                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0047p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                   X
          Plaintiff-Appellee/Cross-Appellant, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                         Nos. 06-4105/4626; 07-3004
          v.
                                                    ,
                                                     >
                                                    -
        Defendant-Appellant/Cross-Appellee. -
 DARYL LAWRENCE,
                                                    -
                                                   N
                     Appeal from the United States District Court
                    for the Southern District of Ohio at Columbus.
                  No. 05-00011—Gregory L. Frost, District Judge.
                                 Argued: April 30, 2008
                         Decided and Filed: February 11, 2009
      Before: BOGGS, Chief Judge; ROGERS and McKEAGUE, Circuit Judges.

                                   _________________

                                       COUNSEL
ARGUED: Kort W. Gatterdam, CARPENTER, LIPPS & LELAND, Columbus, Ohio, for
Appellant. Elizabeth D. Collery, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Kort W. Gatterdam, CARPENTER, LIPPS
& LELAND, Columbus, Ohio, Diane M. Menashe, DIANE M. MENASHE CO., L.PA.,
Columbus, Ohio, for Appellant. Steven L. Lane, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., David DeVillers, Michael J. Burns, ASSISTANT UNITED
STATES ATTORNEYS, Columbus, Ohio, for Appellee.
                                   _________________

                                        OPINION
                                   _________________

        McKEAGUE, Circuit Judge. Defendant Daryl Lawrence was convicted of armed
bank robbery, attempted armed bank robbery, murder, and firearms charges. Two of the
counts, Counts Seven and Eight, charged death-eligible offenses. The jury returned a verdict
of life imprisonment on Count Seven and a verdict of death on Count Eight. Ruling on
defendant’s motion for new trial, the district court held that the jury’s verdicts on Counts

                                             1
Nos. 06-4105/4626; 07-3004               United States v. Lawrence                                Page 2


Seven and Eight were inconsistent. The court vacated the verdict of death on Count Eight
and ordered a new sentencing hearing. The government appeals, contending the verdicts are
not inconsistent. Lawrence has moved for dismissal of the government’s appeal as
premature.

         For the reasons that follow, we deny Lawrence’s motion to dismiss the government’s
appeal, vacate the district court’s order partially granting the motion for new trial, and
thereby reinstate the sentence of death originally imposed by the district court on Count
Eight.

                                    I. PROCEDURAL HISTORY

         In January 2005, a grand jury in the Southern District of Ohio handed down an eight-
count indictment, charging Lawrence with armed bank robbery, attempted armed bank
robbery, murder, and firearms offenses. The charges stemmed from four different Ohio bank
robberies committed during January, August and September 2004, and January 2005.
During the last of these four robberies, Columbus Police Officer Bryan Hurst was shot and
killed. Counts Seven and Eight of the indictment alleged death-eligible offenses, violations
of 18 U.S.C. § 2113(a), (d), and (e), and 18 U.S.C. § 924(c), (j)(1), respectively. The jury
found Lawrence guilty of all charged offenses and found him eligible for the death penalty
                                1
on Counts Seven and Eight. The district court held a sentencing hearing in March 2006.
Jurors, in varying numbers, found that Lawrence proved the existence of forty-seven
mitigating factors in relation to both Count Seven and Count Eight. Under Count Seven,
the jury concluded that the aggravating factors did not sufficiently outweigh the
mitigating factors and returned a sentencing verdict of life in prison without possibility
of release. Under Count Eight, the jury found that the aggravating factors sufficiently
outweighed the mitigating factors and returned a verdict of death.

         The district court accepted the jury’s sentencing verdicts on Counts Seven and
Eight and imposed conforming sentences on those counts in an order entered on March

         1
           Specifically, under Count Seven, the jury found Lawrence guilty of attempted armed bank
robbery and of putting a person’s life in jeopardy by use of a dangerous weapon during the attempted
robbery; and of killing a person either during the attempted robbery or in attempting to avoid apprehension
for the robbery. Under Count Eight, the jury found Lawrence guilty of using, brandishing, discharging a
firearm and, with malice aforethought, murdering a person during an attempted armed bank robbery.
Nos. 06-4105/4626; 07-3004                United States v. Lawrence                                Page 3


13, 2006. The court ordered the preparation of a presentence investigation report for the
other six convictions. The court sentenced Lawrence to a total of 781 months’
imprisonment on Counts One through Six on August 10, 2006. Lawrence moved for a
new trial under Fed. R. Crim. P. 33(b)(2) and 45(a) on August 11, 2006. The district
court heard oral arguments on the motion in October 2006, and granted Lawrence’s
motion in part. The court rejected Lawrence’s claims of juror bias, double jeopardy, and
improper jury instructions, but agreed with Lawrence that the jury’s sentencing verdicts
on Counts Seven and Eight were inconsistent. The district court vacated the jury’s death
verdict on Count Eight and ordered a new sentencing hearing pursuant to 18 U.S.C.
§ 3593(b)(2)(D). United States v. Lawrence, 477 F. Supp. 2d 864, 867 (S.D. Ohio
2006). The court directed that the new sentencing hearing would take place before a
different jury.

