Opposition Brief — Ruel M. Hamilton, Petitioner v. United States

No. 24-902

In the Supreme Court of the United States

RUEL M. HAMILTON, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

MATTHEW R. GALEOTTI

TYLER ANNE LEE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the lower courts correctly determined that

collateral-estoppel principles incorporated into the

Double Jeopardy Clause did not preclude petitioner’s

retrial on federal-program bribery, in violation of 18

U.S.C. 666, following his acquittal on using a facility in

interstate commerce to carry on an unlawful activity, in

violation of 18 U.S.C. 1952.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 8

Conclusion ................................................................................... 20

TABLE OF AUTHORITIES

Cases:

Ashe v. Swenson, 397 U.S. 436 (1970)............... 6, 9, 12-14, 16

Bravo-Fernandez v. United States,

580 U.S. 5 (2016) ............................................................. 9, 10

Currier v. Virginia, 585 U.S. 493 (2018) ................... 9, 10, 13

Christian v. Wellington, 739 F.3d 294

(6th Cir. 2014)...................................................................... 17

Dowling v. United States,

493 U.S. 342 (1990)................................................ 6, 9, 12, 13

Kauffman v. Moss, 420 F.2d 1270 (3d Cir.),

cert. denied, 400 U.S. 846 (1970) ....................................... 17

Musacchio v. United States, 577 U.S. 237 (2016) ............... 12

Owens v. Trammell, 792 F.3d 1234 (10th Cir. 2015),

cert. denied, 577 U.S. 1151 (2016) ..................................... 16

Schiro v. Farley, 510 U.S. 222, 233 (1994) ...................... 9, 10

Snyder v. United States, 603 U.S. 1 (2024) ........................... 5

United States v. Carbullido,

307 F.3d 957 (9th Cir. 2002) ............................................... 18

United States v. Coughlin,

610 F.3d 89 (D.C. Cir. 2010) ............................................... 16

United States v. Dray, 901 F.2d 1132 (1st Cir.),

cert. denied, 498 U.S. 895 (1990) ....................................... 19

United States v. Fernandez,

722 F.3d 1 (1st Cir. 2013) ................................................... 19

(III)

IV

Cases—Continued:

Page

United States v. Hall, 551 F.3d 257 (4th Cir. 2009) ........... 16

United States v. Hogue, 812 F.2d 1568

(11th Cir. 1987) .................................................................... 17

United States v. Howe, 590 F.3d 552 (8th Cir. 2009) ......... 16

United States v. Inman, 39 F.4th 357 (6th Cir. 2022) ....... 16

United States v. Irvin, 787 F.2d 1506 (11th Cir. 1986) ...... 16

United States v. Kimberlin,

805 F.2d 210 (7th Cir. 1986), cert. denied,

483 U.S. 1023 (1987)............................................................ 17

United States v. Marino, 200 F.3d 6 (1st Cir. 1999),

cert. denied, 529 U.S. 1137 (2000) ..................................... 16

United States v. McGowan, 58 F.3d 8 (2d Cir. 1995)......... 16

United States v. Morris, 99 F.3d 476 (1st Cir. 1996) ......... 19

United States v. Patterson,

827 F.2d 184 (7th Cir. 1987) ............................................... 16

United States v. Rigas, 605 F.3d 194 (3d Cir. 2010) .... 16, 19

United States v. Ranney,

719 F.2d 1183 (1st Cir. 1983) ............................................. 19

United States v. Romeo, 114 F.3d 141 (9th Cir. 1997) ....... 16

United States v. Ruhbayan, 325 F.3d 197 (4th Cir.),

cert. denied, 540 U.S. 899 (2003) ....................................... 17

United States v. Sarabia,

661 F.3d 225 (5th Cir. 2011) ............................................... 16

United States v. Seijo, 537 F.2d 694 (2d Cir. 1976),

cert. denied, 429 U.S. 1043 (1977) ..................................... 17

Yeager v. United States, 557 U.S. 110 (2009) ...... 9, 10, 13, 14

Wilkerson v. Superintendent,

871 F.3d 221 (3d Cir. 2017) ................................................ 20

Wisniewski v. United States, 353 U.S. 901 (1957) ............. 16

V

Constitution, statutes, and rule:

Page

U.S. Const. Amend. V

(Double Jeopardy Clause) ........................2, 5, 6, 8, 9, 13, 19

Travel Act, 18 U.S.C. 1952(a)(3) ....................................... 4, 10

18 U.S.C. 371 ............................................................................ 2

18 U.S.C. 666 ................................................................ 2, 4, 5, 8

Sup. Ct. R. 10 ......................................................................... 14

In the Supreme Court of the United States

No. 24-902

RUEL M. HAMILTON, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-16a)

is reported at 118 F.4th 655. The order of the district

court (Pet. App. 17a-22a) is unreported. A prior opinion

of the court of appeals is reported at 46 F.4th 389.

