MERRITT, Chief Judge.
The United States appeals the District Court’s entry of a judgment of acquittal after a jury conviction pursuant to 18 U.S.C. § 3731 (1988).1 The District Court held that the jury could have convicted the defendant on the basis of a factually incorrect statement introduced in the jury instructions. Because we find that the conviction is sound, we reverse and instruct the District Court to enter the conviction.
I.
Defendant Robert Clemmer served as a police officer in Dayton, Ohio. The government suspected defendant of accepting bribes and pursued an investigation. After the investigation, a grand jury returned a six count indictment against defendant and his alleged co-conspirator, Charles Gentry.2 Four of the counts related to the alleged bribery, and the other two alleged that each defendant filed a false tax return for 1983 in violation of I.R.C. § 7206(1). Count 5 pertained to Clemmer, Count 6 to Gentry. The grand jury worded the indictment broadly.3 At trial, the government used a net worth theory to prove its case against Clemmer under Count 5. It attempted to [572]*572show that defendant’s net worth at the end of the tax year, taking into account certain documented expenditures and nonreporta-ble income (like loans and gifts), could not be accounted for on the basis of defendant’s reported income. While it theorized that the alleged bribes constituted the unreported income, its theory only required it to show the disparity between the defendant’s reported income and his true income as derived from his net worth.
During the charge conference, one of the government’s attorneys erroneously informed the trial judge that the government’s position was that defendant Clem-mer had not reported interest income received from Wilton Auto Sales. J.A. at 721-22. The government theorized that both defendants had invested their bribes in this business, and had received interest on their investments. Defense counsel had objected to any reference to the Wilton Auto Sales income in the charge. J.A. at 721. Both the government and the defendant now agree that Clemmer had received and reported the interest income; his co-conspirator received similar income but did not report it.
On the unreported income charge, the judge instructed the jury as follows:
In assessing the amount of Defendant’s total income, the jury should include any illegally acquired funds along with those lawfully acquired. If the jury finds from the evidence that there was income received, and not reported as the law required, it makes no difference with respect to statements of total income on a tax return, whether such income was lawfully or unlawfully acquired....
Should you find that Hawthorne made to Defendant Clemmer any payment constituting a bribe, such payment is not a gift or loan for tax purposes and the payment must be reported as income on the recipient’s tax return. Furthermore, should you find that Defendant Clemmer received any interest on money loaned to William Littleton of Wilton Auto Sales, such interest is income which must be reported on the recipient’s tax return.
J.A. at 84 (emphasis added). The District Court also instructed the jury about the government’s net worth theory. J.A. at 888-90. When the other government attorney heard the charge, she did not step forward to advise the court that the government would concede that Clemmer had reported the Littleton interest income, as it now agrees it should have done.
During its deliberations, the jury sent a question out to the judge: “On Count 5 & 6 do we have to either prove or disprove both the bribe and the nonreported interest income in order to decide our verdict?” J.A. at 894. After extensive argument from counsel, the judge decided to answer the question “no,” but to remind the jury that the government bears the burden of proof and the jury need not “disprove” anything. J.A. at 902-03. The jury acquitted the two of the bribery charges and convicted them of the tax offenses.
After trial, the District Court entertained motions from counsel asking for judgments of acquittal on the § 7206(1) charges. The District Court granted Clemmer’s motion and denied Gentry’s motion. The court reasoned:
The fact that Defendant Clemmer was found not guilty on Counts 1 through 4 of the Indictment [the bribery charges] strongly suggests that the jury did not believe beyond a reasonable doubt that Clemmer received bribe monies_ Unfortunately, the only reasonable conclusion to be drawn from this set of circumstances is that the jury convicted Defendant Clemmer on Count 5 for failing to report interest income from Wilton Auto Sales.
J.A. at 35. The only way to have convicted Clemmer of the false return, without having a verdict inconsistent with the acquittal for bribery, the court apparently reasoned, would have to be the interest income. But Clemmer had reported that income, so the jury’s verdict was not supported by any evidence. Because Gentry did not report the interest income, the verdict against him would stand.
[573]*573II.