         In appeal No. 06-4626, the United States appeals the order partially granting the
motion for new trial, insisting the verdicts are not inconsistent. Lawrence has moved to
dismiss the government’s appeal. In appeal No. 07-3004, Lawrence cross-appeals the
district court’s order insofar as it requires a new sentencing hearing as a remedy, rather
than ordering a life sentence be imposed on Count Eight.2

                                           II. ANALYSIS

         A. Government’s Appeal

         1. Appellate Jurisdiction

         Lawrence has responded to the government’s appeal from the order partially
granting the motion for new trial by moving the court to dismiss it. Lawrence contends
the order is not appealable because it will not become final until after the new sentencing
hearing takes place and ripens into a final judgment of sentence. In support, Lawrence
relies mainly on Andrews v. United States, 373 U.S. 334, 338-39 (1963). In Andrews,



         2
          Also consolidated with these appeals is appeal No. 06-4105, in which Lawrence challenges his
conviction and sentence on various other grounds. Proceedings in this appeal are held in abeyance pending
resolution of the issues relating to the appeals from the order partially granting the motion for new trial.
Nos. 06-4105/4626; 07-3004        United States v. Lawrence                         Page 4


the Court held that a district court’s order vacating a sentence under 28 U.S.C. § 2255
and ordering resentencing was interlocutory and would not become final and appealable
until the resentencing occurred. The foundation of the Andrews ruling is twofold. The
ruling is premised first on the language of § 2255 itself, which expressly allows an
appeal to be taken “from the order entered on the motion as from a final judgment on
application for a writ of habeas corpus.” 28 U.S.C. § 2255(d) (emphasis added);
Andrews, 373 U.S. at 338. Second, the ruling honors “the standards of finality to which
the Court has adhered in habeas corpus proceedings” and “the long-established rule
against piecemeal appeals.” Andrews, 373 U.S. at 340. Andrews remains good law,
having recently been followed in several cases. See United States v. Futch, 518 F.3d
887, 894 (11th Cir. 2008); United States v. Hadden, 475 F.3d 652, 662-63 (4th Cir.
2007); United States v. Stitt, 459 F.3d 483, 485-86 (4th Cir. 2006).

       This is not an appeal, however, from an order granting a § 2255 motion to vacate,
set aside or correct a sentence. This is an appeal under the Criminal Appeals Act,
18 U.S.C. § 3731, from an interlocutory, post-verdict order partially granting defendant
Lawrence’s motion for new trial in a capital case. In Andrews, the Court recognized that
the Criminal Appeals Act has no applicability to an action under § 2255, which is “a
separate proceeding, independent of the original criminal case.” 373 U.S. at 338.
Hence, insofar as Andrew’s holding is based on the language of § 2255, it has little
instructive value in this case. Insofar as Andrews represents enforcement of the general
rule against piecemeal appeals, its teaching is also limited inasmuch as § 3731, as
amended in 1970, was “intended to remove all statutory barriers to Government appeals
and to allow appeals whenever the Constitution would permit.” United States v. Wilson,
420 U.S. 332, 337 (1975).

       Section 3731 provides in relevant part:

       In a criminal case an appeal by the United States shall lie to a court of
       appeals from a decision, judgment, or order of a district court dismissing
       an indictment or information or granting a new trial after verdict or
       judgment, as to any one or more counts, or any part thereof, except that
       no appeal shall lie where the double jeopardy clause of the United States
       Constitution prohibits further prosecution.
Nos. 06-4105/4626; 07-3004         United States v. Lawrence                        Page 5


18 U.S.C. § 3731. Further, § 3731 expressly provides that its provisions “shall be
liberally construed to effectuate its purposes.” The government contends that the district
court’s order partially granting Lawrence’s motion for new trial and requiring a new
sentencing hearing is, under the above language, “an appeal from an order granting a
new trial as to any part of any one or more counts.” Lawrence maintains that a new
sentencing hearing on Count Eight is not a “new trial” as to any part of any count.

       On this precise question, there is little case law authority. The only ruling
directly on point is United States v. Cerceda, 172 F.3d 806, 811 n.3 (11th Cir. 1999) (en
banc), cert. denied sub nom. De La Mata v. United States, 528 U.S. 895 (1999). Noting
that § 3731 is to be liberally construed to effectuate its purposes, the Eleventh Circuit
held that a district court’s orders granting post-judgment motions for new trials and/or
sentencing hearings in some twenty-two cases were immediately appealable. Id. For
jurisdictional purposes, the court drew no distinction between the orders granting new
trials and those merely granting new sentencing hearings. That is, the orders granting
new sentencing hearings were implicitly treated as orders granting new trials as to
“parts” of the counts of conviction.

       A similar result was reached by the Eighth Circuit in a capital case, United States
v. Lee, 274 F.3d 485 (8th Cir. 2001). After the jury had returned a verdict of death in the
penalty phase, the district court granted the defendant’s motion under Fed. R. Crim. P.
33 for a new sentencing phase hearing. The Eighth Circuit entertained the matter as an
appeal of a new trial order, reviewed it for an abuse of discretion, reversed the new trial
order, and reinstated the sentence of death. Id. at 493, 496-97. The defendant did not
challenge the court’s appellate jurisdiction under § 3731 and the court did not expressly
address the matter of jurisdiction. It was presumed that the order granting a new penalty
phase trial was properly subject to interlocutory review under § 3731 as an order
granting a new trial.

       Neither Lee nor Cerceda includes a definitive analysis of the issue. Yet, the
conclusion that an order requiring a new sentencing hearing is an order granting a new
trial as to any part of any count is entirely consonant with Congress’s stated intention
Nos. 06-4105/4626; 07-3004              United States v. Lawrence                              Page 6


that § 3731 be liberally construed and that government appeals be allowed within the
limits of the Constitution. The conclusion is also consistent with this court’s past
unwillingness to import an “empty formalism” into § 3731. United States v. Hill, 55
F.3d 1197, 1199 (6th Cir. 1995); see also United States v. Battisti, 486 F.2d 961, 967
(6th Cir. 1973).

