Respondent was indicted on a number of counts for violations of
the federal narcotics laws. Count 1 charged her with conspiracy to
possess cocaine with intent to distribute it. The "overt acts"
listed in support of this conspiracy included tapped telephone
conversations indicating that respondent was helping her husband
and son distribute drugs and collect money for drugs sold. Count 9
charged respondent with possession of a specific quantity of
cocaine with intent to distribute it. Counts 3-6 charged respondent
with the compound offenses of using the telephone in "committing
and in causing and facilitating" the alleged conspiracy and
possession, in violation of 21 U.S.C. § 843(b). The jury acquitted
respondent of Counts 1, 6, and 9, but convicted her of Counts 3-5.
On appeal, respondent argued that the verdicts were inconsistent,
and that therefore she was entitled to reversal of the telephone
facilitation convictions. The Court of Appeals agreed. It
acknowledged the rule of
Dunn v. United States,
284 U. S. 390,
that a defendant convicted by a jury on one count cannot attack the
conviction because it was inconsistent with the verdict of
acquittal on another count. It was of the view, however, that
situations where a defendant has been convicted under § 843(b) but
acquitted of the felony he is charged with facilitating constitute
exceptions to the rule, and that in those situations the § 843(b)
conviction must be reversed. The court explained that an acquittal
on the predicate felony necessarily indicated that there was
insufficient evidence to support the telephone facilitation
convictions, and mandated acquittal on the telephone facilitation
counts as well.
Held: There is no reason to vacate respondent's
telephone facilitation convictions merely because the verdicts
cannot rationally be reconciled. Pp.
469 U. S.
62-69.
(a) The
Dunn rule embodies a prudent acknowledgment of
a number of factors. First, inconsistent verdicts -- even verdicts
that acquit on a predicate offense while convicting on the compound
offense -- should not necessarily be interpreted as a windfall to
the Government at the defendant's expense. It is equally possible
that the jury, convinced of guilt, properly reached its conclusion
on the compound offense, and then through mistake, compromise, or
lenity arrived at an inconsistent conclusion on the lesser offense.
But in such situations the Government has
Page 469 U. S. 58
no recourse if it wishes to correct the jury's error. The fact
that the inconsistency may be the result of lenity, coupled with
the Government's inability to invoke review, suggests that
inconsistent verdicts should not be reviewable at the defendant's
behest. Pp.
469 U. S.
64-66.
(b) A rule that would allow defendants to challenge inconsistent
verdicts on the ground that they were not the result of lenity but
of some error that worked against the defendants, would be
imprudent and unworkable. It would be based on pure speculation or
would require inquiries into the jury's deliberations that courts
generally will not undertake. Pp.
469 U. S.
66-67.
(c) A criminal defendant already is afforded protection against
jury irrationality or error by the independent review of the
sufficiency of the evidence undertaken by the trial and appellate
courts. P.
469 U. S.
67.
(d) To grant an exception to the
Dunn rule where the
jury acquits a defendant of a predicate felony but convicts on the
compound felony, would threaten to swallow the rule. And the
argument that an acquittal on the predicate offense necessitates a
finding of insufficient evidence on the compound felony simply
misunderstands the nature of the inconsistent verdict problem,
since it necessarily incorrectly assumes that the acquittal was
proper. Pp.
469 U. S.
67-69.
(e) Here, respondent was given the benefit of her acquittal on
the conspiracy count, and it is neither irrational nor illogical to
require her to accept the burden of conviction on the telephone
facilitation counts. P.
469 U. S.
69.
708 F.2d 455 and 719 F.2d 1480,
reversed.
REHNQUIST, J., delivered the opinion for a unanimous Court.
JUSTICE REHNQUIST delivered the opinion of the Court.
In
Dunn v. United States, 284 U.
S. 390 (1932), this Court held that a criminal defendant
convicted by a jury on one count could not attack that conviction
because it was inconsistent with the jury's verdict of acquittal on
another count. We granted certiorari in this case to determine
Page 469 U. S. 59
whether the Court of Appeals for the Ninth Circuit correctly
enunciated an exception to
Dunn when it overturned
respondent's convictions. 467 U.S. 1203 (1984).
