reflect an unqualified not guilty verdict on Count B because of the seven excepted predicate acts, concluding that the handwritten notations on the verdict form could not be disregarded as mere surplusage. The district court also determined that the record supported this interpretation. In particular, the district court found: (1) that the jury had made the obvious communication in open court to the trial judge that it was deadlocked on some predicate acts; (2) that because of the lack of unanimity, Hoyle's trial counsel requested a mistrial; and (3) that the special verdict form required the jury to indicate "not guilty" if the state had not proven two or more incidents of racketeering. The district court concluded that "[b]ecause the jurors could not agree whether Petitioner had committed these seven acts, it follows that they also did not resolve whether Petitioner committed `at least two incidents of racketeering conduct' . . . or, if so, whether those incidents amounted to a `pattern of racketeering activity.'" Because Hoyle was not...