GRIFFIN v. UNITED STATES

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Argument of Michael G. Logan

Chief Justice Rehnquist: We'll hear argument now in No. 90-6352, Diane Griffin v. the United States.

Mr. Logan.

Mr. Logan: Mr. Chief Justice, and may it please the Court:

Diane Griffin was convicted in a single count in 23 counts of an indictment centering around a major drug prosecution in Chicago.

In the count in which she was charged, there were two objects of this conspiracy.

During the trial, and at the end of the Government's case, it became clear, as a lawyer, that the evidence was insufficient as presented by the Government and the DEA object.

At that time, Griffin made a motion for a directed finding.

The Government made argument, and during that argument conceded that the evidence was insufficient on that object.

At that time, Griffin made a motion for a severance for reasons that I set out in the briefs.

At the end of the entire case, the evidence really didn't change.

And prior to submission of the instructions to the jury, Griffin asked for several things.

One of the things that she asked for was that the insufficient object be removed from the jury's consideration.

And she submitted a jury instruction that did just that.

That instruction was denied.

As an alternative, she submitted a set of special interrogatories, wherein the jury would have told the court which of the two objects the jury was using as a basis for the finding of guilt if there was going to be a finding of guilt.

Those instructions were also denied.

At the end of the jury's deliberation, there was a finding of guilty.

It was a general verdict.

And I submit to this Court, I submitted to the court at the time, I submitted it to the court of appeals, that to this day we do not know upon which basis... which of the objects this jury decided guilt.

Unknown Speaker: Well, you know if you accept the presumption that the jury follows its instructions, don't you?

Mr. Logan: Well, Your Honor, I think that's exactly the point.

Because we follow the presumption the jury follows its instructions, because we believe that and we follow that presumption, we do not know because in the instructions there was error.

The error was that the jury was allowed to use the basis that was insufficiently proven as a basis for guilt.

And this is a case where there was evidence concerning knowledge of the drug prosecution, of the drug dealing.

Unknown Speaker: But doesn't the issue get settled by the instruction on burden of proof and the quantum of proof necessary?

And everyone agrees that there was insufficient evidence, and if the jury followed that instruction, it could not have convicted on that particular possibility.

Mr. Logan: Well, I believe that approach makes sense if you believe that the jury can recognize the legal insufficiency of the evidence.

And it's our view in this case, and I'm asking this Court to follow that view, that juries do not always recognize legal insufficiency of the evidence.

The trial lawyer in this case, and I tried this case, recognized that legal insufficiency.

The Government conceded the legal insufficiency.

The court agreed with both sides that it was legally insufficient.

However, in this case, Your Honor, there was evidence concerning... circumstantial evidence... concerning connection between Diane Griffin and the DEA object.

For instance, the Government brought in evidence that she lived with the kingpin of this major drug conspiracy; brought in evidence that she knew the major wholesale supplier of drugs in the case, Mr. Suarez.

There was evidence in the case that when Mr. Suarez came in for the first time to meet Mr. Beverly, he had to go through Diane Griffin.

Diane Griffin knew all of the personalities at trial, all of the other defendants in trial, including minor... relatively minor... personalities like Jim Dandy.

So there was an association.

And I liken this situation, Your Honors, to that in Cramer.

In Cramer v. United States, the defendant in that case knew Fiel.

He knew these German conspirators.

He met with them.

And I think as the opinion says--

Unknown Speaker: And this in argument there was some evidence?

Mr. Logan: --There was some evidence.

Unknown Speaker: But insufficient.

Mr. Logan: Insufficient evidence.

Unknown Speaker: Well, and the Government actually opposed giving the instruction, didn't they?

Mr. Logan: They actively opposed it.

Unknown Speaker: And they wanted the jury to be told that they could convict on either or both?

Mr. Logan: Well, the Government did--

Unknown Speaker: I mean, if there was evidence beyond a reasonable doubt.

Mr. Logan: --The evidence told... the Government told the jury that they could convict on either.

In closing arguments to the jury... the prosecutor, in closing argument, told the jury that Diane Griffin was charged with the conspiracy to defraud the DEA and the IRS.

Unknown Speaker: Why do you think that if the Government opposed the instruction, but nevertheless conceded that there wasn't enough evidence to convict, it may be that both you and the Government were wrong.

Mr. Logan: In what way, Your Honor?

Unknown Speaker: Well, there was evidence and your problem is the jury... you're suggesting that the jury found your client guilty on a basis on which just the Government thought there was insufficient evidence.

The jury may have thought there was sufficient evidence.

Mr. Logan: The court also thought that there was insufficient evidence.

There was a--

Unknown Speaker: I know, but that isn't the court's job to do that.

It's the jury's job to say whether there was.

Mr. Logan: --Well, I would disagree.

Unknown Speaker: Isn't that right?

Mr. Logan: No, Your Honor, I disagree with the Court, if you please.

The court rules as a matter of law when the evidence is insufficient.

I made a motion for judgment.

Unknown Speaker: He never granted your motion.

Mr. Logan: That is true.

The court did not grant my motion.

I don't know why the court didn't grant me partial judgment of acquittal.

The Seventh Circuit said the same thing in their opinion.

They said they didn't know why the district court didn't grant partial summary judgment in this case.

It was there.

The evidence concerning the association of Griffin with the drugs is all evidence of association, and that's why I point out the Cramer case.

It's very similar to Cramer.

Unknown Speaker: If you asked someone on the street whether it was more likely that a jury would convict on a count where there was sufficient evidence or on a count where there wasn't sufficient evidence, I suppose the person's answer would be on the count where there was sufficient evidence, don't you think?

Mr. Logan: Yes, I do.

