UNITED STATES OF AMERICA, PETITIONER V. BETTY LOU POWELL No. 83-1307 In the Supreme Court of the United States October Term, 1983 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States TABLE OF CONTENTS Opinions below Jurisdiction Statutory provision involved Statement Summary of argument Argument: The Dunn rule precludes reversal of a conviction on the ground of inconsistency in the jury's verdict A. The Dunn rule is well settled and requires that a conviction be upheld, notwithstanding any inconsistency in the jury verdict, if it is supported by sufficient evidence B. The court of appeals erred in creating an exception to the Dunn rule for compound-predicate offenses Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-5a) is reported at 708 F.2d 455. The order of the court of appeals denying the government's petition for rehearing (Pet. App. 6a-8a) is reported at 719 F.2d 1480. JURISDICTION The judgment of the court of appeals was entered on June 14, 1983. The government's petition for rehearing was denied on November 10, 1983 (Pet. App. 6a-8a). On January 3, 1984, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including February 8, 1984. The petition was filed on February 7, 1984, and was granted on May 21, 1984 (J.A. 30). The jurisdiction of this Court rests upon 28 U.S.C. 1254(1). /1/ STATUTORY PROVISION INVOLVED 21 U.S.C. 843(b) provides: It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term "communication facility" means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication. QUESTION PRESENTED Whether, under the "inconsistent verdict" rule of Dunn v. United States, 284 U.S. 390 (1932), a conviction based upon a jury verdict finding a defendant guilty of using a telephone to facilitate a controlled substance offense may be set aside on the ground that it is inconsistent with the defendant's acquittal of the offense alleged to have been facilitated. STATEMENT Following a jury trial in the United States District Court for the Southern District of California, respondent was convicted on three counts (Counts 3-5) of using a telephone to facilitate a conspracy to possess cocaine with intent to distribute it or the substantive offense of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 843(b), and on one court (Court 15) of making a false statement to a United States magistrate in connection with her request for the appointment of counsel, in violation of 18 U.S.C. 1001. Respondent was acquitted by the jury on one count (Count 1) of conspiracy to possess cocaine with intent to distribute it (21 U.S.C. 846). /2/ She was sentenced to concurrent terms of four years' imprisonment on each of the convictions. The court of appeals reversed the convictions on the three counts of telephone facilitation and affirmed the conviction of false statement; it remanded to permit the district court to resentence respondent in light of the reversal of the telephone facilitation convictions. Pet. App. 1a-5a. 1. The evidence at trial consisted largely of recordings of telephone conversations that were intercepted pursuant to court-authorized electronic surveillance in April 1982. With respect to the telephone facilitation courts, /3/ the evidence showed that respondent's husband, Ron Powell, and their son, Jeff, operated an extensive network to distribute cocaine and quaaludes in their home city of San Diego and in Los Angeles and St. Louis (Tr. 633-634, 654). The residence where respondent and her husband lived served as the headquarters for the distribution network and was used to store controlled substances, drug paraphernalia, and records related to the drug operation (Tr. 152-156, 176-200). Ron Powell was the central figure in the operation and took in a gross amount of approximately $15,000 per week (Tr. 930-931). Although respondent played a subordinate role in the organization, "she knew what was going on" as the defense conceded to the jury (Tr. 1265), /4/ and both assisted and benefited from the drug activities. /5/ In March 1982, Ron Powell went to Europe and left Jeff in charge of the drug business. While Ron was away, respondent was involved in several telephone calls related to drug transactions (Tr. 329-342). On April 9, 1982, Ron Powell telephoned that he would be returning home in two days (Tr. 430-432, 437-438). During the conversation he asked Jeff about collections that were due for various drug deals. In an effort to make the collections before his father arrived, Jeff began to call drug customers, including Sam Spindle (Tr. 439-440). The next day, Spindle came by respondent's residence to buy drugs, but Jeff was not at home; Spindle talked to respondent, who located Jeff by telephone and reminded him about Spindle (Tr. 442). On April 11, Jeff picked up his father at the Los Angeles airport. That evening Jeff called respondent at home (Tr. 466-470; J.A. 9-11). Respondent told him that Sam Spindle, who still owed money for drug purchases (Tr. 447, 453), had not called, but Jeff said that Spindle had contacted him (Tr. 469; J.A. 10). Jeff asked respondent "to do (him) a favor" and "call the Thin Man" (ibid.); the "Thin Man" was the nickname of Sandy Segal, who had agreed to obtain the money from Spindle for Jeff (Tr. 941-943). After respondent said that she would make the call, the following conversation occurred (Tr. 469-470; J.A. 10-11): Jeff: Okay. Which his phone number -- (Respondent): Yeah, I know. Jeff: And ask him if he has the coupons /6/ and if he does, ask him if -- if he would bring them over. (Respondent): If he can bring them. Jeff: (Unintelligible) coupons to him. (Respondent): Oh, okay. Jeff: All right? (Respondent): If he can bring them over to me Jeff: Yeah. (Respondent): Okay. Jeff: All right. (Respondent): All right. That telephone call formed the basis for Count 3 of the indictment. Approximately three minutes after completing the telephone conversation with Jeff, respondent placed a call to Sandy Segal (Tr. 470-478; J.A. 11-16): Sandy: Hello. (Respondent): Hi. It's me. Sandy: Hi. (Respondent): Listen, did Samuel come by and visit you? Sandy: Yeah. Well, yes and no. I was supposed to go pick it up and I haven't -- can I take care of that in the morning? (Respondent): Well, that's what Ron -- they called and he wants all the money home tonight because that was the arrangement Sam made. * * * * * (Respondent): (Last night Sam said that he would) "be over (today) before ten o'clock," and I said, "Listen, Sam, I'm sick of messing around with your crap and