dissenting.
The issue on appeal is whether we must accept the jury’s finding of “Not Proven” on its face, or whether we are empowered to look behind its finding and conclude that it is not clear whether the jury actually reached a unanimous decision on this critical predicate act. I must respectfully dissent because I believe that, under the doctrine of collateral estoppel, the predicate acts that the jury decided were “Not Proven” cannot be re-litigated. I therefore conclude that the District Court should have dismissed the charges.
The government argues that because of the two supplemental instructions given to the jury in response to the jury’s questions, we cannot be sure if the jury truly reached a unanimous decision on the murder-based predicate acts. I submit that looking behind jury verdicts to reconstruct the jury’s thinking, or attempting to determine how it may have reached consensus, is pure speculation and contravenes our fundamental constitutional heritage of treating jury verdicts as unimpeachable. The government claims that because of the judge’s supplemental instructions, the jury probably was not unanimous when it found that the government failed to prove the murder-based predicate acts. But we do not know how the jury voted after the judge issued the second supplemental instruction, and we should not pretend that we do. We only know that it decided that this predicate act was not proven.
In Ashe v. Swenson, the Supreme Court held that when a defendant claims a general verdict forecloses litigation of an issue, he must demonstrate that the issue was actually decided by examining “the record of the prior proceeding, taking into account the pleadings, evidence, charge and other relevant matter.” 397 U.S. 436, 444, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). However, the Court specifically based its holding on a situation “[wjhere a previous judgment of acquittal was based upon a general verdict, as is usually the case.” Id. That holding makes sense for a general verdict, where it is difficult to determine which particular facts the jury actually decided. It makes no sense when we have a special verdict and we know exactly what the jury concluded. Here, the special verdict form clearly indicates how the jury resolved each issue. Put simply, the jury decided that the predicate acts were “Not Proven.” I would accept that verdict as the jury’s adjudication of the murder charges, and prohibit that issue from being raised against Merlino again.
The government argues that Merlino bears the burden of proving that the issue he wants to foreclose was decided in his favor, whether the verdict was general or special. I conclude that he has done just that. Moreover, the case that the government cites for support does not determine the issue. United States v. Console, upon which the District Court relied, involved a hung jury. 13 F.3d 641, 664 (3d Cir.1993). In Console, we explained that “a response to a special interrogatory regarding an element of a ‘hung’ count is neither a ‘final’ judgment nor a determination ‘necessary’ to a final judgment.” Id. Here, however, *145the jury was not “hung.” It returned a verdict. We have a final judgment.
The jury’s decision on the murder-based predicate acts was the functional equivalent of a verdict on the stand-alone murder charge. Apprendi v. New Jersey holds that any fact that has the effect of increasing the maximum penalty permitted by law is an element of the offense, which must be submitted to a jury and proven beyond a reasonable doubt. 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). If the jury had found that the murder-based predicate acts were proved, then Merlino could have faced life imprisonment. The government was therefore obligated to prove a predicate act of murder beyond a reasonable doubt. Because a favorable verdict for the government on racketeering acts 4A and 4B would have been tantamount to a conviction for the Sodano murder and conspiracy offense, the converse should be true: the “Not Proven” verdicts should be treated as acquittals for collateral estoppel purposes.
The District Court rejected this Appren-di reasoning because “[t]he sentencing consequences flow from the racketeering acts that were Proven” and that “[t]o give similar weight to the Not Proven acts is unjustified.” But the District Court’s rationale leads to inequities. Following its logic, as long as the government fails to prove verdicts on certain predicate acts, it could continue to use those predicate acts in other RICO prosecutions until they are “Proven.” The defendant would be forced to prove his innocence of that charge repeatedly. Yet the purpose of the Double Jeopardy Clause and collateral estoppel is to protect defendants from having to face serial trials for the same offense.
Appellee’s argument boils down to this: the District Court gave an erroneous jury instruction that theoretically could have permitted the jury to say it was unanimous when it really was not. But, this argument goes nowhere. An acquittal may not be overturned based on “an egregiously erroneous foundation.” Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Sanabria v. United States, 437 U.S. 54, 74, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (“there is no exception permitting a retrial once the defendant has been acquitted, no matter how ‘egregiously erroneous’ the legal rulings leading to that judgment might be”).
The general principles underlying the Fifth Amendment’s Double Jeopardy Clause are designed to ensure that the defendant does not have to face the burdens and hazards of trial again and again, especially when the government has obtained the benefit of a “dry run.” Here, the defendant should not be punished for a quirky, and perhaps erroneous, jury instruction. I would therefore reverse.