The District Court probed into the jury’s reasoning and attempted to divine why it acquitted defendant of the bribery counts and convicted defendant for the tax offense. It concluded that a conviction for failing to report bribe income would be inconsistent with an acquittal on the underlying bribery charges. However, the Supreme Court has repeatedly held that a jury may announce logically inconsistent verdicts in a criminal case. As Justice Holmes observed, inconsistent verdicts may result from compromise, mercy, or any number of reasons. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). Separate charges in an indictment should be treated like separate indictments, and since acquittal on a criminal charge would not constitute res judicata on any other charge in the indictment, courts should let inconsistent verdicts stand. Id. at 393, 52 S.Ct. at 190. In addition, this policy prevents judges from looking into the motivations behind jury verdicts. United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (conviction for compound crime upheld where defendant acquitted of predicate crime). The District Court erred, therefore, when it conjectured that the jury must have not believed the bribery charges and therefore could have relied only on the interest income to convict defendant. The District Court, under the reasoning of Dunn and Powell, should not have inquired into why the jury voted the way it did or tried to avoid an inconsistent verdict by insisting that the basis for the jury verdict was the interest income.
Furthermore, the District Court’s reasoning is incorrect even if it could hypothesize about the jury’s reasoning. Because the government relied on a net worth theory to prove its case under § 7206(1), it did not need to prove that the defendant accepted any bribes in order to prove that he filed a false tax return.
Free access — add to your briefcase to read the full text and ask questions with AI
MERRITT, Chief Judge.
The United States appeals the District Court’s entry of a judgment of acquittal after a jury conviction pursuant to 18 U.S.C. § 3731 (1988).1 The District Court held that the jury could have convicted the defendant on the basis of a factually incorrect statement introduced in the jury instructions. Because we find that the conviction is sound, we reverse and instruct the District Court to enter the conviction.
I.
Defendant Robert Clemmer served as a police officer in Dayton, Ohio. The government suspected defendant of accepting bribes and pursued an investigation. After the investigation, a grand jury returned a six count indictment against defendant and his alleged co-conspirator, Charles Gentry.2 Four of the counts related to the alleged bribery, and the other two alleged that each defendant filed a false tax return for 1983 in violation of I.R.C. § 7206(1). Count 5 pertained to Clemmer, Count 6 to Gentry. The grand jury worded the indictment broadly.3 At trial, the government used a net worth theory to prove its case against Clemmer under Count 5. It attempted to [572]*572show that defendant’s net worth at the end of the tax year, taking into account certain documented expenditures and nonreporta-ble income (like loans and gifts), could not be accounted for on the basis of defendant’s reported income. While it theorized that the alleged bribes constituted the unreported income, its theory only required it to show the disparity between the defendant’s reported income and his true income as derived from his net worth.
During the charge conference, one of the government’s attorneys erroneously informed the trial judge that the government’s position was that defendant Clem-mer had not reported interest income received from Wilton Auto Sales. J.A. at 721-22. The government theorized that both defendants had invested their bribes in this business, and had received interest on their investments. Defense counsel had objected to any reference to the Wilton Auto Sales income in the charge. J.A. at 721. Both the government and the defendant now agree that Clemmer had received and reported the interest income; his co-conspirator received similar income but did not report it.
On the unreported income charge, the judge instructed the jury as follows:
In assessing the amount of Defendant’s total income, the jury should include any illegally acquired funds along with those lawfully acquired. If the jury finds from the evidence that there was income received, and not reported as the law required, it makes no difference with respect to statements of total income on a tax return, whether such income was lawfully or unlawfully acquired....
Should you find that Hawthorne made to Defendant Clemmer any payment constituting a bribe, such payment is not a gift or loan for tax purposes and the payment must be reported as income on the recipient’s tax return. Furthermore, should you find that Defendant Clemmer received any interest on money loaned to William Littleton of Wilton Auto Sales, such interest is income which must be reported on the recipient’s tax return.
J.A. at 84 (emphasis added). The District Court also instructed the jury about the government’s net worth theory. J.A. at 888-90. When the other government attorney heard the charge, she did not step forward to advise the court that the government would concede that Clemmer had reported the Littleton interest income, as it now agrees it should have done.
