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 Plaza Pierce, 2d Cir. No. 16-3030. In an opinion by Judge Newman, the Court rejected a Government appeal and affirmed the district court’s dismissal / entry of a judgment of acquittal on a count because the jury’s verdict-cum-special-interrogatory-answers on that count were “irreconcilably inconsistent” and “metaphysically impossible” to harmonize.
Here are the relevant facts. The Government charged Pierce in Count 1 with a drug-trafficking conspiracy under 21 U.S.C. § 846. Specifically, Count 1 accused Pierce of conspiring to distribute, and to possess with intent to distribute, 4 different substances (cocaine, cocaine base, heroin, and marijuana). Because Apprendi requires a jury finding as to drug type and quantity for the enhanced penalties under § 841(b), the Government crafted a verdict sheet that included special interrogatories as to those issues.
That’s standard practice. But the verdict sheet here (the relevant portions are reproduced at pages 4-5) added a twist: After asking the jury whether Pierce was “Guilty” or “Not Guilty” of “conspiracy to possess with intent to distribute, and to distribute” the four substances, but before inquiring as to the quantity proven, the verdict sheet asked two questions for each of the four substances: Whether it was “Proven” or “Not Proven” that (a) “We the jury find that the allegation that defendant PIERCE conspired to possess with intent to distribute” cocaine, e.g.; and that (b) “We the jury find that the allegation that the defendant PIERCE conspired to distribute” cocaine, e.g. The jury was directed to answer the subsequent questions regarding quantity only if it checked “Proven” on (a) or (b).
The jury answered the verdict sheet as follows. It checked “Guilty” on the initial question. It then checked “Not Proven” on each of the eight subsequent inquiries (two for each of the four substances). It thus did not reach any of the quantity questions.
The district judge recognized the inconsistency and asked the parties for advice outside the jury’s presence. Defense counsel asked the court to dismiss the count. The prosecutor suggested that the court “ask[] the jury about the apparent inconsistency,” a suggestion that the court promptly rejected. Hearing no suggestion that the jury reconsider the verdict sheet in light of the inconsistency, the court discharged the jurors and later entered a judgment of acquittal on that count.
The Circuit affirmed. Describing its task as “attempt[ing] to harmonize” the jury’s answers and to find a “fair reading” rendering those answers consistent, the Court concluded that this was impossible. The jury’s “Guilty” verdict on the count was irreconcilably inconsistent with its interrogatory answers on the same count. Quoting then-Judge Gorsuch’s opinion for the Tenth Circuit in United States v. Shippley, 690 F.3d 1192 (10th Cir. 2012), Judge Newman explained that it was “metaphysically impossible” to enter either an acquittal or a guilty verdict on this count. Either the jury’s “Guilty” verdict or its “Not Proven” answers must be ignored.
Under these circumstances, and given the Government’s “unhelpful role in the proceedings” below, the Circuit affirmed the trial judge’s decision to dismiss the count and enter a judgment of acquittal.
Finally, the Court suggested that the proper response, upon receiving the inconsistent verdict sheet, was to ask the jury to reconsider its verdict before being discharged. Op. at 13. But it also pointed out that such reconsideration may be problematic on double-jeopardy grounds. Id. at 13 n.7.
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