UNITED STATES OF AMERICA, PETITIONER V. BETTY LOU POWELL

   No. 83-1307

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory provision involved
   Statement
   Summary of argument
   Argument:
      The Dunn rule precludes reversal of a conviction
      on the ground of inconsistency in the jury's verdict
      A. The Dunn rule is well settled and requires that
         a conviction be upheld, notwithstanding any
         inconsistency in the jury verdict, if it is
         supported by sufficient evidence
      B. The court of appeals erred in creating an exception
         to the Dunn rule for compound-predicate offenses
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-5a) is reported
at 708 F.2d 455.  The order of the court of appeals denying the
government's petition for rehearing (Pet. App. 6a-8a) is reported at
719 F.2d 1480.

                             JURISDICTION

   The judgment of the court of appeals was entered on June 14, 1983.
The government's petition for rehearing was denied on November 10,
1983 (Pet. App. 6a-8a).  On January 3, 1984, Justice Rehnquist
extended the time within which to file a petition for a writ of
certiorari to and including February 8, 1984.  The petition was filed
on February 7, 1984, and was granted on May 21, 1984 (J.A. 30).  The
jurisdiction of this Court rests upon 28 U.S.C. 1254(1).  /1/

                     STATUTORY PROVISION INVOLVED

   21 U.S.C. 843(b) provides:

         It shall be unlawful for any person knowingly or
      intentionally to use any communication facility in committing or
      in causing or facilitating the commission of any act or acts
      constituting a felony under any provision of this subchapter or
      subchapter II of this chapter.  Each separate use of a
      communication facility shall be a separate offense under this
      subsection.  For purposes of this subsection, the term
      "communication facility" means any and all public and private
      instrumentalities used or useful in the transmission of writing,
      signs, signals, pictures, or sounds of all kinds and includes
      mail, telephone, wire, radio, and all other means of
      communication.

                          QUESTION PRESENTED

   Whether, under the "inconsistent verdict" rule of Dunn v. United
States, 284 U.S. 390 (1932), a conviction based upon a jury verdict
finding a defendant guilty of using a telephone to facilitate a
controlled substance offense may be set aside on the ground that it is
inconsistent with the defendant's acquittal of the offense alleged to
have been facilitated.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Southern District of California, respondent was convicted on three
counts (Counts 3-5) of using a telephone to facilitate a conspracy to
possess cocaine with intent to distribute it or the substantive
offense of possession of cocaine with intent to distribute it, in
violation of 21 U.S.C. 843(b), and on one court (Court 15) of making a
false statement to a United States magistrate in connection with her
request for the appointment of counsel, in violation of 18 U.S.C.
1001.  Respondent was acquitted by the jury on one count (Count 1) of
conspiracy to possess cocaine with intent to distribute it (21 U.S.C.
846).  /2/ She was sentenced to concurrent terms of four years'
imprisonment on each of the convictions.  The court of appeals
reversed the convictions on the three counts of telephone facilitation
and affirmed the conviction of false statement;  it remanded to permit
the district court to resentence respondent in light of the reversal
of the telephone facilitation convictions.  Pet. App. 1a-5a.

   1. The evidence at trial consisted largely of recordings of
telephone conversations that were intercepted pursuant to
court-authorized electronic surveillance in April 1982.  With respect
to the telephone facilitation courts, /3/ the evidence showed that
respondent's husband, Ron Powell, and their son, Jeff, operated an
extensive network to distribute cocaine and quaaludes in their home
city of San Diego and in Los Angeles and St. Louis (Tr. 633-634, 654).
 The residence where respondent and her husband lived served as the
headquarters for the distribution network and was used to store
controlled substances, drug paraphernalia, and records related to the
drug operation (Tr. 152-156, 176-200).

   Ron Powell was the central figure in the operation and took in a
gross amount of approximately $15,000 per week (Tr. 930-931).
Although respondent played a subordinate role in the organization,
"she knew what was going on" as the defense conceded to the jury (Tr.
1265), /4/ and both assisted and benefited from the drug activities.
/5/

   In March 1982, Ron Powell went to Europe and left Jeff in charge of
the drug business.  While Ron was away, respondent was involved in
several telephone calls related to drug transactions (Tr. 329-342).

   On April 9, 1982, Ron Powell telephoned that he would be returning
home in two days (Tr. 430-432, 437-438).  During the conversation he
asked Jeff about collections that were due for various drug deals.  In
an effort to make the collections before his father arrived, Jeff
began to call drug customers, including Sam Spindle (Tr. 439-440).
The next day, Spindle came by respondent's residence to buy drugs, but
Jeff was not at home;  Spindle talked to respondent, who located Jeff
by telephone and reminded him about Spindle (Tr. 442).

   On April 11, Jeff picked up his father at the Los Angeles airport.
That evening Jeff called respondent at home (Tr. 466-470;  J.A. 9-11).
 Respondent told him that Sam Spindle, who still owed money for drug
purchases (Tr. 447, 453), had not called, but Jeff said that Spindle
had contacted him (Tr. 469;  J.A. 10).  Jeff asked respondent "to do
(him) a favor" and "call the Thin Man" (ibid.);  the "Thin Man" was
the nickname of Sandy Segal, who had agreed to obtain the money from
Spindle for Jeff (Tr. 941-943).  After respondent said that she would
make the call, the following conversation occurred (Tr. 469-470;  J.A.
10-11):

         Jeff:  Okay.  Which his phone number --

         (Respondent):  Yeah, I know.

         Jeff:  And ask him if he has the coupons /6/ and if he does,
      ask him if -- if he would bring them over.

         (Respondent):  If he can bring them.

         Jeff:  (Unintelligible) coupons to him.

         (Respondent):  Oh, okay.

         Jeff:  All right?

         (Respondent):  If he can bring them over to me

         Jeff:  Yeah.

         (Respondent):  Okay.

         Jeff:  All right.

         (Respondent):  All right.

That telephone call formed the basis for Count 3 of the indictment.

   Approximately three minutes after completing the telephone
conversation with Jeff, respondent placed a call to Sandy Segal (Tr.
470-478;  J.A. 11-16):

         Sandy:  Hello.

         (Respondent):  Hi.  It's me.

         Sandy:  Hi.

         (Respondent):  Listen, did Samuel come by and visit you?

         Sandy:  Yeah.  Well, yes and no.  I was supposed to go pick
      it up and I haven't -- can I take care of that in the morning?

         (Respondent):  Well, that's what Ron -- they called and he
      wants all the money home tonight because that was the
      arrangement Sam made.

                      *     *     *     *     *

         (Respondent):  (Last night Sam said that he would) "be over
      (today) before ten o'clock," and I said, "Listen, Sam, I'm sick
      of messing around with your crap and doing things around you."

