Respondents Brief — Griffin v. United States

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

, vx, 28 Court, US,

/. & D

No. 90-6352 f MAY 8 19g)

OFFILE Gr THE cuca |

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

DIANE GRIFFIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether a conviction for a multiple-object con-

spiracy must be set aside when the jury returns a

general verdict of guilty and the evidence is insuffi-

cient to support one of the objects of the conspiracy.

(1)

TABLE OF CONTENTS

(IIT)

Page

EEE SEL l

Ne nsccssseseecsascescccees 1

Statutory provision involved _........ Asn ES a 1

LD 2

Nee scnsesnensonsovoss 5

Argument

A conviction of a multiple-object conspiracy is not

subject to reversal because the evidence is insuffi-

cient to support one of the objects of the conspir-

i cenastbusesotecccsossoocs 8

A. A reviewing court should evaluate the suffi-

ciency of the evidence in multiple-object con-

spiracy cases under the same rule that applies

sensnnsnnanconnn 8

B. The decisions of this Court requiring a review-

ing court to vacate a conviction if the indict-

ment or jury instructions are legally flawed do

Teen en ceseesaees 16

C. The district court was not required to use spe-

cial interrogatories or special jury instructions

to focus the jury’s attention on petitioner’s role

Cee ccssnesessocanen 27

EES TE 30

TABLE OF AUTHORITIES

Cases:

Air Courier Conference Vv. American Postal Work-

ers Union, 111 S. Ct. 913 (1991) —.....00202 oe... 20

American Medical Ass’n Vv. United States, 317 U.S.

a ccemeenees 21, 22, 23

Bailey v. United States, 5 F.2d 437 (5th Cir.

Teen cennenscneconss 11

Berger Vv. United States, 295 U.S. 78 (1935)... 14, 15

Beverly v. United States, 111 S. Ct. 766 (1981) 5

IV Vv

Cases—Continued : Page Cases—Continued : Page

Burks v. United States, 437 U.S. 1 (1978) ........... 8 United States v. Brown, 583 F.2d 659 (3d Cir.

Christiansen Vv. United States, 52 F.2d 950 (5th 1978), cert. denied, 440 U.S. 909 (1979) _.......... 12

Cir, 1931) ....-----e-co-encoeeecen cscs eetcce scenes eteenecenneeeeceees 11 United States v. Coonan, 839 F.2d 886 (2d Cir.

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 GRAS RIE Sane oe ees ae 27

(1821) nnn ennenenneeeecneeceeeeeeeeeseeeneceeneenneecnnecnneecnneees 25 United States v. Cramer, 137 F.2d 888 (2d Cir

Crain Vv. United States, 162 U.S. 625 (1896) ........ 9 sR 19

Cramer V. United States, 325 U.S. 1 (1945)........ 17, 19, 26 United States v. Dansker, 587 F.2d 40 (3d Cir.

Duncan V. Louisiana, 391 U.S. 145 (1968) ............ 20 1976), cert. denied, 429 U.S. 1088 (1977)........ 12

Glasser v. United States, 315 U.S. 60 (1942) .......... 8 United States v. Desmond, 670 F.2d 414 (3d Cir.

Gray Vv. United States, 174 F.2d 919 (8th Cir.), “ESE adi Ties a 22

cert. denied, 338 U.S. 848 (1949) .................. 28 United States v. Dixon, 586 F.2d 1388 (2d Cir

Haupt v. United States, 330 U.S. 631 (1947) _...... 21, 24 ASS ae 11

Hogan v. United States, 48 F.2d 516 (5th Cir.), - United States v. Escalante, 637 F.2d 1197 (9th

cert. denied, 284 U.S. 668 (1931) —.............. 11 Cir.), cert. denied, 449 U.S. 856 (1980) _........ 14

Jackson V. Virginia, 443 U.S. 307 (1979) ............. 8, 21 United States v. Frank, 520 F.2d 1287 (2d Cir.

Kepl v. United States, 299 F. 590 (9th Cir. 1924). 11 1975), cert. denied, 423 U.S. 1087 (1976)........ 11

McDaniel v. Sanchez, 452 U.S. 130 (1981) ............ 24 United States v. Garcia, 907 F.2d 380 (2d Cir.

McDonnell v. United States, 19 F.2d 801 (lst RR OS 11

Cir.), cert. denied, 275 U.S. 551 (1927) ............ 11 United States Vv. Gleason, 616 F.2d 2 (2d Cir.

McWhorter v. United States, 62 F.2d 829 (5th Cir. 1979), cert. denied, 444 U.S. 1082 (1980)........ 14

1933) -......-----noneneoenceneeceeeeneesenesenecencenseenneenneennecenses 11 United States v. Griffin, 699 F.2d 1102 (11th Cir.

Moss v. United States, 1382 F.2d 875 (6th Cir. ESOT tata ea SE ae 11

1943) -....--oneeroencneeconecenecnneceneceneeenecentennteenennnseencees 11 United States v. Grizaffi, 471 F.2d 69 (7th Cir.

Richardson V. Marsh, 481 U.S. 200 (1987) ............ 20 1972), cert. denied, 411 U.S. 964 (1973) ............ ii

Stein v. New York, 346 U.S. 156 (1953) .............. 28 United States v. Halbert, 640 F.2d 1000 (9th Cir.

Stromberg Vv. California, 283 U.S. 359 (1931) ........ 17, 18 ro ree ak tency es Ak 10

Third National Bank v. Impac Limited, Inc., 432 United States v. Head, 641 F.2d 174 (4th Cir.

U.S. 812 (1977) _..----------nnnoneneeenennne ene te 25 1981), cert. denied, 462 U.S. 1132 (1983) ......... 11-12

Turner \. United States, 396 U.S. 398 (1970) a 5, 9, 25 United States v. Irwin, 654 F.2d 671 (10th Cir.

United States v. Adams, 759 F.2d 1099 (3d Cir.), 1981), cert. denied, 455 U.S. 1016 (1982)........ 11

cert. denied, 474 U.S. 906 (1985) -..................... 14 United States v. James, 482 F.2d 303 (5th Cir.),

United States v. Aguilar, 883 F.2d 662 (9th Cir. cert. denied, 403 U.S. 906 (1971) _.........--.-.. 22

1989), cert. denied, 111 S. Ct. 751 (1991)... 27 United States v. Jomes, 528 F.2d 999 (5th Cir.),

United States v. Bilzerian, 926 F.2d 1285 (2d Cir. cert. denied, 429 U.S. 959 (1976) 10

1991) ....---o- enone eneecseeeesce ees csnsecsecceccenteecnneeccenseecennstee 10 United States v. Johnson, 713 F.2d 633 (11th Cir.

United States v. Berardi, 675 F.2d 894 (7th Cir 1983), cert. denied, 465 U.S. 1081 (1984)........ 10

19B2) an eencoeeeenccnseeeccenstececnceeceeeeeeccnsetcecnneccceeets 26 United States v. Mack, 112 F.2d 290 (2d Cir.

United States v. Boffa, 688 F.2d 919 (3d Cir. OS SRS SARE ek 5 11

1982), cert. denied, 465 U.S. 1066 (1984)... 28 United States V. Miller, 471 U.S. 130 (1985) ..5, 8, 9, 13, 25

United States v. Bolts, 558 F.2d 316 (5th Cir.), United States v. Mowad, 641 F.2d 1067 (2d Cir.),

cert. denied, 434 U.S. 930 (1977) 0... 14

cert. denied, 454 U.S. 817 (1981) ....................... 11

Cases—Continued :

United States v. Murray, 621 F.2d 1163 (1st Cir.),

cert. denied, 449 U.S. 837 (1980) —.............0........