However, the term itself is as misleading.

As I pointed out in my brief, if there were a small amount of evidence or if there is no evidence at all, I think, then, at that point, the court could say, yes, they only decided on the evidence where there... on the case, on the object... where there was evidence, where there was sufficient evidence for a conviction.

But in Griffin's case what we have is a major drug prosecution.

In essence, this is a drug case.

The Government attempted at the beginning of the case to convict Griffin on the drug arm of this particular count.

What happened during the case was that at a critical point when the witness, according to the proffer, was going to say that Griffin was party to a drug conversation... the witness testified that the two men went to the other end of the bar and had a private conversation concerning the distribution of drugs, while Griffin was left alone.

But despite that fact, the Government insisted that they were going to maintain this opportunity to have the jury consider the drug evidence against Griffin.

Unknown Speaker: Well, so did the... apparently, so did the judge think it ought to be submitted because he refused your... the judge may have thought, well, if I were a juror, I wouldn't think this was enough evidence.

But he nevertheless sent it to the jury.

Didn't he?

Mr. Logan: Well, I'm puzzled by that myself.

I don't understand why the court sent it to the jury.

Unknown Speaker: Well, he just said that it's my opinion there's not enough evidence.

But he must have thought there was enough evidence to go to the jury on that.

Mr. Logan: Well, on that point, Your Honor, we have the district court's written opinion where the district court says that there was not sufficient evidence.

The court did not--

Unknown Speaker: That may be what he thought.

Then why did he let it go to the jury on that issue?

Mr. Logan: --Well, I think that's why I'm here today, Your Honor.

That's the issue.

Unknown Speaker: Is one possible reason that there were other defendants as to whom the evidence was sufficient?

The judge didn't instruct, did he, that they could find Griffin guilty of either conspiracy?

And I don't think the United States argued that in its closing argument, although you might correct me on that point if I'm wrong.

Mr. Logan: If I might, on the jury instructions, the court directly instructed this jury according to the statute, and the statutes reads if there is a defrauding of the United States or either of its agencies... or any of its agencies... you may find guilt.

So there was a jury instruction from the court that allowed the jury--

Unknown Speaker: But he didn't say specific... the trial judge didn't say specifically as to Griffin.

Mr. Logan: --Well, in the instruction there were three names: Mr. Beverly, Betty McNulty, and Diane Griffin.

There was no distinction between those three defendants, and that's part of our position in this case.

There should have been a distinction between those individuals because Diane Griffin could not be lumped with Alex Beverly and Betty McNulty.

The evidence in their cases was sufficient for them to be convicted by the jury on the Drug Enforcement Administration aspect of the case.

But with respect to Griffin, admittedly it was not.

So she should not have been lumped there.

The judge should have not instructed the jury, yes, you may convict on the DEA object of this conspiracy.

Unknown Speaker: Did the Government argue in its closing argument specifically that Griffin could be guilty of the DEA or the IRS conspiracy?

Mr. Logan: Yes.

The prosecutor in closing argument said that the... all three defendants by name were charged with the DEA object and with the IRS object.

When I got up and--

Unknown Speaker: Did he argue that they could be convicted on... that Griffin could be convicted on either?

Mr. Logan: --Yes.

Unknown Speaker: Specifically as to Griffin?

Mr. Logan: Yes.

Because the prosecutor named all three and said specifically that all three were charged with those two objects.

It made no differentiation between Griffin and the other two defendants in the case.

In my closing argument, I said to this jury the Government is not going to stand back up in rebuttal argument and tell you that there is evidence in this case that says that Griffin is guilty on the DEA object of this conspiracy.

Lo and behold, the Government did get up and say that Griffin saw drugs.

It's at that point, after several more words were said, that I understood the actual words of the prosecutor because she said it so fast.

And at the next break, I objected to that.

The prosecutor got up and made a retraction with regard to the evidence being that Diane Griffin saw drugs.

Unknown Speaker: Mr. Logan, the question on which we granted certiorari is whether a conviction for a multiple object conspiracy must be set aside when the jury returns a general verdict of guilty and the evidence is insufficient to support one of the objects of the conspiracy.

I think we're less interested in the intricacies of what happened in trial than in arguments on that legal issue.

Mr. Logan: All right.

Unknown Speaker: Did the court of appeals judge this case on the basis that there was not sufficient evidence for the drug case?

Mr. Logan: The court of appeals used the Turner approach to the case and said that Turner applies here.

Where there is insufficient evidence, and that's the insufficiency, Turner applies.

If this case had been one of unconstitutionality--

Unknown Speaker: I got you.

So they judged it on the basis that there was... that it didn't make any difference if there was insufficient evidence on this one thing.

Mr. Logan: --That is correct.

Unknown Speaker: And that's the way the case comes to us.

Mr. Logan: That is correct.

Unknown Speaker: And so your job is to convince us that that's then a case where you can't tell what the jury did.

Mr. Logan: That is right.

Unknown Speaker: Mr. Logan, in a conspiracy case, typically it's also alleged by the prosecutor that there have been overt acts committed in support of the conspiracy... in furtherance of the conspiracy.

Isn't that so?

Mr. Logan: That is true.

Unknown Speaker: Now, would your rule apply there, too?

Suppose that the Government charges several overt acts and there is insufficient evidence as to one of them.

Mr. Logan: Generally speaking, I don't believe that it would.

I think that if you have a case like Cramer, where the requirement is that the defendant be found guilty of committing one of the overt acts and be witnessed by two people, where the statute specifically says that, I think that it would apply.

But generally speaking, I do not think it would apply because you're talking about overt acts which support a particular object, and the object is the end.

It's the purpose.

