Soderling

ORDER RE GOVERNMENT’S REQUEST TO AUTHORIZE THE JURY TO REACH INCONSISTENT VERDICTS

The government charged Jay and Jessica Soderling, husband and wife, with a conspiracy to defraud the United States by preventing the Internal Revenue Service from collecting taxes. At trial, the government contended only that Jay and Jessica conspired with one another; it did not contend that there were unindicted co-conspirators. Shortly after the jury began deliberating, it asked a good question: “Can we find one defendant guilty of conspiracy and not the other?” The government urged the Court to answer “yes.” The defendants urged the Court to answer “no.” Although the jury has now reached a verdict, the Court files this order to give lawyers and trial judges food for thought *996 in the event this instructional issue comes up again.

By urging a “yes” answer, the government was asking the Court to tell the jury it could reach inconsistent verdicts. As set forth in the Ninth Circuit Model Criminal Jury Instruction on conspiracy to defraud the United States, a jury may only convict a defendant if the government proves three elements, the first of which, is that there was an agreement between two…