United States v. Powell

• Decision Date: 10 December 1984
• Docket Number: No. 83-1307,83-1307
• Parties: UNITED STATES, Petitioner, v. Betty Lou POWELL
• Court: U.S. Supreme Court

469 U.S. 57

105 S.Ct. 471

83 L.Ed.2d 461

UNITED STATES, Petitioner,

v Betty Lou POWELL.

No. 83-1307.

Argued Nov. 5, 1984.

Decided Dec. 10, 1984.

Syllabus

Respondent was indicted on a number of counts for violations of the federal narcotics laws. Count 1 charged her with conspiracy to possess cocaine with intent to distribute it. The "overt acts" listed in support of this conspiracy included tapped telephone conversations indicating that respondent was helping her husband and son distribute drugs and collect money for drugs sold. Count 9 charged respondent with possession of a specific quantity of cocaine with intent to distribute it. Counts 3-6 charged respondent with the compound offenses of using the telephone in "committing and in causing and facilitating" the alleged conspiracy and possession, in violation of 21 U.S.C. § 843(b). The jury acquitted respondent of Counts 1, 6, and 9, but convicted her of Counts 3-5. On appeal, respondent argued that the verdicts were inconsistent and that therefore she was entitled to reversal of the telephone facilitation convictions. The Court of Appeals agreed. It acknowledged the rule of Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, that a defendant convicted by a jury on one count cannot attack the conviction because it was inconsistent with the verdict of acquittal on another count. It was of the view, however, that situations where a defendant has been convicted under § 843(b) but acquitted of the felony he is charged with facilitating constitute exceptions to the rule, and that in those situations the § 843(b) conviction must be reversed. The court explained that an acquittal on the predicate felony necessarily indicated that there was insufficient evidence to support the telephone facilitation convictions, and mandated acquittal on the telephone facilitation counts as well.

Held: There is no reason to vacate respondent's telephone facilitation convictions merely because the verdicts cannot rationally be reconciled. Pp. 62-69.

(a) The Dunn rule embodies a prudent acknowledgment of a number of factors. First, inconsistent verdicts—even verdicts that acquit on a predicate offense while convicting on the compound offense—should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury's error. The fact that the inconsistency may be the result of lenity, coupled with the Government's inability to invoke review, suggests that inconsistent verdicts should not be reviewable at the defendant's behest. Pp. 64-66.

(b) A rule that would allow defendants to challenge inconsistent verdicts on the ground that they were not the result of lenity but of some error that worked against the defendants, would be imprudent and unworkable. It would be based on pure speculation or would require inquiries into the jury's deliberations that courts generally will not undertake. Pp. 66-67.

(c) 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. P. 67.

(d) To grant an exception to the Dunn rule where the jury acquits a defendant of a predicate felony but convicts on the compound felony, would threaten to swallow the rule. And the argument than an acquittal on the predicate offense necessitates a finding of insufficient evidence on the compound felony simply misunderstands the nature of the inconsistent verdict problem, since it necessarily incorrectly assumes that the acquittal was proper. Pp. 67-69.

(e) Here, respondent was given the benefit of her acquittal on the conspiracy count, and it is neither 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, reversed.

Mark I. Levy, Washington, D.C., for petitioner.

John J. Cleary, San Diego, Cal., for respondent.

Justice REHNQUIST delivered the opinion of the Court.

In Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), this Court held that a criminal defendant convicted by a jury on one count could not attack that conviction because it was inconsistent with the jury's verdict of acquittal on another count. We granted certiorari in this case to determine whether the Court of Appeals for the Ninth Circuit correctly enunciated an exception to Dunn when it overturned respondent's convictions. 467 U.S. 1203, 104 S.Ct. 2383, 81 L.Ed.2d 342 (1984).