So I don't believe that it would go to the overt acts unless the statute was the focus... the statute focused on the overt acts.

Unknown Speaker: Well, normally a statute requires that there be proof of some overt act and furtherance.

And I just wondered whether your theory wouldn't lead to the same approach in the case of a deficiency of proof on one of the alleged acts and furtherance.

Mr. Logan: I don't believe that it would because what we're looking to is an essential element.

As I believe Ingram v. United States points out, it's an essential element that there be evidence, sufficient evidence, of an object, to be knowledge of an object.

And this... the overt acts may support that there are pieces of evidence that may support that object, but I don't believe that this argument goes to the question of overt acts.

In this case, in my case, the jury had to find one, only one, object.

There wasn't any question of that.

They had to find the Internal Revenue Service object, decide the case on that.

If there happened to be overt acts below it, which as matters of evidence supported that object, I think the final issue rests on whether there was sufficient evidence to prove the object as the end, as the final purpose of the conspiracy.

I think you have to look at it in that way.

Unknown Speaker: Mr. Logan, what do you do about Turner v. United States?

Do you ask us to overrule that?

Mr. Logan: No, I don't.

I think that Turner v. United States is a case in which the Court did not address the issue of where we do not know.

In Turner v. United States, there were three acts.

What the Court did in considering those three acts is say that the only evidence in the case, and this is an important point, the only evidence in the case was evidence of possession.

And the Court equated possession with purchase.

And that was one of the three acts.

So the Court knew it was not a situation where someone had to guess which of the two.

The other two acts were distribution, I believe, and sale.

And they were separate... separate theories.

But there wasn't any evidence in the case except the possession.

The Court ruled as a matter of law that possession equated with purchase, and therefore, knew where the jury was going by reason of its analysis.

Unknown Speaker: I didn't read it that way.

I mean, it seems to me the Court says in Turner is that the general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner's indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged.

Mr. Logan: That's correct.

Unknown Speaker: You're at least asking us to go back on that... on that statement, no?

Mr. Logan: Well, I'm only asking the Court to apply the rule that I'm seeking if we do not know.

In Turner, the Court knew.

There was no question that there was... there's no question in the case that the evidence did not apply to distribution, the evidence did not apply to sale.

The evidence only applied to purchase.

That's what the Court said.

The Court never said in Turner we don't know what the jury decided in this case.

So the rule in Turner is not a rule that affects a situation where you do not know.

The cases that follow Turner have taken the words of Turner and have turned it in to that type of rule, but Turner originally did not on its facts turn, if you will, on not knowing.

It was not that kind of case.

You notice in Turner, which is a 1970 case, the Court never makes reference to Stromberg.

It never makes reference to Cramer.

It never makes reference to Yates v. the United States, all which preceded it.

Why?

Because they didn't have to.

They knew which act the jury found.

Unknown Speaker: Mr. Logan, may I interrupt?

Does that mean that in this case there had been absolutely no evidence tying your client to the drug enforcement aspect of the case, and only evidence tied her to the tax aspect of it, that then the verdict would stand?

Mr. Logan: I think that would be correct.

I think that there were no--

Unknown Speaker: So we have to differentiate between cases where there's no evidence on the one hand, and cases where there's some evidence but it's insufficient as a matter of law, on the other hand.

Mr. Logan: --I think that that's an approach that this Court can take.

I'm not necessarily urging the Court to take that approach, but I think the Court could do it.

Unknown Speaker: But we have to either do that or overrule Turner, I guess is what you're saying.

Well, you still have to ask whether there's a difference in a case where the indictment charges the two acts conjunctively and a case where it's in the alternative.

As this case went to the jury, or as the Government argued, that it's... the jury could find the fellow guilty if they found either one.

Mr. Logan: That is correct.

Unknown Speaker: But you say that your rule would apply equally to charges in the conjunctive and an either/or charge.

Is that right?

Mr. Logan: Well, I believe... yes, Your Honor, in Crain, it was early decided that when acts are pled in the conjunctive they're considered to be pled in the disjunctive, so they would always come across as or situations.

My point here is that we had an or situation right from the beginning because of the jury instruction that was submitted to the... by the court to the jury.

Unknown Speaker: Do you think the jury understood here that either one would suffice?

Mr. Logan: Yes, I do.

And I think that's supported by Richardson v. Marsh, and I think we have to take that approach.

Unknown Speaker: But if... suppose the instruction said that the charge is A and B, and if you find that the defendant is guilty of A and B, why return the verdict of guilty.

Do you think the jury then understands that either one would be enough?

Mr. Logan: I think if the jury instruction said you must find guilt on A and B to this jury, I wouldn't be here today because then they would have had to find both, and I wouldn't be standing before this court.

The point is it went up in the disjunctive.

Unknown Speaker: I don't know.

If you said, well, the jury had to find A and B, but it couldn't have found A because as a matter of law there wasn't enough evidence to support that finding.

Mr. Logan: Well, no, Your Honor, because if they had found B in this case, that would have been sufficient.

If we knew that they found B.

If we knew they found her guilty on the Internal Revenue Service object, then there wouldn't be any question.

Unknown Speaker: Well, not if the jury was instructed that in order to return a verdict of guilty, you have to find the defendant guilty of both A and B.

Mr. Logan: That's right.

I agree.

But it wasn't presented to them in that manner.

And I would point out to the Court that this case is a case in which all of the money, all of the property that became the property of Diane Griffin is drug based.

In other words, what the jury heard in this case is that the proceeds, at least from the evidence that the Government provided, the money came from drug proceeds.

Diane Griffin is receiving the money that's the flow from these drug proceeds.

