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Gifts and Liabilities in the Stevens Jury Instructions

           My last post discussed how the Stevens jury may be confused about the definition of a “reportable liability.”  Today I will discuss a significant ambiguity in the jury instructions themselves.

           

            The instructions reflect the fact that Stevens is charged with failing to report both gifts and liabilities.  But nowhere do the instructions state, at least explicitly, that these are alternative theories.  In other words, the indictment alleges that the various things of value Stevens received were either gifts or liabilities.  A single thing of value, however, cannot be both a gift and a liability. 

            The jury instructions obliquely address this question.  There are eight different instructions (Nos. 32, 43, 45, 51, 53, 55, 57 and 68) that deal with the need for the jury to reach a unanimous verdict.  These instructions fall into three different categories.  Instruction No. 32 deals with Count One, which alleges that Stevens concealed material facts on his financial disclosure forms (FDs) for each year from 2000 to 2006.  The instruction states that “[i]n order to find that the government has met its burden to show that Senator Stevens concealed a specific alleged gift or liability, you must unanimously agree as to the specific gift or liability that Senator Stevens concealed and the specific Financial Disclosure Form on which the alleged concealment occurred.”

Instructions Nos. 43, 45, 51, 53, 55 and 57 deal with Counts Two through Seven, each of which alleges that Stevens made a false statement on his FD for a particular year from 2001 to 2006 (Count Two deals with 2001, Count Three with 2002, etc). Each instruction states “[i]n order to find that the government has met its burden to show that Senator Stevens made or caused a false, fictitious or fraudulent statement or representation when he filled out his [year in question] Financial Disclosure Form on [date in question], you must unanimously agree as to the statement or representation that was false, fictitious or fraudulent.”

Finally, Instruction No. 68 covers all counts, and states: “In order for your verdict to be unanimous, you must all agree that the government proved each element of each offense beyond a reasonable doubt. Senator Stevens has been charged with seven counts of making or causing false statements on his Financial Disclosure Forms. For some of the counts, the government has alleged more than one statement or representation, or more than one gift or liability. However, in order to return a guilty verdict on any count, you must unanimously agree on the specific false statement or representation and the specific gift or liability that Senator Stevens allegedly failed to disclose on his Financial Disclosure Form.”

I think I understand the rationale behind these instructions, but one can easily imagine the jury being confused as to the different and apparently inconsistent verbiage used. Presumably, though, the jurors will get the message that they must agree on both the particular thing of value Stevens should have reported and the year in which he should have reported it. In other words, it will not do if the jurors agree that Stevens should have reported Item A, but some believe that it should have been reported only on his 2004 FD and some believe it should have been reported only on his 2005 FD. Similarly, it will not do if the jurors all agree that Stevens should have reported something on his 2004 FD, but some believe that he was only required to report Item A and some believe that he was only required to report Item B.

It gets a little murkier, though, with respect to whether the jurors must agree on whether a particular item was a gift or a liability. Suppose, for example, the jurors all agree that Stevens was required to report Item A on his 2004 FD, but some believe that it should have been reported as a gift and some believe it should have been reported as a liability?

Read closely, it seems to me, the instructions for Counts Two through Seven require that the jurors agree on whether the particular item is a gift or a liability. This is because, as the jury instructions state, Stevens made separate “statements or representations” on each FD with respect to gifts and liabilities. If some of the jurors believe that Item A is a gift and some believe it is a liability, they would be unable to agree on which statement or representation was false and thus could not reach a unanimous verdict.

But what happens if the jurors who believe Item A is a gift also believe that, if it is not a gift, it is a liability? Or if some jurors believe that Item A is definitely either a gift or a liability, but are not sure which? It would seem that unless the jurors unanimously agree, beyond a reasonable doubt, on whether Item A is a gift or liability, it is logically impossible for them to agree on whether Stevens made a particular false statement or representation for purposes of Counts Two through Seven.

Count One may be different, though. That count does not charge Stevens with making a false statement or representation, but with concealing material facts. It may be that the jury could unanimously find that Stevens concealed a material fact, ie., his receipt of Item A, while they disagree as to whether Item A was a gift or a liability.

Maybe I am missing something (or maybe this is just the way the criminal justice system works), but it seems like asking an awful lot of the jury to puzzle this out on the instructions they have received.

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