In 1982, respondent Betty Lou Powell's husband, Ron Powell,
aided by his 17-year-old son Jeff and others, was operating a
lucrative cocaine and methaqualone distributorship from the Powell
home near San Diego, Cal. Federal authorities tapped the Powells'
telephone pursuant to a court order, and many conversations were
recorded, including at least four which indicated that respondent
was playing a minor role in the drug distributorship. Three of
these conversations indicated that respondent was helping her
husband and son to distribute drugs and to collect money owed for
drugs sold. The fourth involved a conversation with a travel agent
in which respondent booked an airline ticket for her husband in an
assumed name. In April 1982, Ron Powell learned of the wiretap and
notified his son, who called respondent and told her to leave home
and drive to Los Angeles. Respondent was followed by FBI agents,
who after some difficulty [
Footnote
1] managed to stop respondent and arrest her. A search of the
car uncovered,
inter alia, 2 kilograms of cocaine, 2,700
methaqualone tablets, a pistol, a machine gun, 2 silencers, and
$30,000 cash.
Respondent was indicted by a grand jury in the Southern District
of California for 15 counts of violations of federal law. Ten of
these counts alleged transgressions of the federal narcotics laws;
a jury convicted respondent of only three of these, and acquitted
her of the others. [
Footnote 2]
Count 1 of the indictment charged respondent with conspiring with
her
Page 469 U. S. 60
husband and 17-year-old son, and others, "to knowingly and
intentionally possess with intent to distribute cocaine." Four of
the "overt acts" listed in support of this conspiracy were the
above-mentioned telephone conversations. Count 9 charged respondent
with possession of a specific quantity of cocaine with intent to
distribute it. The jury acquitted respondent of Counts 1 and 9.
Counts 3, 4, 5, and 6 charged respondent with the compound offenses
of using the telephone in "committing and in causing and
facilitating" certain felonies -- "conspiracy to possess with
intent to distribute and possession with intent to distribute
cocaine" -- in violation of 84 Stat. 1263, 21 U.S.C. § 843(b).
[
Footnote 3] The jury convicted
her of Counts 3, 4, and 5, and acquitted her of Count 6.
On appeal respondent argued that the verdicts were inconsistent,
and that she therefore was entitled to reversal of the telephone
facilitation convictions. She contended that proof that she had
conspired to possess cocaine with intent to distribute, or had so
possessed cocaine, was an element of each of the telephone
facilitation counts; [
Footnote
4] since she had been acquitted of these offenses in Counts 1
and 9, respondent argued that the telephone facilitation
convictions were not consistent with those acquittals. The United
States Court of Appeals for the Ninth Circuit agreed. 708 F.2d 455
(1983). The court first rejected the Government's contention that
the verdicts could be viewed as consistent because the jury might
have found respondent guilty of facilitating a conspiracy
Page 469 U. S. 61
other than the conspiracy outlined in Count 1; the court
concluded that it was "not convinced that there is evidence to
support the government's claim. . . ." [
Footnote 5]
Id. at 456. The court then cited
United States v. Bailey, 607 F.2d 237, 245 (CA9 1979),
cert. denied, 445 U.S. 934 (1980), and
United States
v. Hannah, 584 F.2d 27, 28-30 (CA3 1978), for the proposition
that a conviction under 21 U.S.C. § 843(b) must be reversed "when
the conviction on the underlying conspiracy count is reversed." 708
F.2d at 456.
The Government petitioned for rehearing, arguing that the court
had ignored the rule of
Dunn v. United States, supra, that
inconsistent verdicts in criminal trials need not be set aside, but
may instead be viewed as a demonstration of the jury's leniency.
The court issued another opinion, stating that the Ninth Circuit
"follows the
Dunn rule," but spelling out in more detail
the court's view that situations where a defendant has been
convicted under § 843(b) but acquitted of the felony he is charged
with facilitating constitute exceptions to the rule, and that in
those situations the § 843(b) conviction must be reversed. 719 F.2d
1480 (1983).