         Sandy:  Yeah.

         (Respondent):  I said, "From now on people want to do
      something, they'll do it around me."

         Sandy:  Yeah.

         (Respondent):  And I mean it.  I'm sick of it, Sandy.

                      *     *     *     *     *

         Sandy:  (Ron) wants the coupons tonight, huh?

         (Respondent):  Yeah.  Only because -- the only reason he
      wants them is only because --

         Sandy:  Does he know I have them?

         (Respondent):  Huh?

         Sandy:  Does he know I have them?

         (Respondent):  No.  He knows that Sam told you.

         Sandy:  (Laughs.)

         (Respondent):  See, he don't believe me, see.  I don't

         either.

Tr. 471-472, 478;  J.A. 11-12, 16.  /7/ Respondent's telephone call to
Segal formed the basis for Count 4 of the indictment.

   Following his return from Europe, Ron Powell made arrangements for
a new shipment of cocaine to be brought to San Diego.  Among the
people involved were Sandra Thomas and someone named "Nolan" (Tr.
534-548, 1164-1167).  Respondent assisted in this project by answering
the telephone, taking messages, and returning calls (Tr. 549,
1164-1165).  /8/

   On April 16, Sam Spindle called Ron Powell several times to arrange
to purchase "jackets" -- that is, one-eighth of an ounce (Tr. 277-278,
440, 581, 936) -- of the new cocaine (Tr. 576-597).  Powell indicated
that he would leave the cocaine with respondent for Spindle to pick up
(Tr. 581).  Spindle eventually decided to buy a "cuter," or
one-quarter ounce (Tr. 345, 362, 804, 935), of cocaine (Tr. 597).
Powell then called respondent at her office (Tr. 598-605;  J.A.
17-21).  He said that he was "leaving a package for Sam on the bed,"
and he told her "to hurry home" because "(Sam's) going to come right
after you get (t)here" (Tr. 600;  J.A. 18).  Respondent agreed to do
so.  /9/ This telephone conversation formed the basis for Count 5 of
the indictment.

   On April 23, Ron Powell learned of the existence of the wiretap
(Tr. 679-680, 687-691, 1173).  Powell called Jeff and told him to
"cleanup" (Tr. 691, 895).  Jeff then told respondent to leave the
house and drive to Los Angeles (Tr. 896, 1086).  She was followed by
FBI agents, who realized that Powell was aware of the wiretap and were
concerned that evidence would be removed from the Powells' residence
(Tr. 29, 33, 37, 45-47, 58, 66, 692).  Respondent was driving at a
high rate of speed and did not stop when FBI vehicles pulled alongside
her car and the agents identified themselves (Tr. 46-47, 71, 92).
Instead, she made an illegal U-turn and sped away after forcing
another car off the road (Tr. 72, 73).  The FBI agents eventually
caught up with respondent, and they again identified themselves and
advised respondent that she was under arrest (Tr. 74).  Respondent
refused to surrender and eluded apprehension by running her car into
one agent and an FBI vehicle and narrowly missing a second agent (Tr.
75, 95-96).  Shortly thereafter, respondent was stopped and arrested
(Tr. 77-78).  Her car was impounded and, in a later search conducted
pursuant to a warrant, was found to contain approximately two
kilograms of cocaine, 2700 quaalude tablets, marijuana, a
semi-automatic pistol with exploding bullets, two illegal silencers, a
machine gun, various other firearms and drug paraphernalia, and more
than $30,000 in cash (Tr. 129-150, 202-221, 779).  In addition,
passports for Ron and Jeff Powell were found in respondent's purse
(Tr. 706-707).

   2. In its instructions on the telephone facilitation counts, the
district court read the relevant portion of 21 U.S.C. 843(b) to the
jury (Tr. 1314;  J.A. 25).  It then summarized the elements of the
charges against respondent (ibid.):

      The elements of the offense charged in counts three through six
      of the indictment are as follows:  first, that (respondent) used
      a telephone at the time charged to commit, cause, or facilitate
      the commission of conspiracy to possess cocaine with intent to
      distribute or possession of cocaine with intent to distribute;
      secondly, that she did so knowingly or intentionally.

In addition, the court in its general instructions advised the jury
that "(a) separate crime or offense is charged in each count of the
indictment.  Each charge and the evidence pertaining to it should be
considered separately.  The fact that you may find the accused guilty
or not guilty as to one of the offenses charged should not control
your verdict as to any other offense charged" (Tr. 1287;  J.A. 24).
The jury convicted respondent on three counts of using a telephone to
facilitate a controlled substance offense and on one count of making a
false statement;  it acquitted respondent on the remaining counts.

   3. On respondent's appeal, the Ninth Circuit reversed respondent's
three convictions for telephone facilitation and affirmed her false
statement conviction (Pet. App. 1a-5a).  The reversal of the Section
843(b) counts rested on the court of appeals' conclusion that the
jury's guilty verdict was inconsistent with the acquittal on the
conspiracy offense in Count 1.  In reaching that result, the court of
appeals rejected the government's contention that these verdicts were
not inconsistent and could be reconciled on the theory that respondent
had used the telephone to facilitate the possession of cocaine by
someone not involved in the conspiracy alleged in Count 1 (Pet. App.
2a).  Having found that the verdicts were inconsistent, the court
simply concluded, without elaboration, that "(t)hus, on the facts of
this case, we must reverse the convictions as to (the three Section
843(b) counts)" (ibid.).  The court did not address the government's
argument that the guilty verdicts were not invalid in light of the
"inconsistent verdict" rule of Dunn v. United States, 284 U.S. 390
(1932).

   The panel denied the government's petition for rehearing and issued
an order explaining its earlier opinion (Pet. App. 6a-8a).  The court
referred to the rule of Dunn v. United States, supra, that
"inconsistent verdicts do not require reversal, but may be viewed as a
demonstration of the jury's leniency" (Pet. App. 6a), and it
acknowledged that "(t)his circuit follows the Dunn rule" (ibid.).
Emphasizing that even under Dunn "there must nevertheless be
sufficient evidence to sustain the guilty verdict" (ibid.), the court
stated, without further explanation, that "(o)ne of the exceptions to
the application of the Dunn rule, is the situation where the defendant
is charged with violation of 21 U.S.C. Section 843(b) and the
underlying felony, said to have been facilitated, is reversed." Id. at
6a-7a (footnote omitted).  Adhering to its view that the verdicts were
in fact inconsistent here (id. at 7a-8a), the court held that "(w)hen
the prosecution tries its case on the theory that the felony of which
the defendant is subsequently acquitted, is the predicate felony for
the telephone facilitation counts, convictions of the latter must be
reversed for lack of sufficient evidence" (id. at 7a).  /10/

