Hoyle v. Ada County

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICHARD W. HOYLE, 
Petitioner-Appellant,
No. 06-35509
v.
ADA COUNTY, IDAHO, DISTRICT  D.C. No.
CV-05-00063-EJL
COURT; LAWRENCE WASDEN,
OPINION
Attorney General, State of Idaho,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding

Argued and Submitted
March 6, 2007—Portland, Oregon

Filed August 2, 2007

Before: Ronald M. Gould, Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Gould

9209
9212 HOYLE v. ADA COUNTY
COUNSEL

Andrew Parnes, Ketchum, Idaho, for petitioner-appellant
Richard W. Hoyle.

Jessica M. Lorello, Deputy Attorney General, Boise, Idaho,
for respondents-appellees Ada County and the State of Idaho.

OPINION

GOULD, Circuit Judge:

Petitioner-Appellant Richard W. Hoyle was indicted in
Idaho on state racketeering charges. By the time the case was
submitted to the jury, two counts remained in addition to
thirty alleged predicate acts for a third count involving a
racketeering charge (“Count B”). After the jury told the trial
judge that it could not agree on a number of predicate acts in
Count B, the trial judge instructed the jury to note on a special
verdict form where there was no agreement. The jury returned
a not guilty verdict on the racketeering counts, but wrote “no
agmt” next to seven predicate acts and wrote under the “not
guilty” verdict, “except as to the seven predicate acts upon
which we could not reach unanimous agreement.” The trial
court denied Hoyle’s motion for acquittal, concluding that the
jury qualified its verdict with respect to the seven excepted
predicate acts in Count B, a ruling which the Court of Appeals
of Idaho and the Idaho Supreme Court affirmed. Hoyle filed
a petition for a writ of habeas corpus under 28 U.S.C.
§ 2241(c)(3), claiming that the not guilty verdict served to
acquit him of the entirety of Count B and that Respondent
Ada County (“the State”) was barred by the prohibition
against double jeopardy from charging in a second prosecu-
tion that Hoyle committed five of the seven predicate acts as
discrete and independent offenses. The district court denied
relief because it found that the jury unambiguously excepted
 HOYLE v. ADA COUNTY 9213
the seven predicate acts from its not guilty verdict. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

Hoyle owned and operated Hoyle & Associates Insurance,
Inc. (“Hoyle Insurance”) in Boise, Idaho from 1979 to 1995.
On January 1, 1996, Hoyle sold Hoyle Insurance to First
Security Insurance, which continued to operate the concern as
Hoyle Insurance and employed Hoyle as Vice President and
Sales Manager.

On June 12, 1997, Hoyle was indicted on eight felony
counts that were predicated on 165 criminal acts allegedly
committed in connection with his insurance company. When
the case was submitted to the jury, the jury had left to con-
sider just Count A alleging solicitation of destruction of evi-
dence, Count E alleging solicitation of grand theft, and thirty
alleged predicate acts under Count B for various racketeering
conduct.1 On June 11, 1999, after ten weeks of trial and three
days of deliberation, the jury reached verdicts of not guilty on
Counts A and E. With respect to the remaining Count B, the
jury sent a note to the trial judge stating in relevant part: “As
to Count B, we cannot reach a unanimous agreement on a
number of predicate acts. Do you want us to note on [the] ver-
dict form those predicate acts to which we cannot agree? We
have made extensive effort to obtain an agreement and don’t
feel we can.” After hearing from the jury that further delibera-
tions would be fruitless, the trial judge instructed the jury to
1
The State charged Hoyle in Count B under Idaho Code Ann. § 18-
7804(a), which provides in pertinent part:
It is unlawful for any person who has received any proceeds
derived directly or indirectly from a pattern of racketeering activ-
ity in which the person has participated, to use or invest, directly
or indirectly, any part of the proceeds or the proceeds derived
from the investment or use thereof in the acquisition of any inter-
est in, or the establishment or operation of, any enterprise or real
property.
9214 HOYLE v. ADA COUNTY
fill out the verdict form. . . . On those answers to
charges, to questions, and to predicate acts on which
you have unanimously agreed, . . . put in your deci-
sion or answers to those questions. On any questions
or predicate acts on which you do not unanimously
agree, please . . . write down next to that “NA” for
no agreement.

These instructions to the jury comported with Idaho law, see
Idaho Code Ann. § 19-2307, and with defense counsel’s
request. In light of the jury’s note, however, Hoyle’s counsel
moved for a mistrial, which was taken under advisement
pending the announcement of the verdict.