doing things around you." Sandy: Yeah. (Respondent): I said, "From now on people want to do something, they'll do it around me." Sandy: Yeah. (Respondent): And I mean it. I'm sick of it, Sandy. * * * * * Sandy: (Ron) wants the coupons tonight, huh? (Respondent): Yeah. Only because -- the only reason he wants them is only because -- Sandy: Does he know I have them? (Respondent): Huh? Sandy: Does he know I have them? (Respondent): No. He knows that Sam told you. Sandy: (Laughs.) (Respondent): See, he don't believe me, see. I don't either. Tr. 471-472, 478; J.A. 11-12, 16. /7/ Respondent's telephone call to Segal formed the basis for Count 4 of the indictment. Following his return from Europe, Ron Powell made arrangements for a new shipment of cocaine to be brought to San Diego. Among the people involved were Sandra Thomas and someone named "Nolan" (Tr. 534-548, 1164-1167). Respondent assisted in this project by answering the telephone, taking messages, and returning calls (Tr. 549, 1164-1165). /8/ On April 16, Sam Spindle called Ron Powell several times to arrange to purchase "jackets" -- that is, one-eighth of an ounce (Tr. 277-278, 440, 581, 936) -- of the new cocaine (Tr. 576-597). Powell indicated that he would leave the cocaine with respondent for Spindle to pick up (Tr. 581). Spindle eventually decided to buy a "cuter," or one-quarter ounce (Tr. 345, 362, 804, 935), of cocaine (Tr. 597). Powell then called respondent at her office (Tr. 598-605; J.A. 17-21). He said that he was "leaving a package for Sam on the bed," and he told her "to hurry home" because "(Sam's) going to come right after you get (t)here" (Tr. 600; J.A. 18). Respondent agreed to do so. /9/ This telephone conversation formed the basis for Count 5 of the indictment. On April 23, Ron Powell learned of the existence of the wiretap (Tr. 679-680, 687-691, 1173). Powell called Jeff and told him to "cleanup" (Tr. 691, 895). Jeff then told respondent to leave the house and drive to Los Angeles (Tr. 896, 1086). She was followed by FBI agents, who realized that Powell was aware of the wiretap and were concerned that evidence would be removed from the Powells' residence (Tr. 29, 33, 37, 45-47, 58, 66, 692). Respondent was driving at a high rate of speed and did not stop when FBI vehicles pulled alongside her car and the agents identified themselves (Tr. 46-47, 71, 92). Instead, she made an illegal U-turn and sped away after forcing another car off the road (Tr. 72, 73). The FBI agents eventually caught up with respondent, and they again identified themselves and advised respondent that she was under arrest (Tr. 74). Respondent refused to surrender and eluded apprehension by running her car into one agent and an FBI vehicle and narrowly missing a second agent (Tr. 75, 95-96). Shortly thereafter, respondent was stopped and arrested (Tr. 77-78). Her car was impounded and, in a later search conducted pursuant to a warrant, was found to contain approximately two kilograms of cocaine, 2700 quaalude tablets, marijuana, a semi-automatic pistol with exploding bullets, two illegal silencers, a machine gun, various other firearms and drug paraphernalia, and more than $30,000 in cash (Tr. 129-150, 202-221, 779). In addition, passports for Ron and Jeff Powell were found in respondent's purse (Tr. 706-707). 2. In its instructions on the telephone facilitation counts, the district court read the relevant portion of 21 U.S.C. 843(b) to the jury (Tr. 1314; J.A. 25). It then summarized the elements of the charges against respondent (ibid.): The elements of the offense charged in counts three through six of the indictment are as follows: first, that (respondent) used a telephone at the time charged to commit, cause, or facilitate the commission of conspiracy to possess cocaine with intent to distribute or possession of cocaine with intent to distribute; secondly, that she did so knowingly or intentionally. In addition, the court in its general instructions advised the jury that "(a) separate crime or offense is charged in each count of the indictment. Each charge and the evidence pertaining to it should be considered separately. The fact that you may find the accused guilty or not guilty as to one of the offenses charged should not control your verdict as to any other offense charged" (Tr. 1287; J.A. 24). The jury convicted respondent on three counts of using a telephone to facilitate a controlled substance offense and on one count of making a false statement; it acquitted respondent on the remaining counts. 3. On respondent's appeal, the Ninth Circuit reversed respondent's three convictions for telephone facilitation and affirmed her false statement conviction (Pet. App. 1a-5a). The reversal of the Section 843(b) counts rested on the court of appeals' conclusion that the jury's guilty verdict was inconsistent with the acquittal on the conspiracy offense in Count 1. In reaching that result, the court of appeals rejected the government's contention that these verdicts were not inconsistent and could be reconciled on the theory that respondent had used the telephone to facilitate the possession of cocaine by someone not involved in the conspiracy alleged in Count 1 (Pet. App. 2a). Having found that the verdicts were inconsistent, the court simply concluded, without elaboration, that "(t)hus, on the facts of this case, we must reverse the convictions as to (the three Section 843(b) counts)" (ibid.). The court did not address the government's argument that the guilty verdicts were not invalid in light of the "inconsistent verdict" rule of Dunn v. United States, 284 U.S. 390 (1932). The panel denied the government's petition for rehearing and issued an order explaining its earlier opinion (Pet. App. 6a-8a). The court referred to the rule of Dunn v. United States, supra, that "inconsistent verdicts do not require reversal, but may be viewed as a demonstration of the jury's leniency" (Pet. App. 6a), and it acknowledged that "(t)his circuit follows the Dunn rule" (ibid.). Emphasizing that even under Dunn "there must nevertheless be sufficient evidence to sustain the guilty verdict" (ibid.), the court stated, without further explanation, that "(o)ne of the exceptions to the application of the Dunn rule, is the situation where the defendant is charged with violation of 21 U.S.C. Section 843(b) and the underlying felony, said to have been facilitated, is reversed." Id. at 6a-7a (footnote omitted). Adhering to its view that the verdicts were in fact inconsistent here (id. at 7a-8a), the court held that "(w)hen the prosecution tries its case on the theory that the felony of which the defendant is subsequently acquitted, is the predicate felony for the telephone facilitation counts, convictions of the latter must be reversed for lack of sufficient evidence" (id. at 7a). /10/ Based on the reversal of the Section 843(b) counts, the court of appeals remanded the case "to the district court to permit resentencing on (the false statement count)" (Pet. App. 5a). The court found that "(t)he possibility is * * * strong that had (respondent) been sentenced only on (the false statement count) she might have received a less severe sentence" (id. at 4a-5a). For this reason the court declined to "apply the concurrent sentence doctrine and not inquire into the asserted error as to (the telephone facilitation counts)" (ibid.). /11/ SUMMARY OF ARGUMENT In Dunn v. United States, 284 U.S. 390 (1932), this Court held that a conviction is not to be reversed because of an inconsistency in the jury's verdict. Although an acquittal on some counts and a conviction on others may in fact be inconsistent, "'that does not show that (the jury was) not convinced of the defendant's guilt.'" 284 U.S. at 393 (citation omitted). Rather, such a verdict can reflect the jury's exercise of "'lenity'" (ibid.). Dunn establishes that "(c)onsistency in the verdict is not necessary. * * * (V)erdicts cannot be upset by speculation or inquiry into (the reasons for the inconsistency)" (284 U.S. at 393, 394). For more than 50 years the Court has adhered to the Dunn rule without exception. These decisions make clear, as the Court recently reaffirmed, that "(i)nconsistency in a verdict is not a sufficient reason for setting it aside. * * * (The Dunn rule recognizes) the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons." Harris v. Rivera, 454 U.S. 339, 345, 346 (1981). Where, as here, "a guilty verdict * * * is supported by sufficient evidence and is the product of a fair trial" (Harris v. Rivera, 454 U.S. at 344), it is a valid expression of the jury's determination and should not be set aside on grounds of inconsistency. The court of appeals sought to create an exception to the Dunn rule for the telephone facilitation offense in 21 U.S.C. 843(b), which includes as an essential element the existence of an underlying offense that was facilitated by the use of the telephone. In the court's view, the acquittal on the offense alleged to have been facilitated rendered invalid the convictions on the telephone facilitation counts. The Dunn rule is not subject to an exception for such compound-predicate offenses. Dunn reflects the jury's unreviewable power to acquit for reasons of lenity even though it was convinced of the defendant's guilt. That rationale is just as applicable in a case involving compound-predicate offenses as in any other. Furthermore, the court of appeals' exception is inconsistent with the holding in Dunn itself, which sustained a conviction on a compound-predicate nuisance count despite the jury's acquittal on the underlying offenses. Nor does the discussion of res judicata in Dunn, which draws an analogy to inconsistent judgments at separate trials, support the court of appeals' exception to the Dunn rule. That discussion was of doubtful correctness even at the time and in any event has long since been repudiated by subsequent decisions of this Court. Nevertheless, the Dunn rule remains of unquestioned soundness based on the jury's power of lenity. Moreover, any exception derived from res judicata principles would threaten to swallow the Dunn rule and would indicate that Dunn itself was wrongly decided. Thus, contrary to the decision below, the Dunn rule controls this case and precludes reversal of respondent's convictions under 21 U.S.C. 843(b) on the ground of inconsistency in the jury's verdict. ARGUMENT THE DUNN RULE PRECLUDES REVERSAL OF A CONVICTION ON THE GROUND OF INCONSISTENCY IN THE JURY'S VERDICT A. The Dunn Rule Is Well Settled And Requires That A Conviction Be Upheld, Notwithstanding Any Inconsistency In The Jury Verdict, If It Is Supported By Sufficient Evidence 1. Few principles of criminal law are as well established as the rule of Dunn v. United States, 284 U.S. 390, 393, 394 (1932), that "(c) onsistency in the verdict is not necessary. * * * (V)erdicts cannot be upset by speculation or inquiry into (the reasons for the inconsistency)." The Court has adhered to the Dunn rule for more than 50 years and has recently reaffirmed that "(i)nconsistency in a verdict is not a sufficient reason for setting it aside." Harris v. Rivera, 454 U.S. 339, 345 (1981). See also Hamling v. United States, 418 U.S. 87, 101 (1974); United States v. Dotterweich, 320 U.S. 277, 279 (1943); Borum v. United States, 284 U.S. 596 (1932); United States v. Furlong, 18 U.S. (5 Wheat.) 184, 201 (1820); cf. Standefer v. United States 447 U.S. 10 (1980). These decisions "preclude a holding that inconsistency in a verdict is intolerable in itself." Harris v. Rivera, 454 U.S. at 346. Dunn explained why an inconsistency in the verdict does not undermine the counts on which the defendant is convicted: "The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." 284 U.S. at 393 (quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925) (L. Hand, J.)); see also Harris, 454 U.S. at 347. Thus, the Dunn rule reflects "the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons." Harris, 454 U.S. at 346 (footnote omitted). A jury "in a criminal case has traditionally been permitted to enter an unassailable but unreasonable verdict of 'not guilty' * * * even if the evidence of guilt is overwhelming" (Jackson v. Virginia, 443 U.S. 307, 317 n.10 (1979)), and it "has the power to bring in a verdict in the teeth of both law and facts." Horning v. District of Columbia, 254 U.S. 135, 138 (1920). See also Strickland v. Washington, No. 82-1554 (May 14, 1984), slip op. 24-25; United States v. Maybury, 274 F.2d 899, 902-903 (2d Cir. 1960) (Friendly, J.). /12/ Such a verdict can result from jury "lenity," /13/ "mercy," /14/ or "compassion," /15/ as well as from "compromise" /16/ or from "mistake," /17/ "carelessness," /18/ or "irrationality." /19/ The Dunn rule serves several important policies. First, it protects the integrity of the jury's verdict and ensures that an acquittal based on leniency or compromise will not invalidate the very conviction that the jury determined to be appropriate. As Judge Friendly explained in United