   Based on the reversal of the Section 843(b) counts, the court of
appeals remanded the case "to the district court to permit
resentencing on (the false statement count)" (Pet. App. 5a).  The
court found that "(t)he possibility is * * * strong that had
(respondent) been sentenced only on (the false statement count) she
might have received a less severe sentence" (id. at 4a-5a).  For this
reason the court declined to "apply the concurrent sentence doctrine
and not inquire into the asserted error as to (the telephone
facilitation counts)" (ibid.).  /11/

                          SUMMARY OF ARGUMENT

   In Dunn v. United States, 284 U.S. 390 (1932), this Court held that
a conviction is not to be reversed because of an inconsistency in the
jury's verdict.  Although an acquittal on some counts and a conviction
on others may in fact be inconsistent, "'that does not show that (the
jury was) not convinced of the defendant's guilt.'" 284 U.S. at 393
(citation omitted).  Rather, such a verdict can reflect the jury's
exercise of "'lenity'" (ibid.).  Dunn establishes that "(c)onsistency
in the verdict is not necessary.  * * * (V)erdicts cannot be upset by
speculation or inquiry into (the reasons for the inconsistency)" (284
U.S. at 393, 394).

   For more than 50 years the Court has adhered to the Dunn rule
without exception.  These decisions make clear, as the Court recently
reaffirmed, that "(i)nconsistency in a verdict is not a sufficient
reason for setting it aside.  * * * (The Dunn rule recognizes) the
unreviewable power of a jury to return a verdict of not guilty for
impermissible reasons." Harris v. Rivera, 454 U.S. 339, 345, 346
(1981).  Where, as here, "a guilty verdict * * * is supported by
sufficient evidence and is the product of a fair trial" (Harris v.
Rivera, 454 U.S. at 344), it is a valid expression of the jury's
determination and should not be set aside on grounds of inconsistency.

   The court of appeals sought to create an exception to the Dunn rule
for the telephone facilitation offense in 21 U.S.C. 843(b), which
includes as an essential element the existence of an underlying
offense that was facilitated by the use of the telephone.  In the
court's view, the acquittal on the offense alleged to have been
facilitated rendered invalid the convictions on the telephone
facilitation counts.

   The Dunn rule is not subject to an exception for such
compound-predicate offenses.  Dunn reflects the jury's unreviewable
power to acquit for reasons of lenity even though it was convinced of
the defendant's guilt.  That rationale is just as applicable in a case
involving compound-predicate offenses as in any other.  Furthermore,
the court of appeals' exception is inconsistent with the holding in
Dunn itself, which sustained a conviction on a compound-predicate
nuisance count despite the jury's acquittal on the underlying
offenses.

   Nor does the discussion of res judicata in Dunn, which draws an
analogy to inconsistent judgments at separate trials, support the
court of appeals' exception to the Dunn rule.  That discussion was of
doubtful correctness even at the time and in any event has long since
been repudiated by subsequent decisions of this Court.  Nevertheless,
the Dunn rule remains of unquestioned soundness based on the jury's
power of lenity.  Moreover, any exception derived from res judicata
principles would threaten to swallow the Dunn rule and would indicate
that Dunn itself was wrongly decided.

   Thus, contrary to the decision below, the Dunn rule controls this
case and precludes reversal of respondent's convictions under 21
U.S.C. 843(b) on the ground of inconsistency in the jury's verdict.

                               ARGUMENT

 THE DUNN RULE PRECLUDES REVERSAL OF A CONVICTION ON THE GROUND OF
INCONSISTENCY IN THE JURY'S VERDICT

 A. The Dunn Rule Is Well Settled And Requires That A Conviction Be
Upheld, Notwithstanding Any Inconsistency In The Jury Verdict, If It
Is Supported By Sufficient Evidence

   1. Few principles of criminal law are as well established as the
rule of Dunn v. United States, 284 U.S. 390, 393, 394 (1932), that
"(c)  onsistency in the verdict is not necessary.  * * * (V)erdicts
cannot be upset by speculation or inquiry into (the reasons for the
inconsistency)." The Court has adhered to the Dunn rule for more than
50 years and has recently reaffirmed that "(i)nconsistency in a
verdict is not a sufficient reason for setting it aside." Harris v.
Rivera, 454 U.S. 339, 345 (1981).  See also Hamling v. United States,
418 U.S. 87, 101 (1974);  United States v. Dotterweich, 320 U.S. 277,
279 (1943);  Borum v. United States, 284 U.S. 596 (1932);  United
States v. Furlong, 18 U.S. (5 Wheat.) 184, 201 (1820);  cf. Standefer
v. United States 447 U.S. 10 (1980).  These decisions "preclude a
holding that inconsistency in a verdict is intolerable in itself."
Harris v. Rivera, 454 U.S. at 346.

   Dunn explained why an inconsistency in the verdict does not
undermine the counts on which the defendant is convicted:

         "The most that can be said in such cases 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.  We
      interpret the acquittal as no more than their assumption of a
      power which they had no right to exercise, but to which they
      were disposed through lenity."

284 U.S. at 393 (quoting Steckler v. United States, 7 F.2d 59, 60 (2d
Cir. 1925) (L. Hand, J.));  see also Harris, 454 U.S. at 347.  Thus,
the Dunn rule reflects "the unreviewable power of a jury to return a
verdict of not guilty for impermissible reasons." Harris, 454 U.S. at
346 (footnote omitted).  A jury "in a criminal case has traditionally
been permitted to enter an unassailable but unreasonable verdict of
'not guilty' * * * even if the evidence of guilt is overwhelming"
(Jackson v. Virginia, 443 U.S. 307, 317 n.10 (1979)), and it "has the
power to bring in a verdict in the teeth of both law and facts."
Horning v. District of Columbia, 254 U.S. 135, 138 (1920).  See also
Strickland v. Washington, No. 82-1554 (May 14, 1984), slip op. 24-25;
United States v. Maybury, 274 F.2d 899, 902-903 (2d Cir. 1960)
(Friendly, J.).  /12/ Such a verdict can result from jury "lenity,"
/13/ "mercy," /14/ or "compassion," /15/ as well as from "compromise"
/16/ or from "mistake," /17/ "carelessness," /18/ or "irrationality."
/19/

   The Dunn rule serves several important policies.  First, it
protects the integrity of the jury's verdict and ensures that an
acquittal based on leniency or compromise will not invalidate the very
conviction that the jury determined to be appropriate.  As Judge
Friendly explained in United States v. Carbone, 378 F.2d 420, 422 (2d
Cir.), cert. denied, 389 U.S. 914 (1967):

