Tucker Arensberg Attorneys Criminal Defense Group

Is There an Apprendi Problem with the Trump Conviction? Recent Supreme Court Decision in Erlinger v. United States Suggests the Answer is Yes.

by | Jun 24, 2024

J. Andrew Salemmeasalemme@tuckerlaw.com, (412) 594-3952

Donald Trump’s jury trial rights under Apprendi v. United States, 530 U.S. 466 (2000), were almost certainly violated, but whether he will get relief on such grounds is a different story. In Apprendi, the Supreme Court held that any fact (other than a prior conviction) that increases the penalty to which a defendant is exposed must be unanimously decided by a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490. A New York jury recently convicted former President Donald Trump of thirty-four felonies for falsifying business records. The charges involved eleven invoices, eleven checks, and twelve ledger entries entered in 2017 regarding payments by Trump to his former attorney, Michael Cohen. Contrary to misleading media reports, Trump was not charged with election fraud. Rather, in 2016, in the midst of Trump’s presidential run, Cohen paid porn star Stormy Daniels $130,000 as part of a Non-Disclosure Agreement to preclude her from discussing an alleged 2006 sexual encounter with Trump. The prosecution contended that the aforementioned 34 records made in 2017 were intended to disguise Trump’s 2017 reimbursement payments to Cohen for the non-disclosure payment Cohen made to Daniels by improperly designating Trump’s payments as legal expenses.

Because the New York falsifying business records crime is ordinarily a misdemeanor offense with a two-year statute of limitations period, to avoid the statute of limitations, the government needed to elevate the charges to felony offenses by asserting that Trump had the “intent to commit another crime or to aid or conceal the commission thereof.” To do so, it relied at trial, though not in its indictment, on a separate misdemeanor criminal charge that appears to have never been used similarly: Section 17-152 of the New York Election Law. That law makes it unlawful to conspire to promote a candidate’s election by “unlawful means.”

Since Trump’s charges were elevated from misdemeanors to felonies by the requirement that the prosecution prove “another crime”, the Apprendi decision was implicated. The wrinkle in the Trump case is that the Election Law invoked by the prosecution also required proof of “unlawful means.” Interestingly, in addition to not having provided Trump notice in the indictment about the Election Law statute being the crime that would elevate the charges to felonies, the prosecution also did not provide notice to Trump on what the alleged “unlawful means” of violating that law was in its indictment. However, the prosecution asserted three possible theories during trial: (1) Cohen’s initial payment of the $130,000 to Daniels equated to an excessive campaign contribution violating the Federal Election Campaign Act and Trump solicited that contribution; (2) Trump helped facilitate New York criminal tax fraud by permitting Cohen to falsely report Trump’s reimbursement to Cohen as income (even though that increased Cohen’s tax liability); and (3) Trump’s falsification was designed to aid or conceal falsification of different business records.

As if this dizzying and tangled web of allegations has not confused the reader yet, this is where the trial judge’s curious jury instructions run into the possible Apprendi problem. The judge instructed the jury that while they had to unanimously find that Trump employed “unlawful means” to promote his election (or prevent Hilary Clinton’s), he instructed that they did not have to unanimously agree on what those “unlawful means” were. Specifically, the court instructed:

Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were. In determining whether the defendant conspired to promote or prevent the election of any person to public office by unlawful means you may consider the following: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.

This instruction seems contrary to Apprendi and its progeny because the “unlawful means” were necessary to elevate the falsifying crimes into a felony and any fact that increases the potential punishment must be proven unanimously beyond a reasonable doubt. That is, proof of what exactly the unlawful means was should have been proven unanimously. Under the trial judge’s instruction and theory of the law, if a person was only charged with an Election Law violation under 17-152, the jury would not need to unanimously agree as to what the specific “unlawful means” was used. But some illustrations based on other New York crimes that involve proof of other crimes to establish guilt of the underlying crime suggest that such a theory is inconsistent with how New York (and frankly other state) juries are normally instructed.

New York’s felony murder statute and enterprise corruption law are illustrative of this concept—as both of those crimes require proof of other unlawful activity as well. New York’s standard jury instruction for felony murder requires the government to specify what the underlying felony (i.e. burglary, robbery etc.) that was committed by the accused is and to prove that crime beyond a reasonable doubt. In this respect, the jury instruction reads, in part:

In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in the case, beyond a reasonable doubt, the following: that on or about (date), in the county of (insert), the defendant committed or attempted to commit (name of felony).