United States v. Natelli, 527 F.2d 311 (2d Cir.

1975), cert. denied, 425 U.S. 934 (1976) —..........

United States v. O’Looney, 544 F.2d 385 (9th

_ Cir.), cert. denied, 429 U.S. 1023 (1976) ...........

United States v. Palmeri, 630 F.2d 192 (3d Cir.

1980), cert. denied, 450 U.S. 967 (1981) ...........

United States v. Papadakis, 510 F.2d 287 (2d

Cir.), cert. denied, 421 U.S. 950 (1975) _...........

United States v. Phillips, 606 F.2d 884 (9th Cir.

1979), cert. denied, 444 U.S. 1024 (1980) ........

United States v. Powell, 469 U.S. 57 (1984) ........

United States v. Rapp, 871 F.2d 957 (11th Cir.),

cert. denied, 110 S. Ct. 233 (1989) 2.000000...

United States v. Riccobene, 709 F.2d 214 (3d

Cir.), cert. denied, 464 U.S. 849 (1983) _............

United States v. Rodriguez, 585 F.2d 1234 (5th

Cir. 1978), aff’d, 450 U.S. 333 (1981) —....00........

United States v. Ruggiero, 726 F.2d 913 (2d Cir.),

cert. denied, 469 U.S. 831 (1984) 2.000000...

United States v. Ryan, 828 F.2d 1010 (3d Cir.

ORE SEES ACES Eee ae Ree Rn ren ee

United States v. Spock, 416 F.2d 165 (1st Cir.

ERIS er reve ves Oe EATS Se

United States v. Tanner, 471 F.2d 128 (7th Cir.),

cert. denied, 409 U.S. 949 (1972) —.....000020000...

United States v. Tarnopol, 561 F.2d 466 (3d Cir.

aE SSS Ree Oe RO

United States v. Townsend, 924 F.2d 1385 (7th

RR ITED” ‘cinicichictsonnnnnicssetitstalanusesnsilamiiantinmsipnieeees 11,

United States v. Vastola, 899 F.2d 211 (3d Cir.),

cert. granted and judgment vacated, 110 S. Ct.

ete

United States v. Wedelstedt, 589 F.2d 339 (8th

Cir. 1978), cert. denied, 442 U.S. 916 (1979)...

United States v. Wiley, 846 F.2d 150 (2d Cir.

ER ae PRLS SPORE ers NOEL

United States v. Williams, 737 F.2d 594 (7th Cir.

REARS DSO Siero ant a Ea

Page

27, 28

16, 21

VII

Cases—Continued : Page

United States v. Wilson, 629 F.2d 439 (6th Cir.

SEE rene Epes er vUner rye ie rn pC Oeae ae 28

United States v. Zauber, 857 F.2d 137 (3d Cir.

1988), cert. denied, 489 U.S. 1066 (1989) _....... 12

Van Liew v. United States, 321 F.2d 664 (5th Cir.

REE ee TE Retest nee toe ee 12

Williams v. North Carolina, 317 U.S. 287 (1931).. 17,18

Williams y. United States, 289 U.S. 553 (1933)... 25

Wright v. United States, 302 U.S. 583 (1938) ....... 25

Yates v. United States, 354 U.S. 298 (1957) ....... . 6,17

Zant v. Stephens, 462 U.S. 862 (1983) ......000000...... 21, 22

Constitution, statutes and rules:

U.S. Const. :

Art. IV, § 1 (Full Faith and Credit Clause)... 18

SEI SRAIER AS Rennes one ks aR NOON Ale RARE 18

I 8

Sherman Act, 15 U.S.C. 1 et seq. ..........000000000000... ae 22

Smith Act of 1940, 18 U.S.C. 2385 22000. 17

| ke Se RSE oo Po eek Sane Aone 2

18 U.S.C. 1841 ......... LUE 9S ally SURFS eT RRP RO ROT x

ce nieaiaieaeenaaiecas 3

Fed. R. Civ. P.:

Rule 49(a) ......... ae ee BME ENN Als 27

REE SSE I aS ante ne 27

Miscellaneous:

1 J. Bishop, New Criminal Procedure (2d ed.

INET is satincnetinddgencedsieiies seeaaca acai a es 11

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-6352

DIANE GRIFFIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (J.A. 54-118)

is reported at 913 F.2d 337.

JURISDICTION

The judgment of the court of appeals was entered

on September 7, 1990. The petition for a writ of

certiorari was filed on November 27, 1990, and

granted on February 19, 1991. J.A. 119. The juris-

diction of this Court rests on 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Section 371 of Title 18 of the United States Code

provides in pertinent part:

If two or more persons conspire either to com-

mit any offense against the United States, or to

(1)

defraud the United States, or any agency

thereof in any manner or for any purpose, and

one or more of such persons do any act to effect

the object of the conspiracy, each shall be fined

not more than $10,000 or imprisoned not more

than five years, or both.

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the Northern District of Illinois, pe-

titioner was convicted of conspiring to defraud the

United States, in violation of 18 U.S.C. 371. She

received a suspended sentence and was placed on pro-

bation for five years on condition that she participate

in a work release program for the first six months

of her probation, obtain and maintain employment,

and perform 500 hours of community service. The

court of appeals affirmed. J.A. 54-118.

1. Petitioner’s conviction stems from her involve-

ment with narcotics distributor Alex Beverly. The

evidence at trial showed that from 1980 to 1986,

Beverly controlled a large narcotics operation in Chi-

cago, Illinois. Beverly purchased cocaine and heroin

from importers and (with the help of George Brown,

Betty McNulty, and others) distributed it through

several gambling establishments and lounges that he

owned or controlled. He used the profits to purchase

real and personal property, which he frequently

placed in the names of other persons, including Betty

McNulty and petitioner. J.A. 55-71.

In 1988, a grand jury returned a 23-count indict-

ment against Beverly, George Brown, Betty Mc-

Nulty, petitioner, and other individuals arising from

Beverly’s drug operation and his attempts to con-

ceal assets and income. J.A. 2-30. The indictment

charged Beverly with managing a continuing crim-

inal enterprise, and it charged Beverly, Brown, Mc-

Nulty, and others with conspiracy to violate, and

violation of, various narcotics statutes and related

laws. J.A. 2-17, 25-26. Most pertinent to this case,

Count 20 of the indictment alleged that Beverly,

McNulty, and petitioner joined in a conspiracy to de-

fraud the federal government, in violation of 18

U.S.C. 371. J.A. 17-22. Count 20 identified two ob-

jects of the conspiracy: (1) impairment of the ef-

forts of the Internal Revenue Service to ascertain

income taxes (the IRS object); and (2) impairment

of the efforts of the Drug Enforcement Administra-

tion to ascertain forfeitable assets (the DEA object).

J.A. 18.

The evidence relevant to Count 20 showed that

Beverly held and controlled assets in the names of

both McNulty and petitioner. He arranged for Mc-

Nulty to become (without capital contribution) the

majority shareholder of Blacom Corporation, a com-

pany that Beverly used to control various properties

he acquired through his drug operation. J.A. 65-68.

Beverly also placed real estate and a Mercedes Benz

automobile that he used in McNulty’s name. J.A.

