U.S. v. Abbott Washroom Systems, Inc.

• Decision Date: 27 February 1995
• Docket Number: No. 94-1326,94-1326
• Citation: 49 F.3d 619
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. ABBOTT WASHROOM SYSTEMS, INC., doing business as Abbott Fire Extinguisher Company, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 619

49 F.3d 619

UNITED STATES of America, Plaintiff-Appellant, v. ABBOTT WASHROOM SYSTEMS, INC., doing business as Abbott Fire Extinguisher Company, Defendant-Appellee.

No. 94-1326.

United States Court of Appeals Tenth Circuit.

Feb. 27, 1995.

Paula M. Ray, Asst. U.S. Atty., Denver, CO (Henry L. Solano, U.S. Atty., with her on the brief), for plaintiff-appellant.

Dennis W. Hartley, Colorado Springs, CO, for defendant-appellee.

Before ANDERSON and HOLLOWAY, Circuit Judges, and DOWNES, ^* District Judge.

HOLLOWAY, Circuit Judge.

In January 1994 defendant-appellee Abbott Washroom Systems, Inc., d/b/a Abbott Fire Extinguisher Company (Abbott), and a vice-president of Abbott, Roy A. Chambers, were indicted on three counts charging violations of the False Claims Act, 18 U.S.C. Sec. 287 and aiding and abetting those offenses, 18 U.S.C. Sec. 2. The charges concerned presenting false, fictitious or fraudulent claims for services on fire extinguishers to government employees at Fort Carson, Colorado. The gist of the offenses alleged was that CO sub2 and dry chemical fire extinguishers were stickered and stamped ("pencil-whipped") as if they had been serviced properly and that billings for services not properly performed were presented for November 1991 and later for September and October 1992.

Trial was held in the district court in April 1994 and verdicts of guilty as to Abbott were returned on the three counts; not guilty verdicts were returned as to Chambers. Abbott moved for a judgment of acquittal or a new trial on May 4, 1994. On July 11, 1994, the district judge declared a mistrial, set aside the verdict, and ordered a new trial by the following order:

This matter is before the court on defendant's "Motion for Judgement of Acquittal and Motion for New Trial." Upon consideration of the motion, response, and reply, it appears that the jury verdict in this case is inconsistent with the verdict as to Roy A. Chambers and that there is no rational explanation for the verdict. Accordingly, the court declares a mistrial, sets aside the verdict, and orders a new trial. Within ten (10) days of the date of this Order, counsel shall appear together in chambers to obtain a new trial date.

IT IS SO ORDERED.

The government appeals pursuant to 18 U.S.C. Sec. 3731. It asserts that the trial judge erred by granting a new trial on the basis that the verdicts as to Abbott and Chambers were inconsistent and that, contrary to Abbott's contention, there was sufficient evidence to support Abbott's convictions. Abbott responds by noting that its post-trial motion for a judgment of acquittal challenged the sufficiency of the evidence as to Abbott. Abbott recognizes that the judge granted a new trial on the basis of inconsistent verdicts, but it maintains on appeal, as in its motion below, both that there was insufficient evidence to convict Abbott and that in the circumstances of this case, the inconsistent verdicts cannot stand.

I

We turn first to the judge's reliance on the inconsistent verdicts as the basis for his ruling. The government relies, inter alia, on United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), which summarized the law on inconsistent verdicts:

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, [454 U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) ], 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 [284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932) ] 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....

....

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....

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.... 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 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.

469 U.S. at 65-69, 105 S.Ct. at 477-79.

Abbott combines its challenge to the sufficiency of the evidence with its reliance on the inconsistency of the verdicts. It contends that we should conduct our review of the sufficiency of the evidence within a framework recognizing that the jury found the evidence insufficient as to Mr. Chambers. Abbott says this is the "appropriate scope of review" and thus we "may only consider evidence offered against Abbott alone and not against Mr. Chambers." Appellee's Brief at 10. And Abbott contends that Powell does not apply here because Abbott and its agent Chambers were charged in the same counts, not different counts as in Powell.

We are not persuaded by these arguments. The difficulty of inconsistent verdicts is present here as it was in Powell. In Powell the Court noted the defendant's argument that logically the jury could not have acquitted her of conspiracy to possess the drug and possession of it and still found her guilty of using the telephone to facilitate those offenses. Nevertheless the Court firmly held "there is no reason to vacate respondent's conviction merely because the verdicts cannot rationally be reconciled." 469 U.S. at 69, 105 S.Ct. at 479. Moreover Powell pointed out that in United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135-36, 88 L.Ed. 48 (1943), the general rule of Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932), that "[c]onsistency in the verdict is not necessary...." was relied on to support a jury verdict finding the president and general manager of a corporation guilty of introducing adulterated or misbranded drugs into interstate commerce, but acquitting the corporation of the same charge. Powell, 469 U.S. at 63, 105 S.Ct. at 475-76. Dotterweich involved two informations, one apparently against the company and one against Dotterweich, its president and general manager. Three counts of the informations went to the jury--two for misbranded drugs and one for an adulterated drug. Dotterweich made an inconsistency argument which the Court bruskly rejected: "Equally baseless is the claim of Dotterweich that, having failed to find the corporation guilty, the jury could not find him guilty.... Juries may indulge in precisely such motives or vagaries. Dunn v. United States, 284 U.S. 390 ." Dotterweich, 320 U.S. at 279, 64 S.Ct. at 135. See United States v. Hill, 971 F.2d 1461, 1468-70 (10th Cir.1992) (en banc).

We do not feel that the distinction attempted by Abbott on the separate counts theory is persuasive. The thrust of the Dunn rule, reaffirmed in Powell, simply forecloses such arguments for a new trial based on inconsistency in the jury's verdicts.

In United States v. Suntar Roofing, Inc., 897 F.2d 469, 475 (10th Cir.1990), we stated "[t]he Powell decision reaffirmed the general rule that consistency in verdicts is not required." We noted, however, that it was unclear whether Powell had eliminated the "rule of consistency," previously recognized by the Court, see, e.g., Morrison v. California, 291 U.S. 82, 93, 54 S.Ct. 281, 286, 78 L.Ed. 664 (1934); Gebardi v. United States, 287 U.S. 112, 123, 53 S.Ct. 35, 38, 77 L.Ed. 206 (1932), which requires the reversal of a defendant's conspiracy conviction if all his coconspirators are acquitted of the same conspiracy charges. 897 F.2d at 475.

In Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534 (1944), the Supreme Court reversed convictions on seven counts of an indictment charging the defendant with various offenses under the Espionage Act of 1917, including conspiracy. Although the Court found the evidence insufficient to support the convictions, in a footnote it stated that because the convictions of Hartzel's coconspirators had been set aside, it was "impossible to sustain [the] conviction upon the basis of ... the conspiracy count." 322 U.S. at 682 n. 3, 64 S.Ct. at 1234 n. 3. Our decision in Romontio v. United States, 400 F.2d 618 (10th Cir.1968), cert. dismissed, 402 U.S. 903, 91 S.Ct. 1384, 28 L.Ed.2d 644 (1971),...