UNITED STATES OF AMERICA, PETITIONER V. BETTY LOU POWELL

   No. 83-1307

   In the Supreme Court of the United States

   October Term, 1984

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

   Reply Brief for the United States

   The question presented in our petition concerns the validity of the
exception adopted by the court below to the "inconsistent verdict"
rule of Dunn v. United States, 284 U.S. 390 (1932).  That issue is
fully addressed in our opening brief, and respondent's arguments
require little additional discussion.  Having failed to justify the
court of appeals' departure from Dunn, respondent seeks to interject
several new issues into the case.  However, these issues are not
properly raised for review and do not entitle respondent to reversal
of her convictions by this Court.

   1. In Dunn the Court held that consistency in the jury's verdict is
not necessary in order to sustain the defendant's conviction on the
counts on which he was found guilty.  Recognizing that an
inconsistency in the verdict could arise from the jury's exercise of
its power to acquit the defendant even though it found that the
evidence supported his guilt, the Court concluded that an acquittal on
some counts does not invalidate a conviction on other charges
notwithstanding the discrepancy in the jury's determination.  For more
than 50 years this Court has followed Dunn without exception, and
those opinions firmly rest the "inconsistent verdict" doctrine on the
jury's power of leniency.  The court of appeals' decision disregards
this Court's unbroken adherence to the Dunn rule over the last
half-century.  /1/

   Respondent has failed to support an exception to the Dunn rule for
the telephone facilitation offense at issue in this case (21 U.S.C.
843(b)).  She repeatedly argues that, because Section 843(b) requires
that a drug offense be facilitated by the use of the telephone, the
jury's acquittal on the conspiracy count and the convictions on the
telephone facilitation counts are inconsistent.  But that observation
merely states, and does not resolve, the inconsistent verdict issue
presented here.  As explained in our opening brief (at 21-22), the
jury-lenity rationale of the Dunn rule is no less applicable in cases
of "compound-predicate" offenses such as Section 843(b) than in any
other case.  In fact, Dunn itself involved a compound-predicate
offense (see U.S. Br. 22-24), and the decision below is thus squarely
at odds with the precise holding in Dunn.  /2/

   Respondent also argues that the jury, in returning an acquittal on
the conspiracy count, found "that the predicate (for the telephone
facilitation counts) was not established" (Br. 40) and "rejected * * *
(the government's) 'proof' of predicate offenses to support (the
telephone counts)" (Br. 69 n.56).  Because in her view "(t)he jury's
verdict of not guilty * * * (on the conspiracy charge) precludes guilt
on this specific predicate" (Br. 29), respondent submits that an
essential element of the telephone offense is lacking.  This argument
reflects a fundamental misunderstanding of the "inconsistent verdict"
rule and is flatly foreclosed by Dunn.  Dunn recognizes that in
inconsistent verdict cases a jury's acquittal, given its power of
leniency, cannot be taken to be a determination that the defendant is
not guilty of the offense.  Rather, "(t)he 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"
(284 U.S. at 393 (citation omitted)).  Since, under Dunn, an acquittal
does not signify that the government failed to establish the
defendant's guilt on that count, it does not serve to impeach the
verdict on the remaining counts.  Accordingly, respondent's
convictions on the Section 843(b) counts -- which necessarily include
a jury finding that she used the telephone to facilitate the predicate
offense -- are not undermined by her acquittal on the conspiracy
charge.  /3/

   In creating an exception to the Dunn rule for the telephone
facilitation offense, courts have relied on the discussion in Dunn of
the doctrine of res judicata (see U.S. Br. 25-26).  We have previously
ignored the settled jury-lenity rationale for the Dunn rule and
erroneously invoked a discredited analysis of preclusion principles
that has long since been rejected as the basis for the "inconsistent
verdict" doctrine.  /4/ Moreover, while respondent is at pains to
emphasize (Br. 29, 40-43) what she asserts to be the narrow and unique
nature of the exception to the Dunn rule for Section 843(b), /5/
application of preclusion principles would eviscerate Dunn in cases
involving multiple charges against a single defendant (see U.S. Br.
29);  although purportedly establishing a limited exception to Dunn,
that line of reasoning "is so incompatible with the general principles
governing the subject as to cause it to be, in substance, not an
exception at all, but, under the guise of an exception, a mere
disregard or repudiation of the principles themselves." United States
v. Thompson, 251 U.S. 407, 414 (1920).  Indeed, acceptance of that
approach would mean that Dunn itself was wrongly decided (see U.S. Br.
29).

