[00:00:00] Speaker 04:
Thank you, Your Honors.

[00:00:05] Speaker 04:
Welcome to Phoenix.

[00:00:05] Speaker 04:
Thank you for bringing some cooler weather with you.

[00:00:09] Speaker 04:
My name is Michael Bernays.

[00:00:11] Speaker 04:
I represent Mick Cariaga.

[00:00:13] Speaker 04:
Mick was convicted of involuntary manslaughter on count one of an indictment here in the District of Arizona and of assault with a deadly weapon.

[00:00:26] Speaker 04:
also acquitted of an underlying assault, which is an element of the assault with a deadly weapon.

[00:00:35] Speaker 04:
He was acquitted on the 924C gun count attendant to count one, because the involuntary manslaughter doesn't support it, but he was convicted on count four.

[00:00:46] Speaker 04:
He received sentences of 70, I think it was 78 months concurrent on the two substantive charges and then a consecutive 84 months on the gun case.

[00:00:56] Speaker 04:
I would like to focus my time on the count three, the inherently inconsistent verdict that was returned.

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And I don't by doing so mean to concede or abandon the argument about the lesser included and whether there was effective assistance of counsel in that regard.

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But I think the more pressing discussion

[00:01:26] Speaker 03:
will be had on the count three so I'm wondering council if you would address whether under United States versus Powell and under the Ninth Circuit's Burgess decision really we should affirm on count three provided there's sufficient evidence in the record to support it I think we should not your honor I think you should not and the reason is

[00:01:47] Speaker 04:
that those cases talk about inconsistent verdicts.

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And it's almost a matter of semantics.

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When we talk about inconsistent verdicts, when you look at all of these cases, Dunn, Powell, Hart, all the Ninth Circuit cases, they're talking about two different verdicts.

[00:02:02] Speaker 04:
They're talking about a defendant who is acquitted with his... You're right.

[00:02:06] Speaker 03:
They are talking about two.

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Why does that make a difference in principle?

[00:02:10] Speaker 04:
Because in this case, what happened was he was acquitted of an

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element of the charge and then convicted of the charge upon which he was also acquitted of an element.

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And you can't acquit somebody of an element of the charge and then convict them of the charge.

[00:02:26] Speaker 03:
The cases that you may be relying on, though, seem to be special verdict type cases that are the result of a perende, where you need to know drug quantity or other acts that affect the sentence.

[00:02:38] Speaker 04:
That's correct, Your Honor.

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And those cases treat them as elements of the offense.

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When they're

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put to the jury as a special interrogatory, and one of those cases draws a distinction between a special verdict and a special interrogatory, but we all know what we're talking about here.

[00:02:55] Speaker 04:
I think it was the Second Circuit treated that very much as an element of the offense, and you can't have a conspiracy to

[00:03:05] Speaker 04:
distribute controlled substances without also determining which controlled substances were conspired about.

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All right.

[00:03:13] Speaker 03:
Would you go back to Powell, then, and explain just the principle of how we can have a decision like Powell and adopt a position like you are taking now?

[00:03:22] Speaker 04:
Well, Your Honor, footnote 8 of Powell discusses the fact that it does not necessarily cover every single situation.

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It acknowledges that there are situations in which two verdicts could be so inherently inconsistent, one with the other.

[00:03:43] Speaker 02:
Yeah, but what footnote eight is referring to is inconsistent guilty verdicts.

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In other words, where the prosecutor submits alternative theories of the crime to the jury that are mutually inconsistent, and they pick them both.

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And you can't, that may be a different situation from Powell.

[00:04:00] Speaker 04:
Right, Your Honor, and I believe that our situation is even more compelling, because in our situation, it isn't two guilty verdicts, it's a not guilty verdict.

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And that's where McElrath comes in, in Fufong.

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In those cases, they say that when a jury acquits, we can't look beyond the verdict.

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He's been acquitted of the assault.

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There's nothing left to consider on the aggravated assault.

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And when you look at the verdict form itself,

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You can see and that's at er 123 it starts in the particular page is er 125 That both guilty and not guilty are written.

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They're in the same hand They're done at the same time this all happened about 20 minutes 25 minutes after the jury was told you do not need to fill in blanks that are unnecessary and then they went in and

[00:04:54] Speaker 04:
and filled in a blank that said he was not guilty of simple assault.

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And we can't get around that with reference to cases that don't address that specificity.

