MACARTHUR MARTIN BRYANT, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-6780

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals, Pet. App. 1-17, is reported at
892 F.2d 1466.

                             JURISDICTION

   The judgment of the court of appeals was entered on December 27,
1989.  The petition for a writ of certiorari was filed on February 23,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether petitioner's sentence violated the Double Jeopardy Clause.

                               STATEMENT

   A jury in the United States District Court for the District of New
Mexico found petitioner guilty of involuntary manslaughter, in
violation of 18 U.S.C. 1112.  The district court sentenced petitioner
to three years' imprisonment, ordered him to pay $1,988 in restitution
to the victim's widow, and directed him to pay a $50 special
assessment.  The court of appeals affirmed.

   1. Early in the morning of July 26, 1987, Roy Wood, petitioner's
half-brother, came to petitioner's home and said that he had been
attacked and beaten by Oscar and Ervin Wood.  Petitioner got in his
truck and drove off to seek help for Roy Wood.  He took a loaded rifle
with him.  Pet. App. 2.

   While driving along a narrow mountain road, petitioner saw a car
driving towards him containing Oscar and Ervin Wood.  Petitioner and
the Wood brothers stopped their vehicles, and petitioner got out of
his truck with his rifle in hand.  Petitioner approached the Woods'
car and asked the two men why they had attacked his half-brother a few
hours earlier.  Soon thereafter, petitioner's rifle discharged,
killing Ervin Wood and injuring Oscar Wood.  Oscar Wood testified that
petitioner fired the gun at his brother.  Petitioner insisted that
Ervin Wood grabbed his rifle and that it accidentally discharged.
Pet. App. 2-3.  (At trial, petitioner introduced evidence that the
rifle's firing mechanism was damaged, making it more likely that the
weapon would discharge accidentally.  Ibid.)

   2. The indictment charged petitioner with the second degree murder
of Ervin Wood, in violation of 18 U.S.C. 1153 and 18 U.S.C. 1111(a)
and (b), and with the assault on Oscar Wood with a dangerous weapon,
in violation of 18 U.S.C. 113(c).  The jury acquitted petitioner of
Ervin Wood's murder, but found him guilty of the lesser included
offense of involuntary manslaughter.  The jury acquitted petitioner of
the assault on Oscar Wood.  Pet. App. 3.

   The district court sentenced petitioner to three years'
imprisonment, the maximum period of incarceration allowable under the
manslaughter statute.  Pet. App. 3-4.  At the sentencing hearing,
petitioner's attorney moved to strike from the presentence report as
contrary to the jury's verdict a statement that petitioner had pointed
his rifle at Ervin Wood.  Petitioner argued that if the jury believed
that petitioner had pointed his rifle at Ervin Wood, it would
necessarily have found him guilty of second degree murder, because
pointing the rifle would have constituted an aggravated assault which,
being a felony, would have precluded a verdict of involuntary
manslaughter.  Pet. App. i.  The court denied petitioner's motion,
reasoning that the jury's general verdict was a compromise from which
it was not possible to infer factual findings with respect to
particular issues:  "I think that was just a compromise verdict by the
jury.  It was a job of good lawyering on your part to come in with
that verdict." Pet. App. i.  The district court added that it found
petitioner's testimony about how the shooting took place to be
"basically an impossibility." Pet. App. i.  The court concluded that
"(t)here is no way that I can say that the jury found (petitioner)
never pointed the gun at (Ervin Wood).  It is just as believable that
(petitioner) pointed the gun at (Ervin Wood) and that he then -- the
deceased pushed it aside and that's how it went off." Pet. App. i.
Before imposing sentence, the district court again noted that
petitioner had "received excellent representation" and told petitioner
that he was "quite lucky to be getting (the sentence imposed) rather
than what you would have gotten had it been tried to the court alone."
Pet. App. ii.

   3. The court of appeals affirmed.  It rejected petitioner's claim
that the district court violated his rights under the Double Jeopardy
Clause by basing its sentence on a view of the evidence contrary to
that found by the jury.  It found instead that

      there is no suggestion that the trial judge considered
      nonexistent or constitutionally invalid prior convictions.  Nor
      does the record suggest that the judge believed that any
      perceived "error" justified sentencing (petitioner) for second
      degree murder, rather than involuntary manslaughter.  The
      (district) court acted within its discretion in sentencing
      (petitioner) to the statutory maximum period of incarceration
      allowable for the offense of which he was convicted, and we hold
      that no violation of the Double Jeopardy Clause occurred.