   Finally, the Dunn rule does not, as respondent asserts (Br. 46-47),
eliminate "judicial review of elements of the offense" or "put the
jury 'above the law.'" Our opening brief explicitly recognized (at 12,
18-20 & n.25, 24 n.31) that, as in any other case, a defendant in an
inconsistent verdict case is free to challenge the sufficiency of the
evidence under traditional standards.  But the adequacy of the
government's proof to support the defendant's guilt is not affected by
the jury's disposition to the remaining counts.  The dUnn rule
protects the integrity of the jury's verdict and gives effect to the
conviction that the jury returned (see U.S. Br. 16);  it is not,
contrary to respondent's contention (Br. 47), in any way "a shield to
prevent legal review" of the sufficiency of the evidence to sustain
the conviction.

   2. Respondent next asserts (Br. 29, 55-73) that the court of
appeals determined that the evidence was insufficient to uphold the
convictions on the telephone facilitation counts.  This argument
reflects a misunderstanding of the decision below.  Indeed, respondent
never even argued (aside from her inconsistent verdict argument) that
the convictions were not supported by adequate evidence.

   In the court of appeals, the government contended that the verdict
was not in fact inconsistent because the jury could have found that
respondent used the telephone to facilitate a drug offense other than
the conspiracy of which she was acquitted.  The court rejected this
contention, explaining that "(w)e have reviewed the record and we are
not convinced that there is evidence to support the government's claim
that 'someone other than' the conspirators named in Count 1 had
possession (of the cocaine) and that (respondent's) telephone calls
facilitated that possession" (Pet. App. 2a).  We have not raised in
this Court the fact-bound issue of whether the verdict was actually
inconsistent (see U.S. Br. 11 n.10), and the court of appeals'
analysis in this respect, on which respondent heavily relies (Br.
56-57), neither bears on the inconsistent verdict question presented
in our petition nor indicates in any way that the court below found
the evidence insufficient to sustain respondent's convictions.

   In addition, in denying the government's petition for rehearing,
the court of appeals reaffirmed its exception to Dunn for the
telephone facilitation offense and, based on that ruling, stated that
the convictions "must be reversed for lack of sufficient evidence.  *
* * * * We adhere to our statement in our opinion that there is
insufficient evidence to support the convictions" (Pet. App. 7a-8a).
As discussed in our opening brief (at 19-20), the court of appeals'
formulation confused the questions of the sufficiency of the evidence
and the consistency of the verdicts.  The former question must be
decided as though the telephone counts had been the only ones
prosecuted -- i.e., totally without regard to the jury's verdict on
the conspiracy count.  Respondent did not challenge the adequacy of
the government's proof and -- apart from the consistency issue -- the
court of appeals did not make any such evidentiary inquiry.  Thus, the
decision below rests entirely on the court's exception to the Dunn
rule and does not reflect any assessment that the evidence supporting
respondent's convictions was insufficient under traditional standards.
 /6/

   Respondent also appears to argue that, regardless of whether the
court of appeals so found, the evidence was in fact inadequate to
prove the telephone facilitation counts.  Since respondent did not
raise this issue below, it is not appropriately presented here.  /7/
Moreover, that fact-bound question, involving the application of
established principles to the particular record in this case, does not
warrant the Court's review.  /8/ To be sure, our opening brief (at
18-19) touched on the sufficiency of the evidence, but this discussion
was designed to illustrate the difference between the issues of
sufficiency and consistency, not to embroil the Court in what
respondent now advances as a contested question.  Should this Court
choose to reach the question, however, we submit, for the reasons
outlined in our opening brief, that the evidence was plainly
sufficient and that respondent's attempt to reargue at length the
contentions that were made to and rejected by the jury in connection
with the Section 843(b) counts is misdirected and unavailing.  /9/