So we have that constant connection between her and the drug evidence.

And I think at this point what we are saying here, because there was error in this instruction that allowed the jury to consider the DEA objective, at least what this Court ought to do is use the harmless error analysis that was used in Yates v. Eva.

I think in Yates v. Eva, we had a situation where the Court observed that there was error in Yates.

The error reflected or revolved around the way in which the defendant was found guilty of murder.

The presumption... the one way that it was done was through the presumption, and since that was a unconstitutional burden-shifting presumption, the Court then had to look and see whether or not it was harmless error since it was possible that the jury found guilt by review of the evidence as a whole, and therefore, found malice.

What this Court has said is that it's not sufficient that the jury could have found guilt by reason of review of the entire record.

The question is whether or not that's what the jury did.

Did the jury decide guilt on the evidence as a whole and not use that burden-shifting presumption.

The State Supreme Court of South Carolina said all we have to do is determine that the jury could have found guilt on the evidence as a whole.

And this Court has said, no, that is not the Chapman test.

What you do then in your analysis is look at the jury instructions.

I ask the Court here today to look at the jury instructions in Griffin.

Those jury instructions were in error.

Those jury instructions said yes, you may use this disjunctive object, this DEA object, to find guilt.

Then what you do is you keep in mind at all times that jurors are presumed to follow their instructions, Richardson v. Marsh.

Unknown Speaker: Where is the instruction that was actually given on this matter?

Mr. Logan: 20, it was Government's instruction 20, Your Honor.

It's on page 31 of the--

Unknown Speaker: Yes.

Mr. Logan: --And I think that instruction is not unlike the Yates... the instruction in Yates v. the United States where the Government there formed the instruction from the statute itself.

And what the Court said in Yates v. United States is that the evidence lent itself as much to the insufficient object at it lent itself to the sufficient object.

Unknown Speaker: Well, then you'd really get into the question that Justice Stevens posed to you earlier.

The closer the evidence was be... was on the count that it was insufficient and the closer it was to being sufficient, the more likely the evidence was... would be not to be harmless, whereas if there were virtually no evidence on that count, then it would be much more likely to be harmless error.

Mr. Logan: I think that's a fair statement.

Unknown Speaker: That somehow doesn't seem like a very workable rule.

Mr. Logan: Well, I think it's a rule that we have to employ if we're going to make any kind of solid determination of what the jury actually did in the case.

Unknown Speaker: But isn't it... isn't it a very logical presumption to say that if the two counts go to the jury, one on which the evidence is insufficient and the other on which it's sufficient, and the jury convicts, you don't know on which count that they convicted on the one where the evidence was sufficient?

Mr. Logan: No.

Unknown Speaker: Why not?

Any layman on the street would surely disagree with your answer.

Mr. Logan: Well, if laymen on the street understood that, Your Honor, then why do you have judgments of acquittal?

Why do we have judgments not withstanding the verdict?

We have those remedies at law because juries do not recognize the legal sufficiency about--

Unknown Speaker: Well, I'm not talking about the jury understanding, I'm just talking about common sense.

You ask someone who, say, just walked into the spectator section of a courtroom, here's the situation.

Two counts are submitted to the jury, on one there was insufficient evidence and on the other there was sufficient evidence.

The jury convicted, we don't know on which count.

What can we do?

I think most of us would say what's the problem?

We'll assume the jury convicted on the count where there was sufficient evidence.

Mr. Logan: --I think we would be asking the lay people the wrong premise, because that does not reflect the case that I have taken to this Court.

The case in my... the case that I have taken to this Court is that there were volumes of evidence concerning Griffin's association with major drug dealers in Chicago.

The problem was that it was hollow and jurors cannot be expected to differentiate between that.

And Griffin sought the protection of the law.

She said to the court--

Unknown Speaker: Then you're asking for a rule for your particular case, not for the generality of circumstances?

Mr. Logan: --Well, I'm... first of all I'm asking for a ruling in my case that I think is a very common situation.

And I point again to Cramer.

And there are many other cases where there is some evidence in the case concerning violation of an object, but it's not legally sufficient.

And I pointed out in my briefs there are four conspiracy... drug conspiracy cases last year in the Seventh Circuit.

Four of them were reversed for insufficient evidence.

Here is a case where jurors received evidence concerning participation in a drug conspiracy and convicted people, but the court said the evidence was insufficient.

That's exactly what we have here.

I submit to this court it's very likely that Diane Griffin was convicted on the drug arm of this conspiracy because what you had was no differentiation.

What you had was 3 or 4 weeks of the Government attempting to convict this woman with drug dealers of a drug offense.

And it was beyond the expectation, reasonable expectation for a court to say, now jurors, ignore all that volume of hollow evidence.

And I'm not going to tell you anything else, but here's the case.

Now you decide the case.

And we have two other individuals who are admittedly sufficiently convicted on the evidence.

And there's no distinction between Diane Griffin?

Why wasn't she given the protection of the law?

And that's the question I think Your Honor has asked me.

I don't know.

But she was entitled to it.

Unknown Speaker: You say that if there had been absolutely no evidence about her connection with the drug conspiracy to impede the efforts of the Drug Administration, then you wouldn't be here.

Mr. Logan: I don't believe... I believe... I think I may be here, but I think that this Court may devise a rule, from what I've been seeing from this Court's decisions, that the Court would say that we don't have any question because there wasn't any evidence on that.

We can say the jury decided on the sufficient one.

Unknown Speaker: But I'm looking at the district court's opinion.

It says both parties concede that there is no evidence showing that Griffin had knowledge of this object of the conspiracy.

Mr. Logan: I disagree with that statement.

I did not take that position.