JURISDICTION

The judgment of the court of appeals was entered on

September 30, 2024. A petition for rehearing was denied on October 25, 2024 (Pet. App. 23a-24a). On January 14, 2025, Justice Alito extended the time within

which to file a petition for a writ of certiorari to and including February 22, 2025. The petition for a writ of

certiorari was filed on February 19, 2025. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Texas, petitioner was

convicted on two counts of federal-program bribery, in

violation of 18 U.S.C. 666, and one count of conspiracy

to commit federal-programs bribery, in violation of 18

U.S.C. 371 and 666. Petitioner was sentenced to 96

months of imprisonment, to be followed by two years of

supervised release. Am. Judgment 1-3. The court of

appeals vacated petitioner’s convictions based on instructional error and remanded for further proceedings. 46 F.4th 389. Before retrial on remand, the district court denied petitioner’s motion to dismiss one of

the bribery counts under the Double Jeopardy Clause.

Pet. App. 17a-22a. Petitioner filed an interlocutory appeal, and the court of appeals affirmed. Id. at 1a-16a.

1. Petitioner is a real estate developer in Dallas,

Texas. Pet. App. 2a. In 2018, petitioner sought to place

a proposed ordinance relating to paid sick leave on the

Dallas ballot, but a voter-signature drive to do so failed.

Ibid.; Gov’t C.A. Br. 5. However, the Dallas City Council could vote to place the issue on the ballot if the mayor

agreed to put a discussion of the ordinance on the City

Council’s agenda. Pet. App. 2a. Petitioner decided to

contact Councilman Dwaine Caraway—who, unbeknownst to petitioner, was cooperating with the federal

government in a corruption investigation—to see if Caraway would ask the mayor to put the proposed ordinance on the agenda for the City Council’s next meeting. Ibid.

Petitioner called Caraway and left him a voicemail

about the ordinance. Pet. App. 2a. Caraway returned

petitioner’s call on August 2, 2018. Id. at 2a-3a. During

the phone call, petitioner explained how Caraway could

3

help get the proposed ordinance on the ballot and asked

Caraway if he would talk to the mayor. Id. at 3a. Caraway did not commit to talking to the mayor about the

ordinance, but he scheduled a meeting with petitioner

for the following day. Ibid.

On August 3, 2018, petitioner and Caraway met in

person and discussed placing the proposed ordinance on

the agenda for the upcoming City Council meeting. Pet.

App. 3a. Petitioner referenced Caraway’s potential run

for reelection and told Caraway that he thought Caraway was “doing an extraordinary job in [Caraway’s] district” and that he and Caraway could “get a lot of stuff

done.” Ibid. (brackets in original).

Petitioner stated, “I’m there, you know, and so if

there is anything that I can help you with, I mean, I

hope you feel like you can reach out.” Pet. App. 3a. Caraway responded, “Well, I’m going to tell you something,

I’m reaching out today. I . . . got to go find me $6,200

today.” Id. at 3a-4a. Petitioner and Caraway then discussed a real estate development project in Caraway’s

district, and petitioner assured Caraway that he wanted

to help with that project. Id. at 4a.

Petitioner then asked, “So what can I do for you right

now today?” Pet. App. 4a. Caraway responded, “You

can answer that bill that I just threw out there . . . for

about 62 today and that will help me . . . do what I need

to do.” Ibid. “After Caraway agreed to ‘follow through

with the Mayor,’ ” petitioner wrote Caraway a check for

$7000. Ibid.

2. A federal grand jury in the Northern District of

Texas returned a superseding indictment charging petitioner with four counts, two of which concerned petitioner’s interactions with Caraway. See Pet. App. 4a,

25a-45a. Specifically, Count 3 charged petitioner with

4

federal-program bribery, in violation of 18 U.S.C. 666,

and Count 4 charged petitioner with using a facility in

interstate commerce to carry on an unlawful activity

(Texas state-law bribery), in violation of the Travel Act,

18 U.S.C. 1952(a)(3). Pet. App. 41a-42a.

Petitioner proceeded to trial in June 2021. Pet. App.