   3. Finally, respondent presents a miscellany of issues that were
not raised below, are entirely unrelated to the question on which
certiorari was granted, and do not call for the Court's review in this
case.  /10/

   a. Respondent contends (Br. 73-75) that the telephone facilitation
counts in the indictment failed to provide adequate notice of the
charges against her.  At bottom, respondent's argument is that the
indictment was duplicitous because it referred to two predicate
offenses (see Resp. Br. 73 & nn.58, 59);  so understood, her objection
was waived when it was not raised in the district court.  See Fed. R.
Crim. P. 12(b)(2) and (f).  Nor did she present this argument to the
court of appeals.  Moreover, respondent has failed to indicate how she
was misled or prejudiced in any way by the drafting of the indictment.
 And there is no basis in this case for the "parade of horribles" that
respondent hypothesizes;  her Section 843(b) convictions were not
premised on a facilitated offense that was not charged in the
indictment or proven at trial.

   b. Respondent also asserts (Br. 25-27, 76-79) that there was a
fatal variance between the indictment and the proof at trial because
the district court instructed the jury (Tr. 1376-1377) that it could
convict on the telephone facilitation charge in Count 5 if it found
that respondent had reason to know that a certain package contained
either cocaine or quaaludes, even though the indictment referred only
to cocaine.  Once again, this issue is entirely separate from the
inconsistent verdict issue presented in our petition, and it was not
raised in either the district court or the court of appeals;  indeed,
at trial, respondent's counsel, although initially suggesting a
different view (Tr. 1373-1374), specifically stated that he had "no *
* * quarrel" with the instruction that was given (Tr. 1374).  /11/ In
addition, respondent's argument, if successful, would lead to a new
trial rather than the judgment of acquittal that was entered by the
court of appeals, and therefore it is not properly advanced as an
alternative ground for affirmance.  /12/ In any event, this argument
affects only one of the three telephone counts on which she was
convicted and on which she received concurrent sentences.

   c. Respondent next argues (Br. 80-88) that she was denied the
effective assistance of counsel at trial.  Respondent's primary claim
is that her attorney had a conflict of interest because he was a
confederate of respondent's husband and co-defendant, Ron Powell.
Respondent raised this issue in her cross-petition for a writ of
certiorari, which the Court denied (No. 83-6617 (June 18, 1984)), and
there is plainly no reason for respondent to be allowed to circumvent
the denial of her cross-petition by presenting the same question in
her brief on the merits in this case.  /13/ As we stated in our brief
in opposition to the cross-petition, the appropriate procedure is for
respondent to pursue her remedies under 28 U.S.C. 2255 so that the
issue -- which respondent has represented was not known to her until
after the case had been argued and submitted in the court of appeals
-- may be considered by the lower courts on the basis of a record to
be developed in the collateral proceeding.  /14/

   d. Finally, respondent argues (Br. 88-90) that the Speedy Trial Act
(18 U.S.C. 3161(c)(2)) was violated because she did not consent in
writing to the commencement of trial less than 30 days after the
return of a superseding indictment.  Again, respondent admits (Br. 90
& nn.74, 75) that this statutory issue was not only not the basis of
any objection at trial, but also was not raised on appeal;  it is
therefore waived.  Moreover, the superseding indictment did not change
either the telephone facilitation counts on which respondent was
convicted or the predicate conspiracy count, /15/ and thus the Speedy
Trial Act issue is unrelated both to the legal question and to the
counts that are before the Court on our petition.  We also note that
defense counsel had requested a prompt trial because respondent was in
custody (5/19/82 Tr. 8-9;  6/1/82 Tr. 13), that counsel was given
advance notice of the charges in the superseding indictment (6/8/82
Tr. 17,82), and that counsel thereafter reiterated the request to
proceed to trial on an expedited basis and asked that the superseding
indictment not delay the proceeding (id. at 18, 81-82;  6/14/82 Tr.
4).  /16/ In light of these considerations, review of respondent's
contention is not warranted in this case.  /17/

   For the foregoing reasons and those stated in our opening brief, it
is respectfully submitted that the judgment of the court of appeals
should be reversed.

