United States District Court, Central District of Illinois, Danville Division
May 12, 1992
UNITED STATES OF AMERICA, PLAINTIFF,
JAMES B. MCCABE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Baker, District Judge.
ORDER ON F.J. VOLLMER AND COMPANY, INC. POST TRIAL MOTIONS
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
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.
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 defendant's request. Id. at 65-66,
105 S.Ct. at 476-77; see also Harris v. Rivera, 454 U.S. 339,
345-48, 102 S.Ct. 460, 464-66, 70 L.Ed.2d 530 (1981); Standefer
v. United States, 447 U.S. 10, 22, 100 S.Ct. 1999, 2007, 64
L.Ed.2d 689 (1980).
In its motions, F.J. Vollmer concedes that inconsistency in
the verdicts alone is not enough to overturn a conviction.
F.J. Vollmer Reply Memo at 10. However, F.J. Vollmer argues
that several points distinguish this case from earlier cases
evaluating inconsistent verdicts. The Supreme Court and the
Seventh Circuit have rejected F.J. Vollmer's position.
First, according to F.J. Vollmer, the jury's acquittal of
Robert Vollmer, the corporate agent, compels the conclusion
that the evidence against the corporation also was
insufficient. Id. at 2, 11. In Powell, the defendant argued
that an acquittal on a predicate offense required a finding of
insufficient evidence on a compound felony count. This
argument, the Court stated, "simply misunderstands the nature
of the inconsistent verdict problem. . . . [T]he argument
necessarily assumes that the acquittal on the predicate offense
was proper — the one the jury 'really meant.' This, of course,
is not necessarily correct; all we know is that the verdicts
are inconsistent." Powell, 469 U.S. at 68, 105 S.Ct. at 478;
see United States v. Brown, 934 F.2d 886, 889 (7th Cir. 1991)
(court rejected defendant's argument that his acquittal on
counts charging possession of drugs leads to conclusion that
there was insufficient evidence to support conspiracy count).
Similarly, F.J. Vollmer's argument assumes that the jury meant
that the evidence against Robert Vollmer was insufficient and
that the acquittal was not the result of compromise or lenity.
Second, the defendant contends that, because of the jury
instructions in this case, the acquittal of Robert Vollmer
"must raise reasonable doubt as to the guilt of the corporate
principal." F.J. Vollmer Reply Memo at 11. The Powell Court
also discussed this argument. The Court explained that the
problem of inconsistent verdicts — that the court and the
parties cannot assume that the acquittal was what the jury
meant — "is not altered when the trial judge instructs the
jury that it must find the defendant guilty of the predicate
offense to convict on the compound offense." Powell, 469 U.S.
at 68, 105 S.Ct. at 478. Inconsistent verdicts, delivered after
such an instruction, are "still likely to be the result of
mistake, or lenity, and therefore [are] subject to the Dunn
rationale." Id. In any event, inconsistent verdicts usually
indicate that the jury did not follow the court's instructions.
65, 105 S.Ct. at 476. Therefore, the court cannot rely on the
instructions to reveal the meaning of the verdicts.
Finally, F.J. Vollmer tries to distinguish this case on its
facts. The defendant asserts that in this case, where the jury
acquitted the only agent and convicted the corporation, the
acquittal shows the insufficiency of the evidence against the
corporation. Specifically, the defendant attempts to
distinguish a Seventh Circuit decision upholding jury verdicts
which acquitted numerous corporate officers and agents and
convicted the corporation. In United States v. General Motors
Corp., 121 F.2d 376, 411 (7th Cir.), cert. denied,
314 U.S. 618, 62 S.Ct. 105, 86 L.Ed. 497 (1984), the court stated that
"the acquittal [of the named officers and agents] did not
exhaust the list of agents who could have been and were
responsible for the acts and policies of the [corporation]."
However, the court also noted that:
we believe that the acquittal of the officers and
agents, even if they had been the only persons
through whom the corporations could have acted,
should not operate without more to set aside the
verdict against the corporations. Nor do we
attach significance to the argument that the
problem of inconsistent verdicts in the instant
case presents a different problem than that when
the verdicts upon two counts [against the same
defendant] are inconsistent.
Id; see United States v. Cargo Serv. Stations, Inc.,
657 F.2d 676, 684-85 (5th Cir. 1981) (defendants unsuccessfully argued
that court should overturn verdict because every person who
could have acted as their agent had been acquitted).
Because the court, even on these facts, will not assume that
Robert Vollmer's acquittal is the result of insufficient
evidence, the defendant cannot rely on the inconsistency of
the verdicts to overturn the conviction. Torres, 809 F.2d at
432. Instead, the defendant must focus on whether the evidence
at trial could support any rational determination of guilt
beyond a reasonable doubt. Powell, 469 U.S. at 67, 105 S.Ct. at
477. This review of the sufficiency of the evidence "should be
independent of the jury's determination that evidence on
another count was insufficient." Id; Torres, 809 F.2d at 432.
Sufficiency of the Evidence
The test for granting a judgment of acquittal based on a
challenge to the sufficiency of the evidence is well
established. The court has to find that any rational jury
viewing all the evidence in the light most favorable to the
government could not have reached a verdict of guilty beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v.