States v. Carbone, 378 F.2d 420, 422 (2d Cir.), cert. denied, 389 U.S. 914 (1967): The very fact that the jury may have acquitted of one or more counts in a multi-count indictment because of a belief that the counts on which it * * * convicted will provide sufficient punishment * * * forbids allowing the acquittal to upset or even to affect the simultaneous conviction. /20/ Furthermore, by sustaining the conviction and obviating the need for a retrial, the Dunn rule both enhances the efficient administration of justice and advances "the important federal interest in the enforcement of the criminal law" (Standefer, 447 U.S. at 24). Finally, the Dunn rule preserves for the defendant the advantages of the jury's acquittal even though, as Dunn noted (284 U.S. at 393 (citation omitted)), there exists the possibility that "'the jury did not speak their real conclusions'" in rendering that verdict and instead were "'convinced of the defendant's guilt.'" /21/ Hence, while consistency in the verdict and "symmetry of results may be intellectually satisfying, (they are) not required" (Standefer, 447 U.S. at 25) and do not contravene the analysis and policies underlying the Dunn rule. Accordingly, if "a guilty verdict * * * is supported by sufficient evidence and is the product of a fair trial" (Harris, 454 U.S. at 344), it is a valid expression of the jury's determination and should not be reversed on grounds of inconsistency. 2. In reversing respondent's convictions on the Section 843(b) counts, the court of appeals did not assert that there was any defect or unfairness in the trial proceedings. Nor did it -- apart from the issue of inconsistency -- controvert the sufficiency of the evidence under traditional standards to support the guilty verdicts on those counts. In fact, the evidence at trial (see pages 3-9, supra) clearly establishes respondent's guilt. See generally Jackson v. Virginia, 443 U.S. at 316-320, 324, 326. /22/ Respondent engaged in repeated telephone conversations that furthered the drug enterprise, and she benefited substantially from its success. Moreover, respondent "knew," as the defense conceded to the jury, "what was going on" (see page 4, supra), and she was knowledgeable about the drug operations. For example, as shown in the telephone calls of April 11 (see pages 5-7, supra), respondent was aware of the identity of the person referred to as "the Thin Man" and had his phone number. /23/ In addition, she was familiar with the term "coupons," which was a coded reference to money. In these circumstances, where respondent's "trial was fairly conducted * * * (and) the record contains adequate evidence of (her) guilt * * * beyond a reasonable doubt" (Harris, 454 U.S. at 348 (footnote omitted)), Dunn precludes reversal of her convictions under Section 843(b) on inconsistent verdict grounds. To be sure, in setting aside respondent's convictions on the ground of inconsistency in the verdict, the court of appeals stated that "(w) hen the prosecution tries its case on the theory that the felony of which the defendant is subsequently acquitted, is the predicate felony for the telephone facilitation counts, convictions of the latter must be reversed for lack of sufficient evidence" (Pet. App. 7a). Accordingly, the court held "that there is insufficient evidence to support the convictions on (the telephone facilitation counts)" (id. at 8a). In so holding, the court of appeals confused the concepts of sufficiency of the evidence and consistency of the verdict. As just discussed, there is no doubt that the evidence of respondent's guilt on the telephone facilitation counts was adequate under traditional standards. Of course, the telephone counts required proof of the offense alleged to have been facilitiated. /24/ But -- apart from the fact that the jury returned an inconsistent verdict -- the government did prove the existence of the facilitated offense, as the jury must have found in convicting respondent on the telephone facilitation counts. Cf. Standefer, 447 U.S. at 20-21 n.14. Thus, the only issue presented is whether those convictions are rendered invalid by the inconsistency in the verdict. In casting its decision in terms of the sufficiency of the evidence, the court of appeals failed to understand that "'(t)he question whether the evidence is constitutionally sufficient is of course wholly unrelated to the question of how rationally the verdict was actually reached.'" Harris, 454 U.S. at 348 n.20 (quoting Jackson v. Virginia, 443 U.S. at 319-320 n.13). /25/ B. The Court Of Appeals Erred In Creating An Exception To The Dunn Rule For Compound-Predicate Offenses The court of appeals set aside respondent's convictions on the basis of an "exception() to the application of the Dunn rule * * * where the defendant is charged with (a) violation of 21 U.S.C. Section 843(b) and the underlying felony, said to have been facilitated, is reversed." Pet. App. 6a-7a (footnote omitted). The decisions of this Court contain no limitation on the categorical and unqualified nature of the Dunn rule, however, and the court of appeals erred in creating such an exception. The court of appeals' exception to Dunn, although in accord with other decisions that have carved out an exception for convictions under Section 843(b), /26/ is unjustified and squarely incompatible with the rationale of the Dunn rule as consistently followed by this Court for more than half a century. Dunn acknowledges the unreviewable power of the jury to acquit as a result of "lenity," "compromise," or "mistake" (284 U.S. at 393-394), and it recognizes that such an acquittal "'does not show that (the jurors) were not convinced of the defendant's guilt'" (284 U.S. at 393 (citiation omitted)). These considerations are no less applicable where, as in this case, one offense includes as an essential element the commission of an underlying offense -- that is, "compound-predicate" offenses. /27/ Indeed, the premise of the decision in Dunn is in fact the likeliest explanation of the verdicts in this case. The evidence of respondent's guilt on the charges of which she was acquitted was generally quite strong. Since, however, as the prosecutor characterized it in his closing argument, respondent was "not the heavy * * * (but rather a) small-time partic(i)pant in a major narcotics organization" (Tr. 1208), the jury may have been moved by leniency to acquit respondent of the cocaine conspiracy even though it was equally convinced of her guilt on that count