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And that's where Pierce and Randolph and Shipley come in because they all address that specific sort of anomaly where people are acquitted of what the courts are treating

[00:05:17] Speaker 04:
as elements to the offense, but then convicted of the greater offense.

[00:05:22] Speaker 03:
I wonder if Powell, though, doesn't answer what you're saying when it says the jury could have done something for any number of reasons, such as mistake or nullification or whatever.

[00:05:33] Speaker 03:
We don't inquire into that.

[00:05:35] Speaker 04:
Well, we don't inquire into that.

[00:05:37] Speaker 04:
That's absolutely right, Your Honor.

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But why, then, are we allowed to inquire more into the not guilty than the guilty?

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Perhaps the guilty was the mistake.

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And in our system of justice, remember, you know, I was looking at this in preparation for our argument.

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I was thinking, we all went to school for 20 years or more.

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We all have years and years of experience in working with this to be elevated to the bench.

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It takes a lot of work and a lot of wisdom and a lot of practice.

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And then we bring people in off the street and say, okay, you decide these, these questions.

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And that's the magic and the power of the American criminal justice system, is that we bring in people off the street, our peers, our fellow Americans, and we say to them, you get to be the judge, you get to look at this, and we're not going to disturb your verdict when you return it.

[00:06:24] Speaker 00:
So in the instant case... Isn't that the premise of our system of justice, that we take the people from the community to decide these issues and the judges should not be

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second-guessing those verdicts unless it's absolutely clear that the verdict is not what the jury intended.

[00:06:43] Speaker 04:
Yes.

[00:06:44] Speaker 04:
That's correct, Your Honor.

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And I know that the government is going to want to argue that the verdict on count four is an indication that the verdict on count three should have been guilty, but not guilty.

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But you can't do that.

[00:07:00] Speaker 04:
That's what McElrath says.

[00:07:02] Speaker 00:
My question is

[00:07:03] Speaker 00:
How can we be certain that the jury intended to acquit on the simple assault?

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Unless, in my view, the way I read the case is unless we can be sure of that, then the verdict has to stand.

[00:07:22] Speaker 04:
Well, Judge, I think we can be certain that they meant it because they wrote the words not guilty next to the line for simple assault.

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complete the issue because we have to look at the entire verdict and they were guilty on the other one.

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So which one?

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I mean, I think if there's unless to me that takes away the certainty that they meant to acquit.

[00:07:47] Speaker 04:
But it should also undermine the certainty that they meant to convict.

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So if we want to argue that, well, we can look beyond that verdict and see that count four, they wouldn't have done count four under the jury instructions.

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unless they meant a guilty on count three.

[00:08:05] Speaker 04:
By the same token, they wouldn't have filled in the blank on the simple assault on count three unless they intended it.

[00:08:12] Speaker 00:
But that's not what our cases say that we do, that we just look to see whether there is an inconsistency.

[00:08:17] Speaker 00:
We have to look to see if those inconsistencies are irreconcilable.

[00:08:23] Speaker 04:
Well, Judge, I would urge you to take that look and find that being acquitted of an element of an offense

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is irreconcilable with being convicted of the same greater offense that includes that as an element.

[00:08:41] Speaker 04:
I see that my time is getting short.

[00:08:43] Speaker 04:
I would like to reserve time for rebuttal, but I'm happy to continue if the court has further questions.

[00:08:49] Speaker 00:
It appears not, counsel.

[00:08:50] Speaker 00:
We'll hear from you again on rebuttal.

[00:08:52] Speaker 04:
Thank you, ma'am.

[00:09:14] Speaker 01:
May it please the court, my name is Peter Kosinetz.

[00:09:19] Speaker 01:
I represent the United States.

[00:09:24] Speaker 01:
Defense counsel has really focused his argument on the notion that if an element of, if there's an inconsistent verdict that suggests that an element of a greater offense is found to the jury to be not established, that that means that

[00:09:44] Speaker 01:
the verdicts must be thrown out.

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And that is directly contrary to Powell, and Dunn, Hart, and nearly a century of case law from this court and the Supreme Court.

[00:09:57] Speaker 01:
The facts of Dunn and Powell illustrate exactly why.

[00:10:01] Speaker 01:
In both of those cases, the jury acquitted the defendant of constituent offenses.

[00:10:09] Speaker 01:
In Dunn, offenses involving the possession or sale of liquor.

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In Powell, offenses involving drugs.

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But convicted the defendant of essentially greater offenses or compound offenses.