68-69. Following the same modus operandi, Beverly

purchased a tavern and an adjoining building in pe-

titioner’s name. Petitioner filed tax returns claiming

the tavern as her own in order to conceal Beverly’s

ownership of the business and his underreporting of

income. J.A. 69, 196 & n.33. Beverly also purchased

a $35,000 Jaguar automobile in petitioner’s name,

and Beverly and petitioner structured the payments

on the car to evade federal reporting requirements

for cash payments in excess of $10,000 (26 U.S.C.

60501). J.A. 70 & n.8, 107. See also J.A. 49-50

(order denying bail pending appeal).

During the trial, petitioner unsuccessfully moved

for a severance, arguing that the government had

failed to prove that petitioner knew Beverly was a

drug dealer or that petitioner was aware of the DEA

object of the conspiracy. J.A. 76. At the close of

trial, petitioner proposed jury instructions that

would have required the jury to find that petitioner

knew the object of the conspiracy was to impede the

IRS in ascertaining Beverly’s taxes. J.A. 76-77. She

also asked the court to require the jury to identify,

through special interrogatories, whether petitioner

had knowledge of the IRS and DEA objects of the

conspiracy. The court denied both the proposed jury

instructions and the request for special interrogator-

ies. The jury returned a general verdict of guilty

against Beverly, McNulty, and petitioner on Count

20. J.A. 77.’

2. The court of appeals affirmed petitioner’s con-

viction. The court first found that there was suffi-

cient evidence to convict petitioner for participation

in the IRS object of the conspiracy. J.A. 105-109.

The court then rejected petitioner’s contention that

her conviction should be vacated because it was im-

possible to determine from the general verdict

whether the jury had convicted her of conspiring to

defraud the IRS, which the government had demon-

strated through sufficient evidence, or conspiring to

defraud the DEA, which the government had failed

to prove. The court explained that when the indict-

ment charges a nfultiple-object conspiracy, a general

verdict can stand as long as there is sufficient evi-

* The jury also found Beverly, McNulty, and other defend-

ants guilty of various other offenses. J.A. 55.

dence to support one of the objects of the conspiracy.

J.A. 105, 109-118.?

SUMMARY OF ARGUMENT

Petitioner argues that a defendant’s conviction for

a multiple-object conspiracy must be set aside if, as

in this case, the evidence is insufficient to show that

the defendant had knowledge of one of the objects of

the conspiracy. The court of appeals correctly re-

jected that contention. Petitioner’s conviction should

be sustained because, as petitioner acknowledges,

there was sufficient evidence for a rational trier of

fact to find that petitioner joined the conspiracy to

defraud the United States and knew that that object

would be achieved by impairing the Internal Revenue

Service’s efforts to ascertain income taxes.

1. This Court has long followed the general rule

that when a jury returns a guilty verdict on a sub-

stantive count charging several criminal acts in the

conjunctive, the verdict stands if the evidence is suffi-

cient with respect to any one of the acts charged.

United States y. Miller, 471 U.S. 130, 136 (1985);

Turner v. United States, 396 U.S. 398, 420 (1970).

Similarly, when a conspiracy count identifies several

objects of the conspiracy in the conjunctive, a jury’s

general verdict of guilty should stand if there is suffi-

cient evidence as to any of the objects. Most courts

2 The court of appeals affirmed the convictions and sen-

tences of the other defendants. J.A. 54-105, 118. With respect

to McNulty’s challenge to her conviction on the charge of

conspiracy to defraud the government, the court found that

the evidence against her was sufficient to establish both the

IRS object and the DEA object of the conspiracy. J.A. 98-

100. This Court denied Beverly’s petition for a writ of cer-

tiorari on January 14, 1991. Beverly v. United States, 111

S. Ct. 766 (1991).

of appeals follow that approach. Only the Third Cir-

cuit has consistently held that a conspiracy convic-

tion must be vacated if the government fails to prove

all the objects identified in the indictment.

2. The Court’s decisions in cases such as Yates v.

United States, 354 U.S. 298 (1957), which have set

aside convictions where the jury received incorrect

legal instructions as to one of several alternative bases

for conviction, do not support petitioner’s position.

When a trial court incorrectly instructs the jury as

to the law, it creates the possibility that a rational

jury might convict the defendant based on conduct

that is not a crime. That principle does not apply,

however, when the jury has been properly instructed

and the issue is simply whether the evidence is suffi-

cient to support the conviction. Our judicial system

assumes that once a jury is correctly instructed, it is

capable of correctly analyzing the evidence. The

standard for reviewing jury verdicts is premised on

that assumption; reviewing courts do not ask

whether the jury in each case reached its verdict in

a rational way, but only whether the evidence was

sufficient to allow a hypothetical rational jury to find

the defendant guilty. Thus, when the evidence is

sufficient to convict a defendant on one, but not all,

of several theories, the reviewing court’s task is at

an end, since the jury could rationally have convicted

on the theory for which there was sufficient evidence.

3. When the evidence as to one conspirator fails

to show that that conspirator shared in every object

of the conspiracy, the district court is not required to

submit special interrogatories to the jury or give

the jury a special instruction with respect to that

defendant. To be sure, in many cases the use of

special interrogatories can avoid problems arising

from factual or legal infirmities affecting one object

of a multiple-object conspiracy charge. For that rea-

son, we believe that in some settings the use of special

interrogatories is appropriate and should be en-

couraged. Nonetheless, the use of special interroga-

tories can sometimes generate jury confusion, and in

a particular case may create more problems than it

solves. The decision whether to use special interroga-

tories in a particular case should therefore be left to

the district court’s discretion. When a district court

decides not to use special interrogatories, the court’s

decision should not lead to reversal simply because

the evidence with respect to a particular defendant

turns out to be insufficient as to one of the objects

of the conspiracy.

The same principle should apply to the court’s de-

cision whether to instruct the jury that certain objects

do not apply to certain defendants. Such an instruc-

tion can be more confusing than enlightening when

several defendants are charged with a single multiple-

object conspiracy, particularly when the evidence is

sufficient, with respect to some defendants, on all the

objects of the conspiracy. As long as the evidence

is sufficient to support the jury’s verdict on at least

one of the objects of the conspiracy, and as long as

there is no legal error infecting the jury’s verdict, the

reviewing court’s traditional task is at an end and

the jury’s verdict should stand.

ARGUMENT

A CONVICTION OF A MULTIPLE-OBJECT CONSPIR-

ACY IS NOT SUBJECT TO REVERSAL BECAUSE

THE EVIDENCE IS INSUFFICIENT TO SUPPORT

ONE OF THE OBJECTS OF THE CONSPIRACY

A. A Reviewing Court Should Evaluate The Sufficiency

Of The Evidence In Multiple-Object Conspiracy Cases

Under The Same Rule That Applies In Other Cases

1. This Court has repeatedly emphasized that ap- -

pellate courts perform a limited function in reviewing

jury verdicts. The reviewing court does not “weigh

the evidence or * * * determine the credibility of wit-

nesses.” Glasser v. United States, 315 U.S. 60, 80

(1942). Nor does it attempt to determine how the

jury reached its verdict. Rather, the sole question for

the court is whether there is sufficient evidence to

permit a rational jury to find the defendant guilty.

United States v. Powell, 469 U.S. 57, 67 (1984):

Jackson vy. Virginia, 443 U.S. 307, 318-319 (1979) ;

Burks v. United States, 437 U.S. 1, 17 (1978).