17a. The district court instructed the jury that to find

petitioner guilty of the Travel Act offense alleged in

Count 4, the government had to prove three elements:

first, that petitioner traveled in or used a facility in interstate commerce; second, that he did so “with a specific intent to promote, manage, establish or carry on

unlawful activity,” that is, “bribery[,] in violation of

Texas Penal Code, Section 36.02”; and third, that subsequent to the travel or use of an interstate facility, petitioner knowingly and willfully promoted, managed, established, or carried on the unlawful activity. Id. at 10a11a; see C.A. ROA 1952.

The district court further instructed that Texas Penal Code § 36.02 “requires a direct and intended exchange of the benefit for the recipient’s action, not

merely a gratuity.” Pet. App. 11a; see C.A. ROA 19521953.

With respect to Count 3—the count of

federal-program bribery under 18 U.S.C. 666 relating

to petitioner’s discussion with Caraway—the court provided instructions that would have allowed conviction

for a gratuity, as well as a quid pro quo bribe. See C.A.

ROA 1948-1951.

Petitioner defended against the Travel Act charge

by arguing, inter alia, that he lacked the specific intent

to bribe Caraway when the two spoke by phone on August 2, 2018. See Gov’t C.A. Br. 8-9; C.A. ROA 45514553. Petitioner also argued that he lacked the intent

to bribe Caraway during the in-person meeting the fol-

5

lowing day, see, e.g., C.A. ROA 4555, and that the check

he gave Caraway was not “in return for” or “in exchange

for” any help with the proposed ordinance, but was instead to help with Caraway’s mother’s health problems,

id. at 4556; see Pet. App. 4a n.1.

The jury acquitted petitioner on the Travel Act count

and found petitioner guilty on the Section 666 count.

Pet. App. 4a-6a. The district court sentenced petitioner

to 96 months of imprisonment, to be followed by two

years of supervised release. Am. Judgment 2-3.

3. The court of appeals vacated petitioner’s federalprogram bribery conviction on the ground that Section

666 criminalizes only bribes, not gratuities, and that the

jury instructions had erroneously permitted the jury to

find petitioner guilty “on an illegal-gratuity theory that

does not exist in [Section] 666.” 46 F.4th at 399; see id.

at 394-398; Snyder v. United States, 603 U.S. 1 (2024)

(subsequently adopting the same construction of Section 666). The court of appeals remanded to the district

court for further proceedings. 46 F.4th at 399.

In advance of his retrial, petitioner moved to dismiss

the federal-program bribery charge relating to his interactions with Caraway (Count 3). Pet. App. 18a. Petitioner contended that collateral-estoppel principles incorporated into the Double Jeopardy Clause precluded

retrial because, in petitioner’s view, the jury had necessarily rejected a quid pro quo bribery theory when it

acquitted him of the Travel Act charge. Id. at 18a-19a.

The district court denied the motion, Pet. App. 17a22a, explaining that the federal-program bribery count

and the Travel Act count “concern different conduct on

different days, and involve different elements,” id. at

19a. The court observed that the Travel Act count “concerned [petitioner’s] intent when he spoke to Caraway

6

by phone on August 2, a full day before any check was

written.” Id. at 20a. The court explained that “a lack of

the requisite specific intent for the alleged Travel Act

violation on August 2 is not dispositive of whether [petitioner] paid a bribe on August 3.” Ibid. And because

retrial on the federal-program bribery count would not

require “relitigating a factual issue necessarily determined in [petitioner’s] favor by the earlier jury,” the

district court determined that the Double Jeopardy

Clause did not bar petitioner’s retrial. Id. at 21a.

4. The court of appeals affirmed. Pet. App. 1a-16a.

Like the district court, the court of appeals found that

petitioner’s acquittal on the Travel Act count did not

preclude the government from retrying him on the

federal-program bribery count relating to his interactions with Caraway. Id. at 8a-13a.

The court of appeals noted that Ashe v. Swenson, 397

U.S. 436 (1970), sets forth the test “to resolve whether

collateral estoppel applies in the double jeopardy context.” Pet. App. 9a. The court explained that under this

Court’s precedents, it must determine whether a fact

was “necessarily decided” in the first trial, and, if so,

whether that fact constitutes an “essential element” of

the offense in the second trial. Ibid. (brackets and citation omitted). The court also observed that this Court

has placed on the defendant the “burden of demonstrating that the factual issue allegedly barred by collateral

estoppel was actually decided in the first proceeding.”

Id. at 8a (citation and internal quotation marks omitted); see Dowling v. United States, 493 U.S. 342, 350

(1990). And the court stated that under the “functional

approach” it had derived from this Court’s decisions, it

would examine the record to determine “whether a rational jury could have grounded its verdict upon an is-

7

sue other than that which the defendant seeks to foreclose from consideration.” Pet. App. 9a (citations omitted).

