It is long settled that inconsistency between or among counts of conviction is not a ground for dismissal. See, e.g., Dunn v. United States, 284 U.S. 390, 393 (1932); and United States v. Powell, 469 U.S. 57, 61-69 (1984). The same rule applies to jury verdicts that are inconsistent as to different defendants in a joint trial. See United States v. Dotterweich, 320 U.S. 277, 279 (1943). As the Supreme Court broadly stated in Rivera v. Harris, 454 U.S. 339, 345-46 (1981), the jury possesses “the unreviewable power [] to return a verdict of not guilty for impermissible reasons” and “[i]nconsistency in a verdict is not a sufficient reason for setting it aside.”
None of those cases, however, concerned a verdict that is internally inconsistent as to the same count and the same defendant. The Second Circuit recently encountered that situation in United States v. Janine …