During its deliberations, the jury sent a question out to the judge: “On Count 5 & 6 do we have to either prove or disprove both the bribe and the nonreported interest income in order to decide our verdict?” J.A. at 894. After extensive argument from counsel, the judge decided to answer the question “no,” but to remind the jury that the government bears the burden of proof and the jury need not “disprove” anything. J.A. at 902-03. The jury acquitted the two of the bribery charges and convicted them of the tax offenses.
After trial, the District Court entertained motions from counsel asking for judgments of acquittal on the § 7206(1) charges. The District Court granted Clemmer’s motion and denied Gentry’s motion. The court reasoned:
The fact that Defendant Clemmer was found not guilty on Counts 1 through 4 of the Indictment [the bribery charges] strongly suggests that the jury did not believe beyond a reasonable doubt that Clemmer received bribe monies_ Unfortunately, the only reasonable conclusion to be drawn from this set of circumstances is that the jury convicted Defendant Clemmer on Count 5 for failing to report interest income from Wilton Auto Sales.
J.A. at 35. The only way to have convicted Clemmer of the false return, without having a verdict inconsistent with the acquittal for bribery, the court apparently reasoned, would have to be the interest income. But Clemmer had reported that income, so the jury’s verdict was not supported by any evidence. Because Gentry did not report the interest income, the verdict against him would stand.
[573]*573II.
The District Court probed into the jury’s reasoning and attempted to divine why it acquitted defendant of the bribery counts and convicted defendant for the tax offense. It concluded that a conviction for failing to report bribe income would be inconsistent with an acquittal on the underlying bribery charges. However, the Supreme Court has repeatedly held that a jury may announce logically inconsistent verdicts in a criminal case. As Justice Holmes observed, inconsistent verdicts may result from compromise, mercy, or any number of reasons. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). Separate charges in an indictment should be treated like separate indictments, and since acquittal on a criminal charge would not constitute res judicata on any other charge in the indictment, courts should let inconsistent verdicts stand. Id. at 393, 52 S.Ct. at 190. In addition, this policy prevents judges from looking into the motivations behind jury verdicts. United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (conviction for compound crime upheld where defendant acquitted of predicate crime). The District Court erred, therefore, when it conjectured that the jury must have not believed the bribery charges and therefore could have relied only on the interest income to convict defendant. The District Court, under the reasoning of Dunn and Powell, should not have inquired into why the jury voted the way it did or tried to avoid an inconsistent verdict by insisting that the basis for the jury verdict was the interest income.
Furthermore, the District Court’s reasoning is incorrect even if it could hypothesize about the jury’s reasoning. Because the government relied on a net worth theory to prove its case under § 7206(1), it did not need to prove that the defendant accepted any bribes in order to prove that he filed a false tax return. Naturally, the government believes that the source of the unreported income is the bribes, but their inability to convict defendant of bribery does not conflict with the evidence that defendant’s net worth and expenditures exceeded those of a person with his reported income and admitted nonreportable income. The jury may have believed that defendant had extra reportable income that he did not report, but may not have believed beyond a reasonable doubt that this income came from bribes.
III.
The District Court instructed the jury that defendant had to report any interest income he received from Wilton Auto Sales, interest that defendant did report. The defendant contends that a conviction under this instruction would violate Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), but Stromberg is not our case. In Stromberg, the Supreme Court held a general jury verdict because one of the possible grounds of conviction violated the First Amendment. The Court followed the rule that the jury’s verdict must be set aside if it could only be supported on one legally sufficient theory but not on a legally invalid theory and the reviewing court was uncertain which of the two theories was relied on by the jury in reaching the verdict. The prosecution charged Stromberg under a California statute prohibiting various forms of sedition including the display of a red flag. This statute prohibited such display if it symbolized opposition to organized government, if it stimulated anarchistic activity, or if it aided seditious propaganda. The state trial court instructed the jury that if it
should believe beyond a reasonable doubt that the defendants, or either of them, displayed, or caused to be displayed, a red flag, banner, or badge, or any flag, badge, banner, or device of any color or form whatever in any public place or in any meeting place, as charged in count one of the information, and if you further believe from the evidence beyond a reasonable doubt that said flag, badge, banner, or device was displayed, or caused to be displayed, as a sign, symbol, or emblem of opposition to organized government, or was an invitation or stimulus to anarchistic action, or was in aid to propaganda that is of a seditious char[574]*574acter, you will find such defendants guilty as charged in count one of the information.
