Hoyle v. Ada County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD W. HOYLE, 

Petitioner-Appellant,

No. 06-35509

v.

ADA COUNTY, IDAHO, DISTRICT  D.C. No.

CV-05-00063-EJL

COURT; LAWRENCE WASDEN,

OPINION

Attorney General, State of Idaho,

Respondents-Appellees.



Appeal from the United States District Court

for the District of Idaho

Edward J. Lodge, District Judge, Presiding

Argued and Submitted

March 6, 2007—Portland, Oregon

Filed August 2, 2007

Before: Ronald M. Gould, Richard A. Paez, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Gould

9209

9212 HOYLE v. ADA COUNTY

COUNSEL

Andrew Parnes, Ketchum, Idaho, for petitioner-appellant

Richard W. Hoyle.

Jessica M. Lorello, Deputy Attorney General, Boise, Idaho,

for respondents-appellees Ada County and the State of Idaho.

OPINION

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 prosecu-

tion 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

HOYLE v. ADA COUNTY 9213

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 con-

sider just Count A alleging solicitation of destruction of evi-

dence, 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] ver-

dict 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 delibera-

tions would be fruitless, the trial judge instructed the jury to

1

The State charged Hoyle in Count B under Idaho Code Ann. § 18-

7804(a), which provides in pertinent part:

It is unlawful for any person who has received any proceeds

derived directly or indirectly from a pattern of racketeering activ-

ity in which the person has participated, to use or invest, directly

or indirectly, any part of the proceeds or the proceeds derived

from the investment or use thereof in the acquisition of any inter-

est in, or the establishment or operation of, any enterprise or real

property.

9214 HOYLE v. ADA COUNTY

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 deci-

sion 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 ver-

dict 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 inci-

dents 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 ver-

dict 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 Num-

bers 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 inci-

HOYLE v. ADA COUNTY 9215

dents, 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 participa-

tion theories, but wrote underneath its verdict “ex-

cept 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 pred-

icate 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 fil-

ing a second prosecution under Case No. H0000795 (“Case

795”). Case 795 charged Hoyle with five of the seven predi-

cate acts as separate and independent offenses. The State indi-

2

The jury form, in its entirety, is attached to the opinion as Appendix

A.

9216 HOYLE v. ADA COUNTY

cated 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). Stat-

ing that the majority had not addressed Hoyle’s double jeop-

ardy 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 ambigu-

ity, 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

3

“The writ of habeas corpus shall not extend to a prisoner unless . . .

[h]e is in custody in violation of the Constitution or laws or treaties of the

United States . . . .” 28 U.S.C. § 2241(c)(3).”

HOYLE v. ADA COUNTY 9217

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 predi-

cate acts; (2) that because of the lack of unanimity, Hoyle’s

trial counsel requested a mistrial; and (3) that the special ver-

dict 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 com-

mitted ‘at least two incidents of racketeering conduct’ . . . or,

if so, whether those incidents amounted to a ‘pattern of racke-

teering activity.’ ” Because Hoyle was not acquitted of the

entire racketeering charge, the district court held that double

jeopardy did not bar prosecution of Case 795 and denied

habeas relief. Hoyle timely appealed.

II

Where a petitioner seeks a writ of habeas corpus under 28

U.S.C. § 2241, which empowers district courts to provide

habeas relief on pretrial double jeopardy challenges, see Stow

v. Murashige, 389 F.3d 880, 886-87 (9th Cir. 2004), we do

not apply the stringent standard set forth in the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.

104-132, 110 Stat.1214 (codified as amended at, in relevant

part, 28 U.S.C. § 2254(d)), which allows for relief from a

state court judgment only where a state court decision was

“contrary to” or an “unreasonable application of” clearly

established federal law. Id. at 888.

The parties dispute the appropriate degree of deference we

should give the state trial court’s determinations about the

9218 HOYLE v. ADA COUNTY

annotated jury verdict form. The State argues, relying on

Sumner v. Mata, 449 U.S. 539 (1981), and Gonzalez v. Jus-

tices of the Mun. Court, 382 F.3d 1 (1st Cir. 2004), vacated

and remanded, 544 U.S. 918 (2005), that we must defer to the

state trial court’s “factual finding with respect to the jury’s

position on the racketeering charge.” Hoyle argues that the

relevant facts here are undisputed regarding the central issue

of the verdict form, i.e. its notations and the manner in which

it was returned. Hoyle further contends that, given these

uncontroverted facts, it is the legal effect of the annotated ver-

dict form that is at issue — a mixed question of law and fact

that must be reviewed de novo.

