United States v. Powell

PETITIONER: United States
LOCATION: United States District Court House

DOCKET NO.: 83-1307
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 469 US 57 (1984)
ARGUED: Nov 05, 1984
DECIDED: Dec 10, 1984

John J. Cleary - on behalf of the Respondent
Mark Irving Levy - on behalf of the Petitioner

Facts of the case


Media for United States v. Powell

Audio Transcription for Oral Argument - November 05, 1984 in United States v. Powell

Warren E. Burger:

We will hear arguments first this morning in the United States v. Powell.

Mr. Levy, you may proceed whenever you're ready.

Mark Irving Levy:

Thank you, Mr. Chief Justice, and may it please the Court, since the time of this Court's decision in Dunn v. United States, more than 50 years ago, the rule has been settled in the federal system that inconsistency in a jury's verdict is not a ground to set aside an otherwise valid conviction.

The issue in this case is the validity of an exception to the Dunn rule, adopted by the Ninth Circuit below, for the offense under 21 U.S.C. Section 843 (b), of using a telephone to facilitate a drug felony.

The relevant facts are undisputed and may be briefly summarized.

Respondent was charged in 15 counts with offenses rising out an extensive drug distribution operation.

It was agreed by all in proceedings below, the Respondent's husband and son were the principal operators, and the Respondent was a relatively more minor participant.

Insofar as pertinent here, Respondent was charged in one count with conspiring to possess cocaine with intent to distribute it, and in three counts, with using the telephone to facilitate the cocaine conspiracy.

The jury convicted Respondent on the three telephone counts and acquitted her on the conspiracy court.

On Respondent's appeal, the Ninth Circuit set aside the three telephone convictions on the ground of inconsistency in the verdict.

The court concluded that because the jury had acquitted Respondent on the conspiracy charge that was the offense alleged to have been facilitated by the use of the telephone, the telephone counts could not stand.

The Court recognized the Dunn rule.

The inconsistency in a jury's verdict is not a ground to reverse its convictions; but it held that an exception to Dunn exists for the telephone facilitation offense under Section 843(b).

We submit that this was error.

Our position, in brief, is that this case is controlled by Dunn and that the decision below is flatly inconsistent with both the exact holding and the fundamental rationale of Dunn.

Dunn and its progeny, to which this Court has consistently adhered over the last half century, recognized several basic principles: First, the Dunn rule recognizes that a jury, in the exercise of its power of lenity can acquit a defendant, even though it is entirely convinced of his guilt under the law and the evidence.

Dunn thus makes clear that in the context of inconsistent verdicts, an acquittal is not to be deemed a determination by the jury that it found the Government's evidence inadequate to establish the defendant's guilt.

Because of the jury's power of lenity, Dunn establishes that an inconsistency in the verdict does not undermine or impeach the otherwise valid convictions that the jury returns.

John Paul Stevens:

Mr. Levy, can I ask you a question?

Did the Ninth Circuit cite the Dunn case?

Mark Irving Levy:

It did not cite the Dunn case in its original decision.

The Government sought rehearing, and the court in denying our petition for rehearing, issued a supplemental opinion.

And in that opinion, it cited to and purported to distinguish or find an exception to the Dunn decision.

John Paul Stevens:

I see; because in the first opinion, they merely said there was no evidence to support these convictions.

Mark Irving Levy:

That's correct, and that was said in response to the Government's argument that the verdicts were not, in fact, inconsistent because the jury could have found the Respondent used the telephone to facilitate some offense other than the conspiracy of which she was acquitted.

We have not raised, separately raised that issue for review in this Court, but we did contend in the Court of Appeals that there was no inconsistency on the facts, and the court rejected that because it found there was no evidence in the record to support that theory.

John Paul Stevens:

Well, did they find no evidence in the record to support the theory, or no evidence in the record to support the conviction?

Mark Irving Levy:


Our reading of the opinion, I think, makes it quite clear that they found no evidence in the initial opinion to support the Government's contention that the verdicts were not, in fact, inconsistent.

Now, the Dunn rule also recognizes, in accordance with generally established principles, that convictions are not to be upset by speculation or inquiry into the jury process for the actual reasons for the jury's inconsistency.