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and Don was maintaining a nuisance.

[00:10:27] Speaker 02:
This case would be just like Powell if they had said not guilty straight across the board on count three and guilty on count four.

[00:10:35] Speaker 02:
That would be Powell and we'd uphold count four under Powell under the theory that, well, they got confused and there may have been lenity on count three.

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But here it's an internal finding within count three.

[00:10:49] Speaker 02:
Can you address his argument that that makes a difference?

[00:10:53] Speaker 01:
Sure, sure.

[00:10:54] Speaker 01:
So I think that really elevates form over substance.

[00:10:59] Speaker 01:
If you look at Powell, page 65, the Supreme Court uses the phrases lesser

[00:11:08] Speaker 01:
offense and predicate offense interchangeably in engaging in this kind of analysis.

[00:11:13] Speaker 01:
And it really focuses on the notion that if there's a crime that's deemed to be an element of greater crime, that that alone is not sufficient grounds for throwing out the verdict.

[00:11:25] Speaker 01:
That you really have to look at whether the sufficiency of the evidence supports the guilty verdict.

[00:11:30] Speaker 01:
Here, there's no dispute on sufficiency.

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The defense has conceded that.

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So I think it elevates form over substance and I think the district court judge issued a very thoughtful and thorough 25 page order, really analyzed Hart in great detail and Hart's recitation of how any attempts to create exceptions from the Dunpal rule have been rejected

[00:11:57] Speaker 01:
by the Supreme Court.

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And I think what if kind of the argument that defense counsel is suggesting here would be one that would create another exception or attempt to create an exception to Powell.

[00:12:10] Speaker 01:
But what if it's a lesser included offense?

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And I think that's just fundamentally inconsistent with the logic and the facts of Dunn and Powell.

[00:12:20] Speaker 03:
And I think- Counsel, do you believe there is a circuit split on this question as it stands now?

[00:12:27] Speaker 01:
No, because as I believe it was your honor pointed out, in these other cases, Randolph and Pierce and Shipley, what the courts were dealing with were these very fact-specific questions posed to the jury, special factual interrogatories.

[00:12:43] Speaker 01:
What kind of drug was involved?

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What was the quantity of the drug?

[00:12:48] Speaker 01:
I think there's a world of difference between asking the jury to answer that sort of very factually objectively verifiable type question versus issuing a general verdict on an offense, which is what they did here.

[00:13:02] Speaker 01:
simple assault was characterized as a lesser included offense.

[00:13:05] Speaker 01:
It was a lesser included offense.

[00:13:07] Speaker 01:
It was still an offense.

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It was a fully formed offense.

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And the jury in deciding the case here did what we expect juries to do when they're given general verdict forms.

[00:13:20] Speaker 02:
What's striking about this case is that the jury sends out a note that said, do we have to fill in all these blanks?

[00:13:28] Speaker 02:
What if there's like a greater and a lesser?

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And the answer comes back

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You don't have to fill in the blank if it's not relevant.

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And then they filled in the blank.

[00:13:38] Speaker 02:
They seem to do, having gotten the instruction, you don't need to do it.

[00:13:42] Speaker 02:
They then went ahead and did it.

[00:13:44] Speaker 02:
Do we give any weight to the fact that that was how they responded to the court's instruction?

[00:13:48] Speaker 01:
Well, I think there are two answers to that, Your Honor.

[00:13:50] Speaker 01:
One is that the case law says you don't try to second-guess the jury at all here.

[00:13:56] Speaker 01:
As long as there's sufficient evidence to support the guilty verdict, we don't want to speculate about what was really going through the jury's mind.

[00:14:03] Speaker 01:
But I think the district court judge here sort of went the extra mile and said, you know what, as a matter of common sense, there is an easy explanation for what happened.

[00:14:11] Speaker 01:
The jury was confused about whether every line on the verdict form had to be completed and submitted a question.

[00:14:18] Speaker 01:
The court, after consulting with both sides, crafted this response that maybe in retrospect wasn't super straightforward.

[00:14:27] Speaker 01:
If you don't need to fill it out, you don't have to fill it out.

[00:14:31] Speaker 01:
Words to that effect.

[00:14:33] Speaker 01:
The jury came back and did fill out every line.

[00:14:36] Speaker 01:
I think that indicates that maybe they didn't fully understand the answer from the judge.

[00:14:43] Speaker 01:
And then we have their verdict on count four.