We conclude that the traditional pre-AEDPA standard of

review applies—we review factual findings with a presump-

tion of correctness and conclusions of law de novo. See Allen

v. Roe, 305 F.3d 1046, 1050 (9th Cir. 2002); see also Stow,

389 F.3d at 888. Yet there is a genuine issue of whether the

trial court’s determination that the annotated verdict form did

not constitute an acquittal of all the racketeering charges is a

finding of fact or a legal conclusion. On this issue we agree

with Hoyle that the effect of the annotated “not guilty” verdict

— whether it acquitted Hoyle as to the racketeering conduct

alleged under Count B — is a mixed question of law and fact.

See Thompson v. Keohane, 516 U.S. 99, 110 (1995) (holding

that under pre-AEDPA standards, factual findings made by a

state court are entitled to a presumption of correctness, but

federal courts are not required to defer to state court determi-

nations of mixed questions of law and fact); see also In re

Indian Gaming Related Cases, 331 F.3d 1094, 1107 (9th Cir.

2003) (“A mixed question of law and fact exists where the

relevant facts are undisputed and the question is whether

those facts satisfy the applicable legal rule.”); Suzy’s Zoo v.

Comm’r of Internal Revenue, 273 F.3d 875, 878 (9th Cir.

2001) (“A mixed question of law and fact exists when pri-

mary facts are undisputed and ultimate inferences and legal

consequences are in dispute.”). We thus review de novo the

district court’s conclusions about the legal import of the anno-

HOYLE v. ADA COUNTY 9219

tated jury verdict, see Stow, 389 F.3d at 888, but will uphold

any underlying factual findings absent a rebuttal of the pre-

sumption of correctness. See Allen, 305 F.3d at 1050.

III

The crux of the issue for us is whether the special verdict

form, which featured the key notation — “except as to the

seven predicate acts upon which we could not reach unani-

mous agreement” — next to the checked “Not Guilty” box for

the Count B racketeering charges, reflected an unambiguous

verdict of acquittal or a qualified verdict that excluded the

seven excepted predicate acts thereby reflecting its inability to

reach a unanimous verdict on Count B. If Hoyle was acquitted

altogether, the constitutional prohibition against double jeop-

ardy would bar the State from prosecuting him in Case 795

for the alleged independent acts that overlap with the predi-

cate acts of the Count B racketeering charges. See Brown v.

Ohio, 432 U.S. 161, 167-69 (1977); Green v. United States,

355 U.S. 184, 188 (1957). Hoyle contends that the not guilty

verdict encompasses the entirety of Count B, and that a

reviewing court may not reconstruct a jury verdict once ren-

dered. The State counters that Hoyle’s premise is incorrect

that the jury’s not guilty verdict encompassed the seven predi-

cate acts because the jury’s notation explicitly qualified its

verdict as lacking unanimity.

[1] The Double Jeopardy Clause of the Fifth Amendment,

made applicable to the States through the Fourteenth Amend-

ment, provides that no person shall “be subject for the same

offence to be twice put in jeopardy of life or limb.” U.S.

Const. Amend. V. “It has long been settled under the Fifth

Amendment that a verdict of acquittal is final, ending a defen-

dant’s jeopardy, and even when not followed by any judg-

ment, is a bar to a subsequent prosecution for the same

offence.” Green, 355 U.S. at 188 (internal quotation marks

omitted). An acquittal on a greater offense generally bars a

second prosecution for any lesser included offenses. See

9220 HOYLE v. ADA COUNTY

Brown, 432 U.S. at 169 (“The Double Jeopardy Clause is not

such a fragile guarantee that prosecutors can avoid its limita-

tions by the simple expedient of dividing a single crime into

a series of temporal or spatial units.”); see also Price v. Geor-

gia, 398 U.S. 323, 329 (1970).

