Securities Industry Commentator by Bill Singer Esq

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Sixth Amendment right to a jury trial via Fourteenth Amendment application to States requires a unanimous verdict to convict a defendant of a serious offense

Evangelisto Ramos, Petitioner, v. Louisiana (Opinion, United States Supreme Court)

Wells Fargo & Co., Bank of America Corp., JPMorgan Chase & Co. and US Bancorp were sued by small businesses that accused the lenders of prioritizing large loans distributed as part of the virus rescue package, shutting out the smallest firms that sought money.

[O]n the one hand, FINRA says Bloomberg has a "dominant position in the market for corporate bond new issue reference data, given that Bloomberg gains earlier access to reference data because of other services it provides underwriters." FINRA Statement at 16. Meanwhile, FINRA says Bloomberg "has limited other market participants' access to its data for anti-competitive purposes." Id.; see also id. at 2 ("refused to license data, or has withheld it selectively, for anticompetitive reasons"). 

These allegations are new, and Bloomberg has not previously had an opportunity to respond to them. In reality, FINRA's accusations are unfounded and mistaken; Bloomberg should be allowed to submit the enclosed evidence to show they are wrong. 

. . .

FINRA's understanding of Bloomberg's access to new-issue corporate bond reference data is incorrect and merits rebuttal. The evidence Bloomberg seeks to submit consists of declarations by David Miao and Mark Flatman. These declarants are senior executives with extensive experience, respectively, in producing Bloomberg's reference-data service and selling Bloomberg's services. They are knowledgeable about Bloomberg's relevant business operations and practices implicated by FINRA's positions. As the declarations explain, Bloomberg's reference data service does not use the information that underwriters enter into the new bond issuance features of the Bloomberg Terminal service. Miao Decl. ¶¶ 5-6. Far from taking advantage of such new issuance functionality to generate reference data, Bloomberg segregates the services. Miao Decl. ¶ 6. 

Respondent served as the registered representative on Firm Customer AG's two accounts at the Firm. In April 2010, Respondent solicited Customer AG to invest $6,100 to purchase 406 shares in a company's initial public offering ("Company 1"), the Firm's parent company. Customer AG provided Respondent $6,100 to make the investment. Instead of doing so, Respondent purchased 150 shares of Company 1 in the aftermarket for $2,980 and converted the remaining $3,120 for personal use without the customer's knowledge or consent. 

In April 2010, Respondent stated to Customer AG that Company l's shares were available for purchase only to Company 1-affiliated employees, and that there was a fiveyear sale restriction on purchases of Company l's shares. Both of these statements were untrue. In fact, Company l's shares were available for purchase by the public, and freely tradeable. 

As a result, Customer AG provided Respondent with the $6,100 to purchase the Company 1 shares in his account and hold them for her benefit until the expiration of the purported five-year holding period. In September 2018, Respondent also misrepresented to Customer AG that the shares could not be transferred back to her because she was not a Company 1-affiliated employee. This statement was false, in that no such restriction pertained to Company l's shares.  

In October 2018, Costello, a corporate bond trader responsible for a portfolio of Firm inventory positions, mismarked 22 corporate bond positions to improperly inflate the value of his portfolio by almost $1 million, thereby falsifying firm records in violation of FINRA Rule 2010. In so doing, Costello also violated FINRA Rules 4511 and 2010 by causing the Firm to maintain inaccurate books and records.  

In 48 States and federal court, a single juror's vote to acquit is enough to prevent a conviction. But two States, Louisiana and Oregon, have long punished people based on 10-to-2 verdicts. In this case, petitioner Evangelisto Ramos was convicted of a serious crime in a Louisiana court by a 10-to-2 jury verdict. Instead of the mistrial he would have received almost anywhere else, Ramos was sentenced to life without parole. He contests his conviction by a nonunanimous jury as an unconstitutional denial of the Sixth Amendment right to a jury trial. 

Held: The judgment is reversed. 

2016-1199 (La. App. 4 Cir. 11/2/17), 231 So. 3d 44, reversed. 

JUSTICE GORSUCH delivered the opinion of the Court with respect to Parts I, II-A, III, and IV-B-1, concluding that the Sixth Amendment right to a jury trial-as incorporated against the States by way of the Fourteenth Amendment-requires a unanimous verdict to convict a defendant of a serious offense. Pp. 3-9, 11-15, 20-23. 