The court of appeals explained that the jury’s acquittal on the Travel Act count had multiple possible, and

independently sufficient, factual bases: (1) a finding

that petitioner did not use an interstate facility when he

spoke to Caraway on August 2; (2) a finding that petitioner lacked the specific intent to make a quid pro quo

bribe during that call; or (3) a finding that petitioner did

not actually make a quid pro quo bribe when he gave

Caraway the check on August 3. Pet. App. 11a. While

the court found it unnecessary to explore the first issue,

see id. at 12a n.5, the court determined that the jury

could have acquitted petitioner on the second ground,

i.e., a finding that he lacked the “required intent when

he spoke with Caraway on August 2.” Id. at 11a. Thus,

the court of appeals found that “the district court correctly concluded that the verdict did not necessarily

rest on” a finding that petitioner’s offer of money on August 3 failed to qualify as a bribe. Ibid.

The court of appeals further observed that “a practical view of the record belies [petitioner’s] contention”

that “no ‘rational jury could have grounded its verdict

upon an issue other than’ the question of whether [his]

check was a quid pro quo bribe.” Pet. App. 12a (citation

omitted). The court emphasized that during the August

2 phone call, “Caraway never asked for a favor in return” for talking to the mayor about the ballot initiative,

and petitioner did not “offer Caraway anything of

value.” Id. at 13a. The court observed that instead, it

was not until the August 3 meeting that petitioner “repeatedly asked Caraway what he could do for him,”

and—once Caraway indicated that petitioner could pay

8

his bill and agreed to talk to the mayor—petitioner gave

Caraway a check for $7000. Ibid. And the court found

that, from the evidence, “the jury could have concluded

that [petitioner] lacked the specific intent to make a

quid pro quo bribe on August 2, but nonetheless decided

to bribe Carraway [sic] during the meeting the next

day.” Ibid.

Judge Elrod filed a concurring opinion. Pet. App.

14a-16a. She acknowledged that the court of appeals’

“formulation and application of the burden of proof in

this case is consistent with [the court of appeals’] case

law and Supreme Court precedent.” Id. at 14a. But she

disagreed with that standard and posited that “the outcome of [petitioner’s] appeal may have been different”

had he “been required to prove only by a preponderance

of the evidence” that the sole disputed issue in his first

trial was the question whether the check he gave Caraway “was a quid pro quo bribe.” Id. at 16a.

ARGUMENT

Petitioner renews his claim (Pet. 8-10, 20-26) that the

collateral-estoppel principles incorporated into the

Double Jeopardy Clause preclude his retrial on the federal-program bribery charge relating to his interactions

with Caraway. No further review of that claim is warranted. The court of appeals correctly determined that

double-jeopardy principles do not bar petitioner’s retrial on the Section 666 charge. Its decision does not

conflict with any decision of this Court, and petitioner

has not demonstrated that his case would come out differently in any other circuit. The petition for a writ of

certiorari should be denied.

1. The court of appeals correctly recognized that

collateral-estoppel principles do not bar petitioner’s retrial on the Section 666 charge.

9

a. In Ashe v. Swenson, 397 U.S. 436 (1970), this

Court held that the Double Jeopardy Clause “embodie[s]” the doctrine of collateral estoppel and bars a

prosecution that would require the relitigation of ultimate factual issues that were resolved against the government in an earlier prosecution. Id. at 445. But “Ashe

forbids a second trial only if to secure a conviction the

prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first

trial.” Currier v. Virginia, 585 U.S. 493, 499 (2018) (citing, inter alia, Yeager v. United States, 557 U.S. 110,

119-120 (2009)); see Ashe, 397 U.S. at 443-445.

To determine what a jury has necessarily decided,

“courts should ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge,

and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ ” Yeager, 557 U.S. at 119-120

(quoting Ashe, 397 U.S. at 444). “[T]he inquiry ‘must be

set in a practical frame and viewed with an eye to all the

circumstances of the proceedings.’ ” Id. at 120 (quoting

Ashe, 397 U.S. at 444).

This Court has repeatedly “made clear that ‘[t]he

burden is on the defendant to demonstrate that the issue whose relitigation he seeks to foreclose was actually

decided’ by a prior jury’s verdict of acquittal.” BravoFernandez v. United States, 580 U.S. 5, 12 (2016) (quoting Schiro v. Farley, 510 U.S. 222, 233 (1994)) (brackets

in original); see Schiro, 510 U.S. at 232, 236. A defendant cannot satisfy that burden if multiple “possible explanations for the jury’s acquittal verdict at [the] first

trial” exist, because he cannot show that any particular

issue “was determined in [his] favor.” Dowling v.