      The very fact that the jury may have acquitted of one or more
      counts in a multi-count indictment because of a belief that the
      counts on which it * * * convicted will provide sufficient
      punishment * * * forbids allowing the acquittal to upset or even
      to affect the simultaneous conviction.  /20/

Furthermore, by sustaining the conviction and obviating the need for a
retrial, the Dunn rule both enhances the efficient administration of
justice and advances "the important federal interest in the
enforcement of the criminal law" (Standefer, 447 U.S. at 24).
Finally, the Dunn rule preserves for the defendant the advantages of
the jury's acquittal even though, as Dunn noted (284 U.S. at 393
(citation omitted)), there exists the possibility that "'the jury did
not speak their real conclusions'" in rendering that verdict and
instead were "'convinced of the defendant's guilt.'" /21/ Hence, while
consistency in the verdict and "symmetry of results may be
intellectually satisfying, (they are) not required" (Standefer, 447
U.S. at 25) and do not contravene the analysis and policies underlying
the Dunn rule.  Accordingly, if "a guilty verdict * * * is supported
by sufficient evidence and is the product of a fair trial" (Harris,
454 U.S. at 344), it is a valid expression of the jury's determination
and should not be reversed on grounds of inconsistency.

   2. In reversing respondent's convictions on the Section 843(b)
counts, the court of appeals did not assert that there was any defect
or unfairness in the trial proceedings.  Nor did it -- apart from the
issue of inconsistency -- controvert the sufficiency of the evidence
under traditional standards to support the guilty verdicts on those
counts.

   In fact, the evidence at trial (see pages 3-9, supra) clearly
establishes respondent's guilt.  See generally Jackson v. Virginia,
443 U.S. at 316-320, 324, 326.  /22/ Respondent engaged in repeated
telephone conversations that furthered the drug enterprise, and she
benefited substantially from its success.  Moreover, respondent
"knew," as the defense conceded to the jury, "what was going on" (see
page 4, supra), and she was knowledgeable about the drug operations.
For example, as shown in the telephone calls of April 11 (see pages
5-7, supra), respondent was aware of the identity of the person
referred to as "the Thin Man" and had his phone number.  /23/ In
addition, she was familiar with the term "coupons," which was a coded
reference to money.  In these circumstances, where respondent's "trial
was fairly conducted * * * (and) the record contains adequate evidence
of (her) guilt * * * beyond a reasonable doubt" (Harris, 454 U.S. at
348 (footnote omitted)), Dunn precludes reversal of her convictions
under Section 843(b) on inconsistent verdict grounds.

   To be sure, in setting aside respondent's convictions on the ground
of inconsistency in the verdict, the court of appeals stated that "(w)
 hen the prosecution tries its case on the theory that the felony of
which the defendant is subsequently acquitted, is the predicate felony
for the telephone facilitation counts, convictions of the latter must
be reversed for lack of sufficient evidence" (Pet. App. 7a).
Accordingly, the court held "that there is insufficient evidence to
support the convictions on (the telephone facilitation counts)" (id.
at 8a).

   In so holding, the court of appeals confused the concepts of
sufficiency of the evidence and consistency of the verdict.  As just
discussed, there is no doubt that the evidence of respondent's guilt
on the telephone facilitation counts was adequate under traditional
standards.  Of course, the telephone counts required proof of the
offense alleged to have been facilitiated.  /24/ But -- apart from the
fact that the jury returned an inconsistent verdict -- the government
did prove the existence of the facilitated offense, as the jury must
have found in convicting respondent on the telephone facilitation
counts.  Cf. Standefer, 447 U.S. at 20-21 n.14.  Thus, the only issue
presented is whether those convictions are rendered invalid by the
inconsistency in the verdict.  In casting its decision in terms of the
sufficiency of the evidence, the court of appeals failed to understand
that "'(t)he question whether the evidence is constitutionally
sufficient is of course wholly unrelated to the question of how
rationally the verdict was actually reached.'" Harris, 454 U.S. at 348
n.20 (quoting Jackson v. Virginia, 443 U.S. at 319-320 n.13).  /25/

 B. The Court Of Appeals Erred In Creating An Exception To The Dunn
Rule For Compound-Predicate Offenses

   The court of appeals set aside respondent's convictions on the
basis of an "exception() to the application of the Dunn rule * * *
where the defendant is charged with (a) violation of 21 U.S.C. Section
843(b) and the underlying felony, said to have been facilitated, is
reversed." Pet. App. 6a-7a (footnote omitted).  The decisions of this
Court contain no limitation on the categorical and unqualified nature
of the Dunn rule, however, and the court of appeals erred in creating
such an exception.

   The court of appeals' exception to Dunn, although in accord with
other decisions that have carved out an exception for convictions
under Section 843(b), /26/ is unjustified and squarely incompatible
with the rationale of the Dunn rule as consistently followed by this
Court for more than half a century.  Dunn acknowledges the
unreviewable power of the jury to acquit as a result of "lenity,"
"compromise," or "mistake" (284 U.S. at 393-394), and it recognizes
that such an acquittal "'does not show that (the jurors) were not
convinced of the defendant's guilt'" (284 U.S. at 393 (citiation
omitted)).  These considerations are no less applicable where, as in
this case, one offense includes as an essential element the commission
of an underlying offense -- that is, "compound-predicate" offenses.
/27/

   Indeed, the premise of the decision in Dunn is in fact the
likeliest explanation of the verdicts in this case.  The evidence of
respondent's guilt on the charges of which she was acquitted was
generally quite strong.  Since, however, as the prosecutor
characterized it in his closing argument, respondent was "not the
heavy * * * (but rather a) small-time partic(i)pant in a major
narcotics organization" (Tr. 1208), the jury may have been moved by
leniency to acquit respondent of the cocaine conspiracy even though it
was equally convinced of her guilt on that count as on the telephone
facilitiation counts on which she was convicted.  Especially in light
of the instruction to the jury that "(e)ach charge and the evidence
pertaining to it should be considered separately" and that "(t)he fact
that you may find the accused guilty or not guilty as to one of the
offenses charged should not control your verdict as to any other
offense charged" (Tr. 1287;  J.A. 24), /28/ such leniency could, as
Dunn recognizes, fully account for the jury's verdict.  /29/

   In addition, Dunn itself directly forecloses the exception
conceived by the court of appeals for compound-predicate offenses.  In
Dunn, the defendant was convicted on one count of maintaining a common
nuisance by keeping liquor for sale, in violation of 27 U.S.C. (1928
ed.) 33, and was acquitted on two counts (27 U.S.C. (1928 ed.) 12) of
unlawful possession and unlawful sale of liquor.  The evidence was
identical on all three counts, and the nuisance count was based on the
same conduct alleged in the possession and sale counts.  See Dunn, 284
U.S. at 391;  id. at 394-395, 397, 398, 407 (Butler, J., dissenting).
The nuisance statute provided (27 U.S.C. (1928 ed.) 33 (emphasis
added)):

         Any * * * building * * * or place where intoxicating liquor
      is manufactured, sold, kept, or bartered in violation of this
      chapter * * * is hereby declared to be a common nuisance * * *.