as on the telephone facilitiation counts on which she was convicted. Especially in light of the instruction to the jury that "(e)ach charge and the evidence pertaining to it should be considered separately" and that "(t)he fact that you may find the accused guilty or not guilty as to one of the offenses charged should not control your verdict as to any other offense charged" (Tr. 1287; J.A. 24), /28/ such leniency could, as Dunn recognizes, fully account for the jury's verdict. /29/ In addition, Dunn itself directly forecloses the exception conceived by the court of appeals for compound-predicate offenses. In Dunn, the defendant was convicted on one count of maintaining a common nuisance by keeping liquor for sale, in violation of 27 U.S.C. (1928 ed.) 33, and was acquitted on two counts (27 U.S.C. (1928 ed.) 12) of unlawful possession and unlawful sale of liquor. The evidence was identical on all three counts, and the nuisance count was based on the same conduct alleged in the possession and sale counts. See Dunn, 284 U.S. at 391; id. at 394-395, 397, 398, 407 (Butler, J., dissenting). The nuisance statute provided (27 U.S.C. (1928 ed.) 33 (emphasis added)): Any * * * building * * * or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this chapter * * * is hereby declared to be a common nuisance * * *. Likewise, the nuisance count in the indictment alleged (see 284 U.S. at 394 (Butler, J., dissenting) (emphasis added)) that the defendant "'did * * * maintain a common nuisance, in then and there knowingly and willfully committing a prohibited and unlawful act of keeping for sale at said place certain intoxicating liquor * * *.'" Thus, the nuisance charge on which Dunn was convicted involved a compound offense that included as an essential element the commission of a predicate offense -- possession or sale -- on which the defendant was acquitted. See 284 U.S. at 395 (Butler, J., dissenting). /30/ In holding on this record that "(c)onsistency in the verdict is not necessary" (284 U.S. at 393), the Court's decision establishes that the Dunn rule does not admit of the exception for compound-predicate offenses adopted by the court below. /31/ In establishing an exception to Dunn for the compound offense in Section 843(b), the courts of appeals have relied on the following passage in the Dunn opinion (284 U.S. at 393 (citations omitted)): Each count in an indictment is regarded as if it was a separate indictment. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold. Noting that the Section 843(b) offense and the offense alleged to have been facilitated are "interdependent" (United States v. Hannah, 584 F.2d at 30) rather than "separate and distinct" (United States v. Brooks, 703 F.2d at 1278), these courts have read Dunn to permit a special rule for such compound-predicate offenses. Dunn does not support this exception. Initially, the correctness of the treatment of res judicata in Dunn was open to serious question even at the time of the decision. Prior to Dunn, the Court had recognized the applicability in criminal cases of preclusion doctrines such as res judicata. /32/ In light of those decisions, the brief discussion of res judicata in Dunn was of doubtful validity. /33/ In any event, whatever its validity then, the res judicata discussion in Dunn has long since been repudiated by subsequent decisions of this Court, See, e.g., Sealfon v. United States, 332 U.S. 575 (1948); Ashe v. Swenson, 397 U.S. 436 (1970); Simpson v. Florida, 403 U.S. 384 (1971). Notwithstanding this development, the Dunn rule remains of continued and undiminished vitality based, as the Court has recognized, on "the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons." Harris, 454 U.S. at 346 (footnote omitted); see also id. at 346 n.15; Standefer, 447 U.S. at 22; Hamling v. United States, 418 U.S. at 101. /34/ In accordance with this Court's analysis, the lower federal courts -- with the exception of the decisions under Sections 843(b) -- as well as commentators have concluded that the Dunn rule properly rests on the role and prerogatives of the jury rather than on principles of res judicata. /35/ Thus, the court of appeals in this case, like the courts in Hannah and Brooks, misperceived the basis of the Dunn rule as expressed in the decisions of this Court over the last 50 years and incorrectly resurrected a long-discredited conception of the inconsistent verdict doctrine. /36/ Moreover, while purporting to create a narrow exception, the res judicata theory advanced in Hannah and Brooks and accepted by the court below would effectively overrule Dunn in any case involving an inconsistency in the verdicts returned against a single defendant. Nothing in the theory logically confines it to inconsistent verdicts on compound-predicate offenses. On the contrary, if Dunn rests on principles of preclusion and is limited to cases in which an initial acquittal on one count would not bar a subsequent prosecution on the other count, few if any inconsistent verdicts would be sustained. Indeed, under modern principles of collateral estoppel, the inconsistent verdict involved in Dunn itself would be impermissible, since the jury's acquittal of unlawful possession and sale of liquor would foreclose a later prosecution for maintaining a common nuisance by keeping the same liquor for sale. See pages 22-24, supra; United States v. Carbone, 378 F.2d at 422; Bickel, Judge and Jury -- Inconsistent Verdicts in the Federal Courts, 63 Harv. L. Rev. 649, 650 (1950). The analysis underlying the exception created for the Section 843(b) offense thus would eviscerate the Dunn rule and constitutes nothing less than a fundamental rejection of the rationale of the inconsistent verdict doctrine. /37/ CONCLUSIONS The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General MARK I. LEVY Assistant to the Solicitor General SARA CRISCITELLI Attorney JULY 1984 /1/ Respondent's petition for rehearing on her false statement conviction was denied by the court of appeals on February 29, 1984, and this Court denied her petition for a writ of certiorari on June 18, 1984 (No. 83-6617). /2/ Respondent was also acquitted on one count (Count 2) of conspiracy to possess quaaludes with intent to distribute them (21 U.S.C. 846); one count (Count 6) of telephone facilitation of a controlled substance offense (21 U.S.C. 843(b)); two counts (Counts 7-8) of assault with a deadly weapon upon federal officers (18 U.S.C. 111 and 1114); one count (Count 9) of possession of