The Court of Appeals explained that an acquittal on the
predicate felony necessarily indicated that there was insufficient
evidence to support the telephone facilitation conviction, and
mandated acquittal on that count as well. The court went on to
reject more explicitly the Government's argument that the jury
might have found a different predicate felony than the conspiracy
charged in Count 1; it noted that the case simply had not been
presented to the jury under such a theory. [
Footnote 6] We granted certiorari to address
whether
Page 469 U. S. 62
the Court of Appeals in this case, and other of the Courts of
Appeals,
see Hannah, supra; United States v. Brooks, 703
F.2d 1273, 1278-1279 (CA11 1983), have acted consistently with
Dunn in recognizing exceptions to the rule of that
case.
The defendant in
Dunn was tried pursuant to a
three-count indictment charging violations of the federal liquor
laws. The first count alleged that the defendant had maintained a
common nuisance by keeping intoxicating liquor for sale at a
specified place; the second and third counts charged unlawful
possession, and unlawful sale, of such liquor. The jury convicted
defendant of the first count and acquitted him of the second and
third. On review, this Court rejected the claim that the defendant
was entitled to discharge because the verdicts were inconsistent.
Speaking through Justice Holmes, the Court stated:
"Consistency in the verdict is not necessary. Each count in an
indictment is regarded as if it was a separate indictment.
Latham v. The Queen, 5 Best & Smith 635, 642, 643.
Selvester v. United States, 170 U. S.
262. 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
Page 469 U. S. 63
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. As was said in
Steckler v.
United States, 7 F. (2d) 59, 60:"
" The most that can be said in such cases is that the verdict
shows that either in the acquittal of 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."
"
Dunn, 284 U.S. at
284 U. S.
393."
Fifty-three years later most of what Justice Holmes so
succinctly stated retains its force. Indeed, although not expressly
reaffirming
Dunn this Court has on numerous occasions
alluded to its rule as an established principle. Thus, in
United States v. Dotterweich, 320 U.
S. 277,
320 U. S. 279
(1943), the rule was invoked to support a jury verdict finding the
president of a corporation guilty of introducing adulterated or
misbranded drugs into interstate commerce, but acquitting the
corporation of the same charge. And more recently, in
Harris v.
Rivera, 454 U. S. 339
(1981), this Court again reaffirmed the
Dunn rule in the
course of holding that a defendant could not obtain relief by writ
of habeas corpus on the basis of inconsistent verdicts rendered
after a state bench trial. This Court noted that
Dunn and
Dotterweich establish "the unreviewable power of a jury to
return a verdict of not guilty for impermissible reasons."
Harris v. Rivera, supra, at
454 U. S. 346.
See also Standefer v. United States, 447 U. S.
10,
447 U. S. 22-23
(1980).
These decisions indicate that this is not a case where a
once-established principle has gradually been eroded by subsequent
opinions of this Court. Nevertheless, recent decisions in the
Courts of Appeals have begun to carve exceptions out of the
Dunn rule.
See Brooks, supra; United States v.
Hannah, 584 F.2d 27 (CA3 1978).
See also
Page 469 U. S. 64
United States v. Morales, 677 F.2d 1 (CA1 1982)
(overturning a conspiracy conviction where the defendant was
acquitted of all the "overt acts" charged in support of the
conspiracy). In addition to evidencing a general displeasure with
allowing inconsistent verdicts to stand under some circumstances,
these courts have distinguished
Dunn on the ground that,
where the predicate felony count and the telephone facilitation
count are each submitted to the jury, the counts are
"interdependent" and each count cannot be regarded as "as if it
[were] a separate indictment."
See Hannah, supra, at
30.
In so stating, these courts may be attempting to distinguish
Dunn on its facts, or they may mean to take issue with
Dunn's statement that
"[i]f separate indictments had been presented against the
defendant . . . and had been separately tried . . . an acquittal on
one could not be pleaded as
res judicata of the
other."
The latter statement, if not incorrect at the time,
see
United States v. Oppenheimer, 242 U. S.
85,
242 U. S. 87
(1916), can no longer be accepted in light of cases such as
Sealfon v. United States, 332 U.