At 12:47 a.m., on June 12, 1999, the jury returned its ver-
dict to the judge, who read its contents into the record and
polled the jury to confirm its verdict as to the matters on
which the jury had and had not agreed. The verdict form as
to Count B, with italicized text to reflect the jury’s action and
any handwritten comments on the form, reads in relevant part:

1A. — Did the defendant commit at least two inci-
dents of racketeering conduct? The jury checked
“No,” but noted “except as to the seven predicate
acts upon which we could not reach unanimous
agreement.”

1B. — Check the appropriate box to reflect your ver-
dict with respect to each of the following predicate
acts. The jury checked the “not guilty” boxes for
twenty-three predicate acts, but wrote “no agmt”
beside the boxes provided for Predicate Act Num-
bers 9, 10, 11, and 62 (which pertained to grand
theft); and Predicate Act Numbers 108, 115, and 118
(which pertained to insurance fraud).

1C. — Did the incidents of racketeering conduct that
you find were proven have the same or similar inci-
 HOYLE v. ADA COUNTY 9215
dents, results, victims, methods of commission or
were they otherwise so interrelated by distinguishing
characteristics that they were not isolated incidents?
The jury provided no answer.

1D. — (If your answer to either question 1A or 1C
is “NO,” then you must answer both parts of 1D
“NOT GUILTY.”) Considering your answers to the
foregoing questions under the heading “Count B,”
and considering all the other required elements of the
crime of racketeering, you must decide whether the
state proved or failed to prove beyond a reasonable
doubt that the defendant committed the crime of
racketeering under the “investment” theory and the
“participation” theory. The jury checked the “not
guilty” box as to both the investment and participa-
tion theories, but wrote underneath its verdict “ex-
cept as to the seven predicate acts upon which we
could not reach unanimous agreement.”2

The trial court entered a judgment of acquittal on Counts A
and E and twenty-three predicate acts under Count B. Hoyle
then filed a Motion for Judgment of Acquittal on Count B,
and the State filed a Motion for a New Trial on Count B. On
August 11, 1999, the Idaho district court denied Hoyle’s
Motion for Judgment of Acquittal and granted the State’s
Motion for a New Trial, ruling that the jury had not returned
a verdict on the entirety of Count B in light of the seven pred-
icate acts on which it could not agree.

On August 17, 2000, the State informed the trial court that
it would not proceed to retrial on Count B because it was fil-
ing a second prosecution under Case No. H0000795 (“Case
795”). Case 795 charged Hoyle with five of the seven predi-
cate acts as separate and independent offenses. The State indi-
2
The jury form, in its entirety, is attached to the opinion as Appendix
A.
9216 HOYLE v. ADA COUNTY
cated that it would move to amend the indictment in Case
795, and, if granted, would move to dismiss the first case
involving the racketeering charges in Count B. On the date of
retrial, September 11, 2000, the trial court denied Hoyle’s
renewed Motion for Judgment for Acquittal and dismissed the
racketeering charges without prejudice.

The Court of Appeals of Idaho held that the trial court did
not abuse its discretion in denying the Motion for Judgment
of Acquittal based on the determination that the jury did not
return a unanimous verdict on all the predicate acts under
Count B. The Idaho Supreme Court granted Hoyle’s petition
for discretionary review on the issue, and, in a 3-2 decision,
affirmed the decision of the appeals court. State v. Hoyle, 140
Idaho 679, 688, 99 P.3d 1069, 1073, 1078 (Idaho 2004). Stat-
ing that the majority had not addressed Hoyle’s double jeop-
ardy claim, Justice Eismann concluded in dissent that the
annotated verdict form was ambiguous about the basis on
which the jury reached its not guilty verdict because the jury
might have determined that the State did not prove an element
of racketeering (such as the pattern of racketeering activity).
See id. at 1080 (Eismann, J., dissenting). Given this ambigu-
ity, the dissent continued, Hoyle’s subsequent prosecution in
Case 795 should be barred under the Double Jeopardy Clause
because the independent charges were lesser included
offenses of racketeering, as charged in Count B, for which
Hoyle was acquitted with the “not guilty” verdict. See id. at
1081-82 (Eismann, J., dissenting). Justice Eismann’s dissent
prompted a petition for rehearing on the double jeopardy
issue, which the Idaho Supreme Court summarily denied.