While the prosecution in this case did not need to prove Trump actually committed the Election Law crime and only intended to commit it, that is a distinction without a difference as it relates to Apprendi because the unlawful means is an element of the Election Law violation, which was also an “element” of the felony falsifying charges. New York’s enterprise corruption law is perhaps even more instructive on this front. To be guilty of enterprise corruption (essentially New York’s form of federal RICO), the defendant must have engaged in a pattern of criminal activity. To engage in a pattern of criminal activity requires three other criminal acts. The jury is instructed on whatever those other criminal acts are alleged to be and must be found guilty of those crimes. The pattern instruction accordingly reads, in part:


In this case, the People allege that the defendant engaged in conduct constituting (specify number) pattern criminal acts, namely, the crimes of (specify the pattern criminal acts listed in CPL 460.10[1] and submitted to the jury as either as separate counts in the indictment or as lesser included offenses of those counts).


If, after your deliberations on those counts, you do not find the defendant guilty of [at least three of those] [those three] counts, you will not consider this count of Enterprise Corruption.

These instructions illustrate that when other crimes are an element of a New York offense they must be proven unanimously beyond a reasonable doubt. The jury in the Trump case should have been instructed that they did have to unanimously agree on what “unlawful means” Trump used in intending to violate the New York Election Law. It was not enough that the jury unanimously agreed that Trump intended an Election Law violation if it did not unanimously agree on the “unlawful means” element of that violation. Indeed, as Seth Barrett Tillman has already recognized in discussing the Trump instructions, (https://www.justsecurity.org/96654/trump-unanimous-verdict), other courts addressing federal RICO cases, unsurprisingly, have opined that a jury must be unanimous as to what the underlying predicate crimes are to establish the criminal activity. See United States v. Gotti, 451 F.3d 133, 137 (2d Cir. 2006). Professor Tillman further highlighted a North Carolina case in 2023 that illustrates the significant flaw in the New York trial judge’s instruction. There the defendant challenged a conspiracy instruction. The North Carolina appellate court opined, “’A disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed [any] one particular offense.’”  State v. Purcell, 884 S.E. 2d 181 (N.C. App. 2023) (quoting State v. Lyons, 412 S.E. 2d 308, 312 (N.C. 1991).

Just last week, the High Court reiterated the vitality of Apprendi and the jury trial right (and due process) in Erlinger v. United States, 602 U.S. ___ (2024). Justice Gorsuch, writing for the majority, citing Apprendi, opined that the Fifth and Sixth Amendments, “were understood to require the government to include in its criminal charge, all the facts and circumstances which constitute the offense.”  Erlinger, Majority Slip Opinion, at 7. He added, “the ‘truth of every accusation’ against a defendant had to be ‘confirmed by the unanimous suffrage of twelve of [his] equals and neighbors.’” Id. (quoting Apprendi, 530 U.S. at 477). Justice Gorsuch highlighted: “By requiring the Executive Branch to prove its charges to a unanimous jury beyond a reasonable doubt, the Fifth and Sixth Amendments seek to mitigate the risk of prosecutorial overreach and misconduct, including the pursuit of ‘pretended offenses’ and ‘arbitrary convictions.’” (Majority Slip Opinion, at 8). Additionally, “[b]y requiring a unanimous jury to find every fact essential to an offender’s punishment, those amendments similarly seek to constrain the Judicial Branch[.]” Id.

Even the dissenting justices in Erlinger noted that, “Early state constitutions required the government to include the elements of an offense in an indictment.” (Kavanaugh, J. dissenting, Slip Opinion at 15). And “the prosecution also had to prove elements of the offense beyond a reasonable doubt, as the requirements for an indictment and a jury trial went hand in hand.” Id. Justice Jackson, who also dissented in Erlinger, and called for overturning Apprendi still recognized that, “Our Constitution protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’”  (Jackson, J. dissenting, Slip Opinion at 3) (citing In re Winship, 397 U.S. at 364 (1970)).

Trump’s conviction implicates both Apprendi jury trial right issues and Fifth Amendment concerns. Of course, Trump’s attorneys do not appear to have ever raised an Apprendi-type challenge, and whether a New York appellate court would consider such a claim based on plain error review is uncertain. (Had Trump been tried in Pennsylvania, the issue would not be subject to waiver as Pennsylvania courts have concluded that Apprendi-style challenges are non-waivable legality of sentence claims). Whatever one might think of former President Trump, should a court reach the merits of an Apprendi-styled argument, the trial judge’s jury instruction that the jury need not be unanimous as to what “unlawful means” Trump allegedly employed is constitutionally dubious under a principled reading of Apprendi.

But if Trump will raise the issue and if the appellate courts reach it are yet to be determined. If not, former President Trump may have to seek post-conviction collateral relief.

To learn more about Andrew Salemme, visit his bio here.