S. 575 (1948), and
Ashe v. Swenson,
397 U. S. 436
(1970), which hold that the doctrine of collateral estoppel would
apply under those circumstances. Respondent argues that this defect
in
Dunn's rationale precludes the rule's application in
this case; indeed, respondent urges that principles of
res
judicata or collateral estoppel should apply to verdicts
rendered by a single jury, to preclude acceptance of a guilty
verdict on a telephone facilitation count where the jury acquits
the defendant of the predicate felony.
We believe that the
Dunn rule rests on a sound
rationale that is independent of its theories of
res
judicata, and that it therefore survives an attack based upon
its presently erroneous reliance on such theories. As the
Dunn Court noted, where truly inconsistent verdicts have
been reached,
"[t]he most that can be said . . . 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
Page 469 U. S. 65
not convinced of the defendant's guilt."
Dunn, supra, at
284 U. S. 393.
The rule that the defendant may not upset such a verdict embodies a
prudent acknowledgment of a number of factors. First, as the above
quote suggests, inconsistent verdicts -- even verdicts that acquit
on a predicate offense while convicting on the compound offense --
should not necessarily be interpreted as a windfall to the
Government at the defendant's expense. It is equally possible that
the jury, convinced of guilt, properly reached its conclusion on
the compound offense, and then through mistake, compromise, or
lenity, arrived at an inconsistent conclusion on the lesser
offense. But in such situations the Government has no recourse if
it wishes to correct the jury's error; the Government is precluded
from appealing or otherwise upsetting such an acquittal by the
Constitution's Double Jeopardy Clause.
See Green v. United
States, 355 U. S. 184,
355 U. S. 188
(1957);
Kepner v. United States, 195 U.
S. 100,
195 U. S. 130,
195 U. S. 133
(1904).
Inconsistent verdicts therefore present a situation where
"error," in the sense that the jury has not followed the court's
instructions, most certainly has occurred, but it is unclear whose
ox has been gored. Given this uncertainty, and the fact that the
Government is precluded from challenging the acquittal, it is
hardly satisfactory to allow the defendant to receive a new trial
on the conviction as a matter of course.
Harris v. Rivera,
supra, indicates that nothing in the Constitution would
require such a protection, and we therefore address the problem
only under our supervisory powers over the federal criminal
process. For us, the possibility that the inconsistent verdicts may
favor the criminal defendant as well as the Government militates
against review of such convictions at the defendant's behest. This
possibility is a premise of
Dunn's alternative rationale
-- that such inconsistencies often are a product of jury lenity.
Thus,
Dunn has been explained by both courts and
commentators as a recognition of the jury's historic function, in
criminal trials, as a check against arbitrary or oppressive
exercises of power by the Executive Branch.
See, e.g., United
States v. Maybury,
Page 469 U. S. 66
274 F.2d 899, 902 (CA2 1960) (Friendly, J.); Bickel, Judge and
Jury -- Inconsistent Verdicts in the Federal Courts, 63 Harv.L.Rev.
649, 652 (1950).
Cf. Duncan v. Louisiana, 391 U.
S. 145,
391 U. S.
165-156 (1968).
The burden of the exercise of lenity falls only on the
Government, and it has been suggested that such an alternative
should be available for the difficult cases where the jury wishes
to avoid an all-or-nothing verdict.
See Bickel, supra, at
652. Such an act is, as the
Dunn Court recognized, an
"assumption of a power which [the jury has] no right to exercise,"
but the illegality alone does not mean that such a collective
judgment should be subject to review. The fact that the
inconsistency may be the result of lenity, coupled with the
Government's inability to invoke review, suggests that inconsistent
verdicts should not be reviewable. [
Footnote 7]
We also reject, as imprudent and unworkable, a rule that would
allow criminal defendants to challenge inconsistent verdicts on the
ground that in their case the verdict was not the product of
lenity, but of some error that worked against them. Such an
individualized assessment of the reason for the inconsistency would
be based either on pure speculation, or would require inquiries
into the jury's deliberations that courts generally will not
undertake. Jurors, of course, take an oath to follow the law as
charged, and they are expected to follow it.
See Adams v.