[2] The principle that an acquittal invokes double jeopardy

protection, barring a new prosecution for the same offense or

lesser included offenses, has been applied with vigor, and

brooks no exception based on the theory that the trier of fact

acquitted in error. See Fong Foo v. United States, 369 U.S.

141, 143 (1962) (per curiam) (holding that an acquittal pre-

vents a second prosecution even if it is based upon an “egre-

gious error” of fact or law); see also United States v. Ogles,

440 F.3d 1095, 1100-01 (9th Cir. 2006) (holding prohibition

against double jeopardy precluded government appeal of

allegedly flawed judgment of acquittal under Federal Rule of

Criminal Procedure 29(a)); United States v. Ember, 726 F.2d

522, 524 (9th Cir. 1984) (“Even if the rulings excluding the

evidence were erroneous, double jeopardy bars this appeal if

the district court’s action is properly characterized as a judg-

ment of acquittal.”). Nonetheless, the principle of double

jeopardy protection following an acquittal does not apply rou-

tinely in the case of a mistrial as a bar to a second prosecution

where the trial court has declared a mistrial because the jury

could not reach a unanimous verdict.4 See Richardson v.

4

In certain non-routine instances, the protection of the Double Jeopardy

Clause remains even after a mistrial. For instance, the Double Jeopardy

Clause continues to shield a “defendant against governmental actions

intended to provoke mistrial requests and thereby to subject defendants to

the substantial burdens imposed by multiple prosecutions.” Oregon v.

Kennedy, 456 U.S. 667, 674 (1982) (internal quotation marks omitted). It

also bars retrials where “bad-faith conduct by judge or prosecutor,” United

States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion), “threatens

[harassment] of an accused by successive prosecutions or declaration of a

mistrial so as to afford the prosecution a more favorable opportunity to

convict the defendant.” United States v. Dinitz, 424 U.S. 600, 611 (1976)

(internal quotation marks omitted).

HOYLE v. ADA COUNTY 9221

United States, 468 U.S. 317, 324 (1984) (“[W]e have con-

stantly adhered to the rule that a retrial following a ‘hung

jury’ does not violate the Double Jeopardy Clause.”); see also

United States v. Scott, 437 U.S. 82, 92 (1978) (“When a trial

court declares a mistrial, it all but invariably contemplates that

the prosecutor will be permitted to proceed anew notwith-

standing the defendant’s plea of double jeopardy.”). An

acquittal for double jeopardy purposes is defined as “resolu-

tion, correct or not, of some or all of the factual elements of

the offense charged.” Smith v. Massachusetts, 543 U.S. 462,

468 (2005) (internal quotation marks omitted).

In contending that the jury verdict here acquitted Hoyle of

Count B, Hoyle relies on our authority in Stow, 389 F.3d 880,

to argue that a reviewing court must accept the verdict with-

out the benefit of subsequent reconstruction. The State

responds that Stow can be distinguished where, as here, the

jury unambiguously excepted the seven predicate acts from its

not guilty verdict. The State argues that the district court

properly relied on United States v. Ailsworth, 138 F.3d 843

(10th Cir. 1998), United States v. Nooks, 446 F.2d 1283 (5th

Cir. 1971), and Cook v. United States, 379 F.2d 966 (5th Cir.

1967), to conclude that a jury’s verdict must be clear and

unqualified, and a reviewing court may look to the record sur-

rounding a jury’s verdict to discern a jury’s intent and to give

effect to that intent. We evaluate these precedents in aid of

our resolution of his appeal.

In Stow, the defendant had been charged with attempted

murder in the first degree and the second degree. 389 F.3d at

882. After the jury returned a guilty verdict for the first degree

attempted murder charge and a not guilty verdict for the sec-

ond degree attempted murder charge, the trial court entered a

judgment on the first degree count. The record was silent,

however, as to whether defense counsel or the trial court

noticed that the jury had marked “not guilty” as to the second

degree count. Id. The record reflected that the trial judge only

gave an instruction regarding attempted murder in the first

9222 HOYLE v. ADA COUNTY

degree without adding a supplemental instruction, as required

under Hawaii law, that the jury should stop deliberating if it

found the defendant guilty of that count. Id. at 884. Later, the

Hawaii Supreme Court overturned the conviction, but held

that the not guilty verdict for the second degree attempted

murder charge did not “in substance” constitute an acquittal.