I think I may have argued that to the jury in my advocacy on behalf of my client, but when I spoke to the court, I was speaking as lawyer to judge and as lawyer to lawyer with the Government, that it was not there.

Unknown Speaker: So you would say that the district court was just wrong in its statement.

Mr. Logan: When it made that statement, yes, I do.

Unknown Speaker: Thank you, Mr. Logan.

Mr. Bryson, we'll hear now from you.

Argument of William C. Bryson

Mr. Bryson: Mr. Chief Justice, and may it please the Court:

If I may, I'd like to first address the factual setting in which this case arises and then move on to the broader legal questions that the case raises.

But I do want to address very briefly the facts in the case because Mr. Logan has suggested that the Government had pressed the DEA object upon the jury and the court as a viable basis for conviction when, in fact, that's just not the case at all.

And very briefly what happened in this case in closing argument was that after the Government's proof had essentially failed on the piece of evidence that we hoped would show Diane Griffin's knowledge... excuse me... of the drug dealing that Beverly was involved in was that the Government argued entirely the tax basis for conviction.

The Government started out its closing argument by saying Beverly, McNulty, and Griffin are charged in count 20 with defrauding the United States by impeding the activities of the IRS and the DEA, which, of course, was true.

That was the charge.

And, in fact, the evidence was sufficient with respect to both Beverly and McNulty.

But the Government then went to discuss Griffin entirely in terms of the tax purpose.

Defense counsel came back and argued... it specifically said, you will not hear the Government speaking about the DEA object in this case because there isn't any evidence of Diane Griffin's involvement in the DEA object.

And indeed, in the rebuttal summation, that is exactly what happened.

Now it is true that the Government at one point, the prosecutor slipped and said something about Diane Griffin's seeing cocaine.

This was because that was the evidence that we expected to see, but in fact, that was where the proof had failed and the witness didn't give us that evidence.

But upon objection, the prosecutor then got up and said, I am sorry, I misspoke.

I misspoke earlier.

And I'd like to read this because it makes the point, I think, very graphically, that this issue was not argued to the jury.

"I misspoke with respect to Diane Griffin, and that is that I said there is evidence that she saw cocaine and there's none. "

"And we're not arguing that. "

"Diane Griffin is charged in this case with assisting, knowingly assisting Alex Beverly in hiding his assets from the IRS. "

"It's that simple. "

"And we believe that the evidence has shown that that's what she did. "

So there's not an effort here, as I think counsel suggests, to try to get the best of both sides and somehow hope that the jury would find a DEA purpose.

Unknown Speaker: I take it... I see the district court also said that the only evidence implicating Griffin related to this... to the IRS object.

Mr. Bryson: That's correct.

Unknown Speaker: The Government did not even ague that Griffin had knowledge of the efforts to impair the DEA.

Mr. Bryson: Exactly.

Relying on this passage, among others, in which we specifically and explicitly conceded that there was no evidence of anything other than the IRS purpose.

So the way the case went to the jury, it is, I submit, virtually inconceivable that the jury could have convicted on the DEA object.

Unknown Speaker: What if it had be otherwise?

Would you be arguing differently?

I mean--

Mr. Bryson: Yes, Your Honor, we would.

And then let me move with that question to the broader question of whether... setting aside the facts of this case, even if there had been some evidence--

Unknown Speaker: --I didn't really think we took this to sort of review the instructions.

Mr. Bryson: --No.

Absolutely.

And the only reason I start with that is because I want to make sure that the factual basis on which we're proceeding is clear.

And that is that whatever you may think as to the broader question, this is a case in which the risks of an improper conviction were minimal.

But in any event, let me move to the broader question--

Unknown Speaker: Mr. Bryson, wouldn't it be a lot simpler if the Government would simply charge multiple object conspiracies in separate counts?

Mr. Bryson: --Well, Your Honor, I think that it would not for the following reason.

That typically when you have a conspiracy that may involve two closely related objects, typically that is regarded as a single agreement in which there is only one agreement, even though it may have two objects, and which can't support... indeed, it would be a multiplicitous charge if we tried to charge it as supporting separate judgments.

If you have two different agreements, in other words, if I conspire with someone to, let's say manufacture narcotics, and I later conspire with someone else to distribute narcotics, I may well have engaged in two separate conspiracies that can be charged in separate counts.

But if I conspire with a group of people to both manufacture and then distribute the same narcotics, even though there are technically two different objects to the conspiracy, it's just one conspiracy.

And the Government can't separately obtain judgments on both parts of that conspiracy and obtain, among other things, cumulative punishment.

So there are limits on what we can do.

And we have in good faith, only one agreement.

And that's what we had here.

Even though it may have multiple objects, we can only charge it in the single count.

Our options were just limited in that respect.

Now, the basic principle, I think, that's involved here is a principle that is at the heart of appellate review of jury verdicts.

And that is we ask whether a hypothetical, rational jury could convict on the evidence in the record, could find the defendant guilty beyond a reasonable doubt.

We don't ask what route this jury may have taken to conclude that the evidence was established beyond a reasonable doubt.

Now the defendant in this case says that we don't know what route this jury took.

It may have gone IRS, it may have gone DEA.

We just don't know.

But that's true in every single sufficiency case.

You invariably have the situation in which we don't know, and indeed, we don't even ask, what route a jury took.

We ask, did that hypothetical, rational jury have enough evidence that looking at the whole record, they could have found a way toward conviction.

And to underscore the point, suppose you have a case in which the indications from the way the evidence comes in and the way the case is argued, the indications are that the jury may well have been particularly interested in a particular theory of liability and that you might well guess that that's what the jury may have been induced to convict on.