Pet. App. 14.

                               ARGUMENT

   Petitioner renews his contention that the district court violated
the Double Jeopardy Clause when it imposed a sentence ostensibly in
contravention of the jury's verdict.  Pet. 9-17.  In essence,
petitioner argues that the jury's verdict acquitting him of second
degree murder necessarily rested on a finding that petitioner did not
point his rifle at Ervin Wood.  Accordingly, petitioner's sentence, to
the extent it rests on a contrary redetermination of that fact by the
district court, violates the Double Jeopardy Clause.  Petitioner's
logic is thrice flawed.

   1. First, petitioner's reasoning ignores the possibility of a
compromise verdict.  Generally speaking, a defendant is not entitled
to upset a guilty verdict on one count because it is inconsistent with
an acquittal on another count.  Juries can, and often do, render
"inconsistent verdicts -- even verdicts that acquit on a predicate
offense while convicting on the compound offense -- * * * (because of)
mistake, compromise, or lenity." United States v. Powell, 469 U.S. 57,
65 (1984).  See Harris v. Rivera, 454 U.S. 339, 345 (1981) (per
curiam);  Standefer v. United States, 447 U.S. 10, 22-23 (1980);
United States v. Dotterweich, 320 U.S. 277, 279 (1943);  Dunn v.
United States, 284 U.S. 390, 393 (1932).  The jury here, for example,
may have acquitted petitioner of second degree murder based on its
dislike of Ervin and Oscar Wood, sympathy for petitioner's defense of
his half-brother, or any number of other facts having nothing to do
with whether petitioner pointed his rifle at Ervin Wood.  Indeed, the
district judge -- who was in the best position to hear the evidence
and evaluate its impact on the jury -- concluded:  "I think that was
just a compromise verdict by the jury." Pet. App. i.  Acceptance of
petitioner's invitation to draw specific factual findings from general
jury verdicts would eviscerate the rule upholding inconsistent
verdicts.  It would allow defendants to use acquittals on one count to
attack guilty verdicts on other counts.  Petitioner would ascribe to
jury verdicts a formal rationality that is belied by experience and by
the jury's historic office of dispensing justice in the broadest sense
of that term.  Petitioner's sentence, fully supported by the jury's
verdict of guilt on involuntary manslaughter and within the range
permitted by statute, should therefore be upheld.

   2. Moreover, a jury verdict cannot collaterally estop a trial
judge's sentencing determination because the jury applies a different
standard of proof (reasonable doubt) from that applied by the judge
(preponderance of the evidence).  As this Court stated in McMillan v.
Pennsylvania, 477 U.S. 79 (1986), "(o)nce the reasonable doubt
standard has been applied to obtain a valid conviction," id. at 92
n.8, a sentence based on facts found by a "preponderance (of the
evidence) satisfies due process," id. at 91.  Indeed, "(s)entencing
courts have traditionally heard evidence and found facts without any
prescribed burden of proof at all." Ibid.  In Dowling v. United
States, 110 S. Ct. 668 (1990), as in this case, the petitioner sought
to use his acquittal under a reasonable doubt standard to collaterally
estop the government from introducing evidence admissible under a
preponderance of the evidence standard.  See id. at 670-671.  This
Court upheld the admission of the evidence, however, holding that "an
acquittal in a criminal case does not preclude the government from
relitigating an issue when it is presented in a subsequent action
governed by a lower standard of proof." Id. at 672.  As the Court
explained, an acquittal does "not prove that the defendant is
innocent;  it merely proves the existence of a reasonable doubt as to
his guilt." Ibid. (quoting United States v. One Assortment of 89
Firearms, 465 U.S. 354, 361-362 (1984)).  A jury verdict under the
reasonable doubt standard therefore does "not negate the possibility
that a preponderance of the evidence could show that" the defendant
was engaged in the conduct complained of.  110 S. Ct. at 673.
Petitioner's claim is squarely foreclosed by Dowling:  Even if the
jury declined to convict petitioner of second degree murder based on a
reasonable doubt whether petitioner pointed his rifle at Ervin Wood,
that finding would not estop a sentencing judge from finding the
identical fact by a preponderance of the evidence.

