16-3030-cr
United States of America v. Kendrick (Janine Plaza Pierce)

                           UNITED STATES COURT OF APPEALS

                                  FOR THE SECOND CIRCUIT

                                          August Term 2019

          Argued: August 21, 2019                              Decided: October 10, 2019

                                           Docket No. 16‐3030‐cr

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
UNITED STATES OF AMERICA,

                 Appellant,

                         v.

JANINE PLAZA PIERCE,

         Defendant ‐ Appellee.1
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

Before: NEWMAN, HALL, Circuit Judges; KELLY, Judge.

          Appeal by the Government from the August 1, 2016, order of the District

Court for the Northern District of New York (Frank P. Geraci, Jr., Chief Judge),

setting aside a jury’s verdict finding Janine Plaza Pierce guilty of a narcotics




1   The Clerk is requested to amend the official caption as above.


    Judge Claire R. Kelly, of the United States Court of International Trade, sitting by designation.
conspiracy. Chief Judge Geraci ruled that the verdict was inconsistent with the

jury’s findings on eight interrogatories.

       Affirmed.



                                   Everardo A. Rodriguez, Asst. U.S. Atty.,
                                         Rochester, NY (James P. Kennedy, Jr., U.S.
                                         Atty., Tiffany H. Lee, Asst. U.S. Atty.,
                                         Rochester, NY, on the brief), for Appellant
                                         United States of America.

                                   Cheryl Meyers Buth, Meyers Buth Law Group,
                                        Orchard Park, NY, for Defendant‐Appellee
                                        Janine Plaza Pierce.


JON O. NEWMAN, Circuit Judge:

       This appeal by the Government concerns facially inconsistent jury verdicts

in a criminal case. The United States appeals from the August 1, 2016, order of the

United States District Court for the Northern District of New York, (Frank P.

Geraci, Jr., Chief District Judge), setting aside a jury’s verdict finding Janine Plaza

Pierce2 guilty of a conspiracy to possess with intent to distribute, and to distribute,

four types of narcotics. Chief Judge Geraci ruled that the verdict was inconsistent

with the jury’s eight findings that it was “Not Proven” that Pierce conspired to



       2  Appellant’s surname is rendered “Pierce,” “Plaza Pierce,” and “Plaza‐Pierce” in the
parties’ papers and the transcript. We will use “Pierce,” the surname in the indictment.
                                             2
possess with intent to distribute each one of the four types of narcotics or

conspired to distribute each one of the four types of narcotics.

      Although it is unfortunate that the jury was not afforded an opportunity to

reconsider its findings, we conclude that, in view of the inconsistency and the

Government’s unhelpful role in the proceedings, we must affirm.

                                             Background

      The indictment charged Pierce and her co‐defendants with several

counts. Count 1, the only count relevant to this appeal,3 charged Pierce and

some of the defendants with conspiracy to possess with intent to distribute,

and to distribute, cocaine, cocaine base, heroin, and marijuana, in violation of

21 U.S.C. § 846. Because the trial evidence is not relevant to this appeal, we

need not detail it.

      In the jury charge, Chief Judge Geraci informed the jurors that they

would be provided with a verdict sheet. He then explained,

             “The amount of the controlled substances involved is
      unrelated to the issue of whether or not the defendants are, in fact,
      guilty. You will note, however, that the verdict sheet requires that
      in the event you determine the defendants guilty of the particular
      conspiracy charged in Count 1, you must then determine the
      weight, whether the weight was for a mixture or substance


      3   Pierce was charged in two other counts, on which she was found not guilty.
                                                3
      containing cocaine of at least 5 kilograms, of at least 500 grams but
      less than 5 kilograms, or less than 500 grams.”

J. App’x 1146. He then mentioned the choices of weights that the verdict sheet

provided for cocaine base and heroin. The verdict sheet provided choices for weights

of cocaine, cocaine base, and heroin because, in the event of a guilty verdict, the

weight of a substance found to have been involved in the conspiracy charged in

Count 1 could increase the applicable statutory maximum sentence under 21 U.S.C.