   REX E. LEE

      Solicitor General

   OCTOBER 1984

   /1/ As discussed in our opening brief (at 24 n.31), Hartzel v.
United States, 322 U.S. 680, 682 n.3 (1944), is not, contrary to
respondent's understanding (Resp. Br. 45-46), an inconsistent verdict
case at all.  Because all of the defendants were convicted at trial,
there was no inconsistency in the jury's verdict;  the only issue
before the Court was the sufficiency of the evidence to sustain the
conspiracy conviction of one defendant in light of the reversal of the
convictions of his co-conspirators, and the government conceded that
in those circumstances the remaining conspiracy conviction could not
stand.  Despite respondent's assertion (Br. 47 n.38), nothing in our
submission on the inconsistent verdict issue in this case is at
variance with either the government's concession or the Court's ruling
(which was substantially adopted from the government's brief) on the
question of the sufficiency of the evidence in Hartzel.

   /2/ Respondent's effort (Br. 42-45) to distinguish Dunn is entirely
unconvincing.  She quotes (Br. 44) the Court's summary of the
government's argument that the verdicts were not in fact inconsistent
(284 U.S. at 392-393).  But the Court did not rest its decision on
that narrow ground.  Rather, the Court made clear that, even where
verdicts are inconsistent, such inconsistency is not a basis to set
aside the defendant's conviction.  See 284 U.S.at 393-394;  see also
id. at 397, 399 (Butler, J., dissenting).

   /3/ Respondent is therefore incorrect in asserting (Br. 40) that
application of the inconsistent verdict doctrine to affirm her
convictions would mean that "the jury's finding (in the acquittal)
that she did not have the requisite knowledge for conviction of any
conspiracy or substantive count (would) be rejected(.)" Moreover, it
is respondent's exception to the Dunn rule that would require the
rejection of the jury's determination;  after all, the jury convicted
respondent on the Section 843(b) counts that she is seeking to
overturn.  The Dunn rule preserves the jury's verdicts intact and
prevents the portion of the judgment favorable to the defendant from
being isolated and used to upset the remainder of the jury's findings.

   /4/ Respondent herself appears to acknowledge (Br. 52-53) that
Dunn's treatment of res judicata was of doubtful correctness at the
time and in any event is of no continuing validity (see U.S. Br.
26-27).

   /5/ Elsewhere, however, respondent recognizes the broader
implications of her argument, noting (Br. 53 n.42) that "(t)here are
exceptions to Dunn and (this) case is one of them."

   /6/ We note that the Eleventh Circuit has recently held that the
exception to Dunn for Section 843(b) applies only where the jury
acquits the defendant on the count that is the predicate offense for
the telephone facilitation charge and not where the jury is unable to
reach a verdict and a mistrial is declared on the predicate offense.
See United States v. Arrow, 739 F.2d 549 (11th Cir. 1984).  This
result appears to us to be consistent with the court's reliance on a
preclusion analysis in United States v. Brooks, 703 F.2d 1273 (11th
Cir. 1983) (see U.S. Br. 25;  page 4, supra), since a hung jury on the
predicate offense at an initial trial would not bar prosecution for
the telephone facilitation offense in a subsequent proceeding.
However, it does not appear to be consistent with the argument,
advanced both by respondent (see pages 3-4, 6, supra) and by the court
in Arrow (739 F.2d at 550), that the jury's determination on the
predicate count can render the evidence insufficient on the telephone
facilitation count;  whether the jury hangs or acquits on the
predicate count, it does not accept the government's proof of the
defendant's guilt, and therefore, under the "insufficient evidence"
argument, a conviction on the telephone facilitation count should not
stand in either event because of the failure to establish the
predicate offense.  For the reasons already discussed, we believe the
court in Arrow confused the concepts of sufficiency of the evidence
and consistency of the verdict when it stated (739 F.2d at 550
(citation omitted)):