approximately two kilograms of cocaine with intent to distribute it (21 U.S.C. 841(a)(1)); one count (Count 10) of possession of approximately 2700 dosage units of quaaludes with intent to distribute them (21 U.S.C. 841(a)(1)); and four counts (Counts 11-14) of possession of a machine gun and silencers that were not registered and did not have serial numbers (26 U.S.C. 5861(d) and (i)). /3/ The facts pertaining to the false statement conviction are summarized in the opinion of the court of appeals (Pet. App. 3a-4a) and in our Brief in Opposition (at 2-3) to respondent's Petition for a Writ of Certiorari (cert. denied, No. 83-6617 (June 18, 1984)); that conviction does not relate to the question presented in our petition for certiorari and addressed herein. /4/ Respondent acknowledged that she knew her husband was selling cocaine (Tr. 1002-1003, 1043, 1046). /5/ For example, Ron Powell, with respondent's knowledge, placed a bid on a $1.5 million ranch for them to live on and planned to use proceeds of the drug business to pay the monthly mortgage and taxes of nearly $12,000 (Tr. 602-604, 615-626, 637-639). As the district court summarized at the time of respondent's sentencing (7/26/82 Sentencing Tr. 16): (T)hough her role was lesser (than her husband's), she benefitted substantially. * * * (T)he home they were buying was a * * * million and a half. * * * * * (S)he knew where Mr. Powell made his money. No question about that. * * * * * They were talking about buying the magnificent residence with many, many acres; and she had to know that the benefits she was talking about came directly from the drug traffic. /6/ "Coupons" was a coded reference to money (Tr. 786, 934). /7/ The next day Ron Powell called Sandy Segal, who told Powell that he had "that money" (Tr. 488) and would meet Powell "with those coups" (Tr. 489). /8/ At trial, respondent denied knowing anyone named Sandra Thomas (Tr. 1040, 1052). However, respondent had spoken with Thomas on the telephone (Tr. 1164-1165), and Thomas's name and address were entered in respondent's address book (Tr. 1040-1041). /9/ Records seized from respondent's car after her arrest indicated that Ron Powell had sold a quarter once of cocaine to Spindle on April 16 (Tr. 204, 954). /10/ We have not sought review in this Court of the fact-bound determination of the court of appeals that the jury's verdicts were inconsistent. The issue presented here is whether such inconsistency invalidates, as a matter of law, respondent's convictions on the counts on which the jury found her guilty. See Dunn v. United States, 284 U.S. 390, 392-393 (1932); Harris v. Rivera, 454 U.S. 339, 348 (1981). /11/ As we pointed out in our Petition (at 9 n.10), the concurrent sentence doctrine does not counsel against this Court's resolution of the inconsistent verdict issue decided by the court of appeals. The court of appeals remanded the case to the district court to permit resentencing on the false statement count in light of the reversal of the telephone facilitation convictions, and thus the disposition of the latter counts may affect respondent's ultimate sentence. Moreover, because 21 U.S.C. 843(c) provides enhanced penalties for second or subsequent offenses, respondent's convictions on the telephone facilitation counts have significant collateral consequences. /12/ Jury nullification or leniency, is, as Dunn observed (284 U.S. at 393 (citation omitted)), the "'assumption of a power which (the jurors) ha(ve) no right to exercise.'" In the federal system juries are not instructed on their "raw power of nullification" (Roberts v. Louisiana, 428 U.S. 325, 347 (1976) (White, J., dissenting)). See, e.g., Sparf and Hansen v. United States, 156 U.S. 51, 102 (1895); United States v. Dougherty, 473 F.2d 1113, 1130-1137 (D.C. Cir. 1972); United States v. Moylan, 417 F.2d 1002, 1005-1007 (4th Cir. 1969), cert. denied, 397 U.S. 910 (1970); United States v. Battiste, 24 F.Cas. 1042, 1043 (C.C.D.Mass. 1835) (No. 14,545) (Story, Circuit Justice); see also Tr. 1285. But see Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich. L. Rev. 1001, 1016-1017 (1980). /13/ Dunn, 284 U.S. at 393. /14/ Jackson v. Virginia, 443 U.S. at 317 n.10. /15/ Standefer, 447 U.S. at 22. /16/ Dunn, 284 U.S. at 394; Dotterweich, 320 U.S. at 279; Standefer, 447 U.S. at 22; see also Stein v. New York, 346 U.S. 156, 178 (1953), overruled on other grounds, Jackson v. Denno, 378 U.S. 368 (1964). /17/ Dunn, 284 U.S. at 394. /18/ Dotterweich, 320 U.S. at 279. /19/ Dotterweich, 320 U.S. at 279; see also Hoag v. New Jersey, 356 U.S. 464, 472 (1958), limited on other grounds, Ashe v. Swenson, 397 U.S. 436 (1970). /20/ See also Bickel, Judge and Jury -- Inconsistent Verdicts in the Federal Courts, 63 Harv. L. Rev. 649, 651-652 (1950) ("Dunn reaffirms the jury's power to exercise leniency by limiting punishment to sentence upon only one of many counts"); Perkins, Dealing With The Inconsistent Verdict, 15 Crim. L. Bull. 405, 415 (1979): It must be emphasized that the jury's mercy-dispensing power is not exercised on an all-or-nothing basis. The jury may "pardon" a defendant to the extent of releasing him from some of the consequences of his wrongdoing without releasing him from others. This means it may release him from the consequences of his crime as represented in one count of the indictment while holding him accountable for the consequences of the very same act as represented in another count. * * * (I)f the jury decides upon a partial "pardon" and returns a verdict of guilty on one count and not guilty on another, it is certainly unwise to have a procedure which requires the judge to enter verdicts of acquittal on both counts if the verdict is found to be inconsistent. /21/ In addition, as Judge Friendly observed in United States v. Carbone, 378 F.2d at 422, "if the (inconsistent verdict) rule were otherwise, the Government would be entitled to have the jury warned that an acquittal on some counts might undermine a guilty verdict on others -- almost the opposite of the standard instruction, which is obviously beneficial to criminal defendants." /22/ The district court, which heard the "long" and "extensive" tapes of respondent's recorded telephone conversations, specifically noted that "(t)here is no question in my mind that the jury correctly anal(y)zed (respondent's) involvement in the telephone counts. * * * (Respondent's husband) conducted his business over that telephone. (Respondent) knew what that business was because she was