        Moreover, the conclusion is all the more appropriate where as here, the new
sentencing hearing would be a jury proceeding. If the district court’s order were deemed
unreviewable until after a final judgment of sentence were issued on Count Eight, a
death-qualified jury would have to be empaneled to determine again whether a sentence
of death is justified. This determination would be made, based on consideration of any
aggravating factors established beyond a reasonable doubt and any mitigating factors
established by a preponderance of the information, in a proceeding having the hallmarks
of a trial on guilt or innocence. See 18 U.S.C. § 3593; Sattazahn v. Pennsylvania, 537
U.S. 101, 106 (2003). Considering the nature of federal capital sentencing proceedings,
the notion urged by defendant Lawrence that the new sentencing hearing ordered by the
district court is not a new trial on any part of Count Eight rings hollow. The argument
is overly technical and clearly at odds with Congress’s directive that § 3731 be liberally
construed to effectuate its purposes.

        Defendant Lawrence has not cited a single decision construing § 3731 so
narrowly as to exclude a government appeal of a post-judgment order requiring a new
sentencing hearing. Instead, he relies on cases in which § 3731 was held not to authorize
government appeals of sentencing orders generally, i.e., orders imposing sentences. See,
e.g., United States v. Hundley, 858 F.2d 58, 62-63 (2d Cir. 1988); United States v.
Spilotro, 884 F.2d 1003, 1005-06 (7th Cir. 1989). Indeed, by its terms, § 3731 does not
authorize government appeals of sentencing orders.3 Final sentencing orders for
offenses committed after November 1, 1987 are appealable under 18 U.S.C. § 3742(b).


        3
          As the Hundley court recognized, however, several courts had nevertheless interpreted § 3731
more broadly, holding that its listings of appealable orders were nonexclusive, and that the government
could appeal any order as long as doing so would not offend the Double Jeopardy Clause. Hundley, 858
F.2d at 62.
Nos. 06-4105/4626; 07-3004          United States v. Lawrence                         Page 7


If the district court had issued an order vacating the sentence of death on Count Eight
and imposing a sentence of life imprisonment instead, the government would have
appealed directly under § 3742(b). It is precisely because the district court’s order
partially granting Lawrence’s motion for new trial is not merely a final sentencing order
that the government had to invoke § 3731. And because it is not a final sentencing order,
rulings such as Hundley and Spilotro are inapposite.

        Finally, Lawrence argues that, if “new trial on any part of any count” can be
construed so broadly as to mean “new capital sentencing hearing,” then § 3731 must be
ambiguous and the rule of lenity should be applied to resolve the ambiguity in his favor.
The “policy of lenity means that the Court will not interpret a federal statute so as to
increase the penalty it places on an individual when such an interpretation can be no
more than a guess as to what Congress intended.” United States v. Boucha, 236 F.3d
768, 774-75 (6th Cir. 2001) (quoting Bifulco v. United States, 447 U.S. 381, 387 (1980)).
The rule of lenity is founded on two policies: (a) the notion that the public is entitled to
fair warning of the criminal penalties that apply to proscribed conduct; and (b) the notion
that the proscribed conduct should be defined by the legislature and not by the courts.
Boucha, 236 F.3d at 774. The rule of lenity is applied in favor of a criminal defendant
only if a statute remains ambiguous after consideration of its plain meaning, structure
and legislative history. Id.

        In light of the above analysis, it is clear that the rule of lenity has no application
to the present question. First, interpreting § 3731 to determine whether the government
may appeal the district court’s order immediately, rather than waiting until after the new
sentencing hearing is completed, does not implicate the definition of criminal conduct
prohibited or the imposition of any harsher penalty. See Sash v. Zenk, 428 F.3d 132,
134-35 (2d Cir. 2005) (holding rule of lenity irrelevant in interpreting federal statute that
defined neither the criminal prohibition nor the penalty imposed and was therefore not
a “criminal statute”). Second, as explained above, the task of determining whether the
government’s interlocutory appeal comes within the scope of § 3731 does not leave us
guessing as to what Congress intended. Because Congress has explicitly directed the
Nos. 06-4105/4626; 07-3004         United States v. Lawrence                         Page 8


courts to construe § 3731 broadly to effectuate its purpose of removing barriers to
government appeals, we find no ambiguity in applying § 3731 to the present
circumstances that would trigger the rule of lenity.

        Accordingly, we conclude that § 3731 authorizes the government to appeal the
district court’s order vacating the original sentence on Count Eight and ordering a new
capital sentencing proceeding—as long as the appeal does not offend the Double
Jeopardy Clause.

        The Double Jeopardy Clause is not offended. “[T]he Double Jeopardy Clause
does not bar a Government appeal from a ruling in favor of the defendant after a guilty
verdict has been entered by the trier of fact.” United States v. DiFrancesco, 449 U.S.
117, 130 (1980); see also United States v. Boesen, 491 F.3d 852, 855 (8th Cir. 2007)
(appellate jurisdiction over government’s appeal properly exercised because reversal
would merely reinstate verdict and not subject defendant to a new trial); United States
v. Genova, 333 F.3d 750, 756 (7th Cir. 2003) (“[T]he United States may appeal from a
judge’s order acquitting the defendant after the jury has returned a verdict of guilty, for
reversal does not require a new trial.”). Although this case involves the jury’s
sentencing verdict rather than its verdict on guilt or innocence, the principle is the same.
Reversal of the district court’s decision to vacate the sentence of death on Count Eight
and order a new sentencing proceeding would not lead to another prosecution, but would
simply result in reinstatement of the jury’s verdict.

