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Second Circuit Affirms District Court’s Decision Setting Aside Guilty Verdict in a Case of Irreconcilably Inconsistent Verdicts

by Douglas Ankney

In a case of apparent first impression within the circuit, the U.S. Court of Appeals for the Second Circuit upheld a district court’s decision that set aside a guilty verdict in a case where the jury rendered irreconcilably inconsistent verdicts.

A jury found Janine Plaza Pierce guilty of conspiracy to possess with intent to distribute and to distribute, cocaine, cocaine base, heroin, and marijuana between 1993 and 2011. But after placing a check mark next to “Guilty” on the verdict form, the form then asked the jury to proceed to parts (a), (b), (c), (d), (e), (f), (g), and (h). Part (a) asked the jury to decide if it was “Proven” or “Not Proven” that Pierce conspired to possess with intent to distribute cocaine. The jury placed a check mark next to “Not Proven.” Part (b) then asked if it was “Proven” or “Not Proven” that Pierce conspired to distribute cocaine. Again, the jury placed a check mark next to “Not Proven.” Parts (c) through (h) repeated these two questions for cocaine base, heroin, and marijuana. And the jury repeated its answer of “Not Proven” each time. After the foreman reported the verdicts, the trial judge called counsel to a sidebar and said, “We know we have a problem with a couple of counts here.”

Defense counsel asked to have the jurors polled, and the jurors orally confirmed their verdicts. The judge sent the jurors back to the jury room without discharging them. The judge pointed out the inconsistencies in the verdicts. The prosecutor wanted to ask the jury how they could find Pierce guilty of conspiracy without finding it proven she conspired to distribute or possess any of the individually named narcotics. The judge refused that suggestion as improper. The prosecutor then indicated that the Government’s position was that the jury found Pierce guilty of conspiracy even though they could not unanimously agree as to which narcotics she conspired to distribute or possess.

The judge then said, “I cannot imagine what question to ask the jury to go back and reconsider.” The jury was then discharged. Defense counsel wrote a letter to the judge asking him to dismiss the charge against Pierce. At a hearing on the request, the judge treated it as a motion to set aside the guilty verdict and granted it. The Government appealed.

The Second Circuit observed that there is not a corresponding rule in the Federal Rules of Criminal Procedure to Rule 49(b) of the Federal Rules of Civil Procedure that requires juries to respond to interrogatories when returning a general verdict. United States v. Rogers, 726 F.2d 913 (2d Cir. 1984). In the civil context, when a verdict is rendered inconsistent by the jury’s special interrogatory answers, it is the duty of the court to attempt to harmonize the answers if at all possible. Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d 884 (2d Cir. 1988). Where jury verdicts are inconsistent as to different counts of an indictment, it is of no consequence. Dunn v. United States, 284 U.S. 390 (1932). And in United States v. Dotterweich, 320 U.S. 277 (1943), the Supreme Court rejected a challenge to inconsistent verdicts as to different defendants in a joint trial.

The Second Circuit found that the verdicts in the instant case could not be harmonized. And the cited precedents were of no aid because the factual circumstances were materially different. Pierce’s verdicts were in relation to one defendant and concerned only one count.

The Court then turned to the decisions of other circuits. In United States v. Shipley, 690 F.3d 1192 (10th Cir. 2012), the jury found the defendant guilty of conspiracy to distribute three narcotics but then answered “No” to interrogatories asking whether the defendant conspired to distribute each narcotic. The trial judge instructed the jury to: (1) reconsider its answer to the guilty verdict, (2) reconsider its answers to the interrogatories, or (3) stand on its existing verdict. The jury changed its answer to “Yes” in regard to distributing cocaine.

But in Pierce’s case, the judge did not instruct the jury to take any of these actions. And the prosecutor’s suggestions were unhelpful. Indeed, the judge properly refused the suggestion to ask the jury how they found Pierce guilty of conspiracy without finding any particular conspiracy related to each narcotic was proven. “Courts have always resisted inquiring into a jury’s thought processes.” United States v. Powell, 469 U.S. 57 (1984).

The Second Circuit then considered a decision from the Sixth Circuit. In United States v. Randolph, 794 F.3d 602 (6th Cir. 2012), the jury found the defendant guilty of conspiracy involving three narcotics, but when asked how much of each narcotic the defendant conspired to possess, the jury chose the answer of “None” as to each narcotic. The Sixth Circuit concluded, “Because the jury found that none of the charged drugs were involved in the conspiracy, it follows [the defendant] cannot be guilty of the charged conspiracy.” The Sixth Circuit reversed the conviction and ordered a judgment of acquittal because any retrial would violate the protection against double jeopardy. The Second Circuit agreed with the Sixth Circuit that the appropriate remedy for the inconsistency is to set aside the guilty verdict.

Accordingly, the Court affirmed the decision of the district court. See: United States v. Pierce, 940 F.3d 817 (2d Cir. 2019). 

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Related legal case

United States v. Pierce



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