It turned out, there was no evidence that Arroyo mailed anything in applying for his pension. The judge had instructed the jury, as federal judges do in these "mail fraud" cases, that it could convict Arroyo only if it found that he was engaged in fraud and that it was "reasonable and foreseeable" that the mails would be used at some point to further the fraudulent scheme. Normally the mail fraud hook is virtually automatic. But this time, the multiple steps necessary to shoe-horn the case into federal court ended up dooming it. Arroyo filled out his disability forms at City Hall, one juror pointed out to Globe reporters, and so it was hardly a slam-dunk that Arroyo would have assumed that the mails would be used in his scheme. Another juror told the Globe that Arroyo should have been prosecuted in state court, where he could have been tried for ordinary, dyed-in-the-wool fraud. In such a prosecution, he would almost certainly have been convicted, since the federal jurors were hardly convinced by Arroyo's testimony of his innocent good-faith conduct. Rather, they'd taken seriously the judge's instructions that a federal crime was committed only if the mails somehow furthered the fraud.

When asked by Globe reporters whether he felt badly that Arroyo was freed on a "technicality," one juror responded: "I think it's perfectly valid that they go after him for fraud, just not mail fraud." In this single sentence, the juror was vindicating the judgment of the drafters of the Constitution that purported to give the federal government limited prosecutorial authority to go after quintessentially federal violations of genuinely federal interests, and to avoid constructing a federal jurisdictional interest where there clearly should not be one.


Indeed, contrary to the anguished cries of the news media, the system did work. The jurors vindicated the constitutional restrictions on federal power, while the press did its job by uncovering apparent fraud and inspiring reform. But while one kind of legal perversion was thwarted, another potential abuse of power might be lurking. Federal prosecutors, trying to make the best of an embarrassing situation, told the Globe that it was possible that fraud charges could be brought by state or local authorities. And indeed they might, because of another prosecutorial innovation of recent decades that technically allows either state or federal authorities to follow up an acquittal in one jurisdiction with a new indictment in the other. This is so despite another constitutional protection that has been eviscerated in recent years: the protection against "double jeopardy." It used to be that the government had one shot at a citizen, and if the citizen was acquitted, that was it. Double jeopardy was one of the Constitution's most potent weapons against government abuse; without it, prosecutors could keep a citizen tied up for life defending himself, even if there is not enough evidence to convict.

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