10

United States, 493 U.S. 342, 352 (1990); see Schiro, 510

U.S. at 233; cf. Bravo-Fernandez, 580 U.S. at 24 (observing that collateral estoppel cannot apply when the

jury’s verdict “shroud[s] in mystery what the jury necessarily decided”).

This Court has described the Ashe test as “a demanding one.” Currier, 585 U.S. at 499; see Yeager, 557

U.S. at 133 (Alito, J., dissenting on other grounds). “A

second trial ‘is not precluded simply because it is unlikely—or even very unlikely—that the original jury acquitted without finding the fact in question.’ ” Currier,

585 U.S. at 500 (citation omitted). Instead, for the second trial to be barred, the court “must be able to say

that it would have been irrational for the jury in the

first trial to acquit without finding in the defendant’s favor on a fact essential to a conviction in the second.”

Ibid. (citation and internal quotation marks omitted).

b. Under a straightforward application of this

Court’s decisions, petitioner cannot establish that in acquitting him of the Travel Act count, the jury at his first

trial necessarily decided that the check he wrote to Caraway was a gratuity rather than a quid pro quo bribe.

To obtain a conviction on the Travel Act charge, the government was required to prove, inter alia, that petitioner “used any facility in interstate commerce” with a

“specific intent to promote, manage, establish or carry

on” bribery. Pet. App. 10a; see 18 U.S.C. 1952(a)(3).

The court of appeals correctly observed that the jury

could have acquitted petitioner on the Travel Act count

based on a finding that petitioner lacked the “required

intent when he spoke with Caraway on August 2,” and

thus the verdict “did not necessarily rest on” the possibility that petitioner did not make a quid pro quo bribe

11

when he gave Caraway a check for $7000 on August 3.

Pet. App. 11a-12a.

The court of appeals highlighted evidence from

which the jury rationally could have concluded that petitioner lacked the requisite intent when he spoke with

Caraway on August 2. See Pet. App. 12a-13a. In particular, although petitioner and Caraway “discussed the

proposed ordinance during the August 2 call, and [petitioner] asked Caraway to talk to the Mayor about putting the ordinance on the agenda, Caraway never asked

for a favor in return,” and petitioner did not offer him

“anything of value” at that time. Ibid. By contrast, at

the August 3 meeting, where petitioner and Caraway

discussed the favor that petitioner was requesting, petitioner “repeatedly asked Caraway what he could do

for him,” Caraway answered that petitioner could “ ‘answer that bill that I just threw out there,’ ” and petitioner gave him a check for $7000. Id. at 13a; see id. at

3a.

Given that evidence, the jury “could have acquitted

[petitioner] by finding that he lacked the specific intent

to make a quid pro quo bribe on August 2, regardless of

whether he actually made such a bribe on August 3

when he wrote the check.” Pet. App. 12a. Indeed, the

court of appeals observed that petitioner “all but concede[d] it is possible that the jury acquitted him on the

Travel Act violation because it found he lacked the requisite intent” during the initial phone call. Ibid.

2. Petitioner fails to show any error in the lower

courts’ application of this Court’s jurisprudence to the

facts of this case.

a. Petitioner acknowledges that this Court has

“placed the burden on the defendant to demonstrate

that the issue whose relitigation he seeks to foreclose

12

was actually decided in the first proceeding.” Pet. 12

(quoting Dowling, 493 U.S. at 350-351). He also acknowledges that in Yeager v. United States, this Court

“suggest[ed] a heavy burden.” Pet. 13. Petitioner’s

criticisms of the legal standard applied by court of appeals, and his efforts to superimpose a preponderanceof-the-evidence standard atop the rational-jury standard that this Court has prescribed, lack merit.

Petitioner repeatedly characterizes (Pet. i, 2, 14-15

& n.2, 18, 20, 22) the court of appeals as having applied

a “virtual-certainty” standard. But that phrase does not

appear anywhere in the court’s decision, and the court

did not hold that a defendant must meet that burden.

Rather, the court applied Ashe, taking a “functional approach” to determine what the jury “necessarily decided” by asking “whether a rational jury could have

grounded its verdict upon an issue other than that which

the defendant seeks to foreclose from consideration.”

Pet. App. 9a (citations and internal quotation marks

omitted); see Ashe, 397 U.S. at 444. The court’s formulation reflects only that petitioner faced a burden that

could not be satisfied by showing merely that “it is possible that the jury * * * acquitted [petitioner] by finding that the check was a charitable gratuity and not a

bribe.” Pet. App. 13a (emphasis added).

