United States v. Sylvester Andrews

850 F.2d 1557, 1988 U.S. App. LEXIS 10699, 1988 WL 73698

Opinions

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 United States v. Andrews, No. 87-3109, at 7 (11th Cir. Oct. 27, 1987) [833 F.2d 1019 (table)] (unpublished, non-argument calendar opinion).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

5.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 “[ijnconsis-tency 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. at 67, 105 S.Ct. at 477.¹²

Upon reconsideration of the consistency issue as a full Court, we overrule Herman.¹³ Consistent verdicts are unre-quired in joint trials for conspiracy: where all but one of the charged conspirators are acquitted, the verdict against the one can stand. The compelling rationale of Dunn and its progency, including Powell, brings us to this conclusion. Andrews urges us to view the jury’s verdict in favor of Ford as a finding that no conspiracy existed between Andrews and Ford. There are, however, explanations for this inconsistency that have nothing to do with whether Andrews actually conspired with Ford to commit a crime. It is just as likely that the admittedly inconsistent verdicts in this case are “the result of mistake, or lenity, and therefore [they] are subject to the Dunn rationale.” Powell, 469 U.S. at 68, 105 S.Ct. at 479. Under the circumstances, “the best course to take is simply to insulate jury verdicts from review on this ground.” Id. at 69, 105 S.Ct. at 479.¹⁴

Our holding today leaves criminal defendants with substantial protection. As the Supreme Court noted in Powell, “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. This review should not be confused with the problems caused by inconsistent verdicts.” Id., 469 U.S. at 67, 105 S.Ct. at 478.

Enough evidence of a conspiracy between Andrews and Ford exists to support the jury’s verdict against Andrews. The testimony of a government informant, a police officer, and a detective implicated the two co-defendants in the sale of cocaine which formed the basis of the indictment in this case. Although Andrews attacks the credibility and accuracy of the government witnesses’ testimony, the evidence certainly “could support [a] rational determination of guilty beyond a reasonable doubt.” Id. (citing Glosser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942)).

Accordingly, we REVERSE the district court’s judgment of acquittal. We remand the case so that the district court can reinstate Andrews’ conviction under Count One (the conspiracy charge) and so that sentencing can take place.¹⁵

1 . Count One of the indictment charged as follows: “In or about early August, 1986, ... in the Middle Judicial District of Florida, [Ford and Andrews] ... did unlawfully ... combine, conspire, confederate and agree together with each other to distribute cocaine" in violation of 21 U.S.C. sections 841(a)(1) and 846. The jury found Andrews guilty, and Ford not guilty, under this count. Count Two charged that Ford and Andrews "did ... distribute and cause to be distributed a quantity of cocaine”, “on or about August 7, 1986,” in violation of 21 U.S.C. section 841(a)(1) & 18 U.S.C. section 2. Both Ford and Andrews were found not guilty under this count.

2 . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent the decisions of the former Fifth Circuit issued before October 1, 1981.

3 .Record, vol. 2, at 283 (the jury must "And the defendants guilty of the crime charged in the indictment.”); id. at 288 ("the indictment charges ..id. ("you will be given a copy of the indictment’); id. ("Count One charges that the defendant knowingly and willfully conspired together to distribute cocaine"); id. at 290 (the evidence must “show beyond a reasonable doubt” that "two or more persons” engaged in an "unlawful plan as charged in the indictment"); id. at 294 ("a separate crime or offense is charged against one or more of the defendants in each count of the indictment"); id. at 295 ("The defendants are on trial only for the specific offenses alleged in the indictment”).

4 . Record, vol. 2, at 283; id. at 288; id. at 291; id. at 294; id. at 295.

5 . In district court, Andrews never contended that the government did otherwise. In his "Motion for Judgment of Acquittal," Andrews acknowledged that *‘[t]he only other persons Mr. Andrews arguably could have conspired with are ‘Git’ and Carlton Smith. Nonetheless, the Government has never alleged — not in the pleadings nor in argument at trial — that Mr. Andrews conspired with anyone other than Mr. Ford.” Record, vol. 1, no. 85, at 3. Again, on appeal, Andrews admits that “the prosecutor did not argue Andrews conspired with anyone other than Ford”, although “the prosecutor referred to the standard jury instruction to the effect that a conspiracy requires ‘two or more persons’ to have a mutual, unlawful understanding." Brief of Appellee Sylvester Andrews on Rehearing En Banc, at 16.

6 . As we have already noted, the district court gave an explicit instruction that "in order to find one or both of the defendants guilty of the crime of conspiracy, you must find that each one of them conspired with someone other than a government agent.” Record, vol. 2, at 291 (emphasis added).

7 . See, e.g., Record, vol. 2, at 239-45 (closing argument of Andrews’ attorney); id. at 254-56 (closing argument of Ford’s attorney).

8 . Ambiguity does not necessarily mean that an alteration of the indictment occurred. And, "[a]s the law of this Circuit makes clear, it is not sufficient simply to demonstrate that an instruction had the potential to confuse a jury.” United States v. Pruitt, 763 F.2d 1256, 1260 (11th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 856, 88 L.Ed. 896 (1986).

9 . Nor do we perceive that a variance occurred such as to prejudice the substantial rights of Andrews. See United States v. Figueroa, 666 F.2d 1375, 1379 (11th Cir.1982) (distinguishing a "constructive amendment" from a "simple variance.”)