Id. at 882, 885. This decision cleared the path for the state to

mount a second prosecution against the defendant on that

charge. Id. at 882.

Despite the possibility that there had been jury confusion or

mistake, we rejected in Stow the Hawaii Supreme Court’s the-

ory that the “not guilty” verdict was not an acquittal “in sub-

stance,” concluding that a second prosecution was barred by

the “fundamental” and “absolute” prohibition against double

jeopardy. Id. at 888. “That there cannot be further appellate

inquiry into a jury’s verdict is confirmed by the doctrine that

even ‘egregiously erroneous’ jury verdicts are nonetheless a

bar to a subsequent prosecution.” Id. at 890 (quoting Fong

Foo, 369 U.S. at 143). We held, moreover, that this prohibi-

tion applies even if there was “instructional error,” id. at 891,

or in the event of inconsistent verdicts. See id. at 892 (citing

United States v. Powell, 469 U.S. 57, 65 (1984)); see also

McNeil v. Middleton, 402 F.3d 920, 921 n.2 (9th Cir. 2005).

The verdict at issue in Stow is distinguishable from the

annotated verdict form here. The jury in Stow returned incon-

sistent verdicts that potentially arose from the trial court’s

oversight in not giving the supplemental instruction to halt

deliberations after the jury found the defendant guilty of first

degree attempted murder. See 389 F.3d at 884. In that context,

we held that there could be no appellate inquiry into the

meaning of the verdict. See id. at 891-92. In contrast to the

jury’s notations qualifying its not guilty verdict here, the

jury’s verdict in Stow did not contain any explanation that

could reconcile the inconsistency between the guilty verdict

for first degree attempted murder and the not guilty verdict for

the lesser included offense of second degree attempted mur-

HOYLE v. ADA COUNTY 9223

der. The absence of any preexisting explanation by the jury on

the verdict form in Stow is a salient difference from the anno-

tated verdict here because the reviewing court in Stow was in

a position where it could only “speculate” about the jury’s

decision to mark not guilty on the second degree attempted

murder charge. Id. at 883.

This contextual silence in Stow contrasts with the record of

the proceedings here that establishes with certainty that the

court and parties were aware that the jury expressly excepted

seven predicate acts from its verdict. After long deliberation,

the jury told the trial judge that it was deadlocked on several

predicate acts under Count B. This lack of unanimity

prompted Hoyle’s trial counsel to request a mistrial. See Scott,

437 U.S. at 93 (noting that “a motion by the defendant for

mistrial is ordinarily assumed to remove any barrier to repro-

secution . . . .” (internal quotation marks omitted)); United

States v. See, 505 F.2d 845, 854 (9th Cir. 1974) (holding,

while affirming the grant of a mistrial, that “hopelessly dead-

locked” jury is proper grounds for mistrial). In turn, the trial

judge ascertained the jury’s particular reservations by elicit-

ing, through his instructions,5 responses from the jury on the

special verdict form. Hoyle’s trial counsel acceded to this

instruction that invited the jury’s annotated verdict with

respect to the seven predicate acts on which there was dis-

agreement. In Stow, the record suggested no comparable con-

text that disclosed the jury’s intent. See 389 F.3d at 883. Stow

thus does not control the inquiry here.

Absent the applicability of Stow or any other binding

authority, we consider extra-circuit authority that permits con-

sideration of a jury’s verdict notations and the context in

which the verdict was rendered to give effect to the jury’s

intent.

5

“On any questions or predicate acts on which you do not unanimously

agree, please . . . write down next to that “NA” for no agreement.”

9224 HOYLE v. ADA COUNTY

[3] In Ailsworth, the Tenth Circuit held that unnecessary or

irrelevant statements in a verdict form may be disregarded as

surplusage, except “where the circumstances of the jury’s rec-

ommendation cast doubt upon the unqualified nature of the

verdict.” 138 F.3d at 846. In that case, the defendant had been

charged under a multicount indictment. See id. at 845-46.

