Inconsistent Verdicts While Tolerable Generally Must Not Be Invited

Inconsistent verdicts are tolerated in the federal criminal system. For example, if the defendant is charged with two crimes and guilt of the second crime requires or at least assumes guilt of the first, then acquittal of the first count will not require reversal of a guilty verdict on the second count. But everyone recognizes that that tolerance for inconsistent verdicts needs to be narrowly prescribed, and in the context presented here, should not be encouraged. In United States v. Moran-Toala, ___ F.3d ___, 2013 U.S. App. LEXIS 16605 (2d Cir. 2013), here, [enhanced version available to lexis.com subscribers], the Second Circuit held that, where the district court in its instructions to the jury in effect sanctioned inconsistent verdicts, the inconsistent guilty verdict must be reversed.

The situation in Moran-Toala may be summarized as follows: The defendant was charged with narcotics conspiracy and with conspiracy to exceed authorized access to a government computer in furtherance of the narcotics conspiracy. (Yes, the second is a crime, however oddly worded; for convenient reference I refer to this as the computer access conspiracy count) The defendant was acquitted of the narcotics conspiracy count but found guilty of the computer access conspiracy count. If that is all that occurred, there would be no reversible error because of the law, noted above, that consistency between and among verdicts is not required.

But, that is not all that occurred. During its deliberations, the jury asked the judge whether consistency between the verdicts was required. The judge answered that question no, although he struggled with the answer. As you might suspect, the Government wanted a victory at all costs and thus wanted the no answer; the defendant wanted a win at all costs and, apparently suspecting that the question indicated the jury believed that the Government had overcharged the case, wanted a yes answer to the question. At the Government's insistence, the Court answered the question no -- in essence telling the jury that it could render inconsistent verdicts. That answer is, of course, the law.

View Jack Townsend's opinion in its entirety on the Federal Tax Crimes blog site.

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