UNITED STATES OF AMERICA, PETITIONER V. BETTY LOU POWELL No. 83-1307 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutory provision involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-5a) is reported at 708 F.2d 455. The order of the court of appeals denying the government's petition for rehearing (App., infra, 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. 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 jurisdiction of this Court is invoked under 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 conspiracy to possess cocaine with intent to distribute it or the possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 843(b), and on one count (Count 15) of making a false statement to a United States magistrate in connection with 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. App., infra, 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 counts, /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), and both assisted and benefited from the drug activities. /4/ 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). 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). 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): Jeff: Okay. Which his phone number -- (Respondent): Yeah, I know. Jeff: And ask him if he has the coupons /5/ 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): 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 here 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, see. I don't either. Tr. 471, 472, 478. /6/ 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). /7/ 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). 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 there" (Tr. 600). Respondent agreed to do so. /8/ This telephone conversation formed the basis for Count 5 of the indictment. On April 23, Powell learned of the existence of the wiretap (Tr. 679-680, 687-691, 1173). Powell called Jeff and told him to "clean up" (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 the 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). 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). 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 (App., infra, 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 (App., infra, 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 under 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 (App., infra, 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" (App., infra, 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). /9/ 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)" (App., infra, 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 errors as to (the telephone facilitation counts)" (id. at 4a). REASONS FOR GRANTING THE PETITION The court of appeals set aside respondent's convictions under 21 U.S.C. 843(b) on the ground of inconsistency in the jury's verdict. This ruling is fundamentally at odds with the settled decisions of this Court on the "inconsistent verdict" doctrine and impermissibly invades the function of the jury. Moreover, the question presented is a recurring one that is of substantial importance to the proper administration of the criminal justice system, and the court of appeals' analysis threatens to affect prosecutions under a number of statutes. Accordingly, review by this Court is warranted. /10/ 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)." As the Court has recently reaffirmed, "(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. The Dunn rule reflects "the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons" (Harris v. Rivera, 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 United States v. Maybury, 274 F.2d 899, 902-903 (2d Cir. 1960) (Friendly, J.). Such a verdict can result from jury "lenity," /11/ "mercy," /12/ or "compassion," /13/ as well as from "compromise" /14/ or from "mistake," /15/ "carelessness," /16/ or "irrationality." /17/ Dunn serves to protect the integrity of the jury's verdict and ensures that an acquittal based on leniency or compromise will not nullify the very conviction that the jury determined to be appropriate. Given this unreviewable power of the jury, 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." Dunn v. United States, 284 U.S. at 393 (quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925)); see also Harris v. Rivera, 454 U.S. at 347. While consistency in the verdict and "symmetry of results may be intellectually satisfying, (they are) not required" (Standefer v. United States, 447 U.S. at 25) and do not override the "important federal interest in the enforcement of the criminal law" (id. at 24). Thus, if "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 reversed on grounds of inconsistency. 2. In this case neither respondent nor the court of appeals has asserted that there was any defect or unfairness in the trial proceedings. Likewise, they have not -- apart from the issue of inconsistency -- controverted the sufficiency of the evidence under traditional standards to support the guilty verdicts on the Section 843(b) counts, and that evidence in fact points inescapably to respondent's guilt (see pages 3-7, supra). /18/ In these circumstances, where respondent's "trial was fairly conducted * * * (and) the record contains adequate evidence of (her) guilt * * * beyond a reasonable doubt" (Harris v. Rivera, 454 U.S. at 348 (footnote omitted)), Dunn precludes reversal of her convictions under Section 843(b) on inconsistent verdict grounds. The decisions of this Court contain no limitation on the categorical and unqualified nature of the Dunn rule, and the reasons for the rule are fully applicable here. In particular, since, 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 facilitation 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), /19/ such leniency could, as Dunn recognizes, account for the jury's verdict. /20/ 3. The court of appeals nonetheless set aside the verdict 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" (App., infra, 6a-7a (footnote omitted)). In the court's view, "(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). 