That formulation accurately applies this Court’s decisions.

Petitioner’s proposal of an additional

preponderance-of-the-evidence standard does not. The

rational-jury standard is in itself a standard of review

that courts are well acquainted with applying, in contexts such as sufficiency-of-the-evidence review. See,

e.g., Musacchio v. United States, 577 U.S. 237, 243

(2016). Ashe adapts that familiar standard for purposes

of applying collateral-estopped principles through the

13

Double Jeopardy Clause, making clear that retrial is

permitted so long as sufficient evidence supports a finding of guilt on a theory that does not conflict with an

acquittal. See Currier, 585 U.S. at 499-500. “To say

that the second trial is tantamount to a trial of the same

offense as the first and thus forbidden by the Double

Jeopardy Clause, [a court] must be able to say that it

would have been irrational for the jury in the first trial

to acquit without finding in the defendant’s favor on a

fact essential to a conviction in the second.” Id. at 500

(citation and internal quotation marks omitted).

Petitioner’s preponderance overlay cannot be squared

with this Court’s approach. Instead, so long as there

are multiple “possible explanations for the jury’s acquittal,” the defendant has “failed to satisfy his burden.” Dowling, 493 U.S. at 352. As the Court has explicitly made clear, a defendant cannot satisfy his burden “simply” by showing that “it is unlikely—or even

very unlikely—that” a conviction at retrial would be factually inconsistent with a prior jury’s acquittal. Currier, 585 U.S. at 500 (citation omitted). And petitioner

errs in asserting (Pet. 14, 20-22) that the Court itself

deviated from that approach in Yeager v. United States.

The “narrow legal” question decided in Yeager concerned the proper role in the Ashe analysis of counts on

which the jury hung. 557 U.S. at 126; see id. at 112,

121-123. Reversing the court of appeals on that issue,

the Court remanded to give the court of appeals the opportunity to properly apply Ashe, “declin[ing] to engage

in a fact-intensive analysis of the voluminous record” itself, because doing so was “unnecessary” to the resolve

the issue before it. Id. at 126. Nothing in that decision

—which did not undertake an analysis of the preclusive

scope of the jury’s acquittals—either explicitly or im-

14

plicitly undermined the Court’s consistent explication of

the demanding rationality standard that a defendant

must meet under Ashe.

b. Petitioner also asserts (Pet. 24) that the court of

appeals’ determination about what the jury could have

found “rests upon a view of the facts that nobody argued

to the jury.” Even if it were correct, that factbound contention would not warrant this Court’s review. See

Sup. Ct. R. 10. But it is incorrect. Defense counsel repeatedly argued to the jury that petitioner lacked the

requisite criminal intent when he called Caraway on August 2. See, e.g., C.A. ROA 4551 (“[Petitioner] called

[Caraway] on August 2nd with one goal and one goal in

mind, and that was to promote paid sick leave.”); id. at

4553 (“There is nothing in that call that would give you

the basis for the Government’s requirement beyond a

reasonable doubt to show that that call was placed with

the necessary willful, knowing and corrupt intent to

make that a violation of law.”). 1

Contrary to petitioner’s suggestion (Pet. 24-25), it

was not speculative for the court of appeals to deterPetitioner relatedly suggests (Pet. 25-26) that the Ashe inquiry,

as understood and applied by the court of appeals, would force a defendant “to choose between” double-jeopardy protections and this

Court’s recognition of a defendant’s “Sixth Amendment right[]” to

present a complete defense. That too is incorrect. The Ashe inquiry

is a highly factbound one that requires the court to look at the individual circumstances of a particular case. See Yeager, 557 U.S. at

120 (discussing Ashe, 397 U.S. at 444). Contesting multiple elements of the crime thus does not categorically preclude a determination that, based on the whole record, a jury’s acquittal can only be

explained by a view of the facts that is inconsistent with conviction

on other counts. Nor, for that matter, is it likely that a defendant

would view the remote possibility of subsequent application of Ashe

as a reason to withhold a viable defense at trial.

1

15

mine that the jury could have concluded that petitioner

lacked the intent to bribe Caraway during the phone

call but decided to bribe Caraway at the in-person meeting the following day. See Pet. App. 13a. The evidence

showed that during the phone call, petitioner asked if

Caraway would talk to the mayor about the proposed

ordinance, but Caraway did not commit to doing so;

Caraway did not ask for any favor; and petitioner did

not offer Caraway anything of value. See id. at 3a, 12a13a. It was not until the following day, during the inperson meeting, that petitioner asked Caraway what he

could do for him and Caraway indicated that petitioner

could “help” Caraway “do what [he] need[ed] to do”—

reasonably understood to be to “follow through with the

Mayor”—by paying Caraway, and petitioner wrote Caraway a $7000 check. Id. at 4a.

