
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1563                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JAMES E. MELVIN,                                Defendant, Appellant.                                _____________________        No. 92-1564                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 MICHAEL C. HABICHT,                                Defendant, Appellant.                                _____________________        No. 92-1565                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   PATRICK J. NEE,                                Defendant, Appellant.                                _____________________        No. 92-1566                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 ROBERT EMMETT JOYCE,                                Defendant, Appellant.                                _____________________        No. 92-1724                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 MICHAEL O. MCNAUGHT,                                Defendant, Appellant.                                 ____________________                              OPINION AND ORDER ON THE                          APPELLANTS' MOTION FOR CLARIFICATION                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Martin  G. Weinberg,  Kimberly Homan,  Judith Mizner,  Kenneth  J.            ___________________   ______________   _____________   ___________        Fishman, and Anthony M. Cardinale on memoranda for appellants.        _______      ____________________             Stephen P. Heymann,  Assistant United States Attorney, Donald  K.             __________________                                     __________        Stern, United  States Attorney, and James B.  Farmer, Assistant United        _____                               ________________        States Attorney, on memorandum for appellee.                                _____________________                                    June 22, 1994                                _____________________               COFFIN, Senior Circuit  Judge.  The  six defendants in  this                       _____________________          case were convicted on various  charges arising from an attempted          robbery of an armored truck.  In an  earlier opinion, we reversed          their  convictions based  on the  improper admission  of evidence          concerning prior firearms-related convictions.  See United States                                                          ___ _____________          v. Melvin, et al.,  Nos. 92-1563-67, 92-1642-46, 92-1724-25, slip             ______________          op. (1st  Cir. April 22, 1994).   Five of the  defendants did not          appeal  their convictions on Count 14 of the indictment, however,          which  charged that  defendants  used and  carried  a firearm  in          connection with a  crime of violence.   See 18 U.S.C.    924(c).1                                                  ___          Because  our decision made no specific reference to Count 14, the          defendants filed a Motion for Clarification asking that  we amend          our opinion to  state explicitly that  their convictions on  that          count remain intact.  The government opposed  the motion, arguing          that the  defendants were seeking inappropriately  to foreclose a          higher sentence on  Count 14 upon retrial.  We  conclude that the          defendants' motion should be  granted, and therefore also address          below the  government's appeal  of the  sentence imposed  on that          charge.                             I. Motion for Clarification                                ________________________               We  think it apparent that defendants  decided not to appeal          Count 14 because  of an error  at trial that  may have worked  to          their  benefit.  All parties concede that the jury mistakenly was                                        ____________________               1 Although  the defendants  originally included Count  14 as          part of their appeal, all but Murphy later filed a  motion, which          we  granted, seeking to withdraw the appeals of their convictions          on that count.                                         -3-          not asked to identify which of the six firearms at  issue in this          case -- ranging  from machine  guns to handguns  -- underlay  its          guilty  verdict on Count 14.   The district  court recognized the          error  at sentencing and, as a consequence, refused to impose the          30-year  prison term mandated under    924(c) for  use of machine          guns,  instead imposing  only  the five-year  term  set for  less          serious firearms.2               By  removing Count 14 from their appeal, the defendants took          a  calculated  risk.     If  they  had   challenged  that  charge          successfully, a new trial would have been required and they might          have been acquitted.   On the  other hand,  they might have  been          convicted again, without error, based on a jury finding that they          had used a machine  gun or other serious weapon in attempting the          robbery.  A 30-year  sentence necessarily would follow.   Five of          the six  defendants evidently  felt that, all  things considered,          the chance of acquittal was outweighed  by the risk of the longer                                        ____________________               2 Section 924(c) provides, in relevant part:               (c)(1)  Whoever, during and in relation to any crime of               violence or  drug  trafficking  crime .  .  .  