        Accordingly, the government’s appeal does not offend the Double Jeopardy
Clause and is properly taken under 18 U.S.C. § 3731.

        2. Merits: Verdicts Inconsistent?

        (a) Standard of Review

        This court reviews a district court’s decision to grant or deny a new trial for
abuse of discretion. United States v. Gonzales, 227 F.3d 520, 523 (6th Cir. 2000). “The
district court abuses its discretion when it relies on clearly erroneous findings of fact,
uses an erroneous legal standard, or improperly applies the law.” United States v. White,
Nos. 06-4105/4626; 07-3004         United States v. Lawrence                         Page 9


492 F.3d 380, 408 (6th Cir. 2007) (citing United States v. Heavrin, 330 F.3d 723, 727
(6th Cir. 2003)). An error of law is by definition an abuse of discretion. Koon v. United
States, 518 U.S. 81, 100 (1996).

       (b) Reviewability of Inconsistent Verdicts

       The district court held that it had discretion under Fed. R. Crim. P. 33 to “vacate
any judgment and grant a new trial if the interest of justice so requires.” The court
further held that the jury’s penalty verdicts on Counts Seven and Eight were inconsistent,
and that the inconsistency was a product of irrationality that required the court to set
aside the verdict on Count Eight. The court concluded there was no valid explanation
for the jury’s inconsistent findings other than “complete arbitrariness.”

       A threshold question we must answer is whether any apparent inconsistency
between the jury’s verdicts presents a reviewable “error.” “[T]he Supreme Court has
repeatedly held that a jury may announce logically inconsistent verdicts in a criminal
case.” United States v. Clemmer, 918 F.2d 570, 573 (6th Cir. 1990) (emphasis added)
(citing United States v. Powell, 469 U.S. 57 (1984), and Dunn v. United States, 284 U.S.
390 (1932)).

       Inconsistent verdicts therefore present a situation where “error,” in the
       sense that the jury has not followed the court’s instructions, most
       certainly has occurred, but it is unclear whose ox has been gored. Given
       this uncertainty, and the fact that the Government is precluded from
       challenging the acquittal, it is hardly satisfactory to allow the defendant
       to receive a new trial on the conviction as a matter of course.
Powell, 469 U.S. at 65. It is unclear whose ox has been gored because “[a] jury that
inconsistently convicts the defendant of one offense and acquits him of another is as
likely to have erred in acquitting him of the one as in convicting him of the other.”
United States v. Johnson, 223 F.3d 665, 675 (7th Cir. 2000). Juries are permitted “to
acquit out of compassion or compromise or because of ‘their assumption of a power
which they had no right to exercise, but to which they were disposed through lenity.’”
Standefer v. United States, 447 U.S. 10, 22 (1980) (quoting Dunn, 284 U.S. at 393).
Nos. 06-4105/4626; 07-3004         United States v. Lawrence                       Page 10


        Accordingly, inconsistent verdicts are generally held not to be reviewable. See
United States v. Dykes, 406 F.3d 717, 722 (D.C. Cir. 2005) (defendant acquitted on
charge of possessing cocaine base found in bedroom but convicted of possessing the
marijuana found in the room could not attack verdict of conviction as inconsistent);
United States v. Espinoza, 338 F.3d 1140, 1147 (10th Cir. 2003) (“There are sound
reasons, however, not to concern ourselves with the consistency of jury verdicts in
criminal cases”); United States v. Chilingirian, 280 F.3d 704, 710-11 (6th Cir. 2002)
(applying Powell to trial judge’s verdicts convicting defendant of conspiracy to commit
money laundering but acquitting him of related mail and wire fraud counts); United
States v. Reyes, 270 F.3d 1158, 1168 (7th Cir. 2001) (refusing to review claim that
convictions of substantive offenses were inconsistent with acquittal of conspiracy
charge); United States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000) (a claim that the jury
verdict is internally inconsistent is essentially unreviewable); United States v. Mitchell,
146 F.3d 1338, 1343 (11th Cir. 1998) (applying Powell to defendant’s claim that jury’s
verdict of conviction for violating 18 U.S.C. § 2113(d) was inconsistent with jury’s
verdict of acquittal on charge of 18 U.S.C. § 924(c)); United States v. Hart, 963 F.2d
1278, 1280 (9th Cir. 1992) (review for inconsistency is prohibited).

        In light of these authorities, the district court was on shaky footing to even
entertain Lawrence’s inconsistent-verdicts challenge. The practical reasons for not
doing so noted by the Supreme Court in Powell and Standefer are no less applicable
here.   The district court was well aware of these authorities, but concluded that
inconsistent verdicts are reviewable if the inconsistency is the “product of irrationality.”
In support of this conclusion, the court cited Getsy v. Mitchell, 456 F.3d 575 (6th Cir.
2006) (“Getsy I”).