Hoyle next filed a petition for writ of habeas corpus under
28 U.S.C. § 2241(c)(3) in the United States District Court for
the District of Idaho.3 The district court denied the petition on
3
“The writ of habeas corpus shall not extend to a prisoner unless . . .
[h]e is in custody in violation of the Constitution or laws or treaties of the
United States . . . .” 28 U.S.C. § 2241(c)(3).”
 HOYLE v. ADA COUNTY 9217
the ground that the verdict form did not reflect an unqualified
not guilty verdict on Count B because of the seven excepted
predicate acts, concluding that the handwritten notations on
the verdict form could not be disregarded as mere surplusage.
The district court also determined that the record supported
this interpretation. In particular, the district court found: (1)
that the jury had made the obvious communication in open
court to the trial judge that it was deadlocked on some predi-
cate acts; (2) that because of the lack of unanimity, Hoyle’s
trial counsel requested a mistrial; and (3) that the special ver-
dict form required the jury to indicate “not guilty” if the state
had not proven two or more incidents of racketeering. The
district court concluded that “[b]ecause the jurors could not
agree whether Petitioner had committed these seven acts, it
follows that they also did not resolve whether Petitioner com-
mitted ‘at least two incidents of racketeering conduct’ . . . or,
if so, whether those incidents amounted to a ‘pattern of racke-
teering activity.’ ” Because Hoyle was not acquitted of the
entire racketeering charge, the district court held that double
jeopardy did not bar prosecution of Case 795 and denied
habeas relief. Hoyle timely appealed.

II

Where a petitioner seeks a writ of habeas corpus under 28
U.S.C. § 2241, which empowers district courts to provide
habeas relief on pretrial double jeopardy challenges, see Stow
v. Murashige, 389 F.3d 880, 886-87 (9th Cir. 2004), we do
not apply the stringent standard set forth in the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
104-132, 110 Stat.1214 (codified as amended at, in relevant
part, 28 U.S.C. § 2254(d)), which allows for relief from a
state court judgment only where a state court decision was
“contrary to” or an “unreasonable application of” clearly
established federal law. Id. at 888.

The parties dispute the appropriate degree of deference we
should give the state trial court’s determinations about the
9218 HOYLE v. ADA COUNTY
annotated jury verdict form. The State argues, relying on
Sumner v. Mata, 449 U.S. 539 (1981), and Gonzalez v. Jus-
tices of the Mun. Court, 382 F.3d 1 (1st Cir. 2004), vacated
and remanded, 544 U.S. 918 (2005), that we must defer to the
state trial court’s “factual finding with respect to the jury’s
position on the racketeering charge.” Hoyle argues that the
relevant facts here are undisputed regarding the central issue
of the verdict form, i.e. its notations and the manner in which
it was returned. Hoyle further contends that, given these
uncontroverted facts, it is the legal effect of the annotated ver-
dict form that is at issue — a mixed question of law and fact
that must be reviewed de novo.

We conclude that the traditional pre-AEDPA standard of
review applies—we review factual findings with a presump-
tion of correctness and conclusions of law de novo. See Allen
v. Roe, 305 F.3d 1046, 1050 (9th Cir. 2002); see also Stow,
389 F.3d at 888. Yet there is a genuine issue of whether the
trial court’s determination that the annotated verdict form did
not constitute an acquittal of all the racketeering charges is a
finding of fact or a legal conclusion. On this issue we agree
with Hoyle that the effect of the annotated “not guilty” verdict
— whether it acquitted Hoyle as to the racketeering conduct
alleged under Count B — is a mixed question of law and fact.
See Thompson v. Keohane, 516 U.S. 99, 110 (1995) (holding
that under pre-AEDPA standards, factual findings made by a
state court are entitled to a presumption of correctness, but
federal courts are not required to defer to state court determi-
nations of mixed questions of law and fact); see also In re
Indian Gaming Related Cases, 331 F.3d 1094, 1107 (9th Cir.
2003) (“A mixed question of law and fact exists where the
relevant facts are undisputed and the question is whether
those facts satisfy the applicable legal rule.”); Suzy’s Zoo v.
Comm’r of Internal Revenue, 273 F.3d 875, 878 (9th Cir.
2001) (“A mixed question of law and fact exists when pri-
mary facts are undisputed and ultimate inferences and legal
consequences are in dispute.”). We thus review de novo the
district court’s conclusions about the legal import of the anno-
 HOYLE v. ADA COUNTY 9219
tated jury verdict, see Stow, 389 F.3d at 888, but will uphold
any underlying factual findings absent a rebuttal of the pre-
sumption of correctness. See Allen, 305 F.3d at 1050.