That principle applies even if the evidence at trial

fails to prove all of the allegations in the indictment,

as this Court held in United States v. Miller, 471 U.S.

130 (1985). The indictment in Miller charged two

types of fraud, while the evidence showed only

one.” The precise issue in Miller was whether the

grand jury guarantee of the Fifth Amendment is

violated “when a defendant is tried under an indict-

* The defendant in Miller was convicted of mail fraud, 18

U.S.C. 1341, in connection with an insurance claim he made

following the burglary of his place of business. The indict-

ment alleged that the defendant defrauded an insurer both by

consenting to the burglary and by lying to the insurer about

the value of the loss. 471 U.S. at 131-132. The evidence at

trial, however, concerned only the latter allegation. Jd. at

132-133.

ment that alleges a certain fraudulent scheme but is

convicted based on trial proof that supports only a

significantly narrower and more limited, though in-

cluded, fraudulent scheme.” 471 U.S. at 131. The

Court affirmed the conviction, holding that the verdict

was valid as long as the allegations proved at trial

were contained within, even if not as broad as, the

charge in the indictment. In reaching that conclusion,

the Court relied in part on the proposition that when

a jury returns a guilty verdict on a count charging

several acts in the conjunctive, “the verdict stands

if the evidence is sufficient with respect to any one

of the acts charged.” Miller, 471 U.S. at 136, quoting

Turner v. United States, 396 U.S. 398, 420 (1970).

See also Crain v. United States, 162 U.S. 625, 634-636

(1896) (citing 19th Century cases and commentary ).

The “general rule,” Turner, 396 U.S. at 420, that

a verdict is valid if the evidence establishes any of-

fense charged in the count at issue, applies with no

less force in the case of an indictment charging a mul-

tiple-object conspiracy. The reviewing court’s role in

that setting is no different than in the case of an ordi-

nary substantive offense. The court’s inquiry in

either case is limited to whether the evidence was

sufficient to permit a rational jury to find the de-

fendant guilty beyond a reasonable doubt of the

crime charged in the indictment.

If petitioner’s position were adopted and conspir-

acies were treated differently from other crimes, re-

viewing courts would be forced to draw distinctions

having no principled basis. Assume, for example,

that a defendant is charged with the offense of de-

frauding an insurer through two means and the

offense of conspiring to defraud the insurer through

the same two means. Turner and Miller establish

that even if the government fails to prove that both

means were employed in committing the substantive

offense, the conviction would nonetheless stand. In

petitioner’s view, however, a different rule would

apply to conspiracy cases, and the reviewing court

would have to set aside the conspiracy conviction if

the government’s proof failed to prove that both

means were among the objects of the conspiracy.

There is no logical or doctrinal basis for such a

distinction, and this Court should not adopt it.

2. The court of appeals correctly held, in -accord-

ance with the principles of Miller and Turner, and

consistently with most circuit court decisions, that a

verdict of guilty on an indictment charging a mul-

tiple-object conspiracy must be affirmed if the

reviewing court finds that the evidence is sufficient

as to any one of the objects. J.A. 109-117. The First,

Second, Fifth, Eighth, Ninth, and Eleventh Circuits

appear to follow the rule that the court of appeals

applied in this case. See United States v. Bilzerian,

926 F.2d 1285, 1302 (2d Cir. 1991); United States

v. Johnson, 713 F.2d 633, 645-646 & n.15 (11th Cir.

1983), cert. denied, 465 U.S. 1081 (1984); United

States vy. Halbert, 640 F.2d 1000, 1008 (9th Cir.

1981); United States v. Murray, 621 F.2d 1163,

1171 (1st Cir.), cert. denied, 449 U.S. 837 (1980):

United States v. Phillips, 606 F.2d 884, 886 n.1 (9th

Cir. 1979), cert. denied, 444 U.S. 1024 (1980) ;

United States v. Wedelstedt, 589 F.2d 339, 341-342

(8th Cir. 1978), cert. denied, 442 U.S. 916 ( 1979) ;

United States v. James, 528 F.2d 999, 1014 (5th

Cir.), cert. denied, 429 U.S. 959 (1976).

This rule is not a new principle of law. As the

Fifth Circuit stated in James:

It has always been the law that where an indict-

ment alleges a conspiracy to commit several of-

fenses against the United States, the charge is

sustained by adequate pleadings and proof of

conspiracy to commit any one of the offenses.

528 F.2d at 1014, citing United States v. Frank, 520

F.2d 1287, 1293 (2d Cir. 1975), cert. denied, 423

U.S. 1087 (1976); United States v. Papadakis, 510

F.2d 287, 297 (2d Cir.), cert. denied, 421 U.S.

950 (1975); United States v. Grizaffi, 471 F.2d

69, 73 (7th Cir. 1972), cert. denied, 411 U.S. 964

(1973); McWhorter v. United States, 62 F.2d 829

(5th Cir. 1933); Christiansen v. United States, 52

F.2d 950 (5th Cir. 1931) ; Hogan v. United States, 48

F.2d 516 (5th Cir.), cert. denied, 284 U.S. 668

(1931). Similarly, the Second Circuit, speaking on

separate occasions through Judge Friendly and Judge

Learned Hand, has held that “where an indictment

charged a conspiracy to engage in three offenses and

only one was proved, the conviction could still stand.”

United States v. Dixon, 536 F.2d 1388, 1401-1402

(1976) (Friendly, J.), citing United States vy. Mack,

112 F.2d 290, 291 (1940) (Hand, J.).*

3. Petitioner notes that circuit courts occasionally

have departed from the result we urge.’ For the

* See also United States v. Townsend, 924 F.2d 1385, 1412-

1414 (7th Cir. 1991) ; United States v. Mowad, 641 F.2d 1067,

1073-1074 (2d Cir.), cert. denied, 454 U.S. 817 (1981);

United States v. Tanner, 471 F.2d 128, 140 (7th Cir.), cert.

denied, 409 U.S. 949 (1972) ; McDonnell v. United States, 19

F.2d 801, 803 (1st Cir.), cert. denied, 275 U.S. 551 (1927);

Moss V. United States, 132 F.2d 875, 877-878 (6th Cir. 1943) ;

Bailey v. United States, 5 F.2d 437, 438 (5th Cir. 1925) ; Kepl

v. United States, 299 F. 590, 591 (9th Cir. 1924) ; 1 J. Bishop,

New Criminal Procedure § 434 (2d ed. 1918).

° See United States v. Garcia, 907 F.2d 380, 381 (2d Cir.

1990) ; United States v. Griffin, 699 F.2d 1102, 1104 n.9 (11th

Cir. 1983) ; United States v. Irwin, 654 F.2d 671, 680 (10th

Cir. 1981), cert. denied, 455 U.S. 1016 (1982) ; United States

most part, however, those departures have proceeded

without acknowledgement or analysis of—and in

seeming inadvertence to—the prevailing rule. Only

the Third Circuit has consistently held that when an

indictment alleges several conspiracy objects and

predicate offenses, the evidence must be sufficient to

prove all of them if the court cannot determine which

specific offenses or objects the jury relied upon in

reaching its verdict.°

The Third Circuit adopted its rule out of concern

that where there is “a failure of proof” with respect

to one of several alleged objects of the conspiracy,

the jury may have based its verdict on the unproved

object. See United States v. Tarnopol, 561 F.2d 466,

474-475 (1977); United States. v. Dansker, 537 F.2d

40, 51 (1976), cert. denied, 429 U.S. 1038 (1977).

