United States v. Gary Lee Upshaw

A jury convicted Upshaw of aiding and abetting an employee of a federally-insured savings and loan institution to fraudulently misapply funds. See 18 U.S.C. §§ 657 and 2. Most of the Government’s evidence pointed to Barbara Branche, who was tried jointly with Upshaw, as the employee involved. The district judge acquitted Branche under Fed.R.Crim.P. 29 (allowing acquittal when the judge finds insufficient evidence to convict). Upshaw argues on appeal that Branche’s acquittal proves that there was insufficient evidence to convict him. He reasons: an essential element of the crime is that some employee misapplied funds; every element of the crime must be proved beyond a reasonable doubt; the suspected employee was acquitted for lack of evidence; therefore, the Government must have failed to show beyond a reasonable doubt that some employee misapplied funds.

The Supreme Court has recently cautioned against inferring too much from apparently inconsistent verdicts. Harris v. Rivera, - U.S. -, 102 S.Ct. 460, 465-66 , 70 L.Ed.2d 530 (1981) (per curiam). This admonition applies particularly to a jury verdict as at issue here. See id. 102 S.Ct. at 464 (noting that jury verdicts are…