III

The crux of the issue for us is whether the special verdict
form, which featured the key notation — “except as to the
seven predicate acts upon which we could not reach unani-
mous agreement” — next to the checked “Not Guilty” box for
the Count B racketeering charges, reflected an unambiguous
verdict of acquittal or a qualified verdict that excluded the
seven excepted predicate acts thereby reflecting its inability to
reach a unanimous verdict on Count B. If Hoyle was acquitted
altogether, the constitutional prohibition against double jeop-
ardy would bar the State from prosecuting him in Case 795
for the alleged independent acts that overlap with the predi-
cate acts of the Count B racketeering charges. See Brown v.
Ohio, 432 U.S. 161, 167-69 (1977); Green v. United States,
355 U.S. 184, 188 (1957). Hoyle contends that the not guilty
verdict encompasses the entirety of Count B, and that a
reviewing court may not reconstruct a jury verdict once ren-
dered. The State counters that Hoyle’s premise is incorrect
that the jury’s not guilty verdict encompassed the seven predi-
cate acts because the jury’s notation explicitly qualified its
verdict as lacking unanimity.

[1] The Double Jeopardy Clause of the Fifth Amendment,
made applicable to the States through the Fourteenth Amend-
ment, provides that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S.
Const. Amend. V. “It has long been settled under the Fifth
Amendment that a verdict of acquittal is final, ending a defen-
dant’s jeopardy, and even when not followed by any judg-
ment, is a bar to a subsequent prosecution for the same
offence.” Green, 355 U.S. at 188 (internal quotation marks
omitted). An acquittal on a greater offense generally bars a
second prosecution for any lesser included offenses. See
9220 HOYLE v. ADA COUNTY
Brown, 432 U.S. at 169 (“The Double Jeopardy Clause is not
such a fragile guarantee that prosecutors can avoid its limita-
tions by the simple expedient of dividing a single crime into
a series of temporal or spatial units.”); see also Price v. Geor-
gia, 398 U.S. 323, 329 (1970).

[2] The principle that an acquittal invokes double jeopardy
protection, barring a new prosecution for the same offense or
lesser included offenses, has been applied with vigor, and
brooks no exception based on the theory that the trier of fact
acquitted in error. See Fong Foo v. United States, 369 U.S.
141, 143 (1962) (per curiam) (holding that an acquittal pre-
vents a second prosecution even if it is based upon an “egre-
gious error” of fact or law); see also United States v. Ogles,
440 F.3d 1095, 1100-01 (9th Cir. 2006) (holding prohibition
against double jeopardy precluded government appeal of
allegedly flawed judgment of acquittal under Federal Rule of
Criminal Procedure 29(a)); United States v. Ember, 726 F.2d
522, 524 (9th Cir. 1984) (“Even if the rulings excluding the
evidence were erroneous, double jeopardy bars this appeal if
the district court’s action is properly characterized as a judg-
ment of acquittal.”). Nonetheless, the principle of double
jeopardy protection following an acquittal does not apply rou-
tinely in the case of a mistrial as a bar to a second prosecution
where the trial court has declared a mistrial because the jury
could not reach a unanimous verdict.4 See Richardson v.
4
In certain non-routine instances, the protection of the Double Jeopardy
Clause remains even after a mistrial. For instance, the Double Jeopardy
Clause continues to shield a “defendant against governmental actions
intended to provoke mistrial requests and thereby to subject defendants to
the substantial burdens imposed by multiple prosecutions.” Oregon v.
Kennedy, 456 U.S. 667, 674 (1982) (internal quotation marks omitted). It
also bars retrials where “bad-faith conduct by judge or prosecutor,” United
States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion), “threatens
[harassment] of an accused by successive prosecutions or declaration of a
mistrial so as to afford the prosecution a more favorable opportunity to
convict the defendant.” United States v. Dinitz, 424 U.S. 600, 611 (1976)
(internal quotation marks omitted).
 HOYLE v. ADA COUNTY 9221
United States, 468 U.S. 317, 324 (1984) (“[W]e have con-
stantly adhered to the rule that a retrial following a ‘hung
jury’ does not violate the Double Jeopardy Clause.”); see also
United States v. Scott, 437 U.S. 82, 92 (1978) (“When a trial
court declares a mistrial, it all but invariably contemplates that
the prosecutor will be permitted to proceed anew notwith-
standing the defendant’s plea of double jeopardy.”). An
acquittal for double jeopardy purposes is defined as “resolu-
tion, correct or not, of some or all of the factual elements of
the offense charged.” Smith v. Massachusetts, 543 U.S. 462,
468 (2005) (internal quotation marks omitted).