§§ 841(b), 846, and therefore must be found beyond a reasonable doubt by a jury to

effect such an increase, see United States v. Apprendi, 530 U.S. 466, 476 (2000).4

      The verdict sheet, as returned by the jury, included the following:

      AS TO DEFENDANT JANINE PLAZA PIERCE:
                                            COUNT 1
      Conspiracy to possess with intent to distribute, and to distribute, cocaine,
      cocaine base, heroin and marijuana, between in or about 1993 and on or about
      March 2, 2011, in violation of 21, United States Code, Section 846.
              How do you find as to defendant Janine Plaza Pierce on Count 1?
                      ( √ ) Guilty                    ( ) Not Guilty
              If you find defendant Janine Plaza Pierce guilty, proceed to parts (a),
      (b), (c), (d), (e), (f), (g) and (h).
                      (a) We the jury find that the allegation that defendant Janine
                      Plaza Pierce conspired to possess with intent to distribute cocaine
                      is:
                               ___ Proven                   _√_ Not Proven
              If you find that part (a) is proven, then proceed to part (a)(1).
                      (1) We the jury find that defendant Janine Plaza Pierce conspired
              to possess with intent to distribute the following amount of cocaine:

      4   The verdict sheet provided no choice of weights for marijuana.
                                                4
                    (mark only one)
                    ___ 5 kilograms or more
                    ___ 500 grams or more, but less than 5 kilograms
                    ___ less than 500 grams
             (b) We the jury find that the allegation that defendant Janice
                    Plaza Pierce conspired to distribute cocaine is:
                           ___ Proven                      _√_ Not Proven
             If you find that part (b) is proven, then proceed to part (b)(1).
                    (1) We the jury find that defendant Janine Plaza Pierce conspired
             to possess with intent to distribute the following amount of cocaine:
                    (mark only one)
                    ___ 5 kilograms or more
                    ___ 500 grams or more, but less than 5 kilograms
                    ___ less than 500 grams

J. App’x 1206‒07.

      The verdict sheet continued in parts (c) through (h) with the same language as

in parts (a) and (b), changing the narcotic to cocaine base in parts (c) and (d), heroin

in parts (e) and (f), and marijuana in parts (g) and (h), and providing different choices

of weights for cocaine base and heroin. As they had done with parts (a) and (b), the

jurors placed check marks next to “Not Proven” on each of the lines where that choice

appeared in parts (c) through (h) for cocaine base, heroin, and marijuana.

      The same inconsistency occurred for defendant Pablo Plaza. With respect to

Count 4, which charged only Plaza with the substantive offense of “possession with

intent to distribute” and “to distribute” heroin (during dates and at a location

different from those in the Count 1 conspiracy of which he was found guilty), the

                                          5
jurors placed a check mark next to “Guilty” and check marks on the lines next to

“Not Proven” asking whether Plaza possessed heroin with intent to distribute and

distributed heroin.5

        After the jury foreman reported the verdicts, Chief Judge Geraci said to

counsel at sidebar, “We know we have a problem with a couple of counts here.” J.

App’x 1246. One defense counsel asked to have the jurors polled. Chief Judge Geraci

said he would do that and added, “I’m not going to discharge them . . . and we’ll

discuss this . . . .” Id. The jurors orally confirmed their verdicts. They were then told

that they were not being discharged and were sent back to the jury room. Chief Judge

Geraci then pointed out to counsel the facial inconsistencies in the verdicts with

respect to Pierce on Count 1 and Plaza on Count 4 and invited the views of counsel.

       Defense counsel asked that the jury be discharged. The prosecutor said, “I

think it may be worth asking the jury about the apparent inconsistency.” J. App’x

1261. When Chief Judge Geraci asked him, “What question do you propose I ask the

jury to reconsider?” id. at 1262, the prosecutor replied, “How could they find guilty


       5 A somewhat similar, yet significantly different, set of verdicts was returned for defendant
James Kendrick. With respect to Count 10, which charged only Kendrick with “knowing and
unlawful use, carry and discharge of firearms . . . in relation to a drug trafficking crime,” the jurors
placed a check mark next to “Guilty” as to Count 10 and a check mark next to “Not Proven” below
the line asking whether Kendrick discharged a firearm in relation to a drug trafficking crime.
Apparently the jury found that Kendrick used or carried a firearm, but did not discharge one.


                                                 6
on Count 1 without having found any of the objectives were proven.” Id. 1262‒63.

Chief Judge Geraci said, “I’m not sure that would be proper.” Id. at 1263. The

prosecutor later said, “[O]ur argument is their finding as to whether a finding of

guilty as to the first count as to Ms. Plaza‐Pierce is sufficient to support the count

even though they later were not able to unanimously agree as to which of the counts

she conspired as to ‒‒.“ Id. Chief Judge Geraci then said, “I can’t imagine what

question to ask the jury to go back and reconsider.” Id. After the prosecutor said he

did not have anything further, the jury was brought back to the courtroom and

discharged. Counsel for Pierce then wrote the District Court a letter asking the Court

to dismiss the Count 1 charge.

