U.S. v. Andrews

• Decision Date: 04 August 1988
• Docket Number: No. 87-3109,87-3109
• Citation: 850 F.2d 1557
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Sylvester ANDREWS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1557

850 F.2d 1557

UNITED STATES of America, Plaintiff-Appellant, v. Sylvester ANDREWS, Defendant-Appellee.

No. 87-3109.

United States Court of Appeals Eleventh Circuit.

Aug. 4, 1988.

Thomas E. Morris, Ernst D. Mueller, Asst. U.S. Attys., Jacksonville, Fla., Patty Merkamp Stemler, U.S. Dept. of Justice, Appellate Section/Criminal Div., Washington, D.C., for plaintiff-appellant.

Rosemary T. Cakmis, H. Jay Stevens, Federal Public Defenders, Jacksonville, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, Chief Judge, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON and COX ^*, Circuit Judges.

EDMONDSON, Circuit Judge:

This case concerns an inconsistency between jury verdicts finding one alleged co-conspirator guilty and the other not guilty in a joint trial. The indictment charged that defendant-appellee Sylvester Andrews and his co-defendant Robert Ford "did ... conspire ... together with each other to distribute cocaine." When Andrews and Ford were tried together, the jury found Andrews guilty of conspiracy while finding Ford not guilty. ¹ The district court then granted Andrews' motion for a judgment of acquittal based upon Herman v. United States, 289 F.2d 362 (5th Cir.1961), ² in which we held that "where all but one of the charged conspirators are acquitted, the verdict against the one will not stand." Id. at 368. A panel of this Court affirmed Andrews' judgment, stating that "[w]hile we think the full court may wish to reconsider Herman and its progeny, we are, for now at least, overcome by precedent." United States v. Andrews, No. 87-3109, at 7 (11th Cir. Oct. 27, 1987) [833 F.2d 1019 (table) ] (unpublished, non-argument calendar opinion). The panel's opinion has been vacated by the full Court; we now overrule Herman and reverse Andrews' judgment of acquittal.

NO CONSTRUCTIVE AMENDMENT

As a preliminary matter, before revisiting the issue in Herman, we address a separate question raised by Andrews. The indictment in this case charged that Ford and Andrews "did ... conspire ... together with each other to distribute cocaine"; no reference was made to other co-conspirators, named or unnamed. At trial, the district court gave a standard jury instruction on conspiracy law. The instruction read, in part, as follows:

In order to establish a conspiracy offense, it is not necessary for the government to prove that all of the people named in the indictment were members of the scheme or that those who were members had entered into any formal type of agreement.

... What the evidence in the case must show beyond a reasonable doubt is, first, that two or more persons in some way or manner came to a mutual understanding to try to accomplish a common and unlawful plan as charged in the indictment; ...

* * *

Now, a government agent, such as a confidential source or a police officer, cannot be a co-conspirator inasmuch as he is working for the government. Accordingly, in order to find one or both of the defendants guilty of the crime of conspiracy, you must find that each of them conspired with someone other than a government agent.

Record, vol. 2, at 289-91. Andrews contends that these isolated statements of the district court constructively "amended" the indictment in violation of his due process rights. See Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). According to Andrews, this supposed amendment would have allowed the jury to convict him of conspiracy with someone other than Ford.

Because Andrews raised no objections to the supposedly improper jury instructions at trial, we review his claim under the "plain error" standard. See Fed. Rule Crim. Proc. 52(b). We examine the district court's instructions to ascertain whether they "so modifie[d] the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the grand jury's indictment." United States v. Johnson, 713 F.2d 633, 643 (11th Cir.1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984). To justify reversal of a conviction, the court's instructions, viewed in context, must have expanded the indictment "either literally or in effect." See id.

In its directions to the jury, the district court read the indictment and repeatedly linked the instructions to the indictment. ³ Likewise, the court described the crime of conspiracy in terms of the "defendants"--namely, Ford and Andrews--and not just "persons." ⁴ The jury was instructed that it "must follow all of [the court's] instructions as a whole. You may not single out or disregard any of the Court's instructions on the law." Record, vol. 2, at 284. And, in response to a question from the jury, the court chose to send the jury the whole packet of instructions along with the indictment. Id. at 305-11.