[00:14:46] Speaker 01:
After they had been specifically instructed, you can only find guilt on count four if you find guilt on, you know, aggravated assault on count three.

[00:14:56] Speaker 01:
And so they found guilt on count four, and that reinforces the conclusion

[00:15:02] Speaker 01:
they intended to find guilt on aggravated assault, count three, as well.

[00:15:09] Speaker 01:
So I think there was sort of this common sense explanation that the district court judge put in his order.

[00:15:17] Speaker 01:
I think it makes sense.

[00:15:17] Speaker 01:
It's consistent with the record.

[00:15:19] Speaker 01:
But it's not even really necessary to go there, because the case law says we're not going to look behind the jury's decision-making process, as long as there is sufficient evidence to support the guilty verdict

[00:15:32] Speaker 01:
that verdict may stand.

[00:15:37] Speaker 01:
Do Your Honors have any other questions about that issue?

[00:15:41] Speaker 00:
It appears not.

[00:15:43] Speaker 01:
Do Your Honors have any questions about the second issue involving involuntary manslaughter?

[00:15:48] Speaker 02:
It appears not.

[00:15:51] Speaker 02:
Well, can you address their argument that that's within the scope of McCoy, that putting a lesser on the table

[00:16:01] Speaker 02:
is essentially signaling, the only strategy, the only reason for doing that is to invite the jury to go to that result, that it's essentially a sort of silent plea to the lesser and therefore falls within McCoy.

[00:16:16] Speaker 01:
Well, McCoy is, Your Honor, a very, very different case.

[00:16:21] Speaker 01:
McCoy clearly puts in front of the, you know, puts to the forefront the notion of is the client pleading guilty or not guilty.

[00:16:31] Speaker 01:
And McCoy, defense counsel, got in front of the jury and said, my client's guilty.

[00:16:36] Speaker 01:
The client disagreed and vociferously did so, tried to fire his lawyer, objected to his counsel, objected to the court.

[00:16:45] Speaker 01:
That's nothing like what we have here.

[00:16:47] Speaker 01:
And I think this maybe goes to the distinction between pleading guilty and proffering a lesser included offense.

[00:16:54] Speaker 01:
There are many, many differences.

[00:16:56] Speaker 01:
One is when you plead guilty, you waive all of your trial rights.

[00:16:59] Speaker 01:
but putting in a lesser included instruction, you preserve all those rights.

[00:17:03] Speaker 01:
When you plead guilty, you confess guilt.

[00:17:06] Speaker 01:
When you put in a lesser included instruction,

[00:17:09] Speaker 01:
You can argue innocence and seeking across the board acquittal.

[00:17:13] Speaker 01:
There's no bar on that.

[00:17:15] Speaker 01:
And when you plead guilty, you go through a very rigorous procedural process under Rule 11.

[00:17:23] Speaker 01:
You have to be in court in person, be put under oath, go through a series of questions with the judge to make sure your decision is knowing, voluntary, and intelligent.

[00:17:32] Speaker 01:
But under Rule 43B3 of the criminal procedure rules,

[00:17:38] Speaker 01:
And this court's decision in the Sherman case, which we noted at page 37 of our brief, the defendant doesn't even need to be personally present at the jury charge conference.

[00:17:51] Speaker 01:
So if he doesn't even have to be there, the notion that he has to go through some sort of process similar to Rule 11 just isn't supported by the rules.

[00:18:01] Speaker 01:
And I think this court's decision

[00:18:04] Speaker 01:
Decisions in Baschler versus Risley and Crace versus Herzog are particularly instructive.

[00:18:10] Speaker 01:
They both recognize that

[00:18:13] Speaker 01:
Putting in an instruction like this is a tactical decision that counsel makes.

[00:18:18] Speaker 01:
It's subjected to scrutiny under ineffective assistance of counsel principles.

[00:18:25] Speaker 01:
And it can be ineffective not to seek an instruction like this if your client's going to face a much harsher sentence.

[00:18:31] Speaker 01:
And really, that was the case here.

[00:18:33] Speaker 01:
Had the jury convicted Mr. Cariaga of murder or

[00:18:38] Speaker 01:
the 924J crime charged in count two, he would have faced life in prison, potentially, and counsel avoided that result.

[00:18:48] Speaker 01:
Under Crace, had he not done that, we could be here arguing that he committed ineffective assistance of counsel.