      On July 29, the District Court held a hearing on Pierce’s request. The

prosecutor acknowledged that he had drafted the verdict sheet. Chief Judge Geraci

asked him what was the purpose of drafting the question with the choices of

“Proven” and “Not Proven.” The prosecutor said the purpose was for sentencing, to

enable the Court to enhance the maximum sentences and apply mandatory

minimums. Chief Judge Geraci pointed out, “You could have just said conspiracy

and then go through . . . the different weights, correct?” SPA 23.




                                         7
      At the end of the hearing, Chief Judge Geraci granted the motion to set aside

the guilty verdict as to Pierce on Count 1. The Government timely appealed.

                                       Discussion

      18 U.S.C. § 3731 authorizes the Government to appeal from an order of a

district court “dismissing an indictment . . . as to any one or more counts,” and the

Supreme Court has stated that “[a]lthough this provision authorizes appeal from

a district court ‘dismiss[al]’ rather than ‘acquittal,’ it is now established that the

form of the ruling is not dispositive of appealability[.]” United States v. Martin Linen

Supply Co., 430 U.S. 564, 567 n.4 (1977); see United States v. Aslam, 936 F.2d 751, 754

(2d Cir. 1991).

      We review a district court’s grant of a motion for a judgment of acquittal de

novo. See United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). Although Autuori

involved a district judge’s ruling as a matter of law that the evidence was

insufficient to support a conviction, the same standard of review applies here on

the legal issue of whether the inconsistency in the jury’s verdicts required a

judgment of acquittal.

      “There is no counterpart in the Federal Rules of Criminal Procedure to the

general authority contained in Rule 49(b) of the Federal Rules of Civil Procedure



                                           8
to have a jury respond to interrogatories when returning a general verdict.” United

States v. Ruggiero, 726 F.2d 913, 925–26 (2d Cir. 1984) (Newman, J., concurring in

part, and dissenting in part), (Court’s ruling abrogated without consideration of this

point by Salinas v. United States, 522 U.S. 52 (1997)). Although special interrogatories

are generally disfavored in criminal cases, see United States v. Coonan, 839 F.2d 886,

891 (2d Cir. 1988), in some situations they are recommended, see, e.g., United States

v. Ogando, 968 F.2d 146, 148–49 (2d Cir. 1992) (interrogatories to determine whether

jury finds “continuing series of violations” for purposes of continuing criminal

enterprise conviction in violation of 21 U.S.C. § 848(c)). Of course, as this appeal

illustrates, care must be taken in drafting interrogatories to minimize the risk of

inconsistent verdicts.

      In the civil context, where a verdict is rendered inconsistent by the jury’s

special interrogatory answers, “[i]t is the duty of the court to attempt to harmonize

the answers, if it is possible under a fair reading of them. Thus, where there is a

view of the case that makes the juryʹs answers to special interrogatories consistent,

they must be resolved that way.” Auwood v. Harry Brandt Booking Office, Inc., 850

F.2d 884, 891 (2d Cir. 1988) (quotation marks and citations omitted). We will




                                           9
assume that a similar “attempt to harmonize” should be made in the criminal

context.

      We can imagine one possible way that the “guilty” verdict and the “Not

Proven” answers in the pending case might be harmonized. The jury might have

thought that each pair of interrogatories asked whether it was proven or not

proven that the defendant conspired to possess with intent to distribute, or

conspired to distribute, only the one narcotic named in each pair of interrogatories

for each narcotic. On that understanding, the jury could logically have answered

“Not Proven” as to each narcotic after finding the defendant guilty of conspiring

with respect to all four narcotics. Of course, the interrogatories did not include the

word “only,” and the Government has not contended that this word should be

read into them. Indeed, such a reading would arguably strain “harmonization”

beyond the breaking point. In any event, this jury rejected this reading by their

verdict and interrogatory answers with respect to Count 4, charging defendant

Plaza with possession with intent to distribute, and distribution of, only one

substance, heroin. The jury found him guilty on Count 4, but placed check marks

next to “Not Proven” below the lines stating that the jury found that Plaza

possessed with intent to distribute heroin and that he distributed heroin. Because



                                         10
these verdicts as to Plaza on Count 4 preclude interpreting the interrogatory

findings, which were worded the same as to Pierce on Count 1, to include the word

“only,” we face the unusual situation where a verdict of guilty is inconsistent with

interrogatory answers, all of which relate to the same count.

          The Supreme Court has considered the issue of inconsistent jury verdicts in

criminal cases in various contexts. In Dunn v. United States, 284 U.S. 390 (1932), the

Court rejected a challenge to jury verdicts that were inconsistent as to different

counts of an indictment. See id. at 393. Justice Holmes wrote, rather broadly,

“Consistency in the verdict is not necessary.” Id.6 A challenge to inconsistent

verdicts as to different counts was also rejected in United States v. Powell, 469 U.S.