10 . See, e.g., United States v. Mosquera, 779 F.2d 628, 630 (11th Cir.1986) (a single conviction will stand so long as the indictment alleges that the defendant conspired with others “known and unknown” and sufficient evidence supports the conviction); United States v. Irvin, 787 F.2d 1506, 1512-13 (11th Cir.1986) (Herman does not apply when some or all of the alleged co-conspirators were acquitted in a separate trial). Several opinions have strongly questioned the current validity and correctness of Herman. See, e.g., id. (citing United States v. Espinosa-Cerpa, 630 F.2d 328 (5th Cir.1980)).

11 . For general background on the "rule of consistency", see Comment, The Unnecessary Rule of Consistency in Conspiracy Trials, 135 U.Pa.L. Rev. 223 (1986).

12 . None of the "exceptions” noted by the Supreme Court in Powell, 469 U.S. at 67, 69 n. 8, 105 S.Ct. at 477, 479 n. 8, even remotely applies to the instant appeal.

13 . The district court correctly determined that Herman controlled its decision to acquit Andrews. Likewise, in affirming Andrews’ judgment of acquittal, our panel “recognize[d] that the inconsistent verdicts reached in Powell differ conceptually from the ‘inconsistency’ that underlies this appeal; so Herman was not overruled by Powell and Herman continues to bind us when ‘all but one of the charged conspirators are acquitted_’” Andrews, No. 87-3109, at 5-6 (quoting Herman, 289 F.2d at 368). Absent a clear, contrary holding by the Supreme Court, our panel and the district court adhered to our usual policy and considered themselves bound by Herman.

In Powell, the Supreme Court upheld a jury verdict that found the defendant-appellant guilty of using the telephone to facilitate a felony, yet innocent of the predicate felony. Powell, 469 U.S. at 60, 105 S.Ct. at 474. The instant case differs conceptually from Powell because Andrews was found guilty under a conspiracy charge that named only him and one other co-defendant, Ford, who was found not guilty. Cf. Dotterweich, 320 U.S. at 279, 64 S.Ct. at 135 (affirming conviction under verdict finding the president of a corporation guilty of introducing adulterated or misbranded drugs into commerce, but acquitting the corporation of the same charge); Harris, 454 U.S. at 340-48, 102 S.Ct. at 462-66 (denying relief to habeas petitioner who was convicted in state court in joint trial even though petitioner’s three co-defendants — who were found not guilty — allegedly participated in the same burglary).

14 . It is noteworthy that the United States Court of Appeals for the Ninth Circuit recently has rejected its own traditional "inconsistent jury verdict" rule as it pertains to conspiracies. The court stated as follows:

Because of the [United States v. Powell] decision, the broad language from [Lubin v. United States, 313 F.2d 419, 422-23 (9th Cir.1963) ] to the effect that the acquittal of all but one of the alleged co-conspirators requires the acquittal of the remaining defendant can no longer be relied upon.

United States v. Valles-Valencia, 823 F.2d 381, 382 (9th Cir.), modifying 811 F.2d 1232 (9th Cir.1987). Because they perceived the significance of Powell to be so clear and powerful, the Valles-Valencia panel even rejected the need for an en banc hearing before overruling the circuit’s precedent. Id.

15 . We believe that Judge Clark’s view of the Record — especially his transcript of the tape recording — invades the jury’s province as factfinder and, more important, is mistaken. The following facts are undisputed. The jury instructions — to which there was no objection — told the jury that "the defendants are on trial only for the specific offenses alleged in the indictment.” Andrews was indicted for conspiring only with Ford. The government argued for and introduced evidence of the Andrews-Ford conspiracy. Although on cross-examination the government, seeking to impeach Andrews’ story that others were involved, asked questions about his direct testimony, the government never argued that Andrews conspired with someone other than Ford or that Andrews could be convicted for conspiring with someone other than Ford, From these facts, we conclude that Andrews was tried for conspiring with Ford.

These facts make our case different from the cases cited by Judge Clark, including United States v. Salinas, 654 F.2d 319 (5th Cir. Unit A 1981), the case upon which he relies most heavily. In Salinas, Salinas was charged in the indictment with aiding and abetting a specific bank president, Woodul, in the misapplication of bank funds. At trial, no evidence linked Woodul to the improper bank loan. Put differently, no evidence supported the offense as charged in the indictment. The evidence showed that the aided and abetted person was actually another bank officer, Nance. The trial judge — faced with this difficulty — simply charged the jury that, if Salinas aided any bank officer, Salinas could be found guilty. A Fifth Circuit panel concluded that Salinas had not been tried and convicted for the same offense for which he had been indicted. We accept Salinas as precedent, but this case is unlike Salinas. In this case, evidence supported the offense charged in the indictment, and the trial judge repeatedly tied his jury instructions to the specific crime as charged in the indictment. For a case more similar to ours and rejecting a constructive amendment claim, see United States v. Ylda, 653 F.2d 912 (5th Cir. Unit A 1981).

On the Herman issue, Judge Clark says that this case is controlled by Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534 (1944). But, Hartzel cannot control this case because Hartzel is not an inconsistent jury verdict case. In Hartzel, the “only co-conspirators of petitioner named in the indictment” had their convictions set aside by judges on the ground of insufficient evidence. The Supreme Court did not address the significance of an acquittal of co-conspirators by a jury where the evidence would have allowed a verdict of guilty. Here, the trial judge found enough evidence of conspiracy to let the case against both defendants go to the jury, and we have found sufficient evidence to support a guilty verdict against Ford (had the jury found him guilty) or Andrews or both. Powell teaches us that a not-guilty verdict for Ford is not the same thing as a finding of insufficient evidence to allow a conviction.