Texas, 448 U. S. 38
(1980). To this end trials generally begin with
voir dire,
by judge or counsel, seeking to identify those jurors who for
whatever reason may
Page 469 U. S. 67
be unwilling or unable to follow the law and render an impartial
verdict on the facts and the evidence. But with few exceptions,
see McDonough Power Equipment, Inc. v. Greenwood,
464 U. S. 548,
464 U. S. 556
(1984);
Smith v. Phillips, 455 U.
S. 209,
455 U. S. 217
(1982), once the jury has heard the evidence and the case has been
submitted, the litigants must accept the jury's collective
judgment. Courts have always resisted inquiring into a jury's
thought processes,
see McDonald v. Pless, 238 U.
S. 264 (1915); Fed.Rule Evid. 606(b) (stating that
jurors are generally incompetent to testify concerning jury
deliberations); through this deference the jury brings to the
criminal process, in addition to the collective judgment of the
community, an element of needed finality.
Finally, we note that a criminal defendant already is afforded
protection against jury irrationality or error by the independent
review of the sufficiency of the evidence undertaken by the trial
and appellate courts. This review should not be confused with the
problems caused by inconsistent verdicts.
Sufficiency-of-the-evidence review involves assessment by the
courts of whether the evidence adduced at trial could support any
rational determination of guilt beyond a reasonable doubt.
See
Glasser v. United States, 315 U. S. 60,
315 U. S. 80
(1942); Fed.Rule Crim.Proc. 29(a);
cf. Jackson v.
Virginia, 443 U. S. 307,
443 U. S. 316,
443 U. S. 319
(1979). This review should be independent of the jury's
determination that evidence on another count was insufficient. The
Government must convince the jury with its proof, and must also
satisfy the courts that given this proof the jury could rationally
have reached a verdict of guilt beyond a reasonable doubt. We do
not believe that further safeguards against jury irrationality are
necessary.
Respondent contends, nevertheless, that an exception to the
Dunn rule should be made where the jury acquits a
defendant of a predicate felony, but convicts on the compound
felony. Such an "exception" falls almost of its own weight. First,
the acceptability of this exception is belied by the facts of
Dunn itself. In
Dunn, the defendant was acquitted
of
Page 469 U. S. 68
unlawful possession, and unlawful sale, of liquor, but was
convicted of maintaining a nuisance by keeping unlawful liquor for
sale at a specified place. The same evidence was adduced for all
three counts, and Justice Butler's dissent persuasively points out
that the jury could not have convicted on the nuisance count
without finding that the defendant possessed, or sold, intoxicating
liquor.
Dunn, 284 U.S. at
284 U. S. 398.
Respondent's exception therefore threatens to swallow the rule.
Second, respondent's argument that an acquittal on a predicate
offense necessitates a finding of insufficient evidence on a
compound felony count simply misunderstands the nature of the
inconsistent verdict problem. Whether presented as an insufficient
evidence argument, or as an argument that the acquittal on the
predicate offense should collaterally estop the Government on the
compound offense, the argument necessarily assumes that the
acquittal on the predicate offense was proper -- the one the jury
"really meant." This, of course, is not necessarily correct; all we
know is that the verdicts are inconsistent. The Government could
just as easily -- and erroneously -- argue that since the jury
convicted on the compound offense the evidence on the predicate
offense must have been sufficient. The problem is that the same
jury reached inconsistent results; once that is established
principles of collateral estoppel -- which are predicated on the
assumption that the jury acted rationally and found certain facts
in reaching its verdict -- are no longer useful.
This problem is not altered when the trial judge instructs the
jury that it must find the defendant guilty of the predicate
offense to convict on the compound offense. Although such an
instruction might indicate that the counts are no longer
independent, if inconsistent verdicts are nevertheless reached
those verdicts still are likely to be the result of mistake, or
lenity, and therefore are subject to the
Dunn rationale.
Given this impasse, the factors detailed above the Government's
inability to invoke review, the general
Page 469 U. S. 69
reluctance to inquire into the workings of the jury, and the
possible exercise of lenity -- suggest that the best course to take
is simply to insulate jury verdicts from review on this ground.