        The district court’s reliance on Getsy I is problematic for two reasons. First, the
Getsy I decision was vacated one week after the district court issued its ruling in this
case, when the Sixth Circuit granted en banc review. The en banc court went on to reject
Getsy’s inconsistent-verdicts argument, reaffirming Powell’s teaching that inconsistent
verdicts are generally not reviewable. Getsy v. Mitchell, 495 F.3d 295, 307-08 (2007)
Nos. 06-4105/4626; 07-3004         United States v. Lawrence                     Page 11


(en banc) (“Getsy II”). The second fundamental reason why the district court’s reliance
on Getsy I is erroneous is that Getsy presented an entirely different kind of
“inconsistency” than is presented in this case. Getsy involved two codefendants charged
with the same offenses stemming from the same murder who were tried separately. One
defendant was convicted of all charged offenses and was sentenced to death; the other
was convicted of some but not all charged offenses and was sentenced to life in prison.
Even the panel majority in Getsy I, without specifically identifying what was “irrational”
about the “inconsistency” before it, recognized that review of a claim of inconsistent
verdicts on separate charges against a single defendant—i.e., the very claim presented
in this case—would be precluded by Powell. Getsy I, 456 F.3d at 590. Hence, Getsy I
affords no support for the district court’s analysis.

       The district court also relied on the Seventh Circuit’s decision in United States
v. Johnson, 223 F.3d at 675-76. This reliance, too, is misplaced. Johnson recognizes
that, notwithstanding the general rule that inconsistent verdicts are not reviewable, “a
sentence of death imposed under the influence of passion, prejudice, or any other
arbitrary factor” must be set aside unless the error is shown to have been harmless. Id.
at 676 (citing 18 U.S.C. § 3593(c)(2)(A)). Thus, an inconsistency so serious as to
indicate that a verdict is the “product of irrationality” is reviewable. Id.

       In Johnson, where the defendant was charged with two murders, jurors made
different findings regarding asserted mitigating factors that were equally applicable to
both murders. Yet, these inconsistent findings were deemed inconsequential where all
jurors unanimously concluded, regarding both murder charges, that the aggravating
factors outweighed the mitigating factors. The court observed that the jurors “are
required to agree about their verdict, not about every fact.” Id. Because the jury was in
unanimous agreement as to “the bottom line,” there was no reason to believe their
verdict was the product of irrationality. Id. See also Wainwright v. Lockhart, 80 F.3d
1226, 1231-32 (8th Cir. 1996) (rejecting challenge based on inconsistent mitigation
factor findings where jury unanimously and specifically found that aggravating
circumstances outweighed all mitigating circumstances).
Nos. 06-4105/4626; 07-3004         United States v. Lawrence                       Page 12


       The instant facts come squarely within the holding of Johnson. Here, although
the individual jurors made different findings regarding mitigating factors in relation to
the two separate death-eligible offenses, their “bottom line” determinations that the
aggravating factors outweighed the mitigating factors as to Count Eight but not Count
Seven were unanimous. Here, as in Johnson, inconsistencies among individual juror
findings pose no cognizable problem; it is only when jury verdicts are marked by such
inconsistency as to indicate arbitrariness or irrationality that relief may be warranted.

       (c) Arbitrariness or Irrationality

       Lawrence maintains and the district court concluded that just such an
inconsistency is presented by the difference between these two jury verdicts—one being
a sentence of life imprisonment, one being a sentence of death—even though the jury
was considering the identical set of asserted mitigating circumstances in connection with
both offenses. The district court summarized its reasoning as follows:

       It is irrational to conclude that Defendant proved a mitigating factor in
       regard to one count by a preponderance of the evidence, but that he did
       not meet this burden of proof in regard to another count. The
       inconsistent findings taint the balancing equation and point to the
       unavoidable conclusion that irrational, even arbitrary, jury conduct
       existed. Thus, the end result is that the jury arbitrarily used two different
       balancing equations to conclude that the aggravating factors sufficiently
       outweighed the mitigating factors on Count Eight, but not on Count
       Seven.
Lawrence, 477 F.Supp.2d at 870. The government challenges this reasoning and we
agree with the objection. However, to discern the fallacy in the district court’s
reasoning, it is helpful to first review the sentencing process under the Federal Death
Penalty Act, 18 U.S.C. §§ 3591 et seq.

       Sentencing under the FDPA consists of three steps. First, the jury determines
whether the defendant committed a death-eligible offense under 18 U.S.C. § 3591.
Second, the jury determines whether at least one of the statutory aggravating factors set
forth in section 3592 is present. Both of these determinations must be unanimous and
must be made upon proof beyond a reasonable doubt. 18 U.S.C. § 3593(c), (d). Third,
Nos. 06-4105/4626; 07-3004         United States v. Lawrence                       Page 13


if the jury finds both a death-eligible offense and one or more of the statutory
aggravating factors, the jury considers whether the statutory aggravating factor or factors
found to exist, together with any non-statutory aggravating factors found to exist upon
proof beyond a reasonable doubt, sufficiently outweigh the mitigating factor or factors
found to exist, so as to justify a sentence of death. Section 3593(e). The defendant may
present any information relevant to a mitigating factor and it is his burden of establishing
the existence of any mitigating factor by a preponderance of the information. Section
3593(c). A finding with respect to a mitigating factor may be made by one or more
jurors, while a finding with respect to any aggravating factor must be unanimous.
Section 3593(d). The jury’s overall sentencing verdict must be unanimous. Section
3593(e). That is, in particular, a verdict of death is properly reached only if the jurors
unanimously find that the aggravating factors sufficiently outweigh the mitigating
factors. Section 3594.