57, 61‒69 (1984). In United States v. Dotterweich, 320 U.S. 277 (1943), the Court

rejected a challenge to jury verdicts that were inconsistent as to different

defendants in a joint trial. See id. at 279. A challenge to a state trial judge’s

inconsistent bench trial findings as to different defendants was also rejected in

Rivera v. Harris, 454 U.S. 339, 345‒48 (1981). In United States v. Standefer, 447 U.S. 10

(1980), the Court rejected the application of collateral estoppel claimed to insulate

a defendant convicted of aiding and abetting a principal who has been acquitted.


          6   This was Holmes’s last Supreme Court opinion. See Harris v. Rivera, 454 U.S. 339, 346 n.15
(1981).
                                                     11
See id. at 21‒25. In Harris, the Court echoed Holmes’s broad language in Dunn,

stating: “Inconsistency in a verdict is not a sufficient reason for setting it aside,”

Harris, 454 U.S. at 345, and reading Dunn and Dotterweich to have “stressed the

unreviewable power of a jury to return a verdict of not guilty for impermissible

reasons,” id. at 346, a quotation repeated in Powell, 469 U.S. at 63.

      Though the language from these opinions is broad, the Court’s holdings do

not resolve the precise issue we face here: irreconcilably inconsistent verdicts as to

the same defendant on the same count of an indictment. That issue came before a

district court in the Tenth Circuit, as recounted in United States v. Shippley, 690 F.3d

1192 (10th Cir. 2012). Identically to our pending appeal, a jury found a defendant

guilty of a count charging a conspiracy to distribute three narcotics and also

answered “no” to interrogatories asking whether the defendant conspired to

distribute each narcotic listed in that count. See id. at 1193. The district judge

pointed out the inconsistency to the jury and gave them three choices: reconsider

the answer to the guilty verdict, reconsider the answers to the interrogatories, or

“stand on its existing verdict.” Id. at 1193‒94. The judge sent the jury back for

further deliberations. Soon after, the jury returned with a verdict of guilty and a

“yes” answer to the interrogatory asking if the defendant had conspired to



                                          12
distribute 500 grams or more of cocaine, one of the three narcotics listed in the

conspiracy count. See id. at 1194.

       Had the District Judge in Pierce’s case employed the procedure used by the

trial judge in Shippley, our pending issue might never have arisen.7 However, when

asked for his views, the prosecutor did not suggest that the jury, which had not

then been discharged, be invited to resume deliberations. Instead he suggested

that the jurors be asked, “How could they find guilty on Count 1 without having

found any of the objectives were proven.” J. App’x 1262‒63. Chief Judge Geraci

sensibly replied, “I’m not sure that would be proper.” Id. at 1263. As he obviously

understood, “Courts have always resisted inquiring into a jury’s thought

processes.” Powell, 469 U.S. at 67; see also Fed. R. Evid. 606(b) (jurors not competent

to testify concerning jury deliberations, with exceptions not here relevant).

       Chief Judge Geraci was also correct in pointing out to the prosecutor that

inclusion of the interrogatories asking whether the jury found the conspiracy




       7 In making this observation, we express no view on whether renewed jury deliberations
resulting in elimination of the inconsistency by changing at least one “Not Proven” answer to
“Proven” would have been subject to challenge on double jeopardy grounds. In Shippley, the
defendant‐appellant did not raise this concern, and the Tenth Circuit did not consider it. See 690
F.3d at 1194, 1196.
                                               13
allegations as to each narcotic proven or not proven was not necessary. As he noted,

the interrogatories could simply have asked about the different weights.

      Continuing our account of the Shippley case, we note that the defendant’s

appeal there challenged the jury’s reconsideration of its inconsistency. Although not

raising a double jeopardy argument, the defendant contended that Powell and

Dotterweich required the trial judge to enter a verdict of acquittal. See Shippley, 690

F.3d at 1194. Then‐judge Gorsuch rejected that claim, noting that those decisions

concerned inconsistencies between different counts and different defendants. See id.

at 1195. He then recognized that Shippley’s case (like ours) presented a more

significant inconsistency:

      [I]t wasnʹt just logically incongruous to enter the juryʹs verdict[s], it
      was metaphysically impossible. . . . To enter an acquittal, the district
      court would have needed to disregard the fact that the jury expressly
      found Mr. Shippley guilty. To enter a guilty verdict, the court would
      have needed to overlook the special verdict findings that Mr.
      Shippley did not conspire to distribute any of the drugs at issue in the
      case. And nothing in Powell or Dotterweich speaks either explicitly or
      implicitly about what a courtʹs to do in these circumstances, let alone
      suggests the district court committed an error of constitutional
      magnitude (or otherwise) in proceeding as it did in this case.