But in fact, the reviewing court says that theory of liability is insufficient.

It just... there isn't enough evidence to support a conviction on that theory.

But there is other evidence in the record which could have supported the jury verdict.

Then that's enough to uphold the verdict as sufficient, legally sufficient.

You don't ask how did this jury get to this result.

And if you conclude that this jury followed an improper path, you reverse.

Now--

Unknown Speaker: But isn't there an exception for cases in which the second ground was one to be constitutionally impermissible?

Mr. Bryson: --Absolutely, Your Honor, and that, it seems to me, is at the heart of this case.

The distinction between--

Unknown Speaker: And what if in such a case, where you have a plain... you know, Stromberg type... a plainly insufficient count as a matter of law, and another one sufficient.

Could the Government defend the jury verdict on the ground that well, there really wasn't any evidence at all to support the defective count?

Mr. Bryson: --Well, I think you would have a question of harmless error in that setting.

And let me give you an example taken from Stromberg, perhaps, if I understand your question.

Suppose in the Stromberg case, you had multiple bases for the charge.

One of which was using a red flag to organize opposition to Government, which was essentially the ground that was struck down in Stromberg.

Suppose further that in that particular case, there was absolutely no evidence of any red flag at all.

There was the... the evidence was that there was whatever, violence, anarchism, or whatever, but no red flag.

Now even if the judge charged the jury that you could convict on the basis of finding a red flag that was used to organize opposition against the Government.

We submit that would be error because that would be impermissible ground for conviction as a legal matter, but it would be harmless because there was no evidence in the case of any red flag.

That would be the situation if you both had essentially factual sufficiency and legal error with respect to the same evidence.

But that's a harmless error question.

This is not, we submit, a harmless error question at all.

This is simply a matter of how you look at sufficiency of the evidence.

Now, Turner, it seems to us, answers this question quite clearly.

What Turner says, and I'd like to read, if I could, the specific quote from Turner because I think it puts the point better than I could put it by arguing from the case.

It says,

"When a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, the verdict stands if the evidence is sufficient with respect to any one of the acts charged. "

If the evidence is sufficient, that is to say it's sufficient to get to the jury, with respect to any of the acts charged, that's enough.

You don't have to... and this is the following sentence.

Here the evidence proved that Turner was distributing heroin.

The status of the case with respect to the other allegations is irrelevant to the validity of Turner's convictions.

In other words, once you satisfy yourself that the evidence is sufficient on one of the grounds for conviction, then you need look no farther.

And even if the evidence is insufficient with respect to others, that the conviction must me affirmed.

Unknown Speaker: Now that wasn't a conspiracy case, was it?

Mr. Bryson: It was not a conspiracy case, Your Honor.

Unknown Speaker: So it a sense that's dicta, just like the Haupt case got square dicta on the other side, saying the other way.

That footnote in Haupt, you know, clearly reads like a blanket on this case, but the answer is it's dicta, and I agree with you.

Mr. Bryson: Yes, of course.

It does.

Well--

Unknown Speaker: So we have got one dicta against another.

Mr. Bryson: --Except that I think Haupt can be distinguished... first of all we think that that--

Unknown Speaker: Sure it can.

In this case it can be distinguished because it's not a conspiracy case.

Mr. Bryson: --It is not a conspiracy case.

However, Haupt, you can say, is a case in which there were multiple specifications within the same count which is, in a sense, like a duplicitous count.

And this comes up sometimes in perjury cases and obstruction of justice cases where we say there are five specifications of falsehood.

You could charge those, as in Justice Blackmun, in response to Justice Blackmun's questions.

You could charge those as separate counts.

So we're not locked into a single count.

And in fact, you could argue that such a count that charges five different specifications of perjury is, in fact, duplicitous.

So you could say, all right, in that setting, you're going to have to establish that each one of them is proved.

We don't agree with that rule, but you could certainly characterize Haupt as standing for... excuse me... no more than that.

Unknown Speaker: Do you feel that Turner and Yates can stand together?

Mr. Bryson: Oh, yes, Your Honor.

And the reason is because Yates was a case that held that where there is legal error, where the jury in effect is told that something is a crime which isn't a crime, and the jury may have based its conviction on that theory, then you have to reverse.

In Yates there was no reason to assume, as there is here, that the jury based its conviction on some other ground because there was plenty of evidence to support the conviction if the legal ground that was given to the jury on which to convict was correct.

But it wasn't.

This Court said no, that was an improper legal ground for conviction.

Therefore, we can simply not assume that the jury didn't convict on that theory.

Here we can assume that the jury didn't convict on the theory that was insufficiently proved.

Unknown Speaker: Well, certainly Turner did not overrule Yates.

Mr. Bryson: No, not at all.

And I think they stand together.

And in fact, I think Yates continues to be applied, and properly so, in cases in which there is a legal flaw, in which... in the theories... one of the theories that was presented to the jury in which there is some basis on which the jury's instructed, for example, that conduct that is not a crime is, in fact, a basis for criminal liability.

Unknown Speaker: Well, can one say that there's a legal flaw where evidence is so insufficient that as a matter of law it shouldn't go to the jury?

Mr. Bryson: Well, that... you can say, of course, that that is... it is a legal error to submit a count on which there is insufficient evidence.

I would have two answers to the question, though, Your Honor.

First, we think that is a legal error of an entirely different sort from a legal error of the Yates sort, where what you're talking about is telling a jury this is a crime, and in fact, it isn't a crime.

Here what you are saying by submitting the case is there... the jury may consider this evidence, and as we say, the... where the evidence is insufficient, that is the jury's... it is the jury's task to determine on which basis it wants to convict.

Unknown Speaker: But it isn't the jury's task normally.

