United States v. Betty Lou Powell

ON GOVERNMENT’S PETITION FOR REHEARING

The petition for rehearing chides us for not having discussed Dunn v. United States, 284 U.S. 390 , 52 S.Ct. 189 , 76 L.Ed. 356 (1931), and its rule that inconsistent verdicts do not require reversal, but may be viewed as a demonstration of the jury’s leniency. Id. at 393 , 52 S.Ct. at 190 . This circuit follows the Dunn rule but, with other circuits, acknowledges that there must nevertheless be sufficient evidence to sustain the guilty verdict. United States v. Brooklier, 685 F.2d 1208, 1220 (9th Cir. 1982), cert. denied - U.S. -, 103 S.Ct. 1195 , 75 L.Ed.2d 439 (1983); United States v. McCall, 592 F.2d 1066, 1068 (9.th Cir.), cert. denied 441 U.S. 936 , 99 S.Ct. 2061 , 60 L.Ed.2d 665 (1979). One of the exceptions to the application of the Dunn rule , is the situation where the defendant is charged with violation of 21 U.S.C. § 843 (b) and the underlying felony, said to have been facilitated, is reversed. United States v. Bailey, 607 F.2d 237 (9th Cir.1979), cert. denied 445 U.S. 934 , 100 S.Ct. 1327 , 63 L.Ed.2d 769 (1980); United States v. Brooks, 703 F.2d 1273, 1278 (11th Cir.1983); United States v. Hannah, 584 F.2d 27 (3rd…