In contending that the jury verdict here acquitted Hoyle of
Count B, Hoyle relies on our authority in Stow, 389 F.3d 880,
to argue that a reviewing court must accept the verdict with-
out the benefit of subsequent reconstruction. The State
responds that Stow can be distinguished where, as here, the
jury unambiguously excepted the seven predicate acts from its
not guilty verdict. The State argues that the district court
properly relied on United States v. Ailsworth, 138 F.3d 843
(10th Cir. 1998), United States v. Nooks, 446 F.2d 1283 (5th
Cir. 1971), and Cook v. United States, 379 F.2d 966 (5th Cir.
1967), to conclude that a jury’s verdict must be clear and
unqualified, and a reviewing court may look to the record sur-
rounding a jury’s verdict to discern a jury’s intent and to give
effect to that intent. We evaluate these precedents in aid of
our resolution of his appeal.

In Stow, the defendant had been charged with attempted
murder in the first degree and the second degree. 389 F.3d at
882. After the jury returned a guilty verdict for the first degree
attempted murder charge and a not guilty verdict for the sec-
ond degree attempted murder charge, the trial court entered a
judgment on the first degree count. The record was silent,
however, as to whether defense counsel or the trial court
noticed that the jury had marked “not guilty” as to the second
degree count. Id. The record reflected that the trial judge only
gave an instruction regarding attempted murder in the first
9222 HOYLE v. ADA COUNTY
degree without adding a supplemental instruction, as required
under Hawaii law, that the jury should stop deliberating if it
found the defendant guilty of that count. Id. at 884. Later, the
Hawaii Supreme Court overturned the conviction, but held
that the not guilty verdict for the second degree attempted
murder charge did not “in substance” constitute an acquittal.
Id. at 882, 885. This decision cleared the path for the state to
mount a second prosecution against the defendant on that
charge. Id. at 882.

Despite the possibility that there had been jury confusion or
mistake, we rejected in Stow the Hawaii Supreme Court’s the-
ory that the “not guilty” verdict was not an acquittal “in sub-
stance,” concluding that a second prosecution was barred by
the “fundamental” and “absolute” prohibition against double
jeopardy. Id. at 888. “That there cannot be further appellate
inquiry into a jury’s verdict is confirmed by the doctrine that
even ‘egregiously erroneous’ jury verdicts are nonetheless a
bar to a subsequent prosecution.” Id. at 890 (quoting Fong
Foo, 369 U.S. at 143). We held, moreover, that this prohibi-
tion applies even if there was “instructional error,” id. at 891,
or in the event of inconsistent verdicts. See id. at 892 (citing
United States v. Powell, 469 U.S. 57, 65 (1984)); see also
McNeil v. Middleton, 402 F.3d 920, 921 n.2 (9th Cir. 2005).

The verdict at issue in Stow is distinguishable from the
annotated verdict form here. The jury in Stow returned incon-
sistent verdicts that potentially arose from the trial court’s
oversight in not giving the supplemental instruction to halt
deliberations after the jury found the defendant guilty of first
degree attempted murder. See 389 F.3d at 884. In that context,
we held that there could be no appellate inquiry into the
meaning of the verdict. See id. at 891-92. In contrast to the
jury’s notations qualifying its not guilty verdict here, the
jury’s verdict in Stow did not contain any explanation that
could reconcile the inconsistency between the guilty verdict
for first degree attempted murder and the not guilty verdict for
the lesser included offense of second degree attempted mur-
 HOYLE v. ADA COUNTY 9223
der. The absence of any preexisting explanation by the jury on
the verdict form in Stow is a salient difference from the anno-
tated verdict here because the reviewing court in Stow was in
a position where it could only “speculate” about the jury’s
decision to mark not guilty on the second degree attempted
murder charge. Id. at 883.

This contextual silence in Stow contrasts with the record of
the proceedings here that establishes with certainty that the
court and parties were aware that the jury expressly excepted
seven predicate acts from its verdict. After long deliberation,
the jury told the trial judge that it was deadlocked on several
predicate acts under Count B. This lack of unanimity
prompted Hoyle’s trial counsel to request a mistrial. See Scott,
437 U.S. at 93 (noting that “a motion by the defendant for
mistrial is ordinarily assumed to remove any barrier to repro-
secution . . . .” (internal quotation marks omitted)); United
States v. See, 505 F.2d 845, 854 (9th Cir. 1974) (holding,
while affirming the grant of a mistrial, that “hopelessly dead-
locked” jury is proper grounds for mistrial). In turn, the trial
judge ascertained the jury’s particular reservations by elicit-
ing, through his instructions,5 responses from the jury on the
special verdict form. Hoyle’s trial counsel acceded to this
instruction that invited the jury’s annotated verdict with
respect to the seven predicate acts on which there was dis-
agreement. In Stow, the record suggested no comparable con-
text that disclosed the jury’s intent. See 389 F.3d at 883. Stow
thus does not control the inquiry here.