If evidence is insufficient as a matter of law, then it's up to the judge to say so and not give it to the jury.

Mr. Bryson: Your Honor, that's correct with respect at least to cases in which the judge is striking a whole count or a whole charge.

This isn't that kind of case.

And we submit... and this is the second half of my answer to you... is that this is not a case that comes within rule 29, which refers to granting motions of acquittal... judgments for motions... motion for judgment of acquittal with respect to any offense or offenses.

This is a case in which some piece of the case, some piece of the offense is deemed insufficient.

Unknown Speaker: How do you distinguish Cramer?

Mr. Bryson: Well, I think Cramer is a case in which what the Court is saying is there is, with respect to these alleged overt acts--

Unknown Speaker: That was a piece of the case.

Mr. Bryson: --Well, it was, Your Honor.

But what the Court was saying was the case as it went to the jury, and as it was decided by the court of appeals, was decided on a legally erroneous ground.

And that is, the court of appeals assumed that an overt act was legally sufficient if it merely did something, as in a conspiracy context, to promote the treason.

What this Court held was no.

Overt acts require much more by way of proof.

That was a legal ground.

The Court was saying as a matter of law, constitutional law, overt acts must actually show that aiding and comforting the enemy is going on.

Unknown Speaker: Well, I asked Mr. Logan earlier whether he would extend his rule to overt acts, and he said oh, no.

And yet listening to you makes it sound as though you would concede that certainly as to overt acts, if one was insufficient--

Mr. Bryson: Oh, no, Your Honor, no, in fact--

Unknown Speaker: --Wouldn't that be different?

Mr. Bryson: --Not at all.

I think the... it's quite clear that in fact the mischief of the rule for which petitioner is requesting here is precisely that, that you would have to take every conspiracy charge and say was there any overt act that was not sufficiently proved.

And then the logic of this position would be to say, all right, if there was one overt act that was not sufficiently proved, the jury may have rested its verdict on that overt act.

Therefore, we have to reverse.

In this case, for example, there were 10 overt acts.

What if the evidence failed with respect to one of them?

Wouldn't his argument compel reversal if you accept it.

He says no, I didn't understand what the rationale of the distinction was, but I think when you get down to it, there is really no reason not to extend that rationale to the overt act setting.

That's one of the principal reasons that we think would be extremely mischievous to adopt the position that petitioner is arguing for.

The same thing could be said, for example, the identity of co-conspirators.

You could say, all right, there were 10 co-conspirators named in the indictment.

The proof was sufficient as to nine, but insufficient as to one, but that one co-conspirator may have been the co-conspirator that the jury found the defendant to have conspired with.

The jury may further have found that the defendant did not conspire with any of the others.

Therefore, the verdict may have been premised on an insufficiently proved basis and we, therefore, have to reverse.

Unknown Speaker: Is there anything to prevent the Government, the prosecution from just loading up an indictment with all kinds of alleged objects of a conspiracy and overt acts, and just tossing everything in but the kitchen sink?

Mr. Bryson: Well, yes, Your Honor.

We... there are two things, I think.

First of all, we do have an obligation, I think both an ethical obligation and a legal obligation to ensure that everything that goes into an indictment is established to probable cause... at least to the degree of confidence of probable cause, which is the degree that the grand jury has to find.

The second ground is a practical matter.

If you have a lot in the indictment that your proof is not going to establish, you give defense counsel a lot to shoot at.

And in fact, to some extent, that's what happened here because defense counsel made pretty good use of the fact that our proof had failed on the DEA object in order to say that well, all right, Diane Griffin is already half way out of the soup.

It looks like the Government's case is already in trouble, why not go the other half.

Unknown Speaker: Should the judge have given a clarifying instruction in your view?

Mr. Bryson: Your Honor, I think in this case it would not have been an error had she done so, but it was not error for her not to do so.

There's no... I think there's no obligation--

Unknown Speaker: Would it have been the better practice?

Mr. Bryson: --In this case, I can't quarrel with the court of appeals that it would have made things easier to do it, except, and this is a big except, the problem is that if you instruct with respect to somebody who is one of three defendants in a count, as was the case here, then the suggestion is... and if you say, well, with respect to this defendant, you can only find her guilty if you find the IRS object, the suggestion is you're making some kind of suggestion that the evidence insufficient with respect to the others with respect to both DEA and IRS.

It is something which, if I were representing McNulty, for example, I would not want to hear the judge saying... specifically picking out Griffin and saying the evidence on Griffin will only support a conviction on one theory.

Unknown Speaker: I take it that if we rule for the petitioner, it would necessitate increased use of special verdicts, special interrogatories.

Mr. Bryson: It would certainly requires some dramatic changes in the way cases are tried.

I think that's a fair statement.

Because of what I have just said, in this case, if we simply went to the jury in a case in which there were 11 overt acts, in which there were 10 different paragraphs listing the manner and means by which this conspiracy was carried forward, in which there were two co-conspirators, and in which there were two purposes, we would have potentially 25 different sufficiency questions, not 1, with respect to that one count.

Unknown Speaker: Can you tell me what are the reasons... I've noticed that in some of our cases we comment somewhat negatively against the use of special interrogatories and special verdicts in criminal cases.

Is the reason for that that it unduly constricts the jury's deliberations?

Is that the proffered rationale?

Mr. Bryson: It think there are a variety of concerns.

The Spock case, which is one of the leading cases on this, said that the problem is that it can be prejudicial to the defense because it leads the jury down the road to conviction.

Unknown Speaker: Well, of course, if the defense asks for it, that argument's out of the--

Mr. Bryson: Well, it may be.