Pritchard, 745 F.2d 1112, 1122 (7th Cir. 1984). When reviewing
the evidence, the court must bear "in mind that `it is the
exclusive function of the jury to determine the credibility of
witnesses, resolve evidentiary conflicts, and draw reasonable
inferences.'" United States v. Beck, 615 F.2d 441, 448 (7th
Cir. 1980) (quoting United States v. Blasco, 581 F.2d 681, 684
(7th Cir.), cert. denied, 439 U.S. 966, 99 S.Ct. 456, 58
L.Ed.2d 425 (1978)); see Jackson, 443 U.S. at 319, 99 S.Ct. at
The jury convicted F.J. Vollmer of conspiracy to defraud the
United States and the BATF by providing false and fraudulent
documents to the BATF to obtain Steyr AUG-SA assault rifles
for the purpose of resale. "The gist of a conspiracy is an
agreement among the conspirators to commit an offense,
attended by an act of one or more of them to effect the object
of the conspiracy." United States v. Bruun, 809 F.2d 397, 405
(7th Cir. 1987). The government may rely on circumstantial
evidence and reasonable inferences drawn from the evidence as
the sole proof of the agreement. Reed, 875 F.2d 107, 111
(citations omitted). The overt acts listed in the indictment
include F.J. Vollmer's purchases of forty-five assault rifles
from Nevius. Proof of the overt acts can be as minimal as proof
that only one of the coconspirators committed an act to effect
the object of the conspiracy. See Reed, 875 F.2d at 111-12.
Using these standards, the government clearly presented
from which a rational jury could conclude beyond a reasonable
doubt that F.J. Vollmer conspired with Nevius and McCabe to
defraud the United States and the BATF. The government
presented evidence that F.J. Vollmer purchased rifles from
Nevius, paying him with corporate checks, on numerous
occasions between July, 1990 and September, 1991. The
government also presented evidence, in the testimony of Nevius
and Fred Vollmer, the owner of F.J. Vollmer, concerning the
prices that F.J. Vollmer paid to Nevius and F.J. Vollmer's
knowledge of how Nevius was obtaining the assault rifles. The
videotape of the September 6, 1991 transaction between Nevius
and F.J. Vollmer provides evidence from which a jury
reasonably could infer that Fred Vollmer and several
employees*fn4 of F.J. Vollmer were aware of the ban on Steyr
AUG-SA rifles, understood how Nevius obtained the rifles and
agreed to participate in the plan to purchase and resell the
During the videotaped transaction, Nevius remarked that it
was legal to move the rifles. Fred Vollmer responded to this
remark in the negative and went on to state that he and Robert
Vollmer "were just discussing that" and figured that they did
not have a problem. Fred Vollmer also discussed the
certifications that Nevius mailed to GSI; he stated that he
thought, based on the signed certifications, that the
transactions were not a problem. However, he was not sure
about the quantities of rifles that they were buying. Later in
the conversation, Fred Vollmer said that they all looked at
the certifications which the members had to sign and he
thought that the government could not arrest Nevius. Fred
Vollmer, Robert Vollmer, Jim Diehl and Nevius all discussed
what the BATF could do to investigate the purchase of the
rifles; in this portion of the conversation, Fred Vollmer even
mentioned the court ruling restricting the rifle sales. Fred
and Robert Vollmer also told Nevius that they were shipping
the guns out to others right after he left the store.
Considering all this evidence under the Jackson standard, the
trial record supports the jury's conviction of F.J. Vollmer for
conspiracy. The evidence also supports F.J. Vollmer's
conviction for mail fraud in executing the scheme to defraud
Motion for a New Trial
While the decision to grant a new trial rests within the
sound discretion of the trial court, the court cannot reweigh
the evidence and grant a new trial just because the court
disagrees with the jury's assessment of the evidence.
Reed, 875 F.2d at 113 (7th Cir. 1989). "New trials based on the
weight of the evidence should be granted only when the evidence
is `heavily against the verdict' . . ." United States v.
Colston, 936 F.2d 312, 316 (7th Cir.), cert. denied, ___ U.S.
___, 112 S.Ct. 403, 116 L.Ed.2d 352 (1991), and allowing the
verdict to stand would be a miscarriage of justice. United
States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir. 1985);
United States v. Indelicato, 611 F.2d 376, 387 (1st Cir. 1979).
The court concludes that to allow this verdict of guilty on the
four counts against F.J. Vollmer to stand would not result in a
miscarriage of justice.
As discussed above, the government presented evidence that
F.J. Vollmer knowingly participated in the scheme to
circumvent the Treasury Regulation on assault rifles. Unlike
McCabe, F.J. Vollmer was not an insignificant or incidental
player in the scheme. On the contrary, F.J. Vollmer, a gun
dealership with a nationwide business, was party to all the
transactions involving the seventy assault rifles.*fn5 Robert
Vollmer negotiated each transaction with Nevius and paid him
with corporate checks. F.J. Vollmer then went about reselling
the rifles in general commerce. This is not an exceptional
case where the court should grant the motion for a new trial
the weight of the evidence. See Reed, 875 F.2d at 113-14
(quoting Martinez, 763 F.2d at 1312-13).
Although the jury may have disregarded the court's
instructions or acted out of lenity or compassion in
acquitting Robert Vollmer, the evidence against F.J. Vollmer
supports the jury's decision to convict on all four counts.
The court will not speculate about the meaning of the jury's
decision to acquit Robert Vollmer and use the results of such
speculation to support a grant of a new trial or of a judgment
of acquittal. "While symmetry of results may be intellectually
satisfying, it is not required." Standefer, 447 U.S. at 25, 100
S.Ct. at 2009; see United States v. West, No. 90-3551, slip.
op. at 7, 962 F.2d 1243, 1247 (7th Cir. April 29, 1992) ("as
Holmes said, the life of the law has not been logic").
IT IS THEREFORE ORDERED that the defendant's motion for a
judgment of acquittal (docket # 83) is DENIED.
IT IS FURTHER ORDERED that the defendant's motion for a new
trial (docket # 85) is DENIED.