uses  or               carries a firearm, shall, in addition to the punishment               provided for such crime of violence or drug trafficking               crime, be sentenced to imprisonment for five years, and               if  the  firearm  is  a  short-barreled  rifle,  short-               barreled shotgun to imprisonment  for ten years, and if               the firearm  is a machinegun, or  a destructive device,               or  is  equipped with  a  firearm  silencer or  firearm               muffler, to imprisonment for thirty years. . . .                                         -4-          sentence.3  The Motion for Clarification asks that we  recognize,          and permit, this choice.                 The  government's  response to  the clarification  motion is          two-fold.   First,  it points  out that  if we  grant defendants'          motion  and leave the  Count 14  conviction undisturbed,  we must          address the  government's sentencing  challenge  and should  find          that defendants are subject to the 30-year sentence.  Second, the          government  vehemently asserts  that we  should deny  the motion,          arguing that the Count 14 conviction may not stand in the face of          our decision  that serious, reversible error  occurred at trial.4          The government contends that  such an inconsistency disserves the          interests of justice, that the defendants should not be permitted          to control sentencing options  in such a manner, and that we have          the authority to reverse the   924(c) convictions notwithstanding          the defendants' decisions against appealing.               After  considering the  various possible  outcomes, and  the          policies at  stake, we have  concluded that it would  be at least          inappropriate,  and  probably  a  violation  of  double  jeopardy          principles, for  us to vacate  defendants' unappealed convictions          on Count  14 and order that they be retried  on that charge.  The                                        ____________________               3 To make matters even more complicated, the defendants also          needed to consider that the government had appealed the five-year          sentence  imposed on Count 14, arguing that the record required a          finding  that  they  had  used automatic  weapons  and  thus were          subject to the 30-year term.               4  In a petition for  rehearing on our  original decision in          this case, the government argued that we should not have reversed          the  convictions on all counts based on the improper admission of          evidence concerning the defendants' prior firearms-related felony          convictions.  We have denied that petition in a separate order.                                         -5-          government  cites  no  case  in  which  a  court  has  taken  the          extraordinary step  of reaching beyond  the charges before  it on          appeal toinvalidate a convictionthat neither partyhas challenged.               The  government relies instead on  what we believe is wholly          inapposite  caselaw on  sentencing.   This  precedent establishes          that an appellate ruling invalidating a sentence, or reversing on          some,  but not  all, counts  of an  indictment may  implicate the          trial  judge's  comprehensive,  interdependent  imposition  of  a          penalty  and thus require resentencing on all counts.  See United                                                                 ___ ______          States  v. Pimienta-Redondo, 874 F.2d  9, 16 (1st  Cir. 1989) (en          ______     ________________          banc).   The case before us presents a vastly different question.          Rather than seeking re-evaluation  of a defendant's punishment in                                                              __________          light  of changed circumstances, the  government asks that we put          the issue  of defendants' guilt on Count 14 to another jury.  The                                    _____          government presumably makes this request because it wants another          chance  to  elicit a  specific  finding that  defendants  used or          carried automatic weapons,  which in turn would require  a longer          sentence.    The government's  unilateral  pursuit  of a  retrial          strikes  us  as  directly  at  odds  with  the  double   jeopardy          prohibition "against  a second  prosecution for the  same offense          after conviction," Jones v. Thomas, 491 U.S. 376, 381 (1989).                              _____    ______               Neither  the  inconsistency of  excluding  Count  14 from  a          retrial nor the defendants'  "controlling" their sentence on that          count  by  ensuring that  it will  be  determined finally  in the          course of this appeal  is particularly troubling.  Our  system of          justice  is not a  precise and mechanical  operation and, indeed,                                         -6-          that is one  of its virtues.  We  permit inconsistent verdicts in          certain circumstances,  see, e.g.,  United States v.  Powell, 469                                  ___  ____   _____________     ______          U.S.  57  (1984), and  the fact  that  defendants may  have fared          better than perhaps they  would have in an error-free  trial does          not seem  reason  enough to  compel retrial  against their  will,          compromising  the principle  of finality  embodied in  the double          jeopardy clause.   See Brown v.  Ohio, 432 U.S.  161, 165 (1977);                             ___ _____     ____          United States v. Wilson, 420 U.S. 332, 343 (1975).          _____________    ______               We   therefore   conclude   that  defendants'   Motion   for          Clarification should be  granted, and  that Count 14  may not  be          retried.5    Consequently,  we  must  consider  the  government's          challenge to the sentence imposed on that charge.  