[
Footnote 8]
Turning to the case at hand, respondent argues that the jury
could not properly have acquitted her of conspiracy to possess
cocaine and possession of cocaine, and still found her guilty of
using the telephone to facilitate those offenses. The Government
does not dispute the inconsistency here. For the reasons previously
stated, however, there is no reason to vacate respondent's
conviction merely because the verdicts cannot rationally be
reconciled. Respondent is given the benefit of her acquittal on the
counts on which she was acquitted, and it is neither irrational nor
illogical to require her to accept the burden of conviction on the
counts on which the jury convicted. The rule established in
Dunn v. United States has stood without exception in this
Court for 53 years. If it is to remain that way, and we think it
should, the judgment of the Court of Appeals must be
Reversed .
[
Footnote 1]
Respondent twice eluded the agents before eventually being
stopped. She succeeded the second time by running her car into an
agent and an FBI vehicle.
[
Footnote 2]
Of the remaining five counts, four charged illegal possession of
firearms. Respondent was acquitted of all these. The last count
charged her with making false statements in her petition for
court-appointed counsel. Respondent was convicted on this count,
and her conviction was affirmed on appeal. 708 F.2d 455, 457 (CA9
1983). The count is not in issue here.
[
Footnote 3]
Title 21 U.S.C. § 843(b) provides in part:
"(b) 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."
[
Footnote 4]
The lower courts seem to agree that the Government must prove,
as an element of a § 843(b) offense, the commission of the felony
that the accused is charged with facilitating.
See United
States v. Ward, 696 F.2d 1315, 1319 (CA11),
cert.
denied, 461 U.S. 934 (1983);
United States v. Watson,
594 F.2d 1330, 1342-1344 (CA10 1979).
[
Footnote 5]
For purposes of our review the Government has conceded that the
verdicts are inconsistent.
[
Footnote 6]
After so stating, the court concluded: "We adhere to our
statement in our opinion that there is insufficient evidence to
support the convictions on Counts 3, 4, and 5. . . ." 719 F.2d at
1481. Respondent seizes upon this language, and similar language in
the original opinion, to argue that the Ninth Circuit actually
determined upon independent review of the record that the evidence
was insufficient as a matter of law, under
Jackson v.
Virginia, 443 U. S. 307
(1979). A review of the statements in context proves that
respondent's argument is unsupportable. The court was merely
expressing its opinion that the jury's acquittals on the predicate
offenses required a finding of insufficient evidence on the
compound offenses. We do not believe that its somewhat cryptic
reliance on
United States v. Bailey, 607 F.2d 237, 245
(CA9 1979), indicates the contrary. Neither
Jackson nor
the sufficiency-of-the-evidence test were even cited.
Respondent alternatively urges us to conduct our own independent
review of the record. It is not clear whether respondent preserved
a sufficiency-of-the-evidence claim below, but in any event the
Court of Appeals did not pass upon the claim, and we decline to
address it in the first instance. For similar reasons we decline to
address the other claims that respondent has urged in support of
affirmance.
[
Footnote 7]
In
Standefer v. United States, 447 U. S.
10 (1980), this Court invoked concerns similar to those
expressed above in refusing to apply the doctrine of nonmutual
collateral estoppel to preclude prosecution of an aider and abettor
where a jury had already acquitted the principal.
Citing
Dunn, we emphasized that through lenity, compromise, or
mistake the jury might have reached an irrational result in the
prior trial, which result was not subject to review at the
Government's instigation. Under those circumstances we refused the
protection of nonmutual collateral estoppel where the protection
had as its basis the assumption that a criminal jury had acted in a
rational manner. 447 U.S. at
447 U. S.
22-23.
[
Footnote 8]
Nothing in this opinion is intended to decide the proper
resolution of a situation where a defendant is convicted of two
crimes, where a guilty verdict on one count logically excludes a
finding of guilt on the other.
Cf. United States v.
Daigle, 149 F.
Supp. 409 (DC),
aff'd, per curiam, 101 U.S.App.D.C.
286, 248 F.2d 608 (1957),
cert. denied, 355 U.S. 913
(1958).