convicted of counts using the phone in the same manner" (7/26/82 Sentencing Tr. 16). /23/ In this connection the district judge observed (7/26/82 Sentencing Tr. 16-17): I am satisfied (respondent) lied to the jury. She said she didn't know a Thin Man, never heard of him, she said, until she was here in court. Then they played the tape, and she was told to call the Thin Man, and she did. I have questions about her credibility before this Court * * *. /24/ See, e.g., United States v. Jefferson, 714 F.2d 689, 699, (7th Cir. 1983); United States v. Whitten, 706 F.2d 1000, 1006 (9th Cir. 1983); United States v. Ward, 696 F.2d 1315, 1319 (11th Cir. 1983), cert. denied, No. 82-6437 (May 16, 1983); United States v. Rey, 641 F.2d 222, 224-225 n.6, 227 n.10 (5th Cir.), cert. denied, 454 U.S. 861 (1981). /25/ To the extent that the evidence were truly insufficient under traditional standards to establish the facilitated offense, the Section 843(b) conviction would have to be reversed quite without regard to the consistency of the verdict on any other counts. See United States v. Terry, 702 F.2d 299, 321 n.23 (2d Cir. 1983), cert. denied, No. 82-1689 (May 16, 1983); United States v. Bailey, 607 F.2d 237, 245 (9th Cir. 1979), cert. denied, 445 U.S. 934 (1980). The court of appeals' confusion over the issues of the sufficiency of the evidence and the consistency of the verdict is illustrated by its reliance (Pet. App. 2a, 7a) on Bailey, which involved a conventional challenge to the adequacy of the government's proof and did not present an inconsistent verdict question. /26/ See United States v. Brooks, 703 F.2d 1273, 1278-1279, reh'g denied, 712 F.2d 1419 (11th Cir. 1983) (Table); United States v. Hannah, 584 F.2d 27 (3d Cir. 1978); see also United States v. Berardi, 675 F.2d 894, 901 n.15 (7th Cir. 1982). /27/ Compare United States v. Upshaw, 685 F.2d 1202 (9th Cir. 1982) (inconsistency in the verdict that bears on an essential element of the offense would not be a ground to set aside the conviction; no inconsistency found). /28/ Compare page 17 note 21, supra. /29/ That the jury acted deliberately and conscientiously in returning its verdict is shown by the fact that it acquitted respondent on one count (Count 6) of telephone facilitation under Section 843(b). Count 6 was based on respondent's telephone call to an airline to change her husband's flight reservation for a trip to St. Louis (Tr. 628-631; J.A. 22-23). This call was not on its face demonstrably related to a drug transaction, and respondent was acquitted of the charge. /30/ As Justice Butler's dissenting opinion described the charges (284 U.S. at 395, 402-403): The nusiance charged is specifically limited to the "keeping for sale" of the six drinks mentioned. The unlawful possession count is limited to the same drinks. The unlawful sale alleged is limited to six drinks. The evidence showed that the same liquor constituted the sole basis of each count. * * * * * (Here,) there is a verdict of not guilty on one count and a verdict of guilt on another, and the former necessarily determines that the evidence failed to establish a fact which is an essential ingredient of the offense charged in the other count * * *. See also 41 Yale L. J. 922, 923 (1932); 45 Harv. L. Rev. 931, 931-932 (1932). /31/ This Court has never recognized any exception to the Dunn rule. Contrary to the understanding of the court of appeals (Pet. App. 6a n.1), Hartzel v. United States, 322 U.S. 680 (1944), does not stand for any such exception. In Hartzel, three defendants were convicted of conspiring with one another; thereafter, the convictions of two of the co-conspirators were set aside on grounds of insufficient evidence (see 322 U.S. at 682 n.3). In that posture, the evidence was necessarily inadequate to establish that Hartzel had entered into a conspiracy with the other defendants as alleged; the government accordingly acknowledged in this Court that Hartzel's conspiracy conviction could not be sustained (Brief for the United States at 4 n.1, 23 n.2 (No. 531, 1943 Term)), and the Court agreed with this concession (322 U.S. at 682 n.3). Hartzel thus turned on the sufficiency of the evidence under traditional standards to support the conspiracy charged and -- because the jury had convicted all the defendants of conspiracy -- did not in any way involve the issue of an inconsistent verdict; indeed, neither the parties nor the Court cited to Dunn or to Dotterweich, which had been decided the same Term as Hartzel. The court of appeals also noted (Pet. App. 6a-7a n.1) that lower federal courts have developed certain exceptions to Dunn in cases in which a defendant is convicted of conspiracy. See, e.g., United States v. Patterson, 678 F.2d 774, 780-781 (9th Cir.), cert. denied, 459 U.S. 911 (1982); United States v. Morales, 677 F.2d 1 (1st Cir. 1982); United States v. Duz-Mor Diagnostic Laboratory, Inc., 650 F.2d 223, 226 n.3 (9th Cir. 1981). We doubt the soundness of these exceptions under Dunn, especially in light of this Court's decision in Standefer. See United States v. Espinosa-Cerpa, 630 F.2d 328, 330-333 (5th Cir. 1980). However, the correctness of those exceptions to Dunn -- which appear to rest on the view that "courts should take a closer look at conspiracy convictions (in inconsistent verdict cases) where the jury's verdict on other counts indicates some doubt that a conspiracy actually took place" (United States v. Morales, 677 F.2d at 3) -- is not presented here, since respondent was acquitted on the cocaine conspiracy count and the court of appeals based its decision on the compound nature of the substantive telephone facilitation offense. /32/ See, e.g., United States v. Adams, 281 U.S. 202, 205 (1930); Collins v. Loisel, 262 U.S. 426, 430 (1923); United States v. Oppenheimer, 242 U.S. 85, 87 (1916); Frank v. Mangum, 237 U.S. 309, 334 (1915); Coffey v. United States, 116 U.S. 436, 443 (1886), disapproved on other grounds, United States v. One Assortment of 89 Firearms, No. 82-1047 (Feb. 22, 1984), slip op. 3-7; cf. Murphy v. United States, 272 U.S. 630, 632 (1926); Stone v. United States, 167 U.S. 178, 187 (1897). /33/ See United States v. Carbone, 378 F.2d at 422 & n.6; Trubitt, Patchwork Verdicts, Different-Jurors Verdicts, and American Jury Theory, 36 Okla. L. Rev. 473, 483 (1983); Comment, Inconsistent Verdicts in a Federal Criminal Trial, 60 Colum. L. Rev. 999, 1005 (1960); Comment, Ashe v. Swenson: Collateral Estoppel, Double Jeopardy, and Inconsistent Verdicts, 