The jury could therefore readily have harbored reasonable doubt that petitioner had formed, or committed

to, a bribery plan at the time of the August 2 phone call

while having no such doubt that he had such a plan when

he actually offered the money on August 3. Petitioner

might have adopted the plan overnight, as a way to

shore up Caraway’s participation after Caraway had

been noncommittal on the phone call. Or petitioner

might have adopted the bribery plan on the spot during

the in-person discussion on August 3, as a way to lock

in Caraway’s assistance. The evidence amply supports

either theory—either of which easily explains the jury’s

split verdict, and neither of which involves a finding that

would preclude retrial on a bribery charge alone.

3. Petitioner asserts that this Court has “sent mixed

messages” about the burden of proof required for

double-jeopardy preclusion. Pet. 10; see generally Pet. 1016, 20-26. But contrary to petitioner’s suggestion, the

16

court of appeals’ decision in this case does not conflict

with any decision of this Court. Indeed, although petitioner relies heavily on Judge Elrod’s concurrence (see

Pet. 9, 16, 20, 22, 24, 26, 32), Judge Elrod acknowledged

that the “formulation and application of the burden of

proof in this case is consistent with [Fifth Circuit] case

law and Supreme Court precedent.” Pet. App. 14a. 2

Petitioner also asserts (Pet. 16-20) that the courts of

appeals disagree on the standard a defendant must satisfy to establish that a jury necessarily decided an issue

in his favor in his first trial. But every circuit recognizes

that this Court’s decision in Ashe requires courts to determine “whether a rational jury could have grounded

its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” 397

U.S. at 444.3 And although the courts of appeals at

To the extent petitioner suggests (Pet. 15 n.2, 19-20) that the

decision below creates an intra-circuit conflict within the Fifth Circuit, any such conflict does not warrant this Court’s review. See

Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam)

(“It is primarily the task of a Court of Appeals to reconcile its internal difficulties.”).

3

See United States v. Marino, 200 F.3d 6, 10 (1st Cir. 1999), cert.

denied, 529 U.S. 1137 (2000); United States v. McGowan, 58 F.3d 8,

12 (2d Cir. 1995); United States v. Rigas, 605 F.3d 194, 218 (3d Cir.

2010) (en banc); United States v. Hall, 551 F.3d 257, 269 (4th Cir.

2009); United States v. Sarabia, 661 F.3d 225, 229 (5th Cir. 2011);

Pet. App. 9a (same); United States v. Inman, 39 F.4th 357, 364 (6th

Cir. 2022); United States v. Patterson, 827 F.2d 184, 187 (7th Cir.

1987); United States v. Howe, 590 F.3d 552, 556 (8th Cir. 2009);

United States v. Romeo, 114 F.3d 141, 143 (9th Cir. 1997); Owens v.

Trammell, 792 F.3d 1234, 1243 (10th Cir. 2015), cert. denied, 577

U.S. 1151 (2016); United States v. Irvin, 787 F.2d 1506, 1515 (11th

Cir. 1986); United States v. Coughlin, 610 F.3d 89, 96 (D.C. Cir.

2010).

2

17

times use different formulations, petitioner has not

demonstrated meaningful substantive disagreement—

let alone that a different court of appeals would have

precluded a retrial in this case.

Petitioner does not appear to dispute that his claim

would fail in the Second, Fourth, and Seventh Circuits.

See Pet. 18-19. The Second Circuit has explained that

collateral estoppel is inapplicable where “it cannot be

said ‘with certainty’ that the jury in the first trial necessarily decided the” relevant issue in the defendant’s

favor—that is, where “the jury’s verdict could have

been grounded on” another issue. United States v.

Seijo, 537 F.2d 694, 698 (1976) (citation omitted), cert.

denied, 429 U.S. 1043 (1977). The Fourth Circuit has

likewise stated, in reliance on Third Circuit precedent,

that “[r]easonable doubt as to what was decided by a

prior judgment should be resolved against using it as an

estoppel.” United States v. Ruhbayan, 325 F.3d 197,

203, cert. denied, 540 U.S. 899 (2003) (quoting Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir.), cert. denied,

400 U.S. 846 (1970)) (brackets in original0. And the Seventh Circuit has stated that “the critical question is

whether it can be said with assurance that the fact” the

defendant seeks to foreclose “was necessarily established by the judgment at the earlier trial.” United

States v. Kimberlin, 805 F.2d 210, 232 (7th Cir. 1986),

cert. denied, 483 U.S. 1023 (1987).