Absent the applicability of Stow or any other binding
authority, we consider extra-circuit authority that permits con-
sideration of a jury’s verdict notations and the context in
which the verdict was rendered to give effect to the jury’s
intent.
5
“On any questions or predicate acts on which you do not unanimously
agree, please . . . write down next to that “NA” for no agreement.”
9224 HOYLE v. ADA COUNTY
[3] In Ailsworth, the Tenth Circuit held that unnecessary or
irrelevant statements in a verdict form may be disregarded as
surplusage, except “where the circumstances of the jury’s rec-
ommendation cast doubt upon the unqualified nature of the
verdict.” 138 F.3d at 846. In that case, the defendant had been
charged under a multicount indictment. See id. at 845-46.
When the jury returned its verdict, it checked the “guilty” box
on the verdict form corresponding to Count 1 but added a
notation that the defendant was guilty of Count 1 “as related
to Counts # 26, 27 and 28 on 11/19/93 only.” Id. at 845 (alter-
ation omitted). The defendant claimed that the district court
abused its discretion in not granting a motion for acquittal
because the verdict was ambiguous and the trial judge should
have inquired about the notation. Id. at 846.

The Tenth Circuit conceded that “[t]he district court should
have made some inquiry into the meaning of the notation to
resolve this qualification.” Id. at 847. Rejecting the defen-
dant’s claim that the verdict was ambiguous, however, the
Tenth Circuit held that the trial court’s inaction “would
require a reversal only if an inquiry would have revealed a
reasonable interpretation of the notation which would have
cast doubt on the jury’s finding that Defendant conspired to
commit the crimes charged in Counts 26, 27, and 28.” Id. at
847-48 (emphasis added). Examining the verdict form “in
light of the jury questions to the court, the court’s answers and
instructions,” the Ailsworth court rejected alternative interpre-
tations of the verdict form notation and concluded that the
trial court did not commit reversible error because “[t]he only
reasonable interpretation of the jury’s notation is that the jury
was not convinced beyond a reasonable doubt that Defendant
participated in the single broad conspiracy alleged in the
indictment,” but was convinced “that Defendant participated
in a conspiracy relating to Counts 26, 27, and 28.” Id. at 847-
48.

[4] The Tenth Circuit rule is in line with Fifth Circuit
authority that a verdict is valid if it “was certain, unqualified
 HOYLE v. ADA COUNTY 9225
and unambiguous considering the circumstances of the receipt
of the verdict and poll of the jurors relative to their verdict.”
Cook, 379 F.2d at 968; see also Nooks, 446 F.2d at 1290
(“The verdict of the jury should be construed with reference
to the indictment, the court’s charge, and the entire record to
arrive at the intention of the jury, and all fair intendments
should be made to sustain the verdict.”).

In Cook, the Fifth Circuit considered a jury verdict convict-
ing an attorney on three counts of willfully understating net
earnings from his law practice on his personal income tax
returns. 379 F.2d at 967-68. Despite the “guilty” verdict, the
jury added a handwritten note at the bottom of the verdict
form requesting that the court give the defendant “every
degree of leniency.” Id. at 968. When the jury was polled,
moreover, a majority of jurors responded, “Guilty, based on
the note at the bottom,” or with similar language. Id. at 969.
The trial court rejected defense counsel’s motion that the trial
court inquire whether the jury’s vote was qualified by the
addition of the note because “the verdict is not ambiguous, it
speaks for itself.” Id. at 969 n.3. Under those exceptional cir-
cumstances, the Fifth Circuit reversed the trial court because
it committed reversible error by not granting defense coun-
sel’s request to inquire into the jury’s exact intent, where the
court of appeals had “serious doubt that the jury did not qual-
ify its verdict of guilty [by] predicating and conditioning it on
the request for ‘every degree of leniency possible.’ ” Id. at
970. The Cook court held “that the jury’s verdict, taken
together with the court’s comments to the jury on receipt of
the verdict and the responses of each juror to the court’s poll,
showed an obscurity — a lack of definite and precise meaning
— and that obscurity having rendered the verdict doubtful and
not having been clarified by the trial court . . . was fatal to it.”
Id. at 971. But cf. Rogers v. United States, 422 U.S. 35, 38
(1975) (noting that jury requests for leniency on the verdict
form are usually deemed surplusage); United States v. Lee,
532 F.2d 911, 915 (3rd Cir. 1976) (affirming trial court’s
acceptance of verdict with appended note requesting leniency
9226 HOYLE v. ADA COUNTY
where the polled jurors, unlike in Cook, “indicated their
agreement with the guilty verdict without equivocation or
qualification whatsoever”). In short, the Fifth Circuit con-
cluded that, in light of the annotated verdict, “the circum-
stances strongly suggest that there would have been no
agreement as to the verdict unless the recommendation of
leniency was also accepted,” and that the “effect of the rec-
ommendation, steadfastly adhered to on the poll, was to nul-
lify the verdict.” Cook, 379 F.2d at 970. The court relied upon
the general rule: “There is no verdict as long as there is any
uncertainty or contingency to the finality of the jury’s deter-
mination.” Id.