        In this case, the jury found Lawrence guilty on every count of the indictment,
including the two death-eligible offenses in Counts Seven and Eight. Under Count
Seven, the jury found Lawrence guilty of attempted bank robbery, with the additional
findings that he put in jeopardy the life of some person by the use of a dangerous weapon
while engaged in attempting to take the money, and that he killed Bryan Hurst in
attempting to commit armed bank robbery or in attempting to avoid apprehension for the
commission of armed banked robbery. Under Count Eight, the jury found Lawrence
guilty of using or carrying a firearm during and in relation to an attempted armed bank
robbery, with the additional findings that he brandished a firearm during and in relation
to the attempted armed bank robbery, that he discharged a firearm during and in relation
to the attempted armed bank robbery, and that he murdered Bryan Hurst while using or
carrying a firearm during and in relation to an attempted bank robbery.

        At the eligibility stage, the jury found unanimously that Lawrence met the age
factor (eighteen or older), and the four intent factors for Counts Seven and Eight. The
jury also unanimously found, for both Counts Seven and Eight, that the government
proved beyond a reasonable doubt the presence of two statutory aggravating factors.
Nos. 06-4105/4626; 07-3004         United States v. Lawrence                      Page 14


       At the penalty selection phase, the district court gave preliminary and final
instructions. The district court instructed the jury to decide whether the government
proved the existence of the two asserted non-statutory aggravating factors beyond a
reasonable doubt. The district court also instructed the jury that mitigating factors could
be found by one, more than one, or all of the jurors. Then each juror was to consider
whether the mitigating factors found by him or her were sufficiently outweighed by all
the aggravating factors, statutory and non-statutory, found by all of the jurors, so as to
justify a sentence of death. The court explained that the jurors were to use the same
procedures for both Count Seven and Count Eight, and recommended that they apply the
procedure first to Count Seven and then to Count Eight. Further, and significantly, the
court instructed the jurors to consider each count separately and independently: “You
must consider each count uninfluenced by your decision as to the other count. Your
conclusion as to the appropriate punishment on Count 7 does not mean that your
conclusion as to the appropriate punishment for Count 8 should be the same.” JA 181-
82. The court also told the jurors that they could not rely solely on the guilty verdicts
from the trial or eligibility phases in making their findings, but could consider evidence
presented during those phases along with the evidence presented in the sentencing phase.
Finally, the court instructed the jury on the different burdens of proof required for the
government to establish non-statutory aggravating factors on the one hand, and for
Lawrence to establish mitigating factors on the other.

       During the sentencing hearing, Lawrence asserted fifty-one potentially relevant
mitigating factors for the jury’s consideration. The jurors indicated on the verdict forms
for Count Seven and Count Eight the number of jurors who found each mitigating factor
by a preponderance of the evidence. One or more jurors found forty-seven mitigating
factors for both Count Seven and Count Eight. Comparing the jurors’ votes on the two
counts, the number of jurors who found a particular mitigating factor for Count Seven
exceeded the tally for Count Eight for eighteen factors, the tally was the same for
twenty-one factors (including four asserted factors which no juror found to be mitigating
for either count), and the number of jurors who found a particular mitigating factor for
Count Eight exceeded the tally for Count Seven for twelve factors. Most of the tallies
Nos. 06-4105/4626; 07-3004                United States v. Lawrence                               Page 15


that differed did so by one vote. The largest discrepancy was for asserted mitigating
factor 45, mercy. Nine jurors found the mercy factor established for Count Seven, while
only three found it established for Count Eight.

             As to Count Seven, where the jurors, cumulatively, made a total of 338
mitigating factor findings, these mitigating factors were collectively and unanimously
deemed not to be outweighed by the aggravating factors, and a verdict of life
imprisonment was returned. As to Count Eight, where the jurors, cumulatively, made
a smaller total of 304 mitigating factor findings, these mitigating factors were
collectively and unanimously deemed to be outweighed by the aggravating
circumstances, resulting in a verdict of death. A facial comparison of the two jury
verdicts thus shows them to be consistent, albeit different; not inconsistent.4 The
differences in the mitigation factor findings do not suggest that either of the two subject
sentencing verdicts does anything but “speak the real conclusions of the jury.” See
Powell, 469 U.S. at 64-65.

         The facial consistency or rationality of the two verdicts is further substantiated
by the fact that the Count Eight offense implicated greater moral culpability than the
Count Seven offense. Under Count Eight, the jury found that Lawrence, while using or
carrying a firearm during an attempted armed bank robbery, murdered Bryan Hurst (i.e.,
with malice aforethought). Under Count Seven, the jury found that Lawrence, during
an attempted armed bank robbery, placed another’s life in jeopardy and killed Bryan
Hurst. The Count Eight malice aforethought element, according to the instructions,
required proof beyond a reasonable doubt that Lawrence either killed Hurst “deliberately
and intentionally” or acted “with callous and wanton disregard for human life.” JA 116.
The jury was not required to find malice aforethought to find Lawrence guilty under
Count Seven.