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 committed two fundamental errors. First, it confused the concepts of sufficiency of the evidence and consistency of the verdict. As discussed above (see page 11, supra), there is no doubt that the evidence of respondent's guilt on the telephone facilitation counts was adequate under traditional standards. To be sure, the telephone facilitation charges required proof of the offense alleged to have been facilitated. /21/ 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. 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 v. Rivera, 454 U.S. at 348 n.20 (quoting Jackson v. Virginia, 443 U.S. at 319-320 n.13)). /22/ Second, the court of appeals' exception to Dunn, although in accord with other decisions that have also carved out such an exception for convictions under Section 843(b), /23/ is unjustified and squarely inconsistent with the rationale of the Dunn rule. Dunn recognizes the unreviewable power of the jury to acquit as a result of "lenity," "compromise," or "mistake" (284 U.S. at 393-394), and these considerations are no less applicable where, as here, one offense includes as an essential element the commission of an underlying offense -- that is, "compound-predicate" offenses. Furthermore, in Dunn itself, the conduct charged in the counts on which the jury acquitted the defendant was, in fact, necessary to establish the offense on which he was convicted. See 284 U.S. at 391; id. at 395, 397, 398, 407 (Butler, J., dissenting). /24/ Although Dunn did not strictly involve compound-predicate offenses, the interconnection of the charges in that case strongly suggests that the Dunn rule does not admit of the exception adopted by the court below. /25/ 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. Whatever the correctness of the discussion of res judicata at the time Dunn was decided, /26/ it 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). 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 v. Rivera, 454 U.S. at 346 (footnote omitted); see also id. at 346 n.15; Standefer v. United States, 447 U.S. at 22; Hamling v. United States, 418 U.S. at 101. /27/ In accordance with this Court's analysis, the lower federal courts -- with the exception of the decisions under Section 843(b) -- as well as commentators have concluded that the Dunn rule now rests on the role and prerogatives of the jury rather than on principles of res judicata. /28/ Thus, the court of appeals in this case, like the courts in Hannah and Brooks, misperceived the proper basis of the Dunn rule and incorrectly resurrected a long-discredited conception of the inconsistent verdict doctrine. Since the issue of inconsistent verdicts is a recurring one that has already arisen in several circuits in connection with Section 843(b), further review by this Court is warranted. 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 cases, such as this one, involving an inconsistency in the verdicts returned against a single defendant. Nothing in that 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 could foreclose a later prosecution for maintaining a common nuisance by keeping the same liquor for sale. See page 14, supra; United States v. Carbone, 378 F.2d 420, 422 (2d Cir.), cert. denied, 389 U.S. 914 (1967). The analysis underlying the exception created for the Section 843(b) offense threatens to swallow the Dunn rule and constitutes nothing less than a fundamental challenge to the rationale fo the inconsistent verdict doctrine. /29/ Even if the decision below could be restricted to compound-predicate offenses, it would remain of substantial concern. A number of statutes, involving some of the most important and frequently invoked provisions of federal criminal law, prescribe compound-predicate offenses, including the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. 1962), the continuing criminal enterprise statute in the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 848), the Travel Act (18 U.S.C. 1952), and the Gun Control Act of 1968 (18 U.S.C. 924(c)). The court of appeals' decision casts doubt on the inconsistent verdict rule in these significant areas and jeopardizes jury verdicts that are based on a fair trial establishing the defendant's guilt beyond a reasonable doubt. This Court's inconsistent verdict decisions forestall such an undesirable result, and the court of appeals' attempt to circumvent Dunn calls for this Court's review. /30/ CONCLUSION The petition for a writ of certiorari should be granted. 