Likewise, the nuisance count in the indictment alleged (see 284 U.S.
at 394 (Butler, J., dissenting) (emphasis added)) that the defendant
"'did * * * maintain a common nuisance, in then and there knowingly
and willfully committing a prohibited and unlawful act of keeping for
sale at said place certain intoxicating liquor * * *.'" Thus, the
nuisance charge on which Dunn was convicted involved a compound
offense that included as an essential element the commission of a
predicate offense -- possession or sale -- on which the defendant was
acquitted.  See 284 U.S. at 395 (Butler, J., dissenting).  /30/ In
holding on this record that "(c)onsistency in the verdict is not
necessary" (284 U.S. at 393), the Court's decision establishes that
the Dunn rule does not admit of the exception for compound-predicate
offenses adopted by the court below.  /31/

   In establishing an exception to Dunn for the compound offense in
Section 843(b), the courts of appeals have relied on the following
passage in the Dunn opinion (284 U.S. at 393 (citations omitted)):

      Each count in an indictment is regarded as if it was a separate
      indictment.  If separate indictments had been presented against
      the defendant for possession and for maintenance of a nuisance,
      and had been separately tried, the same evidence being offered
      in support of each, an acquittal on one could not be pleaded as
      res judicata of the other.  Where the offenses are separately
      charged in the counts of a single indictment the same rule must
      hold.

Noting that the Section 843(b) offense and the offense alleged to have
been facilitated are "interdependent" (United States v. Hannah, 584
F.2d at 30) rather than "separate and distinct" (United States v.
Brooks, 703 F.2d at 1278), these courts have read Dunn to permit a
special rule for such compound-predicate offenses.

   Dunn does not support this exception.  Initially, the correctness
of the treatment of res judicata in Dunn was open to serious question
even at the time of the decision.  Prior to Dunn, the Court had
recognized the applicability in criminal cases of preclusion doctrines
such as res judicata.  /32/ In light of those decisions, the brief
discussion of res judicata in Dunn was of doubtful validity.  /33/

   In any event, whatever its validity then, the res judicata
discussion in Dunn has long since been repudiated by subsequent
decisions of this Court, See, e.g., Sealfon v. United States, 332 U.S.
575 (1948);  Ashe v. Swenson, 397 U.S. 436 (1970);  Simpson v.
Florida, 403 U.S. 384 (1971).  Notwithstanding this development, the
Dunn rule remains of continued and undiminished vitality based, as the
Court has recognized, on "the unreviewable power of a jury to return a
verdict of not guilty for impermissible reasons." Harris, 454 U.S. at
346 (footnote omitted);  see also id. at 346 n.15;  Standefer, 447
U.S. at 22;  Hamling v. United States, 418 U.S. at 101.  /34/ In
accordance with this Court's analysis, the lower federal courts --
with the exception of the decisions under Sections 843(b) -- as well
as commentators have concluded that the Dunn rule properly rests on
the role and prerogatives of the jury rather than on principles of res
judicata.  /35/ Thus, the court of appeals in this case, like the
courts in Hannah and Brooks, misperceived the basis of the Dunn rule
as expressed in the decisions of this Court over the last 50 years and
incorrectly resurrected a long-discredited conception of the
inconsistent verdict doctrine.  /36/

   Moreover, while purporting to create a narrow exception, the res
judicata theory advanced in Hannah and Brooks and accepted by the
court below would effectively overrule Dunn in any case involving an
inconsistency in the verdicts returned against a single defendant.
Nothing in the theory logically confines it to inconsistent verdicts
on compound-predicate offenses.  On the contrary, if Dunn rests on
principles of preclusion and is limited to cases in which an initial
acquittal on one count would not bar a subsequent prosecution on the
other count, few if any inconsistent verdicts would be sustained.
Indeed, under modern principles of collateral estoppel, the
inconsistent verdict involved in Dunn itself would be impermissible,
since the jury's acquittal of unlawful possession and sale of liquor
would foreclose a later prosecution for maintaining a common nuisance
by keeping the same liquor for sale.  See pages 22-24, supra;  United
States v. Carbone, 378 F.2d at 422;  Bickel, Judge and Jury --
Inconsistent Verdicts in the Federal Courts, 63 Harv. L. Rev. 649, 650
(1950).  The analysis underlying the exception created for the Section
843(b) offense thus would eviscerate the Dunn rule and constitutes
nothing less than a fundamental rejection of the rationale of the
inconsistent verdict doctrine.  /37/

                              CONCLUSIONS

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   MARK I. LEVY

      Assistant to the Solicitor General

   SARA CRISCITELLI

      Attorney

   JULY 1984

   /1/ Respondent's petition for rehearing on her false statement
conviction was denied by the court of appeals on February 29, 1984,
and this Court denied her petition for a writ of certiorari on June
18, 1984 (No. 83-6617).

   /2/ Respondent was also acquitted on one count (Count 2) of
conspiracy to possess quaaludes with intent to distribute them (21
U.S.C. 846);  one count (Count 6) of telephone facilitation of a
controlled substance offense (21 U.S.C. 843(b));  two counts (Counts
7-8) of assault with a deadly weapon upon federal officers (18 U.S.C.
111 and 1114);  one count (Count 9) of possession of approximately two
kilograms of cocaine with intent to distribute it (21 U.S.C.
841(a)(1));  one count (Count 10) of possession of approximately 2700
dosage units of quaaludes with intent to distribute them (21 U.S.C.
841(a)(1));  and four counts (Counts 11-14) of possession of a machine
gun and silencers that were not registered and did not have serial
numbers (26 U.S.C. 5861(d) and (i)).

   /3/ The facts pertaining to the false statement conviction are
summarized in the opinion of the court of appeals (Pet. App. 3a-4a)
and in our Brief in Opposition (at 2-3) to respondent's Petition for a
Writ of Certiorari (cert. denied, No. 83-6617 (June 18, 1984));  that
conviction does not relate to the question presented in our petition
for certiorari and addressed herein.

   /4/ Respondent acknowledged that she knew her husband was selling
cocaine (Tr. 1002-1003, 1043, 1046).

   /5/ For example, Ron Powell, with respondent's knowledge, placed a
bid on a $1.5 million ranch for them to live on and planned to use
proceeds of the drug business to pay the monthly mortgage and taxes of
nearly $12,000 (Tr. 602-604, 615-626, 637-639).  As the district court
summarized at the time of respondent's sentencing (7/26/82 Sentencing
Tr. 16):

      (T)hough her role was lesser (than her husband's), she
      benefitted substantially.  * * * (T)he home they were buying was
      a * * * million and a half.