That reasoning, however, is inconsistent with this

Court’s decisions in Miller and Turner, which require

only that the reviewing court determine that the evi-

dence is sufficient to justify a rational jury in finding

the defendant guilty of the crime charged in the

indictment.

Vv. Head, 641 F.2d 174, 179 (4th Cir. 1981), cert. denied, 462

U.S. 1182 (1983) ; Van Liew v. United States, 321 F.2d 664

(5th Cir. 1963).

® See United States v. Vastola, 899 F.2d 211, 228 (RICO,

dictum), cert. granted and judgment vacated on other

grounds, 110 S. Ct. 3233 (1990); United States v. Zauber,

857 F.2d 137, 151-152 (1988) (RICO, dictum), cert. denied,

489 U.S. 1066 (1989); United States v. Riccobene, 709 F.2d

214, 227 (RICO, dictum), cert. denied, 464 U.S. 849 (1983) ;

United States v. Brown, 583 F.2d 659, 669 (1978) (RICO),

cert. denied, 440 U.S. 909 (1979) ; United States v. Tarnopol,

561 F.2d 466, 474 (1977) (conspiracy); United States v.

Dansker, 587 F.2d 40, 51 ( 1976) (conspiracy), cert. denied,

429 U.S. 1038 (1977). See also United States v. Ryan, 828

F.2d 1010, 1015 (1987) (false statements).

This Court “has long recognized that an indictment

may charge * * * the commission of any one offense”

—including conspiracy—“in several ways.” Miller,

471 U.S. at 136. If the reviewing court determines

that the evidence is sufficient to permit a jury to find

at least one of the several unlawful objects identified

in the indictment, then under the traditional standard

for reviewing jury verdicts, the evidence is sufficient

to establish that element of the crime. Moreover, éven

if speculation about the actual basis for the verdict

were permitted, the majority approach would be con-

sistent with any reasonable hypothesis regarding the

actual basis for the jury’s verdict. It would be un-

reasonable to assume that the jury would choose to

reject the sufficiently proved object and rely on the

insufficiently proved object instead,

4. The same principles apply when, as in this case,

the evidence on the second object of the conspiracy

is not insufficient as to all the defendants, but only

as to one. It is undisputed that the evidence at trial

was sufficient as to defendants Beverly and McNulty

with respect to both the IRS object and the DEA

object of the conspiracy. This is therefore not a case

in which the entire conspiracy was narrower than

that charged in the indictment. Rather, it is a case

in which the conspiracy was as broad as charged, but

in which one of the conspirators was unaware of one

of the means by which the fraudulent purpose of the

conspiracy was to be achieved.

The disparity in the evidence as to petitioner and

the other conspirators does not exonerate petitioner

from liability for her membership in the conspiracy,

nor does it suggest that she was a member of a conspir-

acy different from the one charged in the indictment.

It is a familiar principle of conspiracy law that a

jury may properly find a particular defendant guilty

of a charged conspiracy without finding that the de-

fendant was aware of or contributed to all the alleged

objects of the conspiracy.’

This Court’s analysis in Berger v. United States,

295 U.S. 78 (1935), is enlightening on that point.

The question in Berger was whether Berger’s con-

viction under a conspiracy indictment could be sus-

tained where the evidence at trial showed that Berger

was not a party to every aspect of the charged con-

spiracy. In analyzing Berger’s claim, the Court sug-

gested a hypothetical situation where, rather than

7 See, e.g., United States v. Rapp, 871 F.2d 957, 964-965

(llth Cir.) (defendants convicted of conspiracy based on

agreement to further two objectives of that conspiracy, even

though evidence did not show their knowledge of another

purpose of the conspiracy), cert. denied, 110 S. Ct. 233

(1989) ; United States v. Adams, 759 F.2d 1099, 1114 (3d

Cir.) (“[k]nowledge of all the particular aspects, goals, and

participants of a conspiracy * * * is not necessary”), cert.

denied, 474 U.S. 906 (1985); United States v. Williams, 737

F.2d 594, 615 (7th Cir. 1984) (“a conspirator need not know

the details * * * or every objective of the conspiracy”), cert.

denied, 470 U.S. 1003 (1985) ; United States v. Escalante, 637

F.2d 1197, 1200 (9th Cir.), cert. denied, 449 U.S. 856 (1980)

(“In order to be a co-conspirator, one need not know all the

purposes of and participants in the conspiracy.”); United

States v. Gleason, 616 F.2d 2, 16 (2d Cir. 1979) (‘To be con-

victed as a member of a conspiracy, a defendant need not

know every objective of the conspiracy.”’), cert. denied, 444

U.S. 1082 (1980); United States v. Bolts, 558 F.2d 316, 325

(5th Cir.) (“Determining whether [a defendant] agreed to

a particular objective is thus unnecessary in a case involving

a conspiracy with multiple and related criminal objecitves.’’),

cert. denied, 434 U.S. 930 (1977) ; United States v. Rodriguez,

585 F.2d 1234, 1249 (5th Cir. 1978) (“the government need

prove only that a conspirator agreed to one of the many ob-

jectives charged’), aff’d on other grounds, 450 U.S. 333

(1981).

charging one conspiracy, the indictment charged two

smaller conspiracies, each having a different object.

The Court observed that a defendant could properly

be convicted on one count of conspiracy based on evi-

dence at trial that established his participation in one

of the smaller conspiracies. It concluded that the

“situation supposed and that under consideration”

did not “differ in real substance.” Jd. at 83.

The same analysis can be applied to this case. As

in Berger, even if petitioner were regarded as hav-

ing been a member of a narrower conspiracy than the

one charged in Count 20, the variance between the

charge and the proof would not affect her in any

substantial way. There was ample evidence to con-

vict her of conspiracy based on the IRS object. In

addition, there was little or no risk of jury confusion

because of the evidence against the other defendants

with respect to concealment of assets from the DEA.

A fortiori, petitioner was not prejudiced by being

tried together with her co-defendants for a single

multiple-object conspiracy, even though the evidence

established her participation with respect to only one

of the two objects of that conspiracy. The absence of

any risk of prejudice is particularly clear in this

case, where the prosecutor explicitly advised the jury

that with respect to petitioner the government was

relying entirely on the sufficiently proved object (the

IRS object) and not on the other charged object (the

DEA object) to establish petitioner’s participation

in the conspiracy. See Tr. 3571.

5. The position we urge in this case, besides being

consistent with the prevailing legal rule, ensures the

efficient use of limited trial resources. The federal

government frequently prosecutes multiple-object con-

spiracies involving complex factual situations. It is

not unusual in such cases for a reviewing court to

conclude that the evidence to support the conspiracy

is sufficient, but the evidence with regard to one of

the subsidiary objects is not. Under petitioner’s ap-

proach, every case of that sort would have to be

retried.

The costs that retrying these cases would impose

on the prosecution, the defense, the courts, and wit-

nesses would be substantial. The benefits, by contrast,

would be minimal. As the Seventh Circuit recently

explained:

It is one thing to negate a verdict that, while

supported by evidence, may have been based

on an erroneous view of the law; it is another

to do so merely on the chance—remote, it seems

to us—that the jury convicted on a ground that

was not supported by adequate evidence when

there existed alternative grounds for which the

evidence was sufficient.