The other concerns, I think, that have been raised are that you ask the jury to parse the case in ways that may be confusing, that may ask the jury a series of questions that can mislead the jury, rather than being helpful.

It can be useful, and I'm reluctant to say there should be any across-the-board prohibition because there are instances in which it could be useful.

But there are also instances in which it can just confuse.

And I think in a case such as this one when you are having special verdicts with respect to one defendant on one purpose, it can give the jury a misleading impression as to a particular facet of the case.

Unknown Speaker: --And, I take it, it could also make it harder on the Government in some cases to prove its case?

Mr. Bryson: Well, it can... in some cases I think it can actually make it easier.

And sometimes we ask for special verdicts when, for example, we want to insure that if we think there may be a legal flaw in one of, let's say, the predicate acts in the Rico case.

We want to insure that the jury marks off each of the predicate acts so that we still have plenty of predicate acts left.

So it can be easier... it can actually be something that's easier for the Government rather than--

Unknown Speaker: As a matter of tactics, though, don't the party... don't parties with the burden of proof generally not want special interrogatories because they're easier to... it makes it easier to upset a case on appeal?

And it also makes it easier to find some flaw in the jury's reasoning process.

Mr. Bryson: --Well, that's right.

The jury may make a strange mark on a special verdict form because they didn't understand how the form was to be filled out.

there... any number of things can happen in the context of a special verdict, and only one of them is good.

Unknown Speaker: The party with the burden of proof wants the jury to come back with one word, really.

Mr. Bryson: That's right.

That's right.

I think generally so.

I think I would put as a footnote, I would say there are instances in which we do want a little more than just one word, but it's not typically the case.

Unknown Speaker: You don't want two words in a criminal case.

[Laughter]

Mr. Bryson: That's exactly right.

Unknown Speaker: Mr. Bryson, in a case in which there is not a concession as there was here... I think it's set out on page 19 of the brief, but you read it a moment ago, the Government's concession that there was not sufficient evidence on the DEA issue.

Absent that kind of concession, isn't the jury's most reasonable interpretation of the judge's act in sending an issue to it that there is at least evidence upon which it could find for the Government?

Mr. Bryson: I don't think, Your Honor, that juries are so sophisticated typically that they understand that when they get an issue for their resolution, that it is somehow past a judge's rule 29 scrutiny.

In fact, there are instructions which are designed specifically to rebut that suggestion.

Unknown Speaker: They... they're not given as a matter of course, are they?

And in any case, there was no such instruction here.

Mr. Bryson: No, there wasn't.

Typically what they're given... where some defendants have been given a judgment of acquittal at xx close of the evidence and are missing, where the judge will say something to the effect that it is none of your business to inquire why X, Y, and X are not here, because the judge does not want to let the jury thing that X, Y, and Z are not here because the judge has decided that the evidence is insufficient to them, but aha, that the evidence is sufficient as to all the rest.

So the assumption, I think, of our system, is that the jury does not take the fact that they get a case as an indication from the court that there is sufficient evidence to take the case to the jury.

And there certainly was no suggestion to that effect here.

Unknown Speaker: Any other assumption would run afoul of the presumption of regularity, wouldn't it?

Mr. Bryson: I think so, yes.

If there are no further questions, thank you.

Chief Justice Rehnquist: Thank you, Mr Bryson.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 90-6352, Griffin against the United States will be announced by Justice Scalia.

Argument of Justice Scalia

Mr. Scalia: This case is here on certiorari from the Court of Appeals for the Seventh Circuit.

Diane Griffin and two others were charged with conspiring to defraud an agency of the Federal Government.

The conspiracy allegedly had two objects: One, to prevent the Internal Revenue Service from ascertaining income taxes; and two, to prevent the DEA, the Drug Enforcement Administration, from ascertaining forfeitable assets.

At trial, the government introduced evidence implicating Griffin in the first object of the conspiracy but no evidence implicating her in the second.

In spite of this, the District Court instructed the jury in a manner that would permit it to return a verdict against Griffin if it found her to have participated in either one of the two objects.

The jury returned a general verdict of guilty.

The Court of Appeals upheld Griffins' conviction rejecting the argument that the general verdict could not stand because it left in doubt whether the jury had convicted her as to the first object of the conspiracy for which there was adequate evidence or as to the second for which there was not.

We granted certiorari and today, we affirm.

Neither the Due Pprocess Clause of the Constitution nor this Court's precedents require in a federal prosecution that a general guilty verdict on a multiple object conspiracy be set aside if the evidence is inadequate to support conviction as to one of the objects.

The due process claim is not supported by the historical practice.

At common law, a general verdict would be left standing not only where one of the alternative bases for conviction was inadequately supported by the facts but even where one was invalid at law.

In a case called Yates versus United States, we set aside a general jury verdict in a federal prosecution because one of the objects of the conspiracy was invalid at law, that is, even if proven it would not have constituted a crime.

In a later case, however, called Turner versus United States, we held that when a federal indictment charges several acts conjunctively, each of which is sufficient to constitute a crime, a general jury verdict must be sustained so long as the evidence is sufficient to establish one of the acts.

Griffin has not set forth any adequate basis for distinguishing Turner from cases such as this one.

Moreover, the line between Yates and Turner makes sense.

It can be left to jurors to determine which of various alternative theories is supported by the facts.

They are good at that.

They are not good at spotting theories that are inadequate in law.

We hold, therefore, that although it would be generally be preferable for a District Court to give an instruction removing from the jury's consideration an alternative basis of liability that does not have adequate evidentiary support, the refusal to do so does not provide an independent basis for reversing an otherwise valid conviction.

Justice Blackmun has filed a separate opinion concurring in the judgment.