(a) The Constitution's text and structure clearly indicate that the Sixth Amendment term "trial by an impartial jury" carries with it some meaning about the content and requirements of a jury trial. One such requirement is that a jury must reach a unanimous verdict in order to convict. Juror unanimity emerged as a vital common law right in 14th century England, appeared in the early American state constitutions, and provided the backdrop against which the Sixth Amendment was drafted and ratified. Postadoption treatises and 19th-century American legal treatises confirm this understanding. This Court has commented on the Sixth Amendment's unanimity requirement no fewer than 13 times over more than 120 years, see, e.g., Thompson v. Utah, 170 U. S. 343, 351; Patton v. United States, 281 U. S. 276, 288, and has also explained that the Sixth Amendment right to a jury trial is incorporated against the States under the Fourteenth Amendment, Duncan v. Louisiana, 391 U. S. 145, 148-150. Thus, if the jury trial right requires a unanimous verdict in federal court, it requires no less in state court. Pp. 3-7. 

(b) Louisiana's and Oregon's unconventional schemes were first confronted in Apodaca v. Oregon, 406 U. S. 404, and Johnson v. Louisiana, 406 U. S. 356, in a badly fractured set of opinions. A four-Justice plurality, questioning whether unanimity serves an important "function" in "contemporary society," concluded that unanimity's costs outweighed its benefits. Apodaca, 406 U. S., at 410. Four dissenting Justices recognized that the Sixth Amendment requires unanimity, and that the guarantee is fully applicable against the States under the Fourteenth Amendment. The remaining Justice, Justice Powell, adopted a "dual-track" incorporation approach. He agreed that the Sixth Amendment requires unanimity but believed that the Fourteenth Amendment does not render this guarantee fully applicable against the States-even though the dual-track incorporation approach had been rejected by the Court nearly a decade earlier, see Malloy v. Hogan, 378 U. S. 1, 10-11. Pp. 7-9. 

(c) The best Louisiana can suggest is that all of the Court's prior statements that the Sixth Amendment does require unanimity are dicta. But the State offers no hint as to why the Court would walk away from those statements now and does not dispute the fact that the common law required unanimity. Instead, it argues that the Sixth Amendment's drafting history-in particular, that the original House version's explicit unanimity references were removed in the Senate version-reveals the framer's intent to leave this particular feature of the common law behind. But that piece of drafting history could just as easily support the inference that the language was removed as surplusage because the right was so plainly understood to be included in the right to trial by jury. Finally, the State invites the Court to perform a cost-benefit analysis on the historic features of common law jury trials and to conclude that unanimity does not make the cut. The dangers of that approach, however, can be seen in Apodaca, where the plurality subjected the ancient guarantee of a unanimous jury verdict to its own functionalist assessment. Pp. 11-15. 

(d) Factors traditionally considered by the Court when determining whether to preserve precedent on stare decisis grounds do not favor upholding Apodaca. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___. Starting with the quality of Apodaca's reasoning, the plurality opinion and separate concurring opinion were gravely mistaken. And Apodaca sits uneasily with 120 years of preceding case law. When 

it comes to reliance interests, neither Louisiana nor Oregon claims anything like the prospective economic, regulatory, or social disruption litigants seeking to preserve precedent usually invoke. The fact that Louisiana and Oregon may need to retry defendants convicted of felonies by nonunanimous verdicts whose cases are still pending on direct appeal will surely impose a cost, but new rules of criminal procedure usually do, see, e.g., United States v. Booker, 543 U. S. 220, and prior convictions in only two States are potentially affected here. Pp. 20- 23. 

JUSTICE GORSUCH, joined by JUSTICE GINSBURG and JUSTICE BREYER, concluded in Part IV-A that Apodaca lacks precedential force. Treating that case as precedential would require embracing the dubious proposition that a single Justice writing only for himself has the authority to bind this Court to already rejected propositions. No prior case has made such a suggestion. Pp. 16-20. 

JUSTICE GORSUCH, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR, concluded in Parts IV-B-2 and V that Louisiana's and Oregon's reliance interests in the security of their final criminal judgments do not favor upholding Apodaca. Worries that defendants whose appeals are already complete might seek to challenge their nonunanimous convictions through collateral review are overstated. Cf. Teague v. Lane, 489 U. S. 288. Apodaca's reliance interests are not boosted by Louisiana's recent decision to bar the use of nonunanimous jury verdicts. A ruling for Louisiana would invite other States to relax their own unanimity requirements, and Louisiana continues to allow nonunanimous verdicts for crimes committed before 2019. Pp. 23-26. 

JUSTICE THOMAS concluded that Ramos' felony conviction by a nonunanimous jury is unconstitutional because the Sixth Amendment's protection against nonunanimous felony guilty verdicts applies against the States through the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause. Pp. 1-9. 

• Securities Industry Commentator
• Bill Singer