Question (e), which was used over the Government's objection,
is the source of this dispute over the meaning of the jury's
verdict. It stated:
If the answer to subparagraph (d) above is "Yes,"
please write the percentage of defendant SEGAL's
interest in NNIB or NNNG that were tainted by
criminal activity in violation of 18 U.S.C. § 1962,
and are, therefore, subject to forfeiture.
(R. 341, Forfeiture Verdict Form.) The final clause of this
question, "and are, therefore, subject to forfeiture" is legally
incorrect because, as stated above, RICO's enterprise forfeiture
provision requires a defendant to forfeit his entire interest
in the enterprise regardless of the extent to which the
enterprise is tainted by criminal activity.*fn2
The parties have two distinct interpretations of question (e).
Segal asserts that the jury found that 60% of his interest was
subject to forfeiture, while the Government asserts that the jury
advised the Court whether the application of RICO's enterprise
forfeiture provision would violate the Eighth Amendment's
prohibition on excessive fines. While we are hesitant to base
such an important decision on the rules of grammar, our analysis
must focus on the actual language of the forfeiture verdict form.
In this Court's view, question (e) only asked the jury to "write
the percentage of defendant SEGAL's interest in NNIB or NNNG that
were tainted by criminal activity in violation of
18 U.S.C. § 1962. . . ." The final clause "and, are therefore, subject to
forfeiture" did not ask the jury to find an additional fact.
Instead it explained the result (according to our erroneous
instruction) of the jury's criminal-taint finding. The inclusion
of the word "therefore" and the comma between "18 U.S.C. § 1962"
and the word "and" indicate that forfeiture is the immediate and
direct consequence of the jury's criminal-taint finding. The
question's structure limits it and the jury's factual finding to
the percentage of Segal's interest that was criminally tainted.
Accordingly, the jury simply found that 60% of Segal's interest
in the enterprise was criminally tainted; it did not legally find
that only 60% of Segal's interest in the enterprise was subject
to forfeiture. Therefore, the jury's verdict does not limit the
percentage of Segal's interest that is subject to
Segal posits that the jury's verdict, rather than being a
"`pure' determination of fact," might represent a mixed question
of fact and law. (R. 388, Def.'s Reply at 5.) We cannot speculate
as to what the jury was thinking when it answered question (e)
because we must assume that it followed this Court's instruction
and answered the specific question on the forfeiture verdict
form. See United States v. Bell, 980 F.2d 1095
, 1098 (7th Cir.
1992). We acknowledge that question (e) could be loosely
interpreted to have asked the jury to make a legal determination
as to the percentage of Segal's interest that is subject to
forfeiture. Yet the very first jury instruction provided:
You have two duties as a jury. Your first duty is to
decide the facts from the evidence in the case. This
is your job, and yours alone. Your second duty is to
apply the law that I give you to the facts. You must
follow these instructions, even if you disagree with
(R. 331, Jury Instructions at 2.) The jury is not empowered to
decide legal questions, such as how much of Segal's interest in
the enterprise is subject to forfeiture. More importantly,
Congress answered this legal question when it enacted RICO by
mandating that a racketeer forfeit his entire interest in the
enterprise. We cannot accept a grammatically-incorrect
interpretation that would undermine Congress's "express
admonition that RICO is to `be liberally construed to effectuate
its remedial purposes.'" Sedima, S.P.R.L. v. Imrex Co., Inc.,
473 U.S. 479
, 498 (quoting Pub.L. 91-452, § 904(a), 84 Stat.