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 ...