                      *     *     *     *     *

      (S)he knew where Mr. Powell made his money.  No question about
      that.

                      *     *     *     *     *

      They were talking about buying the magnificent residence with
      many, many acres;  and she had to know that the benefits she was
      talking about came directly from the drug traffic.

   /6/ "Coupons" was a coded reference to money (Tr. 786, 934).

   /7/ The next day Ron Powell called Sandy Segal, who told Powell
that he had "that money" (Tr. 488) and would meet Powell "with those
coups" (Tr. 489).

   /8/ At trial, respondent denied knowing anyone named Sandra Thomas
(Tr. 1040, 1052).  However, respondent had spoken with Thomas on the
telephone (Tr. 1164-1165), and Thomas's name and address were entered
in respondent's address book (Tr. 1040-1041).

   /9/ Records seized from respondent's car after her arrest indicated
that Ron Powell had sold a quarter once of cocaine to Spindle on April
16 (Tr. 204, 954).

   /10/ We have not sought review in this Court of the fact-bound
determination of the court of appeals that the jury's verdicts were
inconsistent.  The issue presented here is whether such inconsistency
invalidates, as a matter of law, respondent's convictions on the
counts on which the jury found her guilty.  See Dunn v. United States,
284 U.S. 390, 392-393 (1932);  Harris v. Rivera, 454 U.S. 339, 348
(1981).

   /11/ As we pointed out in our Petition (at 9 n.10), the concurrent
sentence doctrine does not counsel against this Court's resolution of
the inconsistent verdict issue decided by the court of appeals.  The
court of appeals remanded the case to the district court to permit
resentencing on the false statement count in light of the reversal of
the telephone facilitation convictions, and thus the disposition of
the latter counts may affect respondent's ultimate sentence.
Moreover, because 21 U.S.C. 843(c) provides enhanced penalties for
second or subsequent offenses, respondent's convictions on the
telephone facilitation counts have significant collateral
consequences.

   /12/ Jury nullification or leniency, is, as Dunn observed (284 U.S.
at 393 (citation omitted)), the "'assumption of a power which (the
jurors) ha(ve) no right to exercise.'" In the federal system juries
are not instructed on their "raw power of nullification" (Roberts v.
Louisiana, 428 U.S. 325, 347 (1976) (White, J., dissenting)).  See,
e.g., Sparf and Hansen v. United States, 156 U.S. 51, 102 (1895);
United States v. Dougherty, 473 F.2d 1113, 1130-1137 (D.C. Cir. 1972);
 United States v. Moylan, 417 F.2d 1002, 1005-1007 (4th Cir. 1969),
cert. denied, 397 U.S. 910 (1970);  United States v. Battiste, 24
F.Cas. 1042, 1043 (C.C.D.Mass. 1835) (No. 14,545) (Story, Circuit
Justice);  see also Tr. 1285.  But see Westen, The Three Faces of
Double Jeopardy:  Reflections on Government Appeals of Criminal
Sentences, 78 Mich. L. Rev. 1001, 1016-1017 (1980).

   /13/ Dunn, 284 U.S. at 393.

   /14/ Jackson v. Virginia, 443 U.S. at 317 n.10.

   /15/ Standefer, 447 U.S. at 22.

   /16/ Dunn, 284 U.S. at 394;  Dotterweich, 320 U.S. at 279;
Standefer, 447 U.S. at 22;  see also Stein v. New York, 346 U.S. 156,
178 (1953), overruled on other grounds, Jackson v. Denno, 378 U.S. 368
(1964).

   /17/ Dunn, 284 U.S. at 394.

   /18/ Dotterweich, 320 U.S. at 279.

   /19/ Dotterweich, 320 U.S. at 279;  see also Hoag v. New Jersey,
356 U.S. 464, 472 (1958), limited on other grounds, Ashe v. Swenson,
397 U.S. 436 (1970).

   /20/ See also Bickel, Judge and Jury -- Inconsistent Verdicts in
the Federal Courts, 63 Harv. L. Rev. 649, 651-652 (1950) ("Dunn
reaffirms the jury's power to exercise leniency by limiting punishment
to sentence upon only one of many counts");  Perkins, Dealing With The
Inconsistent Verdict, 15 Crim. L. Bull. 405, 415 (1979):

      It must be emphasized that the jury's mercy-dispensing power is
      not exercised on an all-or-nothing basis.  The jury may "pardon"
      a defendant to the extent of releasing him from some of the
      consequences of his wrongdoing without releasing him from
      others.  This means it may release him from the consequences of
      his crime as represented in one count of the indictment while
      holding him accountable for the consequences of the very same
      act as represented in another count.  * * * (I)f the jury
      decides upon a partial "pardon" and returns a verdict of guilty
      on one count and not guilty on another, it is certainly unwise
      to have a procedure which requires the judge to enter verdicts
      of acquittal on both counts if the verdict is found to be
      inconsistent.

   /21/ In addition, as Judge Friendly observed in United States v.
Carbone, 378 F.2d at 422, "if the (inconsistent verdict) rule were
otherwise, the Government would be entitled to have the jury warned
that an acquittal on some counts might undermine a guilty verdict on
others -- almost the opposite of the standard instruction, which is
obviously beneficial to criminal defendants."

   /22/ The district court, which heard the "long" and "extensive"
tapes of respondent's recorded telephone conversations, specifically
noted that "(t)here is no question in my mind that the jury correctly
anal(y)zed (respondent's) involvement in the telephone counts.  * * *
(Respondent's husband) conducted his business over that telephone.
(Respondent) knew what that business was because she was convicted of
counts using the phone in the same manner" (7/26/82 Sentencing Tr.
16).

   /23/ In this connection the district judge observed (7/26/82
Sentencing Tr. 16-17):

         I am satisfied (respondent) lied to the jury.  She said she
      didn't know a Thin Man, never heard of him, she said, until she
      was here in court.  Then they played the tape, and she was told
      to call the Thin Man, and she did.  I have questions about her
      credibility before this Court * * *.

   /24/ See, e.g., United States v. Jefferson, 714 F.2d 689, 699, (7th
Cir. 1983);  United States v. Whitten, 706 F.2d 1000, 1006 (9th Cir.
1983);  United States v. Ward, 696 F.2d 1315, 1319 (11th Cir. 1983),
cert. denied, No. 82-6437 (May 16, 1983);  United States v. Rey, 641
F.2d 222, 224-225 n.6, 227 n.10 (5th Cir.), cert. denied, 454 U.S. 861
(1981).