It is also crucial to examine the court's instructions in the light of the trial itself. The Record clearly reveals that the government's evidence and arguments targeted the alleged conspiracy between Ford and Andrews; never did the government attempt to show that Andrews conspired with some other person allegedly present at the scene of the crime. ⁵ The government called no witnesses--other than the government informant--who arguably could have participated in the drug deal. ⁶ In fact, at trial Andrews and Ford--not the government--argued that other persons were present and could have been involved in the deal. ⁷

In the seminal case of Stirone v. United States, the Supreme Court pronounced the "rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself." Stirone, 361 U.S. at 215-16, 80 S.Ct. at 272; see also id. at 217, 80 S.Ct. at 273 ("a court cannot permit a defendant to be tried on charges that are not made in the indictment against him."). The "amendment" in Stirone occurred when the district court gave an instruction, over defendant's objection, that expanded the charge to include not only sand but steel shipments, and the government offered evidence of both. See id. at 214-15, 80 S.Ct. at 271-72. The Supreme Court concluded that, "While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury." Id. at 217, 80 S.Ct. at 273.

No such amendment occurred in the instant case. The government never argued anything other than a conspiracy between Ford and Andrews. The district court's instructions, although perhaps ambiguous in part, ⁸ did not impermissibly expand the scope of the indictment. ⁹ Andrews was not tried for an offense different from the offenses alleged in the indictment. The Herman issue is properly before us.

HERMAN V. UNITED STATES

In Herman, defendant-appellant George Herman and several co-defendants were indicted for conspiracy to ship and to receive stolen goods. Herman, 289 F.2d at 365. At their joint trial, the jury found Herman guilty and found his co-defendants not guilty. Id. On appeal the Herman Court noted that "[a] conspiracy cannot be committed by a single individual acting alone; he must act in concert with at least one other person." Id. at 368. From this irrefutable proposition we made a precipitous leap: "where all but one of the charged conspirators are acquitted, the verdict against the one will not stand." Id. Subsequent decisions of this Court have severely limited Herman's reach, and we have never actually used it to reverse another conviction. ¹⁰ Still, until today the whole court had not been called upon to revisit the precise issue in Herman, which involved the acquittal of all but one jointly charged, jointly tried co-conspirators.

A long line of United States Supreme Court precedent provides that "inconsistent jury verdicts among multiple defendants tried together on essentially the same evidence do not provide grounds for overturning an otherwise valid jury verdict which has adequate evidentiary support." United States v. Irvin, 787 F.2d 1506, 1512 (11th Cir.1986) (criticizing Herman ). See, e.g., Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943); United States v. Powell, 469 U.S. 57, 63, 105 S.Ct. 471, 475, 83 L.Ed.2d 461 (1984). Thus, the Supreme Court has stated that "[i]nconsistency in a verdict is not a sufficient reason for setting it aside. We have so held with respect to inconsistency between verdicts on separate charges against one defendant, ... and also with respect to verdicts that treat codefendants in a joint trial inconsistently." Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 460, 464, 70 L.Ed.2d 530 (1981) (citing Dunn and Dotterweich ). ¹¹

Recently, the Supreme Court reaffirmed that "there is no reason to vacate [a criminal defendant's] conviction merely because the verdicts cannot rationally be reconciled." Powell, 469 U.S. at 69, 105 S.Ct. at 479. Citing Dunn, the Powell Court stated that "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 not convinced of the defendant's guilt.' " Id. at 64, 105 S.Ct. at 476 (quoting from Dunn, 284 U.S. at 393, 52 S.Ct. at 190). The Court discussed three reasons for "insulating" jury verdicts from attack on "inconsistency" grounds--"the Government's inability to invoke review, the general reluctance to inquire into the workings of the jury, and the possible exercise of lenity." Id., 469 U.S. at 69, 105 S.Ct. at 479. Thus, "with few exceptions, ... once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury's collective judgment." Id....