[5] Although these extra-circuit cases did not involve ques-
tions of double jeopardy, these precedents are persuasive in
providing criteria for determining the intent and effect of an
annotated verdict. We thus adopt a rule that a reviewing court
may look to notations on a verdict form, other than surplus-
age, to clarify the jury’s intent and the effect of its verdict in
order to ascertain if the defendant has been acquitted of a par-
ticular charge. In addition, in cases where the jury has written
notations on the verdict form, but in only those cases, a
reviewing court may look to the context of the verdict, includ-
ing jury requests for clarification, a trial judge’s instructions,
polling of the jury, and other court proceedings evidenced in
the record that bear on a reasonable interpretation of what the
jury has intended in its annotated verdict.6

[6] Here, it is beyond question that all parties concerned
understood that the jury was hung on the seven excepted pred-
6
Our holding does not undermine the robust Double Jeopardy jurispru-
dence recognizing that where a verdict form states simply “not guilty,”
courts may not inquire into the surrounding context to determine the jury’s
intent. As we have stated time and again, a “not guilty” verdict is a “not
guilty” verdict, even where we strongly suspect a jury mistake, or even an
“egregious error.” See Stow, 389 F.3d at 890-92 (citations omitted). Here,
only because the verdict form itself was ambiguous may we engage in fur-
ther investigation to determine the jury’s intent.
 HOYLE v. ADA COUNTY 9227
icate acts, and that is the conclusion reasonably drawn from
the verdict form notations. The trial judge properly sought to
clarify how the jury should proceed if it could not reach unan-
imous agreement on all predicate acts by the instruction that
the jurors note where they were in disagreement as to any
predicate acts. The record also establishes that the jury faith-
fully complied with the trial judge’s instruction and consis-
tently noted its lack of unanimity about the excepted seven
predicate acts on the special verdict form.

As to the content of the notations, the interpretation of the
verdict form in Justice Eismann’s dissent, which Hoyle adopts
in its entirety, does not convince us, but we set out the reason-
ing to explain our contrary view:

Another possible interpretation is that the notation
somehow qualified the verdict of not guilty of racke-
teering. The jury was not asked to clarify the mean-
ing of the notation. It is sufficient, however, that the
verdict could have been based upon a finding that
the State had failed to prove one essential element of
racketeering (such as a pattern of racketeering activ-
ity). In that circumstance, the jury would be required
to return a not guilty verdict to racketeering even if
it could not unanimously agree upon all of the
alleged predicate acts.

Hoyle, 99 P.3d at 1080 (Eismann, J., dissenting). In our view,
Justice Eismann’s observations do not adequately account for
the notation that excepted seven predicate acts. The proffered
interpretation also cannot be reconciled with the jury’s
responses to the trial judge’s questions or the structure of the
special verdict form.

The correctness of the district court’s interpretation of the
verdict form must be examined in light of the elements of
racketeering under the Idaho statute.7 There was no dispute
7
Under Idaho Code Ann. § 18-7804(a), Hoyle was charged with both
participation in a racketeering activity and investment of proceeds derived
9228 HOYLE v. ADA COUNTY
that Hoyle qualified as a “person, ” see Idaho Code Ann.
§ 18-7803(b), and that Hoyle Insurance qualified as an “enter-
prise.” See Idaho Code Ann. § 18-7803(c). The critical issue
for the jury was whether the State adduced sufficient evidence
to prove Hoyle committed at least two predicate acts. See
Idaho Code Ann. § 18-7803(a)(1)-(12) (enumerating charge-
able racketeering offenses). If so, it was incumbent on the
State to prove that any two predicate acts were sufficiently
related to constitute a pattern of racketeering activity. See
State v. Nunez, 133 Idaho 13, 18, 981 P.2d 738, 743 (Idaho
1999); Idaho Code Ann. § 18-7803(d).