         (A)n acquittal of the felony upon which the Government relied
      to support the felony requirement of Section 843(b) (makes) the
      proof insufficient as a matter of law to support the
      facilitation count.  In effect, there being no felony there
      could be no facilitating of a felony.

         The premise of * * * (this analysis is) a jury determination
      that the underlying felony had not been committed by the
      defendant * * * .

The premise referred to by the court in Arrow is, of course, the very
one this Court rejected in Dunn.

   /7/ See, e.g., Jenkins v. Anderson, 447 U.S. 231, 234 n.1 (1980);
United States v. Mitchell, 445 U.S. 535, 546 n.7 (1980);  Washington
v. Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979);  Hankerson v.
North Carolina, 432 U.S. 233, 240 n.6 (1977).

   /8/ See, e.g., United States v. Nobles, 422 U.S. 255, 241-242 n.16
(1975);  United States v. Reliable Transfer Co., 421 U.S. 397, 401 n.2
(1975).

   /9/ We do note that respondent's recitation of the evidence and
instructions further indicates (see U.S. Br. 22) that jury lenity is
the most likely explanation for her acquittal on the conspiracy count.

   /10/ Certainly nothing in these extraneous issues supports
respondent's passing assertion (Br. 91-92) that the Court should
dismiss the government's petition as improvidently granted.

   /11/ Cf. United States v. Frady, 456 U.S. 152, 166 (1982);
Hankerson v. North Carolina, 432 U.S. 233, 244 n.8 (1977);  Henderson
v. Kibbe, 431 U.S. 145, 154 (1977).

   /12/ See, e.g., Andrus v. Idaho, 445 U.S. 715, 725 n.6 (1980);
United States v. New York Telephone Co., 434 U.S. 159, 166 n.8 (1977);
 FEA v. Algonquin SNG, Inc., 426 U.S. 548, 560 n.11 (1976);  Stern &
Gressman, Supreme Court Practice 478 (5th ed. 1978).

   /13/ Moreover, because respondent's argument would support only a
new trial rather than the acquittal ordered by the court of appeals,
and because it would affect her false statement conviction (which is
not put in issue by our petition), it is not properly considered as an
alternative ground for affirmance.

   /14/ Respondent also asserts that a remark by her lawyer in closing
argument constituted ineffective assistance.  Although respondent
conplained in the court of appeals about a number of specific
instances of counsel's performance, she concedes (Br. 86 n. 69) that
she did not raise this issue.  (Respondent was represented in the
court of appeals by a different attorney than had represented her at
trial;  in this Court she is represented by another attorney who was
not involved in the lower court proceedings.) Moreover, especially in
light of the district court's instruction that "(s)tatements and
arguments of counsel are not evidence in the case" (Tr. 1287), we
doubt that counsel's remark deprived respondent of her constitutional
rights.  See generally Strickland v. Washington, No. 82-1554 (May 14,
1984).

   /15/ The superseding indictment eliminated one telephone
facilitation count and added two firearms counts (on which respondent
was acquitted) and a false statement count (on which respondent was
convicted;  that conviction was affirmed by the court of appeals and
was challenged on grounds other than the Speedy Trial Act in
respondent's unsuccessful cross-petition in this Court).

   /16/ Copies of the relevant pages of the transcript of May 19, June
1, and June 8 are being lodged with the Clerk of this Court and sent
to counsel for respondent;  respondent has previously lodged a copy of
the June 14 transcript.

   /17/ We further point out that the Court recently declined to
review the Speedy Trial Act issue that respondent asserts.  See
Williford v. United States, cert. denied, No. 83-6814 (Oct. 9, 1984).