United States v. Townsend, 924 F.2d at 1414. Little

stands to be gained in questioning a jury verdict when

the trial is properly conducted, the jury is correctly

instructed on the law, and there is adequate evidence

to support the jury’s verdict. Indeed, a retrial, which

inevitably must be conducted at a later date when

witnesses or physical evidence may have disappeared

and memories may have faded, would in many in-

stances severely compromise the truth-finding process.

B. The Decisions Of This Court Requiring A Reviewing

Court To Vacate A Conviction if The Indictment Or

Jury Instructions Are Legally Flawed Do Not Govern

This Case

1. Petitioner argues that the court of appeals’

ruling is inconsistent with this Court’s decisions in

a line of cases setting aside verdicts because of legal

flaws in the indictments or jury instructions. See

Yates v. United States, 354 U.S. 298 (1957) ; Cramer

v. United States, 325 U.S. 1, 36 n.45 (1949); Wil-

liams v. North Carolina, 317 U.S. 287, 291-292

(1942); Stromberg v. California, 283 U.S. 359, 367-

370 (1931). As the court of appeals correctly recog-

nized, however, those cases all deal with the situation

where the jury acted under a mistaken understanding

of the law. They are not applicable to the situation

where the jury is correctly instructed on the legal

standards, but the government has failed, in some

respect, to prove the factual elements of its case. See

J.A. 110 & n.34.

Yates illustrates the distinction. The defendant

was charged under the Smith Act, 18 U.S.C. 2385,

with participating in a conspiracy to advocate the

violent overthrow of the government and to organize

a society or group for that purpose. 354 U.S. at 300.

After determining that the district court incorrectly

instructed the jury as to the latter object, the Court

vacated the conviction, stating:

In these circumstances we think the proper rule

to be applied is that which requires a verdict to

be set aside in cases where the verdict is sup-

portable on one ground, but not on another, and it

is impossible to tell which ground the jury

selected.

Id. at 312. As the court of appeals explained, Yates

was a case in which the jury, incorrectly instructed

on the law, might have convicted the defendant for

engaging in conduct that was not a crime. That rule

does not apply when the reviewing court determines

that the jury was properly instructed, and when the

only flaw is a lack of evidence as to one of the alleged

objects. In that setting, the principle set forth in

Turner controls: the jury is presumed to have cor-

rectly evaluated the evidence and to have convicted

the defendant on the theory for which there was

sufficient evidence.

The same distinction explains Stromberg, Williams,

and Cramer. In Stromberg, the defendant was con-

victed under a California statute prohibiting the dis-

play of a red flag in a public place as: (a) a symbol

of opposition to organized government; (b) an invi-

tation to anarchistic action; or (c) an aid to seditious

propaganda. See 283 U.S. at 361. The Court con-

cluded that the first clause of the statute violated

the First Amendment, id. at 369, and vacated the

conviction because “the conviction * * * may have

rested on that clause exclusively,” id. at 370.

In Williams, the defendants were convicted of the

North Carolina crime of bigamous cohabitation. The

jury was instructed that it could disregard the de-

fendants’ precohabitation Nevada divorce decrees on

the ground either that North Carolina did not recog-

nize decrees based on substituted service or that the

decrees were procured through fraud, See 317 U.S. at

290-291. This Court determined that the Full Faith

and Credit Clause required North Carolina to recog-

nize divorce decrees based on substituted service. It

therefore vacated the convictions, observing that the

verdict was “a general one,” and that it “follows here

as in Stromberg v. California, * * * that if one of the

grounds for conviction is invalid under the Federal

Constitution, the judgment cannot be sustained.” 317

U.S. at 291, 292.

In Cramer, the defendant was charged with treason

based on several acts, including his post-arrest false

statements to the FBI. The Court observed:

The verdict in this case was a general one of

guilty, without special findings as to the acts on

which it rests. Since it is not possible to identify

the grounds on which Cramer was convicted, the

verdict must be set aside if any of the separable

acts submitted was insufficient [citing Strom-

berg and Williams}.

325 U.S. at 36 n.45. The Court questioned whether

lying to the FBI under the circumstances could

legally constitute treason, but the Court found no

need to reach that issue because it reversed on the

ground that other charged acts of treason did not, as

a matter of law, constitute treason. Jd. at 36 n.45,

37-40. Thus, the Court’s statements in Stromberg,

Williams, and Cramer, that “insufficient” multiple-

object verdicts must be set aside, were all made in

the context of legal insufficiency—that is, where the

jury may have found that the defendant committed

the acts, but those acts, as a matter of law, did not

constitute crimes.*®

2. This Court’s decisions in Yates, Cramer, Wil-

liams, and Stromberg do not explicitly distinguish

between legal and factual insufficiency. Nevertheless,

* The court of appeals’ opinion in Cramer makes it quite

clear that the issue in that case was regarded as one of legal

as opposed to evidentiary insufficiency. See United States v.

Cramer, 137 F.2d 888 (2d Cir. 1943). The court of appeals

distinguished the Cramer case from cases in which multiple

overt acts are submitted to the jury and the conviction is up-

held as long as the evidence is sufficient with respect to any

one of them. In the latter class of cases, the court observed,

137 F.2d at 893,

it can be presumed upon a conviction that the jury has

properly fulfilled its time-honored function of weighing

the evidence and that its finding of guilt was based on

the one sufficiently proved overt act. But the jury was

never intended, nor, indeed, is it properly equipped, it-

self to determine the legal sufficiency, as distinguished

from the evidentiary sufficiency, of the overt acts alleged.

the Court’s statements in those cases “must be taken

in the context in which [they were] made,” Air

Courier Conference v. American Postal Workers

Union, 111 S. Ct. 913, 920 (1991), and the context

was that of legal insufficiency. Moreover, the dis-

tinction between legal and factual insufficiency is

solidly grounded in the logic of those decisions. In-

deed, it reflects two well-established and comple-

mentary premises concerning the jury’s discharge of

its functions.

Our judicial system presumes that jurors follow

the trial judge’s instructions on the law. See

Richardson v. Marsh, 481 U.S. 200, 206-207 (1987).

For that reason, when a judge incorrectly instructs

the jury as to the law, and thereby creates a signifi-

cant risk that a jury might have convicted the de-

fendant based on conduct that is not a crime, the de-

fendant is entitled to a new trial. Our judicial sys-

tem also presumes, however, that once the jury is

properly instructed, it is capable of correctly analyzing

the evidence. See Duncan vy. Louisiana, 391 U.S. 145,

157 (1968). Thus, where the evidence is sufficient to

convict the defendant on one but not all of several

theories, the reviewing court is justified in conclud-

ing that the jury convicted on the theory for which

there was sufficient evidence.

Petitioner suggests that there is no distinction be-

tween factual and legal insufficiency, because a re-

viewing court examines the sufficiency of the evi-

dence “as a matter of law.” That argument, we sub-

mit, misses the point. A reviewing court may in-

validate a jury’s guilty verdict if it concludes, as a

matter of law, that the evidence is insufficient to sup-

port the verdict. When a court addresses that issue,

“the relevant question is whether, after reviewing the

evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essen-

tial elements of the crime beyond a_ reasonable

doubt.” Jackson, 443 U.S. at 319. Applying that

standard, a reviewing court should not invalidate a

jury verdict if the indictment alleges that a conspir-

acy has two or more objects, and there is sufficient

evidence to support one of those objects. In that sit-

uation, a rational trier of fact could properly find

the essential elements of the crime beyond a reason-

able doubt.

