U.S. v. Powell, 82-1473

Decision Date10 November 1983
Docket NumberNo. 82-1473,82-1473
Citation719 F.2d 1480
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Betty Lou POWELL, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Charles F. Gorder, Jr., Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Barry D. Utsinger, Utsinger & Williamson, San Diego, Cal., for defendant-appellant.

ON GOVERNMENT'S PETITION FOR REHEARING

Before CHAMBERS, FLETCHER and NELSON, Circuit Judges.

The petition for rehearing chides us for not having discussed Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1931), and its rule that inconsistent verdicts do not require reversal, but may be viewed as a demonstration of the jury's leniency. Id. at 393, 52 S.Ct. at 190. This circuit follows the Dunn rule but, with other circuits, acknowledges that there must nevertheless be sufficient evidence to sustain the guilty verdict. United States v. Brooklier, 685 F.2d 1208, 1220 (9th Cir.1982), cert. denied --- U.S. ----, 103 S.Ct. 1195, 75 L.Ed.2d 439 (1983); United States v. McCall, 592 F.2d 1066, 1068 (9th Cir.), cert. denied 441 U.S. 936, 99 S.Ct. 2061, 60 L.Ed.2d 665 (1979). One of the exceptions to the application of the Dunn rule 1, is the situation where the defendant is charged with violation of 21 U.S.C. Sec. 843(b) and the underlying felony, said to have been facilitated, is reversed. United States v. Bailey, 607 F.2d 237 (9th Cir.1979), cert. denied 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769 (1980); United States v. Brooks, 703 F.2d 1273, 1278 (11th Cir.1983); United States v. Hannah, 584 F.2d 27 (3rd Cir.1978).

When the prosecution tries its case on the theory that the felony of which the defendant is subsequently acquitted, is the predicate felony for the telephone facilitation counts, convictions of the latter must be reversed for lack of sufficient evidence. United States v. Berardi, 675 F.2d 894, 901 n. (7th Cir.1981). When, however, the government tries the case on the theory that another felony is the predicate crime, the conviction may stand. United States v. Arias, 639 F.2d 1183 (5th Cir.1981). The government, in its petition, says that the government "never conceded" the conspiracy was the predicate felony in this case. We are not, however, so much concerned with what it may or may not have conceded, as we are the theory upon which it presented its case to the jury. Nowhere do we find the jurors were told in the government's closing argument that the substantive crime of possession was the predicate felony. Indeed, the closing argument stresses very heavily appellant's assistance of her husband who the government contended was the "heavy" in the operation of the narcotics business.

The instructions (like the trial itself) focus on the alleged conspiracies and various other substantive crimes of which appellant was acquitted. The only attention given to the telephone facilitation counts was to read Section 843(b) and then to read one of the counts. We suspect that the reading of the count added more confusion than it did clarification. The drafting is unfortunate as it alleges facilitation of a "controlled substance offense" [sic] and then proceeds to describe that single predicate offense as the two felonies of "conspiracy to possess with intent to distribute and possession with intent to distribute cocaine."

On this record we are not willing to presume, as the government would have us do, that the jurors must have intended to find appellant guilty of having facilitated someone's possession of cocaine, apart from the conspiracy of which she was acquitted ...

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7 cases
  • Tate v. State
    • United States
    • Court of Special Appeals of Maryland
    • 27 Septiembre 2007
    ...Court of Appeals for the Ninth Circuit agreed with Powell and reversed her conviction on the compound felony. 708 F.2d 455 (1983), and 719 F.2d 1480 (1983) (following In reversing, the Supreme Court pinpointed a critical flaw in the Ninth Circuit's rationale (and a critical flaw in the rati......
  • State v. Grey
    • United States
    • New Jersey Supreme Court
    • 11 Diciembre 1996
    ...and facilitate certain predicate felonies because the jury had acquitted the defendant of the predicate felonies. United States v. Powell, 719 F.2d 1480, 1481 (9th Cir.1983), rev'd, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). The Ninth Circuit acknowledged that it "follows the Dunn r......
  • United States v. Powell
    • United States
    • U.S. Supreme Court
    • 10 Diciembre 1984
    ...irrational nor illogical to require her to accept the burden of conviction on the telephone facilitation counts. P. 69. 708 F.2d 455 and 719 F.2d 1480, Mark I. Levy, Washington, D.C., for petitioner. John J. Cleary, San Diego, Cal., for respondent. Justice REHNQUIST delivered the opinion of......
  • U.S. v. Bucuvalas
    • United States
    • U.S. Court of Appeals — First Circuit
    • 2 Abril 1990
    ...expressly rely on "lone conspirator" cases, as well as our Morales decision, to justify its application of a Dunn exception. 719 F.2d 1480, 1480 n. 1 (9th Cir.1983), rev'd, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984).5 Although the Valles-Valencia court referred to "evidence that ther......
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