The jury’s responses to Count B, Questions 1A and 1B sug-
gest in harmony that the jury was deadlocked on the issue of
whether Hoyle had committed the seven excepted predicate
acts. In response to Question 1A—“Did the defendant commit
at least two incidents of racketeering conduct” (emphasis
added)—the jury checked “No,” but noted “except as to the
seven predicate acts upon which we could not reach unani-
mous agreement.” The jury then specified in its response to
Question 1B the particular seven predicate acts on which
there was no agreement. In light of these questions and
responses, we think it must inescapably be inferred that the
jury could not agree whether the State proved that Hoyle com-
mitted the seven excepted predicate acts.

from a racketeering activity. The statute sets forth offenses that may be
charged as predicate acts to racketeering, including grand theft and insur-
ance fraud, see Idaho Code Ann. § 18-7803(a)(2) and (10), which were the
particular charges relevant to the seven excepted predicate acts. Idaho
Code Ann. § 18-7803(d) defines “pattern of racketeering activity” as
engaging in at least two (2) incidents of racketeering conduct that
have the same or similar intents, results, accomplices, victims or
methods of commission, or otherwise are interrelated by distin-
guishing characteristics and are not isolated incidents, provided
. . . that the last of such incidents occurred within five (5) years
after a prior incident of racketeering conduct.
 HOYLE v. ADA COUNTY 9229
Count B, Question 1C directed the jury to answer the fol-
lowing query: “Did the incidents of racketeering conduct that
you find were proven have the same or similar incidents,
results, victims, methods of commission or were they other-
wise so interrelated by distinguishing characteristics that they
were not isolated incidents?” (emphasis added). The jury did
not answer this question. Because Question 1C called for a
determination on the relatedness element only with respect to
“proven” racketeering conduct, the fact that the jury left the
answer to Question 1C blank thus reasonably must mean that
the jury did not reach this issue and that it was deadlocked on
the issue of Hoyle’s commission of the seven predicate acts.

The jury ultimately checked “not guilty” at the bottom of
the special verdict form in response to sub-Question 1D
because the special verdict form required the jury to do so in
the event of a negative answer to sub-Question 1A. (“If your
answer to either question 1A or 1C is ‘NO,’ then you must
answer both parts of 1D ‘NOT GUILTY.’ ”) The fact that the
jury provided a parallel qualification from its response to
Question 1A in response to Question 1D can only reasonably
mean that the not guilty verdict did not encompass the seven
predicate acts. As in Ailsworth, we reject Hoyle’s argument
based on his interpretation of the jury’s notations on the ver-
dict form that the intent of the jury was ambiguous. See 138
F.3d at 847-48. In light of the consistent qualifications of its
verdict on Count B in response to Questions 1A, 1B and 1D,
and the absence of a response to Question 1C, the district
court did not err in its interpretation of the verdict form.

[7] The notations on the verdict form could only reasonably
mean that the jury could not reach a unanimous verdict on
Count B as to the excepted seven predicate acts because it
could not agree on whether Hoyle committed the seven predi-
cate acts. As discussed above, the context of the proceeding
unmistakably reinforces this reasonable interpretation because
the jury was deadlocked prior to responding to the trial
judge’s instruction prompting Hoyle’s motion for a mistrial,
9230 HOYLE v. ADA COUNTY
the record documents the jury’s request for clarification and
the trial judge’s responsive instruction, and the jury was
polled about the predicate acts on which there was no agree-
ment. The language and context of the jury’s notations reflect
that the jury did not return an unambiguous verdict of not
guilty on Count B. See Ailsworth, 138 F.3d at 846 (cautioning
that jury’s notations may not be disregarded when “the cir-
cumstances of the jury’s recommendation cast doubt upon the
unqualified nature of the verdict”). Because the jury excepted
from its verdict the seven predicate acts on which it could not
agree, the trial court correctly refused to acquit Hoyle of
Count B because the verdict was not “a resolution . . . [of] all
of the factual elements of the offense charged.” Smith, 543
U.S. at 468. The trial court appropriately declared a mistrial,
which leaves the State unimpeded to prosecute Case 795
without running afoul of the Double Jeopardy Clause.

AFFIRMED.
HOYLE v. ADA COUNTY 9231

APPENDIX A
9232 HOYLE v. ADA COUNTY
HOYLE v. ADA COUNTY 9233
9234 HOYLE v. ADA COUNTY
HOYLE v. ADA COUNTY 9235
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HOYLE v. ADA COUNTY 9237