In short, there is a sound basis for applying the

Yates rule in situations involving legal, but not fac-

tual, insufficiency. As the Seventh Circuit recently

explained:

It is consistent with our conception of the

jury’s role, and to reject it would force us, by

dint of logic, at any rate, to consider radically

revising that role. That is not, we believe, what

the Supreme Court had in mind when it created

the [ Yates] rule.

United States v. Townsend, 924 F.2d at 1414. The

court of appeals correctly determined in this case

that the evidence was sufficient to establish that peti-

tioner participated in the IRS object of the con-

spiracy. That determination is sufficient to sustain

petitioner’s conviction.

3. Petitioner relies on statements contained in

three of this Court’s other decisions that, petitioner

asserts, support application of the Yates rule to cases

of factual insufficiency. See Zant vy. Stephens, 462

U.S. 862, 881 (1983); Haupt v. United States, 330

U.S. 631, 641 & n.1 (1947); American Medical Ass’n

v. United States, 317 U.S. 519, 531-533 (1943). In

Zant, this Court reinstated the defendant’s sentence,

while in Haupt and American Medical Ass’n the

Court affirmed the convictions under review. Thus,

the statements that petitioner cites are dicta as to the

issue presented here. Moreover, only in the Haupt

case did the Court’s statement provide any support

for petitioner’s position that reversal is required

when one of several objects is found to suffer from

factual, as opposed to legal, insufficiency, and even

that statement is distinguishable on the basis of the

facts of the case from which it arose.

In Zant, the respondent argued that, u~der

Stromberg, a death sentence must be set aside i, one

of several statutory aggravating circumstances un-

derlying the jury verdict is determined to be uncon-

stitutionally vague. 462 U.S. at 866-868, 880. This

Court recited the Stromberg rule, but determined

that Stromberg did not require setting aside the sen-

tence, “because the jury did n& merely return a

general verdict stating that it had found at least one

aggravating circumstance. The jury expressly found

aggravating circumstances that were valid and

legally sufficient to support the death penalty.” 7d.

at 881. Thus, this Court’s statements in Zant, which

were addressed to the effect of a legally insufficient

ground for imposing the sentence (unconstitutional

vagueness), are consistent with our understanding of

the Stromberg/Yates line of cases.

In American Medical Ass’n, the defendants were

convicted on an indictment that charged a single

Sherman Act conspiracy having five anticompetitive

purposes. 317 U.S. at 519. The defendants con-

tended that the indictment effectively “charges five

Separate conspiracies defined by their separate and

recited purposes” and that “they were entitled to

have the trial court rule upon the sufficiency in law

of each of these charges and, as this was not done,

the general verdict cannot stand.” Id. at 531. The

defendants further contended that “the last two pur-

poses specified cannot constitute violations of [the

Sherman Act] and the jury should have been so in-

structed.” Ibid. The Court rejected the defendants’

claim, stating, ibid. :

If in fact the indictment charges a single con-

spiracy to obstruct or restrain the business of

Group Health, and if the recited purposes are

really only subsidiary to that main purpose or

aim, or merely different steps toward the ac-

complishment of that single end, and if the cause

was submitted to the jury on that theory, these

contentions fail.

Rather than helping petitioner, the Court's discus-

sion of that point is quite damaging to her argument.

The effect of the quoted passage is that, at least where

a single conspiracy offense is charged, and where the

listed purposes of the conspiracy are properly charac-

terized as “subsidiary to” or “steps toward the accom-

plishment of” the goal of the conspiracy, the convic-

tion could not be challenged on the ground that some

of those subsidiary purposes or means were invalid.

The analogy to this case is a close one. Count 20

of the indictment charged a single conspiracy to de-

fraud the United States. That unlawful end, the in-

dictment alleged, was to be achieved by concealing

assets from the IRS and the DEA. Under the Amer-

ican Medical Ass’n case, any failure of proof as to

one of those means of effecting the purpose of the

conspiracy would not affect the validity of the jury’s

verdict as long as the evidence was sufficient to show

a violation of the single offense charged—conspiring

to defraud the United States.

Moreover, the issue in American Medical Ass'n,

as in the other cases relied on by petitioner, was one

of legal sufficiency. See 317 U.S. at 533 (“The peti-

tioners in effect challenge the sufficiency in law of the

indictment. They hardly suggest that if the pleading

charges an offense there was no substantial evidence

of the commission of the offense.”). American Med-

ical Ass’n therefore provides no support at all for

petitioner’s challenge to her conviction.

In Haupt, the defendant sought reversal of his con-

viction for treason on the ground that the government

failed to prove that the defendant gave assistance or

comfort to enemy agents. 330 U.S. at 632, 634-635.

The Court concluded that in Haupt, unlike in Cramer,

there was no question that the charged acts were suffi-

cient as a matter of law to constitute treason. 330 U.S.

at 635. In addition, it concluded that the evidence was

sufficient to prove each of the acts submitted to the

jury. Jd. at 636-644. Accordingly, the Court ex-

pressly declined to “reach the question whether the

conviction could stand on some sufficiently proven acts

if others failed in proof.” Jd. at 640-641.

Although the Court did not reach that issue, it sug-

gested in an accompanying footnote:

As the acts were here pleaded in a single count,

and the jury were instructed that they could

convict on any one, we would have to reverse if

any act were insufficient or insufficiently proved.

Cf. Stromberg v. California, 283 U.S. 359, 368;

Williams v. North Carolina, 317 U.S. 287, 292,

and Cramer v. United States, supra.

Haupt, 330 U.S. at 641 n.1. We recognize that the

Court’s passing footnote reference to an “insufficiently

proved” object supports petitioner’s argument. That

reference, however, is not controlling here because it

was a mere “dictum unnecessary to the decision in

that case.” McDaniel v. Sanchez, 452 U.S. 130, 141

(1981). As Chief Justice Marshall explained 170

years ago:

It is a maxim not to be disregarded, that general

expressions, in every opinion, are to be taken in

connection with the case in which those expres-

sions are used. If they go beyond the case, they

may be respected, but ought not to control the

judgment in a subsequent suit when the very

point is presented for decision. The reason of

this maxim is obvious. The question actually be-

fore the Court is investigated with care, and

considered to its full extent. Other principles

which may serve to illustrate it, are considered

in their relation to the case decided, but their

possible bearing on all other cases is seldom com-

pletely investigated.

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400

(1821). See also Third National Bank v. Impac Lim-

ited, Inc., 432 U.S. 312, 319 n.9 (1977); Wright v.

United States, 302 U.S. 583, 593-594 (1938); Wil-

liams v. United States, 289 U.S. 553, 568 (1933).

That maxim holds especially true in this case. As

we have explained, the rule is settled in non-conspir-

acy cases that a “verdict stands if the evidence is

sufficient with respect to any one of the acts

charged.” Miller, 471 U.S. at 136, quoting Turner,

396 U.S. at 420. The Haupt dictum is inconsistent

with that settled rule. That isolated dictum, which

did not arise in a conspiracy case and provides no

answer to the logic of the court of appeals’ analysis

in this case, should not serve as the basis for over-

turning the Miller/Turner rule or creating a special

“conspiracy exception” to that rule.