In 1982, respondent Betty Lou Powell's husband, Ron Powell, aided by his 17-year-old son Jeff and others, was operating a lucrative cocaine and methaqualone distributorship from the Powell home near San Diego, Cal. Federal authorities tapped the Powells' telephone pursuant to a court order, and many conversations were recorded, including at least four which indicated that respondent was playing a minor role in the drug distributorship. Three of these conversations indicated that respondent was helping her husband and son to distribute drugs and to collect money owed for drugs sold. The fourth involved a conversation with a travel agent in which respondent booked an airline ticket for her husband in an assumed name. In April 1982, Ron Powell learned of the wiretap and notified his son, who called respondent and told her to leave home and drive to Los Angeles. Respondent was followed by FBI agents, who after some difficulty ¹ managed to stop respondent and arrest her. A search of the car uncovered, inter alia, 2 kilograms of cocaine, 2,700 methaqualone tablets, a pistol, a machine gun, 2 silencers, and $30,000 cash.

Respondent was indicted by a grand jury in the Southern District of California for 15 counts of violations of federal law. Ten of these counts alleged transgressions of the federal narcotics laws; a jury convicted respondent of only three of these, and acquitted her of the others.² Count 1 of the indictment charged respondent with conspiring with her husband and 17-year-old son, and others, "to knowingly and intentionally possess with intent to distribute cocaine." Four of the "overt acts" listed in support of this conspiracy were the above-mentioned telephone conversations. Count 9 charged respondent with possession of a specific quantity of cocaine with intent to distribute it. The jury acquitted respondent of Counts 1 and 9. Counts 3, 4, 5, and 6 charged respondent with the compound offenses of using the telephone in "committing and in causing and facilitating" certain felonies—"conspiracy to possess with intent to distribute and possession with intent to distribute cocaine"—in violation of 84 Stat. 1263, 21 U.S.C. § 843(b).³ The jury convicted her of Counts 3, 4, and 5, and acquitted her of Count 6.

On appeal respondent argued that the verdicts were inconsistent, and that she therefore was entitled to reversal of the telephone facilitation convictions. She contended that proof that she had conspired to possess cocaine with intent to distribute, or had so possessed cocaine, was an element of each of the telephone facilitation counts; ⁴ since she had been acquitted of these offenses in Counts 1 and 9, respondent argued that the telephone facilitation convictions were not consistent with those acquittals. The United States Court of Appeals for the Ninth Circuit agreed. 708 F.2d 455 (1983). The court first rejected the Government's contention that the verdicts could be viewed as consistent because the jury might have found respondent guilty of facilitating a conspiracy other than the conspiracy outlined in Count 1; the court concluded that it was "not convinced that there is evidence to support the government's claim . . . ." ⁵ Id., at 456. The court then cited United States v. Bailey, 607 F.2d 237, 245 (CA9 1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769 (1980), and United States v. Hannah, 584 F.2d 27, 28-30 (CA3 1978), for the proposition that a conviction under 21 U.S.C. § 843(b) must be reversed "when the conviction on the underlying conspiracy count is reversed." 708 F.2d, at 456.

The Government petitioned for rehearing, arguing that the court had ignored the rule of Dunn v. United States, supra, that inconsistent verdicts in criminal trials need not be set aside, but may instead be viewed as a demonstration of the jury's leniency. The court issued another opinion, stating that the Ninth Circuit "follows the Dunn rule," but spelling out in more detail the court's view that situations where a defendant has been convicted under § 843(b) but acquitted of the felony he is charged with facilitating constitute exceptions to the rule, and that in those situations the § 843(b) conviction must be reversed. 719 F.2d 1480 (1983).

The Court of Appeals explained that an acquittal on the predicate felony necessarily indicated that there was insufficient evidence to support the telephone facilitation conviction, and mandated acquittal on that count as well. The court went on to reject more explicitly the Government's argument that the jury might have found a different predicate felony than the conspiracy charged in Count 1; it noted that the case simply had not been presented to the jury under such a theory.⁶ We granted certiorari to address whether the Court of Appeals in this case, and other of the Courts of Appeals, see Hannah, supra; United States v. Brooks, 703 F.2d 1273, 1278-1279 (CA11 1983), have acted consistently with Dunn in recognizing exceptions to the rule of that case.

The defendant in Dunn was tried pursuant to a three-count indictment charging violations of the federal liquor laws. The first count alleged that the defendant had maintained...