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 FEBRUARY 1984 /1/ We are advised by the United States Attorney that respondent's petition for rehearing on her false statement conviction is still pending in the court of appeals. Her request for rehearing does not bear on the issue, or even involve the same counts, raised in this petition. Accordingly, under Sup. Ct. R. 20.4, the government's time to petition for certiorari runs from the denial of its rehearing petition notwithstanding the pendency of respondent's rehearing request. Compare Sup. Ct. R. 11.3. /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 convictions are summarized in the opinion of the court of appeals (App., infra, 3a-4a); that conviction does not relate to the question presented in this petition. /4/ 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. /5/ "Coupons" was a coded reference to money (Tr. 786, 934). /6/ 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). /7/ 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). /8/ Records seized from respondent's car after her arrest (see page 7, infra) indicated that Ron Powell had sold a quarter ounce of cocaine to Spindle on April 16 (TR. 204, 954). /9/ We do not seek 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, 344, 348 (1981). /10/ Even though respondent received concurrent sentences for the telephone facilitation and false statement offenses, the concurrent sentence doctrine does not counsel against this Court's review of the court of appeals' holding on inconsistent verdicts. 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. /11/ Dunn v. United States, 284 U.S. at 393. /12/ Jackson v. Virginia, 443 U.S. at 317 n.10. /13/ Standefer v. United States, 447 U.S. at 22. /14/ Dunn v. United States, 284 U.S. at 394; United States v. Dotterweich, 320 U.S. at 279; Standefer v. United States, 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). /15/ Dunn v. United States, 284 U.S. at 394. /16/ United States v. Dotterweich, 320 U.S. at 279. /17/ United States v. 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). /18/ In this case, 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. I agree with (the prosecutor) that, though her role was lesser, she benefitted substantially. * * * * * (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). /19/ As Judge Friendly observed in United States v. Carbone, 378 F.2d 420, 422 (2d Cir.), cert. denied, 389 U.S. 914 (1967), "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." /20/ 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). This call was not on its face demonstrably related to a drug transaction, and respondent was acquitted of the charge. /21/ See, e.g., 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). /22/ Of course, to the extent that the evidence is 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 (App., infra, 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. /23/ 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). In Good v. United States, petition for cert. pending, No. 83-6102 (filed Jan. 16, 1984), petitioner contends that the Third Circuit, notwithstanding Hannah, affirmed his conviction under 21 U.S.C. 843(b) even though the jury had acquitted him of the underlying felony that he was charged with facilitating. /24/ In Dunn the defendant was charged with unlawful possession of liquor, unlawful sale of liquor, and maintaining a common nuisance by keeping liquor for sale. 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. The jury acquitted the defendant of possession and sale but convicted him of nuisance. Notwithstanding the relationship among the counts and the identity of the evidence, this Count affirmed the conviction on the ground that "(c)onsistency in the verdict is not necessary" (284 U.S. at 393). /25/ This Court has never recognized any exception to the Dunn rule. Contrary to the understanding of the court of appeals (App., infra, 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 (App., infra, 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 v. United States, supra. 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. /26/ Prior to Dunn, the Court had recognized the applicability in criminal cases of preclusion doctrines such as res judicata. See, e.g., United States v. Adams, 281 U.S. 202, 205 (1930); United States v. Oppenheimer, 242 U.S. 85, 87 (1916); Coffey v. United States, 116 U.S. 436, 443 (1886). Thus, even at the time, the discussion of res judicata in Dunn was open to question. See United States v. Carbone, 378 F.2d 420, 422 & n.6 (2d Cir.), cert. denied, 389 U.S. 914 (1967); 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). See also Harris v. Rivera, 454 U.S. at 346 n.15. /27/ Indeed, even before Sealfon and Ashe, the Court reaffirmed the Dunn rule without any reference to the res judicata rationale. See United States v. Dotterweich, 320 U.S. at 279. /28/ 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 420, 422-423 (2d Cir.), cert. denied, 389 U.S. 914 (1967); United States v. Maybury, 274 F.2d 899, 905 (2d Cir. 1960); Bickel, Judge and Jury -- Inconsistent Verdicts in the Federal Courts, 63 Harv. L. Rev. 649, 650-651 (1950); Comment, supra, 71 Colum. L. Rev. at 332-333. /29/ Furthermore, there is no reason to apply preclusion principles to different counts 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. /30/ Having found that the verdict was 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 Learned Hand, J.); Note, Criminal Law: Validity of Inconsistent Verdicts, 1961 Duke L.J. 133, 136-137 n.14. 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 v. Rivera, 454 U.S. at 347; Standefer v. United States, 447 U.S. at 25. We are aware of no reason that would bar a retrial in the circumstances of 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 for the jury's acquittal cannot satisfactorily be determined (see page 11, supra), and therefore the doctrine of collateral estoppel does not preclude a new trial. See Standefer v. United States, 447 U.S. at 23 n.17; Comment, Inconsistent Verdicts in Illinois Criminal Trials, 10 J. Mar. J. Prac. & Proc. 263, 285 (1977). 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). APPENDIX APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.