   3. Finally, petitioner has failed to demonstrate either that the
jury determined that he did not point his rifle at Ervin Wood (the
jury may have based its decision to acquit on the prosecution's
failure to satisfy an unrelated element of the offense), or that the
sentencing judge relied on this fact in sentencing him to three years'
imprisonment.

   a. Because petitioner was convicted before the effective date of
the Sentencing Reform Act, 18 U.S.C. 3551 et seq., the Sentencing
Guidelines do not apply.  See Pub. L. No. 100-182, Section 2(a), 101
Stat. 1266.  Under the pre-Guidelines regime governing petitioner's
sentence, the district judge was permitted to "conduct an inquiry
broad in scope, largely unlimited either as to the kind of information
he may consider, or the source from which it may come." United States
v. Tucker, 404 U.S. 443, 446 (1972);  see United States v. Grayson,
438 U.S. 41, 45, 50-52 (1978) (in imposing sentence, district court
properly considered its belief that defendant's testimony was a
"complete fabrication").  Thus, the district court could properly
consider evidence introduced at trial with respect to charges on which
the defendant had been acquitted.  See, e.g., United States v.
Bernard, 757 F.2d 1439, 1444 (4th Cir. 1985);  United States v. Sweig,
454 F.2d 181, 184 (2d Cir. 1972).

   Petitioner's reliance, Pet. 12-13, on United States v. Scroggins,
880 F.2d 1204 (11th Cir. 1989), cert. denied, No. 89-6363 (Apr. 16,
1990), for a contrary result is clearly misplaced.  The issue in that
case was whether the Sentencing Guidelines authorized the district
court, in sentencing a defendant for postal theft, to consider 18
other thefts committed by the defendant of which he had not been
convicted.  Id. at 1211 & n.18.  The court specifically noted that
before the adoption of the Sentencing Guidelines, there were
"virtually no limitations -- constitutional or otherwise -- on the
scope of evidence that a court could consider in shaping a sentence"
and that under the pre-Guidelines system, "we have no doubt but that
the district court would have been free to consider appellant's other
thefts in shaping his sentence." Id. at 1212.

   b. Petitioner nonetheless insists that the district court here went
beyond merely considering the evidence introduced at trial, and
instead sentenced petitioner based on its own conclusion that
petitioner was guilty of second degree murder.  Pet. 12-14.  The court
of appeals correctly rejected this contention.  In doing so, it drew
an analogy to a recent decision of the Fifth Circuit on a virtually
identical issue.  See Pet. App. 13-14 (citing Roussell v. Jeane, 842
F.2d 1512 (5th Cir. 1988)).  The defendant in Roussell, like
petitioner, had been acquitted of second degree murder but was
convicted of the lesser included offense of manslaughter and sentenced
to the maximum period of incarceration under the state manslaughter
statute.  In imposing that sentence, the Louisiana trial court stated
that "the facts indicate that the defendant should be guilty of second
degree murder." 842 F.2d at 1522.  The Fifth Circuit upheld the
sentence, observing that although the trial court "clearly believed
that a second degree murder verdict would have been truer to the
evidence than the manslaughter verdict which the jury returned," the
court did not "incorrectly assume that Roussell had been convicted of,
or could be sentenced for, second degree murder." Id. at 1524;  see
Walker v. Endell, 850 F.2d 470, 476-477 (9th Cir. 1987) (trial court's
consideration of evidence relating to murder charge of which defendant
was acquitted in sentencing defendant on other charges was proper,
even though court stated at sentencing hearing that it agreed with the
government that defendant was guilty of murder), cert. denied, 109 S.
Ct. 309, 530 (1988);  United States v. Bernard, 757 F.2d at 1444 (in
sentencing defendant who had been acquitted of possession with intent
to distribute marijuana and convicted of lesser included offense of
simple possession, district court properly relied on evidence that
defendant intended to distribute marijuana);  cf. United States v.
Campbell, 684 F.2d 141, 154 (D.C. Cir. 1982) ("the trial judge can
hardly avoid exposure to all the evidence that is presented during the
course of a trial").

   In this case, as in Roussell, the trial court properly sentenced
petitioner to the maximum period of incarceration based on its
assessment of the evidence relating to the shooting committed by
petitioner.  The district court's statements at the sentencing hearing
do not support petitioner's contention that the court impermissibly
relied on a determination that contravened the jury's verdict.  The
district court explicitly acknowledged the verdict and indicated that
it was sentencing petitioner for manslaughter, not second degree
murder.  The mere fact that the court viewed the evidence as
justifying the most severe penalty for manslaughter did not establish
a violation of the Double Jeopardy Clause.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   NINA GOODMAN

      Attorney

   MAY 1990