In Untied States v. Inman, the Sixth Circuit reversed the district court’s application of issue preclusion based on one acquitted count and remanded the case for retrial on the two hung counts. Issue preclusion only prevents retrial when “the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial to secure a conviction.” Slip Op. p. 8.
Larry Inman a former elected representative in the Michigan House of Representatives was charged with (1) attempted extortion under color of official right, (2) soliciting a bribe, and (3) making a false statement to the FBI. The government argued Inman unlawfully solicited a campaign contribution from the Michigan Regional Council of Carpenters and Millwrights (MRCCM) in exchange for his vote on pending legislation. When Inman was interviewed by the FBI, he denied communicating with MRCCM on campaign contributions or soliciting the organization’s director for money.
At trial, Inman was acquitted of making a false statement to the FBI and the jury hung on the solicitation and extortion counts. The district court dismissed the two remaining counts, “concluding that the government was collaterally estopped from retrying the two counts based on the jury’s acquittal of Inman on Count III.” Slip Op. p. 7. The Sixth Circuit reversed, holding that ‘[l]ying to the FBI is not a fact essential to a conviction of the extortion and bribery-solicitation charges, so issue preclusion does not apply.” Slip Op. p. 12. Because it would be “rational for the jury to have reasonable doubt that Inman made a false statement to the FBI but find, at the same time, that Inman did intend to communicate a quid-pro-quo arrangement to the MRCCM through its representatives,” issue preclusion does not prevent retrial on the two hung counts. Slip Op. p. 12
The Sixth Circuit also rejected the district court’s addition of a “plus” factor to the quid-pro-quo communication analysis to avoid First Amendment concerns. While acknowledging there must be “something that moves permissible campaign actions over the line to criminal extortion and solicitation,” the Court noted that the government did not have to prove Inman lied to the FBI. Slip Op. p. 14. The government only needed to prove that “Inman extorted or attempted to solicit an agreement with MRCCM where Inman would vote in MRCCM’s favor on the [pending legislation] in exchange for payment.” Slip Op. p. 14. The key question on retrial is whether “Inman actually extorted or attempted to solicit such an agreement.” Because this question was not answered by the jury’s acquittal on Count III, issue preclusion does not apply, and a retrial is permissible.