   /25/ To the extent that the evidence were truly insufficient under
traditional standards to establish the facilitated offense, the
Section 843(b) conviction would have to be reversed quite without
regard to the consistency of the verdict on any other counts.  See
United States v. Terry, 702 F.2d 299, 321 n.23 (2d Cir. 1983), cert.
denied, No. 82-1689 (May 16, 1983);  United States v. Bailey, 607 F.2d
237, 245 (9th Cir. 1979), cert. denied, 445 U.S. 934 (1980).  The
court of appeals' confusion over the issues of the sufficiency of the
evidence and the consistency of the verdict is illustrated by its
reliance (Pet. App. 2a, 7a) on Bailey, which involved a conventional
challenge to the adequacy of the government's proof and did not
present an inconsistent verdict question.

   /26/ See United States v. Brooks, 703 F.2d 1273, 1278-1279, reh'g
denied, 712 F.2d 1419 (11th Cir. 1983) (Table);  United States v.
Hannah, 584 F.2d 27 (3d Cir. 1978);  see also United States v.
Berardi, 675 F.2d 894, 901 n.15 (7th Cir. 1982).

   /27/ Compare United States v. Upshaw, 685 F.2d 1202 (9th Cir. 1982)
(inconsistency in the verdict that bears on an essential element of
the offense would not be a ground to set aside the conviction;  no
inconsistency found).

   /28/ Compare page 17 note 21, supra.

   /29/ That the jury acted deliberately and conscientiously in
returning its verdict is shown by the fact that it acquitted
respondent on one count (Count 6) of telephone facilitation under
Section 843(b).  Count 6 was based on respondent's telephone call to
an airline to change her husband's flight reservation for a trip to
St. Louis (Tr. 628-631;  J.A. 22-23).  This call was not on its face
demonstrably related to a drug transaction, and respondent was
acquitted of the charge.

   /30/ As Justice Butler's dissenting opinion described the charges
(284 U.S. at 395, 402-403):

         The nusiance charged is specifically limited to the "keeping
      for sale" of the six drinks mentioned.  The unlawful possession
      count is limited to the same drinks.  The unlawful sale alleged
      is limited to six drinks.  The evidence showed that the same
      liquor constituted the sole basis of each count.

                      *     *     *     *     *

         (Here,) there is a verdict of not guilty on one count and a
      verdict of guilt on another, and the former necessarily
      determines that the evidence failed to establish a fact which is
      an essential ingredient of the offense charged in the other
      count * * *.

See also 41 Yale L. J. 922, 923 (1932);  45 Harv. L. Rev. 931, 931-932
(1932).

   /31/ This Court has never recognized any exception to the Dunn
rule.  Contrary to the understanding of the court of appeals (Pet.
App. 6a n.1), Hartzel v. United States, 322 U.S. 680 (1944), does not
stand for any such exception.  In Hartzel, three defendants were
convicted of conspiring with one another;  thereafter, the convictions
of two of the co-conspirators were set aside on grounds of
insufficient evidence (see 322 U.S. at 682 n.3).  In that posture, the
evidence was necessarily inadequate to establish that Hartzel had
entered into a conspiracy with the other defendants as alleged;  the
government accordingly acknowledged in this Court that Hartzel's
conspiracy conviction could not be sustained (Brief for the United
States at 4 n.1, 23 n.2 (No. 531, 1943 Term)), and the Court agreed
with this concession (322 U.S. at 682 n.3).  Hartzel thus turned on
the sufficiency of the evidence under traditional standards to support
the conspiracy charged and -- because the jury had convicted all the
defendants of conspiracy -- did not in any way involve the issue of an
inconsistent verdict;  indeed, neither the parties nor the Court cited
to Dunn or to Dotterweich, which had been decided the same Term as
Hartzel.

   The court of appeals also noted (Pet. App. 6a-7a n.1) that lower
federal courts have developed certain exceptions to Dunn in cases in
which a defendant is convicted of conspiracy.  See, e.g., United
States v. Patterson, 678 F.2d 774, 780-781 (9th Cir.), cert. denied,
459 U.S. 911 (1982);  United States v. Morales, 677 F.2d 1 (1st Cir.
1982);  United States v. Duz-Mor Diagnostic Laboratory, Inc., 650 F.2d
223, 226 n.3 (9th Cir. 1981).  We doubt the soundness of these
exceptions under Dunn, especially in light of this Court's decision in
Standefer.  See United States v. Espinosa-Cerpa, 630 F.2d 328, 330-333
(5th Cir. 1980).  However, the correctness of those exceptions to Dunn
-- which appear to rest on the view that "courts should take a closer
look at conspiracy convictions (in inconsistent verdict cases) where
the jury's verdict on other counts indicates some doubt that a
conspiracy actually took place" (United States v. Morales, 677 F.2d at
3) -- is not presented here, since respondent was acquitted on the
cocaine conspiracy count and the court of appeals based its decision
on the compound nature of the substantive telephone facilitation
offense.

   /32/ See, e.g., United States v. Adams, 281 U.S. 202, 205 (1930);
Collins v. Loisel, 262 U.S. 426, 430 (1923);  United States v.
Oppenheimer, 242 U.S. 85, 87 (1916);  Frank v. Mangum, 237 U.S. 309,
334 (1915);  Coffey v. United States, 116 U.S. 436, 443 (1886),
disapproved on other grounds, United States v. One Assortment of 89
Firearms, No. 82-1047 (Feb. 22, 1984), slip op. 3-7;  cf. Murphy v.
United States, 272 U.S. 630, 632 (1926);  Stone v. United States, 167
U.S. 178, 187 (1897).

   /33/ See United States v. Carbone, 378 F.2d at 422 & n.6;  Trubitt,
Patchwork Verdicts, Different-Jurors Verdicts, and American Jury
Theory, 36 Okla. L. Rev. 473, 483 (1983);  Comment, Inconsistent
Verdicts in a Federal Criminal Trial, 60 Colum. L. Rev. 999, 1005
(1960);  Comment, Ashe v. Swenson:  Collateral Estoppel, Double
Jeopardy, and Inconsistent Verdicts, 71 Colum. L. Rev. 321, 332 n.68
(1971).

   Interestingly, the opinion in Dunn was written by Justice Holmes at
the age of 90 and was his last for the Court (see Harris, 454 U.S. at
346 n.15;  United States v. Carbone, 378 F.2d at 422);  Dunn was
announced on January 11, 1932, and Justice Holmes submitted his
resignation on January 12 (see 284 U.S. at VII).  In his letter of
resignation Justice Holmes explained that "(t)he condition of my
health makes it a duty to break off connections (with the Court)"
(ibid.);  see also 284 U.S. at V-VI.  In private correspondence dated
January 3, 1932, Justice Holmes noted:

         You write such interesting and entertaining letters that I
      blush not to do likewise, but I can't.  I have not been very
      well and I find it difficult to write;  difficult physically and
      mentally.  I hope to get back to normal but at present life is
      hard.  We begin our sitting again on Monday.  I have but one
      opinion to deliver, another being held up for tinkering to meet
      a long dissent from Butler -- agreed to by no one else I
      believe.