         4
          We recognize, consistent with the instructions given the jury, that the weighing of mitigating
and aggravating circumstances is not to be “a mechanical process.” JA 215. Rather, the factors should
be considered “qualitatively” and the decision “must be a reasoned response.” Id. Still, a mere tallying
and comparison of the mitigating factors found by the jurors for each of the two counts facially undermines
the charge of inconsistency or irrationality and actually tends to confirm the rationality of the difference
between the two verdicts.
Nos. 06-4105/4626; 07-3004          United States v. Lawrence                       Page 16


        Further, the jury was instructed, in weighing the mitigating and aggravating
factors, to render a “reasoned” decision on the “propriety” of life imprisonment or death
with reference to the “highest ideal of the law,” “justice,” based on “an even-handed
weighing” of circumstances in an “effort to reach a fair result.” JA 215-16. The district
court instructed the jury that its decision as to the appropriate sentence on Count Seven
did not require it to reach the same decision on Count Eight. It stands to reason that the
jury very likely and very reasonably took the more culpable mens rea element of the
Count Eight offense into account in weighing the mitigating and aggravating factors and
determining the appropriate sentence for each offense.

        Yet, when the government makes this very argument, Lawrence cries “Foul!”
He insists, consistent with the district court’s reasoning, that if the jury engaged in such
analysis, it would have acted contrary to the instruction that the weighing process be
confined to the aggravating and mitigating circumstances. The district court refused to
conclude that the jury had so acted because the standard presumption that the jury
followed the court’s instructions had not been rebutted. Lawrence, 477 F.Supp.2d at
868. See Hill v. Mitchell, 400 F.3d 308, 325 (6th Cir. 2005) (observing that federal
courts generally presume that juries follow their instructions). Thus presuming that the
jury had refrained from “improperly considering” the differences between the two death-
eligible offenses, the court concluded that the differences in mitigating factor findings
and the difference between the two verdicts could only be explained as products of
irrationality.

        Such reasoning is fundamentally flawed. First of all, the jury instructions did not
tell the jurors to abandon their common sense in evaluating the mitigating and
aggravating factors. Nor, contrary to the district court’s recollection, did the instructions
direct the jury not to consider the elements of the underlying offenses for which the
asserted mitigating circumstances allegedly mitigated the defendant’s culpability. To
the contrary, the instructions explicitly permitted the jurors to consider all the evidence
presented: “In making all the determinations you are required to make in this sentencing
phase of the trial, however, you may consider any evidence that was presented during
Nos. 06-4105/4626; 07-3004          United States v. Lawrence                       Page 17


the trial phase and the eligibility phase, as well as evidence that will be presented during
this sentencing phase.” JA 182. The information thus properly considered by the jury
necessarily included evidence it had found persuasive beyond a reasonable doubt that
Lawrence had killed Bryan Hurst with malice aforethought. That the jury would have
considered this evidence is entirely consistent with the requirement that the penalty
selection process be expansive enough to permit the jury to make an individualized
assessment of the defendant’s character and culpability based on all relevant evidence.
See Tuilaepa v. California, 512 U.S. 967, 972-73 (1994).

        Further, as indicated, the instructions affirmatively directed the jurors to consider
the mitigating factors qualitatively and make a reasoned, even-handed, fair and just
decision. The instructions defined “mitigating factor” as “simply additional information
about Daryl Lawrence’s life or character or about the circumstances surrounding the
offense that would suggest, in fairness and mercy, that a sentence of death is not the
most appropriate punishment and that a sentence of life in prison without any possibility
of release is the more appropriate punishment.” JA 208, 213. This definition is roughly
equivalent to that provided in the Federal Death Penalty Act, where “mitigating factors”
is defined simply as “factors in the defendant’s background, record or character or any
other circumstance of the offense that mitigate against imposition of the death sentence.”
18 U.S.C. § 3592(a)(8).      It is also consistent with the long-recognized notion that
“before a jury can undertake the grave task of imposing a death sentence, it must be
allowed to consider a defendant’s moral culpability and decide whether death is an
appropriate punishment for that individual in light of his personal characteristics and the
circumstances of the offense.” Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S.Ct.
1654, 1674 (2007).

        It follows that, in order for a juror to have found the existence of an alleged
mitigating factor established by a preponderance of the evidence, he or she needed to
determine not just whether the facts alleged to be mitigating were sufficiently proven,
but also whether those facts were properly considered as mitigating defendant’s
culpability. This calculus could hardly be made without reference to the culpability
Nos. 06-4105/4626; 07-3004         United States v. Lawrence                         Page 18


already found to be established beyond a reasonable doubt when the jury found
Lawrence guilty of each of the two death-eligible offenses.

       The district court ignored this two-dimensional requirement of a mitigating factor
finding. In fact, the district court’s determination that the verdicts are inconsistent is
premised on the fact that the mitigating factor tallies for Counts Seven and Eight are not
identical. That is, the district court reasoned that because the alleged mitigating factors
were the same for each count and the proofs in mitigation were the same, the jurors’
findings should have been the same; otherwise, the findings are irrationally inconsistent.
In this respect, the district court ignored the recognized prerogative of each juror to
determine the weight to be given each asserted mitigating factor, which necessarily
included determining, in the context of the given offense conduct, whether and to what
extent the factor was in fact mitigating of culpability. See Davis v. Coyle, 475 F.3d 761,
773 (6th Cir. 2007) (citing Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1982)).

       Consideration of the list of asserted mitigating factors clearly illustrates the point.
For instance, asserted mitigating factor 34 states, “Daryl Lawrence is a human being.”
There can be little doubt that all twelve jurors readily concluded that Lawrence’s
humanity was established by a preponderance of the information. Yet, only four jurors
found the factor established for Count Seven, and only five found it established for
Count Eight. That most jurors found the factor not established clearly indicates that they
did not view the established fact of Lawrence’s humanity as carrying, in and of itself,
any mitigating weight.     This determination was within each juror’s prerogative.
Similarly, asserted mitigating factor 8 states, “Daryl Lawrence’s biological father died
in 1981.” Presumably there was no factual dispute about this occurrence and it was
established by a preponderance of the information, yet no single juror found the fact to
be mitigating. Facially, this, too, appears to be an entirely rational conclusion.