As we  discuss          below, our review of the record and caselaw persuades us that the          district court acted properly and  that the five-year terms  must          be affirmed.                                II. Factual Background                                    __________________               We confine ourselves to a review of those facts particularly          relevant  to  the sentencing  issue.    The six  defendants  were          arrested  near  a  Bank  of  New  England  branch  in   Abington,          Massachusetts, shortly before the  scheduled delivery of funds to          the  bank  by  an armored  truck.    Three  defendants --  Joyce,                                        ____________________               5  We  leave to  the district  court  in the  first instance          consideration of the collateral estoppel consequences, if any, of          appellants' convictions  on Count 14.   Compare United  States v.                                                  _______ ______________          Pelullo, 14 F.3d 881, 890-96  (3d Cir. 1994) (collateral estoppel          _______          may  not  be applied  against  defendant in  criminal  case) with                                                                       ____          United  States v.  Colacurcio, 514  F.2d 1,  4-6 (9th  Cir. 1975)          ______________     __________          (collateral estoppel in criminal case not limited to such matters          as defendant's status).                                         -7-          McNaught and Nee -- were arrested about a block from  the bank in          a  van whose back  seats had been  removed.  McNaught  was in the          front passenger seat.  Nee was crouched, or kneeling, immediately          behind  the  driver's seat.    Joyce was  similarly  crouched, or          kneeling,  behind Nee.  Melvin, who had been observed driving the          van that morning,  was arrested  on foot a  short distance  away.          The driver's seat was empty.               Six guns, all loaded, were  found in the van.  On  the floor          between  the driver's  and passenger's  seats was  a .357  magnum          pistol.  An Uzi machine gun was on the floor  behind the driver's          seat, near  Nee.  To  the rear of  the Uzi, near  Joyce, were two          weapons: a semi-automatic rifle  (with sawed-off stock and sawed-          off barrel), and a  second machine gun equipped with  a silencer.          Two other firearms were found in a nylon  bag directly behind the          driver's  seat: a  second .357  magnum pistol and  a 9  mm. semi-          automatic pistol.               Defendants Habicht and Murphy were arrested a short distance          away  in  another  stolen car,  whose  back  seat  also had  been          removed.  The car  contained various items ostensibly for  use in          the robbery,6 but no firearms.               Count 14  of the indictment  charged the  defendants with  a          violation of section 924(c)  for the use and carrying of  each of          the  six weapons and  silencer found in  the van.   At trial, the          defendants attempted to establish  that they had no intention  to                                        ____________________               6 The car contained, inter alia, materials presumably  to be                                    _____ ____          used in torching the vehicle following the robbery, a ski mask, a          walkie-talkie and a radio scanner set to police frequencies.                                         -8-          commit an armed  robbery, the "crime of violence"  on which the            924(c) charge was based.  Joyce and McNaught, the only defendants          to testify, both claimed that the Abington theft was to have been          an  "inside" job requiring no  weapons or force.   Joyce asserted          that the arsenal of weapons found  in the van had been discovered          only moments  before the arrests  when he  opened a  bag that  he          believed  contained car theft tools  and which had  been given to          him  two days  earlier by  the government's  cooperating witness,          Ryan.  Joyce and McNaught both testified that the defendants were          shocked and angered  at the unexpected  presence of the  weapons,          and immediately called off the robbery.               At the close of the evidence, the defendants  requested that          a "special verdict" be  given for Count 14, requiring the jury to          specify  which weapon or weapons, if any, it found the defendants          to  have knowingly used or carried.  The government objected, and          the district court denied the motion.  In its charge on Count 14,          the court  instructed the jury  that it need find  knowing use or          possession of only one firearm to support a guilty verdict:               I am  now going  to talk  about .  . .  Count Fourteen.               These  are the  firearms  charges,  that the  defendant               knowingly used or carried firearms.  The indictment may               say "and,"  and wherever the indictment  says "and," it               means "or, and/or."   It is in the conjunctive.  It can               mean in the disjunctive.   What that means is  that the                                          ____________________________               government  must  prove  that each  defendant  used  or               _______________________________________________________               carried any one firearm . . . .               _______________________                    With  respect  to  Count  . .  .  