When the jury returned its verdict, it checked the “guilty” box

on the verdict form corresponding to Count 1 but added a

notation that the defendant was guilty of Count 1 “as related

to Counts # 26, 27 and 28 on 11/19/93 only.” Id. at 845 (alter-

ation omitted). The defendant claimed that the district court

abused its discretion in not granting a motion for acquittal

because the verdict was ambiguous and the trial judge should

have inquired about the notation. Id. at 846.

The Tenth Circuit conceded that “[t]he district court should

have made some inquiry into the meaning of the notation to

resolve this qualification.” Id. at 847. Rejecting the defen-

dant’s claim that the verdict was ambiguous, however, the

Tenth Circuit held that the trial court’s inaction “would

require a reversal only if an inquiry would have revealed a

reasonable interpretation of the notation which would have

cast doubt on the jury’s finding that Defendant conspired to

commit the crimes charged in Counts 26, 27, and 28.” Id. at

847-48 (emphasis added). Examining the verdict form “in

light of the jury questions to the court, the court’s answers and

instructions,” the Ailsworth court rejected alternative interpre-

tations of the verdict form notation and concluded that the

trial court did not commit reversible error because “[t]he only

reasonable interpretation of the jury’s notation is that the jury

was not convinced beyond a reasonable doubt that Defendant

participated in the single broad conspiracy alleged in the

indictment,” but was convinced “that Defendant participated

in a conspiracy relating to Counts 26, 27, and 28.” Id. at 847-

48.

[4] The Tenth Circuit rule is in line with Fifth Circuit

authority that a verdict is valid if it “was certain, unqualified

HOYLE v. ADA COUNTY 9225

and unambiguous considering the circumstances of the receipt

of the verdict and poll of the jurors relative to their verdict.”

Cook, 379 F.2d at 968; see also Nooks, 446 F.2d at 1290

(“The verdict of the jury should be construed with reference

to the indictment, the court’s charge, and the entire record to

arrive at the intention of the jury, and all fair intendments

should be made to sustain the verdict.”).

In Cook, the Fifth Circuit considered a jury verdict convict-

ing an attorney on three counts of willfully understating net

earnings from his law practice on his personal income tax

returns. 379 F.2d at 967-68. Despite the “guilty” verdict, the

jury added a handwritten note at the bottom of the verdict

form requesting that the court give the defendant “every

degree of leniency.” Id. at 968. When the jury was polled,

moreover, a majority of jurors responded, “Guilty, based on

the note at the bottom,” or with similar language. Id. at 969.

The trial court rejected defense counsel’s motion that the trial

court inquire whether the jury’s vote was qualified by the

addition of the note because “the verdict is not ambiguous, it

speaks for itself.” Id. at 969 n.3. Under those exceptional cir-

cumstances, the Fifth Circuit reversed the trial court because

it committed reversible error by not granting defense coun-

sel’s request to inquire into the jury’s exact intent, where the

court of appeals had “serious doubt that the jury did not qual-

ify its verdict of guilty [by] predicating and conditioning it on

the request for ‘every degree of leniency possible.’ ” Id. at

970. The Cook court held “that the jury’s verdict, taken

together with the court’s comments to the jury on receipt of

the verdict and the responses of each juror to the court’s poll,

showed an obscurity — a lack of definite and precise meaning

— and that obscurity having rendered the verdict doubtful and

not having been clarified by the trial court . . . was fatal to it.”

Id. at 971. But cf. Rogers v. United States, 422 U.S. 35, 38

(1975) (noting that jury requests for leniency on the verdict

form are usually deemed surplusage); United States v. Lee,

532 F.2d 911, 915 (3rd Cir. 1976) (affirming trial court’s

acceptance of verdict with appended note requesting leniency

9226 HOYLE v. ADA COUNTY

where the polled jurors, unlike in Cook, “indicated their

agreement with the guilty verdict without equivocation or

qualification whatsoever”). In short, the Fifth Circuit con-

cluded that, in light of the annotated verdict, “the circum-

stances strongly suggest that there would have been no

agreement as to the verdict unless the recommendation of

leniency was also accepted,” and that the “effect of the rec-

ommendation, steadfastly adhered to on the poll, was to nul-

lify the verdict.” Cook, 379 F.2d at 970. The court relied upon

the general rule: “There is no verdict as long as there is any

uncertainty or contingency to the finality of the jury’s deter-

mination.” Id.