71 Colum. L. Rev. 321, 332 n.68 (1971). Interestingly, the opinion in Dunn was written by Justice Holmes at the age of 90 and was his last for the Court (see Harris, 454 U.S. at 346 n.15; United States v. Carbone, 378 F.2d at 422); Dunn was announced on January 11, 1932, and Justice Holmes submitted his resignation on January 12 (see 284 U.S. at VII). In his letter of resignation Justice Holmes explained that "(t)he condition of my health makes it a duty to break off connections (with the Court)" (ibid.); see also 284 U.S. at V-VI. In private correspondence dated January 3, 1932, Justice Holmes noted: You write such interesting and entertaining letters that I blush not to do likewise, but I can't. I have not been very well and I find it difficult to write; difficult physically and mentally. I hope to get back to normal but at present life is hard. We begin our sitting again on Monday. I have but one opinion to deliver, another being held up for tinkering to meet a long dissent from Butler -- agreed to by no one else I believe. The Holmes-Einstein Letters 335 (Peabody ed. 1964) (quoted in United States v. Carbone, 378 F.2d at 422 n.6); see also id. at 330-331, 338, 342; II Holmes-Laski Letters 1334, 1337, 1340, 1345, 1346, 1360 (Howe ed. 1953); F. Biddle, Mr. Justice Holmes 196-198 (1942). /34/ Indeed, even before Sealfon, the Court reaffirmed the Dunn rule without any reference to the res judicata rationale. See Dotterweich, 320 U.S. at 279. /35/ See, e.g., United States v. Uzzolino, 651 F.2d 207, 213 (3d Cir.), cert. denied, 454 U.S. 865 (1981); United States v. Greene, 497 F.2d 1068, 1085-1086 (7th Cir. 1974), cert. denied, 420 U.S. 909 (1975); United States v. Zane, 495 F.2d 683, 690 (2d Cir. 1974); United States v. Fox, 433 F.2d 1235, 1238 n.22 (D.C. Cir. 1970); United States v. Carbone, 378 F.2d at 422-423; United States v. Maybury, 274 F.2d 899, 905 (2d Cir. 1960); Bickel, supra, 63 Harv. L. Rev. at 650-651; 3 L. Orfield, Criminal Procedure Under the Federal Rules Section 23:57 (1966); 5 id. Section 31:10 (1967); Perkins, supra, 15 Crim. L. Bull. at 409-410; Trubitt, supra, 36 Okla. L. Rev. at 483-484; Comment, supra, 71 Colum. L. Rev. at 332-333; 35 Md. L. Rev. 535, 540-541 (1976). /36/ Furthermore, there is no reason to apply preclusion principles to different counts jointly tried in a single proceeding. The doctrines of res judicata and collateral estoppel are designed to "protect() litigants from burdensome relitigation and * * * promot(e) judicial economy." United States v. Stauffer Chemical Co., No. 82-1448 (Jan. 10, 1984), slip op. 7; see also United States v. Mendoza, No. 82-849 (Jan. 10, 1984), slip op. 4. Such considerations are simply inapposite to jury verdicts on multiple counts at a single trial, and preclusion principles are accordingly inapplicable. See, e.g., Arnold v. Wyrick, 646 F.2d 1225, 1228 (8th Cir. 1981); United States v. Zane, 495 F.2d at 690; 5 L. Orfield, Criminal Procedure Under the Federal Rules Section 31:10, at 136 (1967); 3 C. Wright, Federal Practice and Procedure: Criminal Section 514, at 18 (2d ed. 1982); cf. Ohio v. Johnson, No. 83-904 (June 11, 1984), slip op. 7 n.9. And certainly the possibility that the jury exercised lenity in simultaneously acquitting on some counts and convicting on others, even though convinced of the defendant's guilt on all counts, indicates that preclusion principles should not be applied in a single proceeding involving inconsistent verdicts. /37/ Having found that the verdicts were inconsistent, the court of appeals reversed respondent's convictions on the three counts under Section 843(b). We submit that the proper disposition, in the event that the inconsistent verdicts are not allowed to stand, would be to remand for a new trial on those counts. See Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 400 n.11 (1972); Crawford v. Fenton, 646 F.2d 810, 817 n.8 (3d Cir.), cert. denied, 454 U.S. 872 (1981); United States v. Maybury, 274 F.2d at 904-906 (opinion of Friendly, J.), 908 (opinion of L. Hand, J.), discussed in Harris, 454 U.S. at 342 n.7; Note, Criminal Law: Validity of Inconsistent Verdicts, 1961 Duke L. J. 133, 136-137 n.14; see also Dunn v. United States, 284 U.S. at 406-407 (Butler, J., dissenting) (inconsistent verdicts should be set aside and new trial ordered). By its outright reversal, the court of appeals has unreasonably expanded the consequences of the jury's inconsistency and, in effect, has immunized respondent for crimes that the government has proven by sufficient evidence beyond a reasonable doubt. Cf. Harris, 454 U.S. at 347; Standefer, 447 U.S. at 25. We are aware of no reason that would bar a retrial in this case. Since the government's evidence at the initial trial was adequate, the Double Jeopardy Clause does not forbid a second proceeding. See Tibbs v. Florida, 457 U.S. 31, 42 (1982). Likewise, because of the inconsistency in the verdict, the basis of the jury's acquittal cannot satisfactorily be determined; as Dunn recognized (284 U.S. at 393 (citation omitted)), the inconsistent verdict "'does not show that (the jurors) were not convinced of the defendant's guilt'" but only "'that either in the acquittal or the conviction the jury did not speak their real conclusions.'" See also Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich. L. Rev. 1001, 1015 n.47 (1980). In these circumstances the doctrine of collateral estoppel does not preclude a new trial. See Standefer, 447 U.S. at 23 n.17; Comment, Inconsistent Verdicts in Illinois Criminal Trials, 10 J. Mar. J. Prac. & Proc. 263, 285 (1977); see also Thau, Collateral Estoppel and the Reliability of Criminal Determinations, 70 Geo. L. J. 1079, 1085 (1982); Restatement (Second) of Judgments Section 29(4) and (5) & comments f and g (1982); cf. Ohio v. Johnson, slip op. 7 n.9 ("where the State has made no effort to prosecute the charges seriatim, the considerations of double jeopardy protection implicit in the application of collateral estoppel are inapplicable"). Although this argument was not presented below, the court of appeals' resolution of the inconsistent verdict issue necessarily raises the question of the proper disposition of the case. See 28 U.S.C. 2106. Accordingly, we suggest that, if the Court disagrees with our submission on the validity of the jury's verdict, the appropriate course would be to remand to the court of appeals for consideration of the issue of a new trial. See Busic v. United States, 446 U.S. 398, 412 n.19 (1980).