Id.

      With the inconsistency eliminated by the jury’s reconsideration (and no double

jeopardy claim raised on appeal), the Tenth Circuit affirmed.

                                         14
       The Sixth Circuit encountered a similar situation in United States v. Randolph,

794 F.3d 602 (6th Cir. 2012). As in our pending case and Shippley, a jury found a

defendant guilty of a conspiracy involving three narcotics. The verdict form gave the

jury a choice of quantities for each narcotic, including the choice of “None.”8 The jury

checked “None” for each narcotic. See id. at 607. In a corrected charge, the trial judge

told the jury, “If you unanimously find that a particular controlled substance was not

involved in the offense, mark none on the appropriate special verdict form.” Id. The

Sixth Circuit concluded that “[b]ecause the jury found that none of the charged drugs

were ‘involved in’ the conspiracy, it follows that [the defendant] cannot be guilty of

the charged conspiracy.” Id. at 612. The Court reversed the conviction on the

conspiracy count and ordered a judgment of acquittal.9




       8  A wording that might have avoided the risk of inconsistency would have asked the jury
to determine the amounts of each narcotic only if the jurors unanimously concluded that the
evidence provided a basis for determining such amounts. An inability to determine the amount
as to any narcotic would not have resulted in a failure to find an element of the conspiracy offense.
See United States v. Person, 745 F. App’x 380, 385 (2d Cir. 2018) (“[D]rug type and quantity are not
an element of the charged conspiracy offense.”); United States v. Daniels, 723 F.3d 562, 572 (5th Cir.
2013) (“[F]ailure to prove drug quantity or type does not undermine a defendant’s conviction [for
narcotics conspiracy]”).
        9 The Sixth Circuit also expressed the view that “[t]o the extent that dicta in Shippley

suggest[] that the appropriate remedy in this situation is a remand for a new trial, we disagree.”
794 F.3d at 612. The Sixth Circuit believed that a retrial would subject the defendant to double
jeopardy. See id. The Sixth Circuit did not express a view as to the propriety or constitutional
validity of having the same jury reconsider its verdicts before being discharged.
                                                 15
       In the pending appeal, the jury’s “Not Proven” answers to the interrogatories

asking whether Pierce conspired as to each narcotic involved in the conspiracy count

are similar to the “None” answers in Randolph.10 And because the jury in our case

was not asked to reconsider before being discharged, as occurred in Shippley, we have

no occasion to consider whether that procedure would have encountered a valid

double jeopardy objection.

       We conclude that the verdicts in Pierce’s case are, in the words of then‐Judge

Gorsuch in Shippley, “metaphysically impossible,” and we agree with the Sixth

Circuit in Randoph that the appropriate remedy for the inconsistency (where the jury

was not given the opportunity to reconsider) was to set aside the guilty verdict, as




       10 Disputing the starkness of the inconsistency in the verdicts in the pending appeal, the
Government, using a “compare with” citation signal, calls our attention to the District Court’s
decision in United States v. Person, No. 15‐CR‐466, 2017 WL 2455072 (E.D.N.Y. June 6, 2017), aff’d,
745 F. App’x 380 (2d Cir. 2018). See Br. for Appellant at 18‒19. In Person, the District Court upheld
a conviction for a narcotics conspiracy despite the jury’s answers of “No” to questions asking:
“Did the government prove that the defendant was responsible for a substance containing” each of
the narcotics listed in the conspiracy count. See Person, 745 F. App’x at 384 (emphasis added).
After the briefs were filed in the pending appeal, we affirmed Person in a non‐precedential
summary order. Although the Person interrogatory is similar to the interrogatory in the pending
appeal, a negative answer to whether the defendant in Person was “responsible for” each narcotic
did not create the irreconcilable inconsistency arising from negative answers to the questions
asking whether Pierce conspired to possess and conspired to distribute each narcotic‒‒the exact
language of the conspiracy count. Moreover, our summary order pointed out that the District
Court “never defined for the jury what it meant for Person to be ‘responsible for’ drugs such that
the special interrogatories should be answered in the affirmative.” Id. at 384‒85.
                                                 16
Chief Judge Geraci did, especially in view of the Government’s unhelpful role in the

proceedings.

                                    Conclusion

      The judgment of the District Court is affirmed.




                                       17