In any event, the dictum in Haupt can be distin-

guished in light of the context in which it arose, even

if that dictum is correct as applied to substantive

offenses such as those involved in Haupt itself. Under

the law of treason, each overt act in a count charging

treason in effect constitutes a separate substantive

violation. See Cramer v. United States, 325 U.S. at

34-35. Haupt involved multiple alleged overt acts

of treason, all of which were charged together in a

single count. The count could thus be said to be

duplicitous, and to raise concerns about which of the

several substantive offenses charged in that count the

jury found the defendant to have committed.’ In

this case, by contrast, there was only a single con-

spiracy charged in Count 20 of the indictment, even

though the conspiracy was alleged to have several

objectives. Because Count 20 charged only a single

offense, it could not be characterized as duplicitous,

and there could be no doubt about what offense the

jury found petitioner to have committed. Therefore,

as in the American Medical Ass’n case, there is no

reason for concern that the jury may have found peti-

tioner guilty of an offense for which the evidence was

insufficient.”

® The same analysis serves to distinguish the cases holding

that when multiple specifications of perjury or obstruction of

justice are charged in a single count, the evidence must be

sufficient as to each specification in order for the conviction

on that count to be upheld. See United States v. Natelli, 527

F.2d 311 (2d Cir. 1975), cert. denied, 425 U.S. 934 (1976) ;

United States v. Berardi, 675 F.2d 894 (7th Cir. 1982). Be-

cause each specification constitutes a separate offense, the

prosecution can avoid that problem by charging each offense

in a separate count.

90-5551, which is currently pending before this Court. The

issue in Schad is whether the jury must be unanimous with

respect to all possible means that a defendant may have used

to commit a charged offense. In our view, unanimity is not

required with respect to the means used to commit an offense:

a jury is required to be unanimous only with respect to

C. The District Court Was Not Required To Use Special

Interrogatories or Special Jury Instructions To Focus

The Jury’s Attention On Petitioner's Role In The

Conspiracy

Petitioner argues that the problems resulting from

insufficiency in one object of a multiple-object con-

spiracy can often be avoided by the use of special

interrogatories, in which the jury is directed to in-

dicate which objects of the conspiracy it found to have

been proved.’ We agree that special interrogatories

can be a valuable tool in cases such as conspiracy or

RICO prosecutions where there is doubt as to the legal

validity of a particular object or predicate act. See,

e.g., United States v. Aguilar, 883 F.2d 662, 690-

691 (9th Cir. 1989), cert. denied, 111 S. Ct. 751

(1991); United States v. Coonan, 839 F.2d 886 (2d

Cir. 1988) ; United States v. Ruggiero, 726 F.2d 913,

922-923 (2d Cir.), cert. denied, 469 U.S. 831 (1984).

The government often proposes the use of special in-

whether the defendant committed the offense charged. There-

fore, as long as a single count charges only a single offense,

unanimity is required only with respect to the issue of guilt

or innocence on that count. Just as a general unanimity

charge is adequate to ensure the requisite unanimity among

the jurors when a single offense is charged in a particular

count (regardless of the alternative means alleged in that

count), a general reasonable doubt instruction is adequate to

ensure the proper approach to weighing the evidence when.a

single conspiracy offense is charged in a single count (even

if the count alleges multiple objects of the conspiracy).

1! While the term “special verdict” is sometimes used inter-

changeably with the term “special interrogatory,” the terms

have different meanings in civil practice. A “special verdict”

is used to elicit findings by the jury in the absence of a gen-

eral verdict, see Fed. R. Civ. P. 49(a), while “special inter-

rogatories” are used in conjunction with a general verdict,

see Fed. R. Civ. P. 49(b).

terrogatories in such cases in order to avoid the need

for a retrial if one predicate act or object turns out to

have a legal flaw. See, e.g., United States v. Boffa,

688 F.2d 919 (3d Cir. 1982), cert. denied, 465

U.S. 1066 (1984); United States v. Palmeri, 630

F.2d 192, 202-203 (3d Cir. 1980), cert. denied,

450 U.S. 967 (1981); United States v. O’Looney,

544 F.2d 385, 392 (9th Cir.), cert. denied, 429

U.S. 1023 (1976). But the use of special in-

terrogatories is not always suitable, and this Court

and others have discouraged routine use of the prac-

tice. See Stein v. New York, 346 U.S. 156, 178

(1953) (“no general practice of these techniques [spe-

cial verdicts and interrogatories] has developed in

American criminal procedure”); United States v.

Spock, 416 F.2d 165, 180-182 (1st Cir. 1969) ; United

States v. Wilson, 629 F.2d 439, 443 (6th Cir. 1980) ;

United States v. James, 432 F.2d 303, 307-308 (5th

Cir. 1970), cert. denied, 403 U.S. 906 (1971); Gray

v. United States, 174 F.2d 919 (8th Cir.), cert. de-

nied, 338 U.S. 848 (1949).

The proper course, in our view, is to leave to the

discretion of the district courts the decision whether

to use special interrogatories in a particular case.

See United States v. Ruggiero, 726 F.2d at 927-928

(Newman, J., concurring in part and dissenting in

part). In some cases, special interrogatories can be

very beneficial in facilitating subsequent review of the

verdict and can be used without running an undue

risk of confusing the jury or dictating the course of

its deliberations. That is particularly true if the

court submits the special interrogatories to the jury

after the general verdict has been returned. See

United States v. Desmond, 670 F.2d 414, 418 (3d

Cir. 1982).

In other cases, however, a district court should be

permitted to decline to use special interrogatories,

even in cases involving multiple predicate acts or

multiple objects of a conspiracy. The problem is that

special interrogatories, especially if submitted to the

jury prior to the general verdict, can sometimes result

in jury confusion and may unduly focus attention

on a particular charge or a particular defendant, as

this case illustrates.

In this case, there was ample evidence as to both the

DEA objective and the IRS objective with respect to

defendants Beverly and McNulty. A special inter-

rogatory with respect to petitioner alone and with

respect to Count 20 alone would give that count and

petitioner a special status that would be likely to

confuse the jurors, who would be left to speculate

why, of all the counts and defendants, they were

being given a special interrogatory with respect to

only one defendant on only one count.

Similarly, a special instruction regarding peti-

tioner’s role in the offense charged in Count 20, of

the sort proposed by petitioner, J.A. 39-42, would

have singled out petitioner for special treatment by

the jury in a way that could well have created jury

confusion. Although the evidence as to petitioner was

sufficient only as to the IRS objective, that did not

mean that she was not a member of the conspiracy

described in Count 20, or that the conspiracy that she

joined did not extend to the concealment of assets

from the DEA. It simply meant that petitioner was

not a party to one aspect of the agreement. Yet that

is a common enough phenomenon in conspiracy law; a

conspirator is fully liable under the law of conspiracy

even if he does not expressly agree upon, or even is

unaware of, all the objects of the conspiracy. As we

have noted, it is a familiar principle of the law of

conspiracy that the government “does not have to

prove that the accused knew every objective of the

conspiracy, every detail of the scheme’s operation,

or the identity of every co-conspirator.” United States

v. Wiley, 846 F.2d 150, 153-154 (2d Cir. 1988).

In this case, the jury could not have been misled

about the government’s position regarding the DEA

objective. The prosecutor clearly explained to the jury

during her rebuttal summation that the government’s

theory was that petitioner had conspired to conceal

assets from the IRS. See Tr. 3571. There was there-

fore no significant likelihood that the jury would

convict petitioner based on the DEA objective, on

which there was no evidence, rather than the IRS

objective, on which the evidence was ample. Under

these circumstances, the district court cannot be said

to have abused its discretion by declining to give the

jury special interrogatories or special instructions

regarding petitioner’s awareness of each object of the

conspiracy.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.