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May 12, 1992


The opinion of the court was delivered by: Baker, District Judge.


A jury found the defendant, F.J. Vollmer and Co. (F.J. Vollmer), guilty of one count of conspiracy and three counts of mail fraud. F.J. Vollmer has moved for a judgment of acquittal (docket # 83) or, in the alternative, for a new trial on all four counts. (docket # 85) For the reasons set forth below, both motions are denied.


The indictment in this case charged five defendants, Dana Hales, Kenneth Nevius, James B. McCabe, Robert Vollmer, and F.J. Vollmer: with conspiracy to defraud the United States under 18 U.S.C. § 371 and 2; making false statements to the Bureau of Alcohol, Tobacco and Firearms (BATF) under 18 U.S.C. § 1001; and mail fraud under 18 U.S.C. § 1341 and 2. Each of the counts in the indictment related to the defendants' plans and efforts to purchase Steyr AUG-SA assault rifles from Gun South, Inc. (GSI) of Trussville, Alabama, an importer and seller of weapons, and to resell the rifles. Count one, on which the jury found F.J. Vollmer guilty, specifically charged that all the defendants, except Hales, violated 1.8 U.S.C. § 371 and 372 by conspiring to defraud the United States and the BATF by providing false and fraudulent documents to BATF in an effort to obtain the Steyr AUG-SA assault rifles. Counts sixteen, seventeen, and eighteen, on which the jury also convicted F.J. Vollmer, charged Nevius, F.J. Vollmer, and Robert Vollmer with mail fraud, alleging that, in executing a scheme to defraud the BATF for the purpose of obtaining Steyr AUG-SA rifles by false and fraudulent pretenses, they submitted orders to GSI through the mail.*fn1

One defendant, Nevius, entered a conditional plea of guilty prior to the trial. After an eight-day trial, the jury acquitted Hales on all counts and convicted McCabe*fn2 on one count. The jury found Robert Vollmer, an employee of F.J. Vollmer, not guilty on all counts. The jury's decision to acquit Robert Vollmer, who acted as an agent for F.J. Vollmer in the rifle transactions, while finding the corporation guilty, forms the basis for F.J. Vollmer's motions.


The jury instructions in this case stated:

    A corporation, of course, cannot act for
  itself. It may only act through its agents.
  Agents are the officers, directors, employees, or
  other persons who may be authorized to act for
  the corporation. A corporation is legally
  responsible for those acts or omissions of its
  agents made or performed within the scope of
  their employment.
    To find a corporate defendant guilty, you must
  find beyond a reasonable doubt that all the
  essential elements of the offense, as set forth
  in these instructions, are present as to the
  corporation in the form of acts or omissions of
  its agents which were performed within the scope
  of their employment.

Jury Instructions at 24. (docket # 76) F.J. Vollmer argues that, based on this jury instruction, Robert Vollmer's acquittal is inconsistent with its conviction and must raise a reasonable doubt as to its guilt. According to F.J. Vollmer, the only evidence supporting its conviction for conspiracy and mail fraud involves the actions of its agent, Robert Vollmer. Therefore, if the evidence against Robert Vollmer is insufficient to support a finding of guilt, the evidence against the corporation is also insufficient.

F.J. Vollmer relies on the inconsistency of the verdicts to support its sufficiency of the evidence claim. In essence, F.J. Vollmer contends that the jury's acquittal of Robert Vollmer leads to the conclusion that the jury could not find beyond a reasonable doubt all the elements of the offense required to convict the corporation. Even if the court characterized the verdicts as inconsistent, the issue here is whether an inconsistent verdict requires a reversal of the convictions as F.J. Vollmer argues.

Inconsistent Verdicts

In 1932, the Supreme Court held that "[c]consistency in the verdict is not necessary. Each indictment is regarded as if it was a separate indictment." Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932). Following Dunn, the Supreme Court and the Seventh Circuit have found that inconsistency in the jury's verdicts alone is not enough to overturn a conviction. United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48 (1943); United States v. Reed, 875 F.2d 107, 110 (7th Cir. 1989); United States v. Abayomi, 820 F.2d 902, 907 (7th Cir.), cert. denied, 484 U.S. 866, 108 S.Ct. 189, 98 L.Ed.2d 142 (1987). Moreover, a jury's motive in returning inconsistent verdicts is not relevant when determining whether a verdict should stand. "That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters." Dunn, 284 U.S. at 394, 52 S.Ct. at 191. "Whether the jury's verdict was the result of carelessness or compromise or a belief that the responsible individual should suffer the penalty . . . is immaterial. Juries may indulge in precisely such motives or vagaries." Dotterweich, 320 U.S. at 279, 64 S.Ct. at 135 (citing Dunn, 284 U.S. 390, 52 S.Ct. at 189)).

"The policy consideration underlying this rule is that a jury may acquit on some counts and convict on others not because they are unconvinced of guilt, but because of compassion or compromise." United States v. Isaksson, 744 F.2d 574, 579 (7th Cir. 1984). Indeed, the verdicts may reflect the jury's exercise of their power of lenity and not the government's presentation of insufficient evidence. See United States v. Powell, 469 U.S. 57, 65, 105 S.Ct. 471, 476, 83 L.Ed.2d 461 (1984); United States v. Torres, 809 F.2d 429, 432 (7th Cir. 1987).*fn3 Therefore, it is not clear whether inconsistent verdicts are a windfall to the government or to the defendant. Powell, 469 U.S. at 65, 105 S.Ct. at 476. The fact that the inconsistency may be the result of jury lenity, benefitting the defendant, and that the government may not seek review to correct the error, militates against reviewing inconsistent verdicts at the ...

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