Fourteen  of the               indictment, note that  while the indictment  is written               in  the  conjunctive,  in  that  it  uses  "and"  as  a               connector, the  government is  required to proof  [sic]               only that  the  charged defendants  knowingly  used  or               carried a  firearm.  Similarly, the  indictment charges               in Count . . . Fourteen that the listed defendants used               or carried a  number of firearms during and in relation                                         -9-               to several specified crimes.  The government must prove                                             _________________________               that each  defendant used  or carried any  one firearm,               _______________________________________________________               but not necessarily all of them, during and in relation               _______________________________               to  any  one,  but   not  necessarily  each,  of  those               specified  crimes.   You must  agree unanimously  as to               which firearm  or firearms were used  or carried during               and in relation to which specified crime or crimes.          Tr. 25:111 (emphasis added).  The jurors thus were told that they          must agree on the firearm or firearms used by each defendant, but          were not asked to report these findings in their verdicts.                At sentencing,  the government sought the  imposition of the          mandatory  thirty-year  term  prescribed  by    924(c)  when  the          firearm at issue is a machine gun or silencer.   The trial court,          however, concluded that  it had erred in  not asking the jury  to          find  specifically  which  of  the firearms  the  defendants  had          possessed, or whether one or more of the weapons in  the van was,          in fact, a machine gun.  It therefore refused to impose more than          the  lowest possibly  applicable sentence  -- the  five-year term          prescribed for handguns.7               On  appeal, the government claims that the court erred in so          limiting the  defendants' punishment.   It contends that  the law          permits, and the facts require, imposition of   924's most severe          sanction, the  mandatory thirty-year term prescribed  for the use          or carrying of machine guns or a silencer.                                III.  The Jury's Verdict                                     __________________                                        ____________________               7 Recognizing the  possibility of an  appeal on this  issue,          the court also set forth its  own factual findings in the event a          jury determination on the specific firearms used subsequently was          ruled to be unnecessary.  The court found,  by a preponderance of          the evidence, that all six defendants knowingly used  and carried          two  machine  guns, a  silencer  and  a  short-barreled rifle  in          connection with a crime of violence, in violation of   924(c).                                         -10-               The government acknowledges that a defendant found guilty of          violating   924(c) may be sentenced to a thirty-year term only if          the jury specifically identifies a machine gun or silencer as the          firearm  supporting  the  conviction.     See  United  States  v.                                                    ___  ______________          Martinez, 7 F.3d 146, 148 & n.1 (9th Cir. 1993); United States v.          ________                                         _____________          Sims, 975 F.2d 1225, 1235 (6th Cir. 1992).  It also is undisputed          ____          that the  jury in this case  mistakenly was not  asked to specify          the weapon  or weapons  underlying its verdict.   The  government          claims that the thirty-year term nevertheless applies because, in          the  unique factual  circumstances of this  case, a  finding that          defendants used  machine guns is "implicit  and inescapable" from          the jury's general verdict.               The  government's thesis goes like  this: because all of the          weapons were  found in the same  place -- the van  -- and because          neither the prosecution nor defense offered the jury a theory for          distinguishing among  the firearms,  there was no  rational basis          upon  which the jury could conclude that any particular defendant          used  or carried  some  of  the firearms  but  not others.    The          government emphasizes that the jury's guilty verdict on Count  14          demonstrates  its rejection  of  the defense,  sounded again  and          again throughout the trial and closing arguments, that the would-          be  robbers intended a wholly  nonviolent takeover of the armored          truck.    Evidently  having   disbelieved  Joyce  and  McNaught's          testimony  that Ryan  was responsible  for the weapons,  the jury          must  have concluded  instead  that they  were knowingly  brought          along by the  defendants.  The defendants made  an all-or-nothing                                         -11-          argument about the  firearms, the government  points out, and  so          the jury must have reached an all-or-nothing verdict.                    This is certainly one plausible interpretation of the jury's          decisionmaking.  Our task in these circumstances, however, is not          to determine whether the evidence and argument  could support the                                                          _____          government's interpretation of the jury's verdict, but whether it          inevitably must lead to  such a construction.  This  standard was                     ____          well  articulated by  the Eleventh  Circuit  in United  States v.                                                          ______________          Dennis, 786 F.2d 1029 (11th Cir. 1986), a drug conspiracy case in          ______          which the indictment  charged involvement with several  different          drugs,  carrying different  penalties,  and the  jury returned  a          general  verdict that  did  not specify  the drug  supporting its          decision:               [T]he  reviewing  court in  such  a  situation may  not               examine  the evidence presented  at trial  to determine               whether the jury, if  properly instructed could have or                                                         _____               even should have found a heroin/cocaine conspiracy  and                    ______               returned  a verdict  indicating  as  much; rather,  the               court's inquiry is  confined to determining  beyond any               reasonable  doubt  whether the  jury  did  find such  a                                                     ___               conspiracy  and whether  it  intended  the  verdict  it               returned to  reflect that determination.   Only in that               manner may  we avoid  invading the special  province of               the jury in a criminal case  both to find the facts and               apply the law as it sees fit.          Id.  at 1041 (emphasis in  original).  See  also United States v.          __                                     ___  ____ _____________          Pace, 981 F.2d 1123,  1129-30 (10th Cir. 1992); United  States v.          ____                                            ______________          Quicksey, 525 F.2d 337, 340-41 (4th Cir. 1975).          ________               We  have  concluded  that  we  may  not  exclude  beyond   a          reasonable doubt the possibility that  the jury rendered a guilty          verdict  on Count 14 based on a determination that the defendants          possessed only a handgun -- the weapon found in the  front of the                                         -12-          van.  Although it  is true, as  the government argues, that  both          prosecution and defense repeatedly dealt  with the six weapons as          an  undifferentiated  collection, the  evidence  and  jury charge          provided an obvious opportunity for the jury to distinguish among          them.                 The  evidence permitted  the jury  to find that  the handgun          found on  the floor between the  two front seats  had been placed          there  deliberately  and carefully.   It  was,  at least  to some          extent, separated from the five weapons found in the back  of the          van, all of which were inside, or very close to, the bag that the          defendants  claimed  Ryan  had  provided.   Certainly,  the  jury          reasonably could have focused on the handgun and  concluded that,          whatever the defendants'  relationship to the  automatic weapons,          that one firearm had been brought along purposefully.               Indeed,  the court's  instruction  explicitly permitted  the          jury to  avoid deciding the  source of  the weapons found  in the          rear of the van, by emphasizing that Count 14  required a finding          of only  a single firearm.   See supra  at 8.   Thus, the  jurors                                       ___ _____          might have  suspended their deliberations on the  use of firearms          once they  concluded that  these experienced criminals  must have          carried at least a single gun -- the handgun in the front seat --          for  use  as a  show  of force  or to  discourage  heroic efforts          against them.               The fact  that neither the government nor defense urged such          an approach to  the evidence  does not  preclude the  possibility          that  the jury  reached its  result in  that way.   In  our view,                                         -13-          focusing  on  the handgun  was a  fairly  obvious choice  for the          jurors, particularly  if there  were any disagreement  among them          about Ryan's role in providing the weapons.8               We  therefore  conclude that  the  jury's  verdict fails  to          establish, beyond a reasonable doubt, that the  jurors found that          the defendants violated    924(c) through use of weapons  subject          to a term of imprisonment greater than five years.  Consequently,          we affirm the district court's 60-month sentence on Count 14.9                                         IV.               Some further comment is necessary.  The problem in this case          resulted, at  least in part, from  the government's understanding          of our precedent on  special verdicts in criminal cases.   United                                                                     ______          States v. Spock, 416  F.2d 165 (1st Cir. 1969), remains a leading          ______    _____          authority against  the  use of  special verdicts  based on  their                                        ____________________               8  In  all likelihood,  the defendants  deliberately avoided          distinguishing  among the weapons in the hope that the jury would          be persuaded that no weapons at all were intended to be used.  In          other words, it was not in their interest to highlight the front-          seat  weapon.    This   strategic  decision  does  not,  however,          foreclose  them from  arguing, nor  us from concluding,  that the          jurors reasonably could have  drawn such a distinction themselves          based on the evidence and instructions.               