Id. at 363, 51 S.Ct. at 533. The trial court further instructed the jury that it could convict the .defendant for any one of the three prohibited acts. Id. at 363-64, 51 S.Ct. at 533-34. The jury convicted Strom-berg.
The Supreme Court held that one part of the statute violated the First Amendment. Prohibiting “opposition to organized government” could include a prohibition on peaceful opposition, an activity that the Constitution protects. Id. at 369-70, 51 S.Ct. at 535-36. Because one of the reasons the jury may have used to convict Stromberg was contrary to the First Amendment, because the general verdict did not explain the jury’s reasoning, and because the Court did not want to hypothesize about the jury’s reasoning, the Supreme Court ordered Stromberg released. See also Zant v. Stephens, 462 U.S. 862, 880-84, 103 S.Ct. 2733, 2744-47, 77 L.Ed.2d 235 (1983) (explaining reasons for Strom-berg rule).
Stromberg does not help defendant here. Although the jury in this case issued a general verdict, the defendant cannot demonstrate that any part of the instruction is invalid. There is no legally insufficient ground as in the Stromberg sense. Defendant claims that the jury may have convicted him for accepting the interest income and failing to report it. It could not have, however, if it followed the jury instructions. Judge Rice told the jury that if “Defendant Clemmer received any interest on money loaned to William Littleton of Wilton Auto Sales, such interest is income which must be reported in the recipient’s tax return.” Judge Rice did not tell the jury that if defendant received the interest, he is guilty of filing a false tax return. Nor did Judge Rice tell the jury that defendant did not report the interest. Rather, the judge simply informed the jury that interest is among those types of income that taxpayers must report.
A useful counterpoint to this case is United States v. Kneen, 889 F.2d 770 (8th Cir.1989). In Kneen, the defendant was charged with knowingly taking two tax credits, an Investment Tax Credit and a Business Energy Credit, to which he was not entitled. The judge instructed the jury that it could convict Kneen of violating the Internal Revenue Code for taking either credit wrongfully. The government later conceded that substantial evidence would not support a conviction for taking the Investment Tax Credit alone. The Eighth Circuit vacated this part of Kneen’s conviction because the jury issued a general verdict and the court could not determine whether the jury convicted Kneen for wrongfully taking the Investment Tax Credit — for which there was inadequate ev-identiary support — or the Business Energy Credit, for which there was adequate support. In the case before us, however, the instruction contained no error; rather it only said that if the defendant received the interest income, he had to report it. The jury was not told that he did not report it. Indeed, the government conceded in its closing argument that defendant reported the interest income. We should not assume as does the dissenting opinion that the jury misunderstood or refused to follow a clear instruction not otherwise invalid as in Stromberg.
The jury instructions must be read in light of the government’s net worth theory. The jury learned that it could convict defendant if his net worth and expenditures could not be supported by his reported income and proved nonreportable income. We should not assume that the jury misunderstood this instruction. Similarly, the question that the jury sent out to the judge reflects this understanding. While it indicates that the jury may have been uncertain of its precise duty when it asked the question, we should not assume that the jury convicted the defendant of not reporting the interest income when the proof was to the contrary. In light of the fact that the jury was considering its verdict as to both defendants, one of whom reported the interest income and the other of whom did not, it seems probable that the jury referred to “interest income” simply [575]*575as an example of income not reported that did not come from bribes.
The District Court erred, therefore, when it attempted to recreate what the jury might have thought or believed when it returned a conviction on Count 5. The jury may have believed any number of things, but the instruction itself does not tell the jury that it could convict defendant on the basis of the Wilton Auto Sales income.
IV.
Accordingly, the order of the District Court vacating the conviction is REVERSED, and the case is REMANDED with instructions to re-enter the conviction and continue with further proceedings, including sentencing, not inconsistent with this opinion.