ALVIN MARTIN, PETITIONER V. UNITED STATES OF AMERICA No. 89-7618 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Brief For The United States In Opposition OPINIONS BELOW The memorandum and order of the court of appeals (Pet. App. 1a-7a) is not reported. The memorandum opinion of the district court (Pet. App. 1b-15b) is not reported. JURISDICTION The judgment of the court of appeals was entered on January 24, 1990. A petition for rehearing was denied on March 30, 1990. The petition for a writ of certiorari was filed on May 25, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a conviction under 18 U.S.C. 924(c)(1) for using or carrying a firearm in relation to a drug trafficking crime may be upheld when the jury renders an inconsistent acquittal on a separate count charging the underlying drug crime. STATEMENT After a jury trial in the United States District Court for the District of Columbia, petitioner was convicted of possessing a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c). /1/ He was sentenced to 60 months' imprisonment and a $250 fine. The court of appeals affirmed. Pet. App. 1a-7a. /2/ 1. The evidence at trial showed that on December 16, 1987, United States Park Police officers, armed with a warrant, searched an apartment in a building in Washington, D.C. As the officers proceeded up the stairs, someone yelled a warning, and petitioner's co-defendant Donal Coleman tossed a bag out the window of a top floor apartment. That bag was found to contain marijuana, cocaine, and a pistol. Pet. App. 1a, 2b; Gov't C.A. Br. 3. Once the search team entered the apartment, they found petitioner lying on a bed in the rear bedroom, the same room from which Coleman had thrown the bag of marijuana. Petitioner had a loaded, nine-millimeter pistol tucked in his waistband, and he also possessed an additional clip of ammunition. After arresting petitioner, the officers searched the rest of the apartment and frisked the other occupants. They discovered marijuana, a large amount of cocaine base, approximately $3,460 in cash, several weapons, and drug paraphernalia. One of the guns was found in a box that matched the description of a box that petitioner admitted he had brought with him from Jamaica. Petitioner's personal papers also were found in various rooms of the apartment. Pet. App. 1a, 4a, 2b-3b; Gov't C.A. Br. 5-7. 2. Petitioner was indicted on three counts. Count Three of the indictment charged him with possession with intent to distribute cocaine base. Count Four charged him with possession with intent to distribute marijuana. Count Two charged him with having "knowingly used and carried a firearm" "during and in relation to a drug trafficking crime," as specified in Counts Three and Four, in violation of 18 U.S.C. 924(c). Petitioner requested that the district court instruct the jury that it could not consider Count Two unless and until it concluded that petitioner was guilty of either of the drug distribution counts. The district court rejected that request, instead instructing the jury that petitioner could be convicted on the Section 924(c) count if it found "beyond a reasonable doubt" that the defendant "knowingly used or carried a firearm," and that his use or carrying of the firearm was "during and in relation to a drug trafficking crime, namely, the offense of possession with intent to distribute cocaine base, which is alleged in Count Three, or possession with intent to distribute marijuana, which is alleged in Count Four." Pet. App. 3a, 3b-4b. During deliberations, the jury sent several notes to the court requesting clarification of the instruction on the firearms count. As part of its response to the jury's notes, the court told the jury that it did not have to convict petitioner on the drug offenses in order to find him guilty on the firearms count, provided it found beyond a reasonable doubt that petitioner used or carried a firearm in relation to a drug trafficking crime. /3/ The jury then returned an inconsistent verdict, finding petitioner guilty on the firearms count, but not guilty on the drug offenses. Pet. App. 4b-7b. Following his conviction, petitioner moved to set aside the verdict on the ground that the jury's verdict was inconsistent. The district court agreed that the verdicts were inconsistent, but rejected petitioner's claim that the inconsistency required upsetting his conviction. Pet. App. 11b-15b. Relying on Dunn v. United States, 284 U.S. 390 (1932), and United States v. Powell, 469 U.S. 57 (1984), the court explained that it is "settled federal law" that "a criminal defendant could not attack the conviction because it was inconsistent with the jury's verdict of acquittal on another count." Pet. App. 12b. In this case, the court noted, "jury lenity or compromise may account for the