The Holmes-Einstein Letters 335 (Peabody ed. 1964) (quoted in United
States v. Carbone, 378 F.2d at 422 n.6);  see also id. at 330-331,
338, 342;  II Holmes-Laski Letters 1334, 1337, 1340, 1345, 1346, 1360
(Howe ed. 1953);  F. Biddle, Mr. Justice Holmes 196-198 (1942).

   /34/ Indeed, even before Sealfon, the Court reaffirmed the Dunn
rule without any reference to the res judicata rationale.  See
Dotterweich, 320 U.S. at 279.

   /35/ See, e.g., United States v. Uzzolino, 651 F.2d 207, 213 (3d
Cir.), cert. denied, 454 U.S. 865 (1981);  United States v. Greene,
497 F.2d 1068, 1085-1086 (7th Cir. 1974), cert. denied, 420 U.S. 909
(1975);  United States v. Zane, 495 F.2d 683, 690 (2d Cir. 1974);
United States v. Fox, 433 F.2d 1235, 1238 n.22 (D.C. Cir. 1970);
United States v. Carbone, 378 F.2d at 422-423;  United States v.
Maybury, 274 F.2d 899, 905 (2d Cir. 1960);  Bickel, supra, 63 Harv. L.
Rev. at 650-651;  3 L. Orfield, Criminal Procedure Under the Federal
Rules Section 23:57 (1966);  5 id. Section 31:10 (1967);  Perkins,
supra, 15 Crim. L. Bull. at 409-410;  Trubitt, supra, 36 Okla. L. Rev.
at 483-484;  Comment, supra, 71 Colum. L. Rev. at 332-333;  35 Md. L.
Rev. 535, 540-541 (1976).

   /36/ Furthermore, there is no reason to apply preclusion principles
to different counts jointly tried in a single proceeding.  The
doctrines of res judicata and collateral estoppel are designed to
"protect() litigants from burdensome relitigation and * * * promot(e)
judicial economy." United States v. Stauffer Chemical Co., No. 82-1448
(Jan. 10, 1984), slip op. 7;  see also United States v. Mendoza, No.
82-849 (Jan. 10, 1984), slip op. 4.  Such considerations are simply
inapposite to jury verdicts on multiple counts at a single trial, and
preclusion principles are accordingly inapplicable.  See, e.g., Arnold
v. Wyrick, 646 F.2d 1225, 1228 (8th Cir. 1981);  United States v.
Zane, 495 F.2d at 690;  5 L. Orfield, Criminal Procedure Under the
Federal Rules Section 31:10, at 136 (1967);  3 C. Wright, Federal
Practice and Procedure:  Criminal Section 514, at 18 (2d ed. 1982);
cf. Ohio v. Johnson, No. 83-904 (June 11, 1984), slip op. 7 n.9.  And
certainly the possibility that the jury exercised lenity in
simultaneously acquitting on some counts and convicting on others,
even though convinced of the defendant's guilt on all counts,
indicates that preclusion principles should not be applied in a single
proceeding involving inconsistent verdicts.

   /37/ Having found that the verdicts were inconsistent, the court of
appeals reversed respondent's convictions on the three counts under
Section 843(b).  We submit that the proper disposition, in the event
that the inconsistent verdicts are not allowed to stand, would be to
remand for a new trial on those counts.  See Pipefitters Local Union
No. 562 v. United States, 407 U.S. 385, 400 n.11 (1972);  Crawford v.
Fenton, 646 F.2d 810, 817 n.8 (3d Cir.), cert. denied, 454 U.S. 872
(1981);  United States v. Maybury, 274 F.2d at 904-906 (opinion of
Friendly, J.), 908 (opinion of L. Hand, J.), discussed in Harris, 454
U.S. at 342 n.7;  Note, Criminal Law:  Validity of Inconsistent
Verdicts, 1961 Duke L. J. 133, 136-137 n.14;  see also Dunn v. United
States, 284 U.S. at 406-407 (Butler, J., dissenting) (inconsistent
verdicts should be set aside and new trial ordered).  By its outright
reversal, the court of appeals has unreasonably expanded the
consequences of the jury's inconsistency and, in effect, has immunized
respondent for crimes that the government has proven by sufficient
evidence beyond a reasonable doubt.  Cf. Harris, 454 U.S. at 347;
Standefer, 447 U.S. at 25.  We are aware of no reason that would bar a
retrial in this case.  Since the government's evidence at the initial
trial was adequate, the Double Jeopardy Clause does not forbid a
second proceeding.  See Tibbs v. Florida, 457 U.S. 31, 42 (1982).
Likewise, because of the inconsistency in the verdict, the basis of
the jury's acquittal cannot satisfactorily be determined;  as Dunn
recognized (284 U.S. at 393 (citation omitted)), the inconsistent
verdict "'does not show that (the jurors) were not convinced of the
defendant's guilt'" but only "'that either in the acquittal or the
conviction the jury did not speak their real conclusions.'" See also
Westen, The Three Faces of Double Jeopardy:  Reflections on Government
Appeals of Criminal Sentences, 78 Mich. L. Rev. 1001, 1015 n.47
(1980).  In these circumstances the doctrine of collateral estoppel
does not preclude a new trial.  See Standefer, 447 U.S. at 23 n.17;
Comment, Inconsistent Verdicts in Illinois Criminal Trials, 10 J. Mar.
J. Prac. & Proc. 263, 285 (1977);  see also Thau, Collateral Estoppel
and the Reliability of Criminal Determinations, 70 Geo. L. J. 1079,
1085 (1982);  Restatement (Second) of Judgments Section 29(4) and (5)
& comments f and g (1982);  cf. Ohio v. Johnson, slip op. 7 n.9
("where the State has made no effort to prosecute the charges
seriatim, the considerations of double jeopardy protection implicit in
the application of collateral estoppel are inapplicable").  Although
this argument was not presented below, the court of appeals'
resolution of the inconsistent verdict issue necessarily raises the
question of the proper disposition of the case.  See 28 U.S.C. 2106.
Accordingly, we suggest that, if the Court disagrees with our
submission on the validity of the jury's verdict, the appropriate
course would be to remand to the court of appeals for consideration of
the issue of a new trial.  See Busic v. United States, 446 U.S. 398,
412 n.19 (1980).