9  The defendants  argued that,  even if  we found  that the          jury's verdict unambiguously  reflected a finding that all of the          weapons found in the van were  used by all of the defendants, the          30-year  sentence could not be  imposed because the  jury had not          been  asked to  decide  whether  those  firearms were,  in  fact,          automatic weapons and whether  the defendants knew the nature  of          the  weapons.  The government  contended that it  was the court's          role to determine  the appropriate  label for  the firearms,  and          that  it  was  unnecessary  to  prove  knowing  use of  automatic          weapons.   Our conclusion  that the jury's  verdict was ambiguous          makes it unnecessary to consider these other questions.                                         -14-          potential  for  leading the  jury  to  the prosecution's  desired          conclusion.  Id. at 180-83.                       ___               Even  in Spock,  however,  we recognized  that there  may be                        _____          circumstances  in which eliciting particularized information from          the  jury will be  permissible.  See  416 F.2d at  182-83 & n.41.                                           ___          See  also Heald  v. Mullaney,  505 F.2d  1241, 1245-46  (1st Cir.          ___  ____ _____     ________          1974) (some usages of special interrogatories  may be exempt from          the  dangers described  in Spock).   We  believe this  is such  a                                     _____          context.  Where, as here, a statute proscribes more than one type          of conduct,  with penalties  that  vary depending  upon the  acts          committed,  some  method  of  ascertaining  the  jury's  specific          finding is necessary.               At least two circuits have held expressly that the ambiguous          verdict problem in a   924(c) case may  be handled either through          use of  special interrogatories or by  submitting separate counts          to the jury for each firearm  allegedly used and, should there be          more  than one  conviction, merging  those convictions  after the          trial.  See Martinez, 7  F.3d at 148 n.1; Sims, 975 F.2d at 1235.                  ___ ________                      ____          In either approach, if the jurors find that the defendant used or          carried  firearms falling  within several categories  of weapons,          the sentence imposed will be for the most dangerous weapon; i.e.,                                                                      ____          the defendant will  receive the highest of the varying applicable          terms.  See Martinez, 7 F.3d at 148-49; Sims, 975 F.2d at 1236.                  ___ ________                    ____               We  agree  that  either of  these  two  procedures  would be          acceptable,  and  we  are  joined  in   this  conclusion  by  the          government.   Although contending that the result in this case is                                         -15-          self-evident,  the government  acknowledges  that  determining  a          jury's  precise verdict  in a    924(c)  case involving  multiple          firearms usually will require resort to one or the other of these          techniques.   It bears repeating that  allowing these techniques,          in  this  context,  is  not inconsistent  with  Spock;  these are                                                          _____          precisely  the  circumstances  in  which we  recognized  that  an          exception to  the rule  against special interrogatories  might be          necessary.  See 416 F.2d at 182 & n.41.   Accord United States v.                      ___                           ______ _____________          North, 910  F.2d 843, 910-11  (D.C. Cir. 1990)  (recognizing that          _____          special verdicts  may be employed in  certain contexts, including          "as a means of more precisely determining an appropriate and fair          punishment").10   See  also  United States  v.  Bounds, 985  F.2d                            ___  ____  _____________      ______          188,  194-95 (5th  Cir.  1993) (multiple  drug conspiracy  case);          United  States v.  Owens, 904  F.2d 411,  414-15 (8th  Cir. 1990)          ______________     _____          (same);  Newman v. United States,  817 F.2d 635,  637 & n.3 (10th                   ______    _____________          Cir. 1987) (same); Dennis, 786 F.2d at 1041 (same); United States                             ______                           _____________          v. Orozco-Prada, 732 F.2d 1076, 1083-84 (2d Cir. 1984) (same).             ____________               The Motion  for Clarification  is granted, and  our original               ____________________________________________________________          decision  is modified to exclude  remand for retrial  of Count 14          _________________________________________________________________          for  defendants Melvin,  Joyce, Habicht,  Nee and  McNaught.   We          _________________________________________________________________          affirm the five-year sentence imposed on that charge.          ____________________________________________________                                        ____________________               10  Although   the  court   in  North  noted   that  special                                               _____          interrogatories  for   sentencing   reasons  have   been   deemed          appropriate when the defendant has requested  or accepted them, a                                             _________     ________          court presumably must have the discretion to adopt  the procedure          even if the  defendant has  not explicitly approved  in order  to          avoid ambiguous verdicts such as the one at issue here.                                         -16-