inconsistent verdicts as to" petitioner. Id. at 13b. 3. The court of appeals affirmed in an unpublished memorandum and order. Pet. App. 1a-7a. It rejected petitioner's contention that the jury's inconsistent verdict warranted relief. As long as the guilty verdict rested on sufficient evidence, the court explained, the fact that the jury rendered acquittals on other counts is irrelevant. Here, the court found, "(t)here was sufficient evidence for the jury to conclude that (petitioner) possessed a gun while committing or aiding and abetting his codefendants' commission of the charged drug offenses." Id. at 4a. Summarizing the evidence, the court stated: (Petitioner) was found, wearing a gun, in the bedroom of an apartment filled with concealed drugs, drug paraphernalia, weapons, and cash. His papers were discovered in various locations throughout the apartment, and a box matching the description of a box he had brought from Jamaica was found, housing a gun, in the crawl space among large quantities of marijuana, cocaine, and crack. Ibid. The evidence being sufficient, petitioner's acquittal on the underlying drug counts did not entitle him to an acquittal on the count on which the jury convicted. Ibid. ARGUMENT Petitioner renews his claim (Pet. 4-20) that when a defendant is charged both with use of a firearm during and in relation to a drug offense under Section 924(c), and with the underlying drug offense, the Section 924(c) conviction cannot stand if the jury acquits on the underlying drug offense. The court of appeals correctly rejected petitioner's attempt to rely on the jury's inconsistency as a basis for overturning his conviction, and its holding does not conflict with any decision of this Court or the decision of any other court of appeals. Accordingly, further review is not warranted. 1. Section 924(c)(1) states: "Whoever, during and in relation to any * * * drug trafficking crime * * * for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such * * * * drug trafficking crime, be sentenced to imprisonment for five years." It is settled that this provision creates an independent offense, separate from the underlying federal crime. Simpson v. United States, 435 U.S. 6, 10 (1978) (construing predecessor version of Section 924(c)); United States v. Nigro, 727 F.2d 100, 107 (6th Cir. 1984); see S. Rep. No. 225, 98th Cong., 2d Sess. 312 (1983) ("Section 924(c) sets out an offense distinct from the underlying felony and is not simply a penalty provision."). Petitioner was charged in separate counts with two drug trafficking crimes, and with using or carrying a firearm during and in relation to them. Although the jury elected to acquit him on the drug crimes, this Court's decision in United States v. Powell, 469 U.S. 57 (1984), makes clear that the inconsistent verdict on the drug offenses provides no basis for overturning the conviction on the firearm offense: jury verdicts in criminal cases are not required to be consistent. In this case, the court below simply determined that, despite the jury's acquittals of petitioner on the predicate drug crimes, a reasonable jury could have found petitioner guilty beyond a reasonable doubt of the offense of which he was convicted. That is all that is required. Petitioner's argument (Pet. 9, 18) that the jury should have been instructed that it could not convict on the firearm counts unless it also convicted on the underlying drug counts is simply an attempt to impose a consistency requirement not found in the law. However reformulated, petitioner's claim that the jury must act consistently is squarely barred by Powell. /4/ 2. Petitioner also contends that the court of appeals' refusal to reverse his firearms conviction in light of the acquittals on the underlying drug crimes conflicts with decisions of other courts of appeals. Pet. 11-12, 16. The claimed conflict, however, is illusory. Two of the decisions on which petitioner relies hold only that when the evidence is insufficient to establish the underlying drug crime, the court must also reverse a conviction for a firearm charge under Section 924(c). See United States v. Onick, 889 F.2d 1425, 1429-1431 (5th Cir. 1989); United States v. Edwardo-Franco, 885 F.2d 1002, 1010-1011 (1989). Neither holds that a jury must actually convict the defendant of the underlying drug crime in order to render the firearms conviction valid. Onick and Edwardo-Franco are correct because a court's conclusion that there is insufficient evidence to support the defendant's conviction on the drug offense means that no reasonable jury could have convicted the defendant on the firearm offenses incorporating the same underlying predicate crime. Such a rule does not apply, however, to a case in which the evidence is sufficient to sustain a conviction on the drug offense