Justia Federal District Court Opinions

This appeal raises the issue of whether the Double Jeopardy Clause bars retrial of the forfeiture count of a RICO indictment where the district court, at the original trial, failed to instruct the jury to consider a required issue and enter a special verdict pursuant to Rule 31(e) of the Federal Rules of Criminal Procedure. Furthermore, this Court must also decide whether the Double Jeopardy Clause bars the retrial of certain RICO predicate acts where the original jury did not indicate on the verdict form that it unanimously found the defendant guilty of those predicate acts. We hold that double jeopardy does not apply in either instance.

Keith Gordon Ham, also known as Kirtanananda Swami Bhaktipada ("Swami"), is the spiritual leader of the New Vrindaban Hare Krishna community in West Virginia. In May 1990, a federal grand jury returned an indictment charging Swami with three counts of violating the RICO statute (18 U.S.C. Sec. 1962), six counts of mail fraud, and two counts regarding a related murder.¹ The indictment also included a separate forfeiture count in which the government sought forfeiture of all of the property owned by the New Vrindaban community. After a trial, the jury convicted Swami on the RICO and mail fraud counts but failed to reach a verdict on the murder counts.

Rule 31(e) of the Federal Rules of Criminal Procedure requires in forfeiture trials that "a special verdict shall be returned as to the extent of the interest or property subject to forfeiture, if any." The jury at Swami's trial never rendered a special verdict on the extent of Swami's interest or property subject to forfeiture.

Before the district court charged the jury at trial, Swami's defense counsel requested that the court not submit the forfeiture count to the jury until the jury returned a guilty verdict on any of the RICO counts. The district court agreed with the suggestion and ruled that the jury should decide only whether racketeering proceeds went into the properties subject to forfeiture. The district court did not have the jury decide the extent of Swami's interest or property subject to forfeiture; the court postponed consideration of that issue until it was clear that the jury would convict on the RICO counts.

In response to the district court's ruling, Swami's attorney drafted the following interrogatory to be answered if the jury found Swami guilty of any of the RICO counts:

Did the defendant acquire an interest in, establish, and/or operate New Vrindaban Community with income received from racketeering acts as detailed in [the RICO counts]?

The jury answered this interrogatory in the affirmative, but the court never held an evidentiary hearing on the extent of Swami's interest or property subject to forfeiture. The district court discharged the jury without its having rendered a special verdict as required by Rule 31(e).

At sentencing, Swami raised the government's failure to obtain a special verdict on the extent of Swami's interest in the property subject to forfeiture. Although the government attempted to shift the burden of securing the special verdict to the defendant, the district court held that any failure to comply with Rule 31(e) "is the court's fault, not the defendant's." Because the jury had not returned a special verdict under Rule 31(e), the district court did not order the forfeiture of any specific property but only entered a general order that "the defendant Swami shall forfeit to the United States all of his interest in all of the real estate identified by the United States in the forfeiture count of the indictment...." Nonetheless, the district court concluded that a new jury could make the requisite findings under Rule 31(e) and advised the prosecutor to "set it down for a jury."

The verdict form that was submitted to the jury required, for most of the counts, only that the jury decide whether the defendant was guilty or not guilty. For the RICO conspiracy count (Count I) and one of the substantive RICO counts (Count II), however, the verdict form also stated the following inquiry:

IF YOU FIND THE DEFENDANT GUILTY OF [the count] PLEASE CHECK THE PARTICULAR PREDICATE ACTS YOU HAVE UNANIMOUSLY CONCLUDED HAVE BEEN PROVEN BY THE UNITED STATES WITH RESPECT TO DEFENDANT SWAMI.

          1)  STEPHEN BRYANT MURDER                __________
          2)  CHARLES ST. DENNIS MURDER            __________
          3)  DEVON WHEELER KIDNAPPING             __________
          4)  MAIL FRAUD: FUNDRAISING              __________
          5)  MAIL FRAUD: ALLSTATE INSURANCE       __________