[5] Although these extra-circuit cases did not involve ques-

tions of double jeopardy, these precedents are persuasive in

providing criteria for determining the intent and effect of an

annotated verdict. We thus adopt a rule that a reviewing court

may look to notations on a verdict form, other than surplus-

age, to clarify the jury’s intent and the effect of its verdict in

order to ascertain if the defendant has been acquitted of a par-

ticular charge. In addition, in cases where the jury has written

notations on the verdict form, but in only those cases, a

reviewing court may look to the context of the verdict, includ-

ing jury requests for clarification, a trial judge’s instructions,

polling of the jury, and other court proceedings evidenced in

the record that bear on a reasonable interpretation of what the

jury has intended in its annotated verdict.6

[6] Here, it is beyond question that all parties concerned

understood that the jury was hung on the seven excepted pred-

6

Our holding does not undermine the robust Double Jeopardy jurispru-

dence recognizing that where a verdict form states simply “not guilty,”

courts may not inquire into the surrounding context to determine the jury’s

intent. As we have stated time and again, a “not guilty” verdict is a “not

guilty” verdict, even where we strongly suspect a jury mistake, or even an

“egregious error.” See Stow, 389 F.3d at 890-92 (citations omitted). Here,

only because the verdict form itself was ambiguous may we engage in fur-

ther investigation to determine the jury’s intent.

HOYLE v. ADA COUNTY 9227

icate acts, and that is the conclusion reasonably drawn from

the verdict form notations. The trial judge properly sought to

clarify how the jury should proceed if it could not reach unan-

imous agreement on all predicate acts by the instruction that

the jurors note where they were in disagreement as to any

predicate acts. The record also establishes that the jury faith-

fully complied with the trial judge’s instruction and consis-

tently noted its lack of unanimity about the excepted seven

predicate acts on the special verdict form.

As to the content of the notations, the interpretation of the

verdict form in Justice Eismann’s dissent, which Hoyle adopts

in its entirety, does not convince us, but we set out the reason-

ing to explain our contrary view:

Another possible interpretation is that the notation

somehow qualified the verdict of not guilty of racke-

teering. The jury was not asked to clarify the mean-

ing of the notation. It is sufficient, however, that the

verdict could have been based upon a finding that

the State had failed to prove one essential element of

racketeering (such as a pattern of racketeering activ-

ity). In that circumstance, the jury would be required

to return a not guilty verdict to racketeering even if

it could not unanimously agree upon all of the

alleged predicate acts.

Hoyle, 99 P.3d at 1080 (Eismann, J., dissenting). In our view,

Justice Eismann’s observations do not adequately account for

the notation that excepted seven predicate acts. The proffered

interpretation also cannot be reconciled with the jury’s

responses to the trial judge’s questions or the structure of the

special verdict form.

The correctness of the district court’s interpretation of the

verdict form must be examined in light of the elements of

racketeering under the Idaho statute.7 There was no dispute

7

Under Idaho Code Ann. § 18-7804(a), Hoyle was charged with both

participation in a racketeering activity and investment of proceeds derived

9228 HOYLE v. ADA COUNTY

that Hoyle qualified as a “person, ” see Idaho Code Ann.

§ 18-7803(b), and that Hoyle Insurance qualified as an “enter-

prise.” See Idaho Code Ann. § 18-7803(c). The critical issue

for the jury was whether the State adduced sufficient evidence

to prove Hoyle committed at least two predicate acts. See

Idaho Code Ann. § 18-7803(a)(1)-(12) (enumerating charge-

able racketeering offenses). If so, it was incumbent on the

State to prove that any two predicate acts were sufficiently

related to constitute a pattern of racketeering activity. See

State v. Nunez, 133 Idaho 13, 18, 981 P.2d 738, 743 (Idaho

1999); Idaho Code Ann. § 18-7803(d).