and the jury (for reasons of its own) acquits on that charge but convicts on the firearm offense. The other cases cited by petitioner are even farther afield. In United States v. Henry, 878 F.2d 937, 942-944 (6th Cir. 1989), the court held that one of two Section 924(c) convictions had to be vacated, but not for the reasons urged by petitioner. The indictment there charged in two counts that different weapons were used in connection with the same underlying predicate offenses; the court believed that the indictment should have charged a separate predicate offense in each count. The court said nothing that would call into question petitioner's conviction here, which involved only one weapon and was related to two predicate offenses. Finally, United States v. Nash, 876 F.2d 1359, 1361-1362 (7th Cir. 1989), cert. denied, 110 S. Ct. 1145 (1990), held only that a defendant's conviction for possessing marijuana with intent to distribute was a "drug trafficking crime" within the meaning of Section 924(c)(2); no issue regarding an acquittal on any other count was involved. /5/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solicitor General /6/ EDWARD S.G. DENNIS, JR. Assistant Attorney General LOUIS M. FISCHER Attorney JULY 1990 /1/ Petitioner was charged and convicted under a predecessor version of 18 U.S.C. 924(c) (1982 & Supp. V 1987). In the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690 Sections 6212, 6460, and 7060, 102 Stat. 4360, 4373-4374, and 4403-4404, Congress clarified the definition of "drug trafficking crime" as used in Section 924(c), provided enhanced penalties for a violation, and made certain clerical corrections. Because those amendments are not pertinent here, we will, for convenience, refer to the current version of the statute. /2/ Petitioner was also acquitted on one count of possessing cocaine with intent to distribute it, and on one count of possessing marijuana with intent to distribute it (21 U.S.C. 841(a)(1)). Co-defendants Michael Bennett and Donal Coleman were convicted on those charges as well as on a firearms charge. The court of appeals affirmed their convictions in the same opinion that disposed of petitioner's claims. /3/ The court added that the "drug trafficking crime could be by (petitioner's) own participation if you find beyond a reasonable doubt all of the elements of the offense, or that of others (the co-defendants) through aiding and abetting as I've instructed you previously." Pet. App. 6b. /4/ Petitioner struggles (Pet. 17-18) to distinguish Powell by claiming that the statutory scheme examined there differs from Section 924(c). But the rule in Powell addresses the general problem of jury inconsistency, and has nothing to do with specific crimes. Petitioner also claims (Pet. 19) that Powell failed to address a verdict that is "factually inconsistent," like this one. Although the court in United States v. Dotson, 871 F.2d 1318, 1322 n. 2 (6th Cir. 1989)) (cited at Pet. 19), made a similar observation, in dicta, Powell cannot be so distinguished. Allowing claims of "factual inconsistency" would erode the rule against impeaching the jury's verdict to the same extent as any other claim of inconsistency. Powell made plain that requiring proof beyond a reasonable doubt on the offense of conviction was sufficient to protect against jury irrationality, and "further safeguards" were not necessary. 469 U.S. at 67. Indeed, Powell expressly refused to recognize an exception when a jury "acquits a defendant of a predicate felony, but convicts on the compound felony." Ibid. In any event, the precedential force of the Sixth Circuit case cited by petitioner is undermined by the fact that on rehearing, the court held that any error in the jury instructions was harmless in light of the fact that there was evidence that showed that the defendant in fact committed the underlying crime. See United States v. Dotson, 895 F.2d 263, 264-266 (6th Cir. 1990), petition for cert. pending, No. 89-7571. /5/ None of the other court of appeals cases cited by petitioner addresses his particular contention, as petitioner acknowledges. Pet. 12. Petitioner's reliance on the purported intra-circuit conflict between the decision below and United States v. Iennaco, 893 F.2d 394 (D.C. Cir. 1990), is also of no avail. Iennaco, which involved a different statute, 18 U.S.C. 843(b), held that the government was required to prove beyond a reasonable doubt that the defendant or someone else committed the predicate offense. 893 F.2d at 396. That is entirely consistent with the position the court took in the instant case. Moreover, the alleged intra-circuit conflict here would not warrant review by this Court. Wisniewski v. United States, 353 U.S. 901, 902 (1957). /6/ The Solicitor General is disqualified in this case.