Petitioner also cannot show that he would prevail in

the Sixth or Eleventh Circuits, which he views to require “convincing and competent evidence” of what the

jury in the earlier trial “necessarily determined” when

it acquitted a defendant of a particular charge. Christian v. Wellington, 739 F.3d 294, 299 (6th Cir. 2014); see

United States v. Hogue, 812 F.2d 1568, 1578 (11th Cir.

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1987). No such “convincing and competent evidence”

here would undermine the lower courts’ fact-specific determination that the jury could have acquitted him on

the Travel Act charge on grounds consistent with its

finding of guilt on a bribery charge. As the lower courts

explained (Pet. App. 11a-13a, 19a-21a), the charges on

the two counts center on different conduct on different

days, with the evident possibility that (inter alia) petitioner’s plans changed between his first discussion with

Caraway and his second—where he wrote out a check in

response to Caraway’s expression of desire for money.

Petitioner acknowledges that the Ninth Circuit applies a “high standard” to collateral-estoppel claims.

Pet. 16. Petitioner nonetheless emphasizes that in

United States v. Carbullido, 307 F.3d 957, 962 (2002),

the Ninth Circuit stated that it “must give jury verdicts

the most rational interpretation possible” when conducting the collateral-estoppel inquiry. But nothing indicates that the Ninth Circuit would necessarily deem

petitioner’s preferred interpretation of the verdicts as

the “most rational.” Indeed, petitioner’s speculative

theory—that the divergent verdicts are attributable to

a view that his payment to Caraway for a service that

Caraway had not yet performed was a gratuity, rather

than a bribe, see, e.g., Pet. 6—is far less rational than

the inference that the jury acquitted petitioner on the

Travel Act count because it found that the initial call to

Caraway did not show an intent to engage in a corrupt

transaction. See Pet. App. 12a-13a; see also, e.g., C.A.

ROA 4553 (defense argument that “[t]here is nothing in

that call that would give you the basis for the Government’s requirement beyond a reasonable doubt to show

that that call was placed with the necessary willful,

19

knowing and corrupt intent to make that a violation of

law”).

Nor can petitioner show that his case would have

come out differently in the First Circuit. That court has

recognized that defendants invoking collateral-estoppel

principles under the Double Jeopardy Clause face a

“formidable task.” United States v. Morris, 99 F.3d

476, 481 (1st Cir. 1996). And while the First Circuit rejects the application of collateral estoppel where “all

proffered explanations for why a jury’s verdict does not

decide an issue are frankly implausible,” ibid., or where

the court would have to “bend over backwards” to find

that the jury did not decide the key issue, United States

v. Fernandez, 722 F.3d 1, 34 (2013), that is not the case

here. Rather, the record shows that the jury could

readily have based its Travel Act acquittal on petitioner’s lack of intent during the August 2 call. 4

Finally, petitioner likewise could not satisfy the

“heavy burden” imposed on defendants seeking to invoke collateral estoppel in the Third Circuit. United

States v. Rigas, 605 F.3d 194, 217 (3d Cir. 2010). As that

court has explained, “so long as a reasonable jury ‘could

Petitioner suggests that in the First Circuit, “an Ashe claim fails

where ‘the jury most likely grounded its verdict on an issue other

than the one’ the defendant is trying to preclude.” Pet. 17 (quoting

United States v. Dray, 901 F.2d 1132, 1136 (1st Cir.), cert. denied,

498 U.S. 895 (1990) (emphasis added by petitioner)). But petitioner

takes out of context a parenthetical that simply describes the First

Circuit’s decision in a prior case, United States v. Ranney, 719 F.2d

1183, 1187 (1983); see Dray, 901 F.2d at 1136. And although Ranney

characterized the jury there as having “most likely ground its verdict on an issue other than the one which [the defendants sought] to

foreclose,” it did not establish that description as a standard for future cases—as the subsequent decisions addressed above demonstrate. See Ranney, 719 F.2d at 1187.

4

20

have’ based its decision on facts that would not create a

double jeopardy violation, the subsequent prosecution

may move forward.” Wilkerson v. Superintendent

Fayette SCI, 871 F.3d 221, 233 (3d Cir. 2017); see Rigas,

605 F.3d at 218 (explaining that to prevail on a collateral-estoppel claim, the defendant “would have to convince [the court] that the only question at issue” in the

first trial was the one the government sought to relitigate). As the courts below found, that is the case here.

See Pet. App. 12a-13a, 21a.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

MATTHEW R. GALEOTTI

TYLER ANNE LEE

Attorneys

APRIL 2025