The jury’s responses to Count B, Questions 1A and 1B sug-

gest in harmony that the jury was deadlocked on the issue of

whether Hoyle had committed the seven excepted predicate

acts. In response to Question 1A—“Did the defendant commit

at least two incidents of racketeering conduct” (emphasis

added)—the jury checked “No,” but noted “except as to the

seven predicate acts upon which we could not reach unani-

mous agreement.” The jury then specified in its response to

Question 1B the particular seven predicate acts on which

there was no agreement. In light of these questions and

responses, we think it must inescapably be inferred that the

jury could not agree whether the State proved that Hoyle com-

mitted the seven excepted predicate acts.

from a racketeering activity. The statute sets forth offenses that may be

charged as predicate acts to racketeering, including grand theft and insur-

ance fraud, see Idaho Code Ann. § 18-7803(a)(2) and (10), which were the

particular charges relevant to the seven excepted predicate acts. Idaho

Code Ann. § 18-7803(d) defines “pattern of racketeering activity” as

engaging in at least two (2) incidents of racketeering conduct that

have the same or similar intents, results, accomplices, victims or

methods of commission, or otherwise are interrelated by distin-

guishing characteristics and are not isolated incidents, provided

. . . that the last of such incidents occurred within five (5) years

after a prior incident of racketeering conduct.

HOYLE v. ADA COUNTY 9229

Count B, Question 1C directed the jury to answer the fol-

lowing query: “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 other-

wise so interrelated by distinguishing characteristics that they

were not isolated incidents?” (emphasis added). The jury did

not answer this question. Because Question 1C called for a

determination on the relatedness element only with respect to

“proven” racketeering conduct, the fact that the jury left the

answer to Question 1C blank thus reasonably must mean that

the jury did not reach this issue and that it was deadlocked on

the issue of Hoyle’s commission of the seven predicate acts.

The jury ultimately checked “not guilty” at the bottom of

the special verdict form in response to sub-Question 1D

because the special verdict form required the jury to do so in

the event of a negative answer to sub-Question 1A. (“If your

answer to either question 1A or 1C is ‘NO,’ then you must

answer both parts of 1D ‘NOT GUILTY.’ ”) The fact that the

jury provided a parallel qualification from its response to

Question 1A in response to Question 1D can only reasonably

mean that the not guilty verdict did not encompass the seven

predicate acts. As in Ailsworth, we reject Hoyle’s argument

based on his interpretation of the jury’s notations on the ver-

dict form that the intent of the jury was ambiguous. See 138

F.3d at 847-48. In light of the consistent qualifications of its

verdict on Count B in response to Questions 1A, 1B and 1D,

and the absence of a response to Question 1C, the district

court did not err in its interpretation of the verdict form.

[7] The notations on the verdict form could only reasonably

mean that the jury could not reach a unanimous verdict on

Count B as to the excepted seven predicate acts because it

could not agree on whether Hoyle committed the seven predi-

cate acts. As discussed above, the context of the proceeding

unmistakably reinforces this reasonable interpretation because

the jury was deadlocked prior to responding to the trial

judge’s instruction prompting Hoyle’s motion for a mistrial,

9230 HOYLE v. ADA COUNTY

the record documents the jury’s request for clarification and

the trial judge’s responsive instruction, and the jury was

polled about the predicate acts on which there was no agree-

ment. The language and context of the jury’s notations reflect

that the jury did not return an unambiguous verdict of not

guilty on Count B. See Ailsworth, 138 F.3d at 846 (cautioning

that jury’s notations may not be disregarded when “the cir-

cumstances of the jury’s recommendation cast doubt upon the

unqualified nature of the verdict”). Because the jury excepted

from its verdict the seven predicate acts on which it could not

agree, the trial court correctly refused to acquit Hoyle of

Count B because the verdict was not “a resolution . . . [of] all

of the factual elements of the offense charged.” Smith, 543

U.S. at 468. The trial court appropriately declared a mistrial,

which leaves the State unimpeded to prosecute Case 795

without running afoul of the Double Jeopardy Clause.

AFFIRMED.

HOYLE v. ADA COUNTY 9231

APPENDIX A

9232 HOYLE v. ADA COUNTY

HOYLE v. ADA COUNTY 9233

9234 HOYLE v. ADA COUNTY

HOYLE v. ADA COUNTY 9235

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HOYLE v. ADA COUNTY 9237