       Of course, the verdict forms do not disclose why the individual jurors’ findings
varied from count to count on thirty out of fifty-one asserted mitigating factors. Yet,
clearly, discrepancies among       jurors’ findings do not, in themselves, evidence
irrationality or the influence of some arbitrary factor. There could be any number of
Nos. 06-4105/4626; 07-3004          United States v. Lawrence                        Page 19


plausible explanations why twelve different jurors might or might not view any of fifty-
one various factors to be mitigating of criminal culpability in relation to either of the
death-eligible offenses.     It was out of recognition that “such an individualized
assessment of the reason for the inconsistency would be based either on pure
speculation, or would require inquiries into jury deliberations that courts generally will
not undertake,” that the Powell Court reaffirmed the general rule that inconsistent
verdicts are not reviewable. 469 U.S. at 66. See also United States v. Agofsky, 458 F.3d
369, 373-74 (5th Cir. 2006) (speculation is insufficient to show arbitrary influence).

        Moreover, as mentioned above, there is a significant difference between
inconsistencies in individual juror findings and inconsistencies between jury verdicts.
Even the two cases on which Lawrence relies most heavily in urging an exception to the
general rule (i.e., that inconsistent verdicts are not reviewable) recognize that,
irrespective of discrepancies in juror findings, if the jury unanimously agreed on the
determination whether the aggravating circumstances outweighed the mitigating factors,
there is no irrationality or arbitrariness. See Johnson, 223 F.3d at 676 (“But of course
jurors disagree among themselves; that is nothing new. They are required to agree about
their verdict, not about every fact.”); Wainwright, 80 F.3d at 1231-32.

        Both Johnson and Wainwright teach that irrespective of discrepancies in juror
findings, such “inconsistency” is not shown to be materially arbitrary or irrational where
the “bottom line” jury verdicts are unanimous and not inconsistent. Here, too, the
bottom line verdicts on the two counts are clearly unanimous. They are different, but
quite reasonably so, considering that jurors’ mitigation findings differed and the degree
of criminal culpability involved in the two offenses differed. In other words, the
difference between the jury’s bottom line verdicts does not bespeak logical inconsistency
or irrationality, but rather, quite the opposite. To the extent the differences in the jurors’
mitigation findings remain unexplained and may give rise to speculation, the fact
remains that there is no evidence that any arbitrary factor “most likely” influenced the
bottom line verdicts. See Agofsky, 458 F.3d at 373 (holding that death sentence is not
to be vacated absent showing that arbitrary factor “most likely” influenced the sentence).
Nos. 06-4105/4626; 07-3004         United States v. Lawrence                       Page 20


        In conclusion, we reiterate that, in some circumstances, “inconsistent verdicts”
may pose a cognizable error if the inconsistency shows that “the jury has not followed
the court’s instructions” or that “the jury did not speak their real conclusions.” Powell,
469 U.S. at 64-65. The instant facts do not present either concern. In fact, the above
scrutiny of the verdicts confirms the opposite conclusion, i.e., that the jury, in rendering
two different sentencing verdicts, did follow the court’s instructions and did speak their
real conclusions. Hence, the verdicts are not “inconsistent” in any cognizable sense.
Even if they were, they would not be reviewable absent some showing of irrationality,
of which there is none. We therefore hold that the district court erred as matter of law
when it set aside the jury’s verdict of death on Count Eight.

        Understandably, Lawrence is not satisfied with this analysis. Yet, while we
reject his inconsistent-verdicts challenge, protection from demonstrated jury irrationality
is still available through appellate review of the sufficiency of the evidence. Id. at 67;
Getsy II, 495 F.3d at 307. Lawrence will have the opportunity to test the legal
sufficiency of the verdicts in subsequent appellate proceedings, which have been held
in abeyance pending this ruling.

        B. Lawrence’s Cross-Appeal

        In appeal No. 07-3004, Lawrence also appeals the district court’s order partially
granting his motion for new trial insofar as it requires a new sentencing hearing as a
remedy, rather than simply ordering a life sentence be imposed on Count Eight. Because
we have concluded that the district court erred in vacating the verdict of death on Count
Eight, there will be no new sentencing hearing. Lawrence’s cross-appeal is thus
rendered moot.

                                  III. CONCLUSION

        Accordingly, Lawrence’s motion to dismiss the government’s appeal from the
order partially granting his motion for new trial (No. 06-4626) is DENIED.

        Further, the district court erred as a matter of law, and therefore abused its
discretion, when it set aside the verdict of death on Count Eight. Even if the asserted
Nos. 06-4105/4626; 07-3004         United States v. Lawrence                       Page 21


inconsistency of the sentencing verdicts on Counts Seven and Eight were deemed to
present a reviewable question, Lawrence has failed to demonstrate that they are
“inconsistent” and has failed to demonstrate that the Count Eight verdict was influenced
by irrationality or any arbitrary factor. The district court’s order vacating the verdict of
death on Count Eight is therefore VACATED and the sentence of death originally
imposed by the district court is REINSTATED.

        Finally, Lawrence’s cross-appeal (No. 07-3004) is DISMISSED as moot.