[00:18:54] Speaker 01:
So I think the bottom line is these cases recognize this is really a sensitive decision that's made by trial counsel after assessing how the evidence has come in, assessing the law and the facts,

[00:19:06] Speaker 01:
maybe trying to get a sense for where the jury may be heading, and then making a judgment call and trial about the best path forward.

[00:19:17] Speaker 01:
And do Your Honors have any other questions about that?

[00:19:21] Speaker 00:
It appears not counseled.

[00:19:22] Speaker 00:
Thank you.

[00:19:23] Speaker 01:
Thank you, Your Honor.

[00:19:32] Speaker 04:
Let me very briefly address the McCoy issue, because I think what the government misses in that is, yes, the decision to seek a lesser included at trial needs to be a very thought out decision.

[00:19:44] Speaker 04:
It needs to assess the evidence, the jury, the read that you're getting off the courtroom, as it were.

[00:19:50] Speaker 04:
But it also needs to be done with the consultation of the defendant.

[00:19:54] Speaker 04:
And that's Mr. Karyaga's complaint here.

[00:19:57] Speaker 02:
Did he establish a sufficient factual basis that that happened?

[00:20:03] Speaker 02:
with the motion that was submitted because it just seemed to be, I don't think there was a declaration, it just seemed to be attorney argument by successor counsel.

[00:20:11] Speaker 04:
Your Honor, and that was me and I admit that in hindsight I probably should have asked for an evidentiary hearing on that point.

[00:20:19] Speaker 02:
No, but you should have just submitted a declaration that said I had no idea he was going to do this.

[00:20:23] Speaker 02:
There was no factual basis for that assertion.

[00:20:26] Speaker 04:
I think that my assessment of that as I prepared the

[00:20:31] Speaker 04:
post-trial, pre-sentencing motions and the appeal was that that record had been made in the in-camera hearing or in the sealed hearing at which trial counsel was removed because of the dispute between the defendant and the trial counsel.

[00:20:51] Speaker 04:
Just very briefly, if I may, Your Honor.

[00:20:53] Speaker 04:
You've asked if there was a circuit split.

[00:20:56] Speaker 04:
I would say there is not a circuit split because all the circuits that have addressed this have found that it's problematic.

[00:21:02] Speaker 04:
Shipley is in some ways a very interesting case because then Judge, now Justice Gorsuch, recognized the problem.

[00:21:09] Speaker 04:
But he approved, because double jeopardy wasn't raised, the submission of that back to the jury.

[00:21:15] Speaker 04:
In the instant case, we didn't do that and how it got missed, even our judge can't say.

[00:21:20] Speaker 04:
It's right there on the verdict form.

[00:21:22] Speaker 04:
He sees it.

[00:21:23] Speaker 04:
He passes it over to the clerk.

[00:21:25] Speaker 04:
The clerk reads only the guilty verdict.

[00:21:27] Speaker 04:
And if there had been an opportunity to approach, as they did moments earlier when the jury had returned a verdict that had not addressed count two, then maybe we wouldn't be here today.

[00:21:39] Speaker 04:
But that didn't happen.

[00:21:40] Speaker 04:
It didn't get discovered until after I got appointed to take over for trial counsel.

[00:21:46] Speaker 04:
I ordered the transcripts in the record because I hadn't done the trial.

[00:21:50] Speaker 04:
And I'm looking at the verdict forms, and I see that, and I'm like, well, now there's an issue, you know.

[00:21:57] Speaker 04:
So I think there isn't a circuit split.

[00:21:59] Speaker 04:
All the circuits that have looked at it have said, no, you have to honor the not guilty of the lesser included, of the attendant quantities in the Shipley, Pierce, and Randolph cases.

[00:22:14] Speaker 04:
And as Feng Fu says, and as McAwrith says,

[00:22:20] Speaker 04:
Once rendered, a jury's verdict of acquittal is inviolate.

[00:22:23] Speaker 04:
And I think that's the difference here, that we have a verdict of acquittal on an element of the offense.

[00:22:29] Speaker 04:
And that really should be the end of it.

[00:22:32] Speaker 00:
Thank you, counsel.

[00:22:33] Speaker 04:
I was going to ask if the court had any further questions, I'd be happy to address them.

[00:22:37] Speaker 00:
It appears not, counsel.

[00:22:39] Speaker 00:
Thank you, counsel.

[00:22:39] Speaker 00:
Thank you, honors.

[00:22:40] Speaker 00:
Thank you to both, counsel.

[00:22:41] Speaker 00:
The case just argued is submitted for decision by the court.