                                NOT FOR PUBLICATION                        FILED
                        UNITED STATES COURT OF APPEALS                      JUN 21 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                                FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                             No. 16-30107

            Plaintiff - Appellee,                      D.C. No. 4:15-cr-00063-BMM-1

   v.
                                                       MEMORANDUM*
 JOSEPH DEAN LEE,

            Defendant - Appellant.

                               Appeals from the Order of the
                            United States District Court for the
                                   District of Montana
                           Brian Morris, District Judge, presiding

                                    Submitted June 16, 2017**
                                      Seattle, Washington

Before: BYBEE and M. SMITH, Circuit Judges, and DORSEY, *** District Judge.




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.
                                          1
      Appellant Joseph Lee went to trial on three criminal charges alleging violent

sexual behavior, and was ultimately found guilty on two of three counts. Lee now

challenges his jury conviction for assault with intent to commit aggravated sexual

abuse, 18 U.S.C. §§ 1153(a), 113(a)(1) (Count II), and assault with intent to

commit abusive sexual contact, id. §§ 1153(a), 113(a)(2) (Count III). Lee argues

that his convictions on Counts II and III are inconsistent with his acquittal on

Count I, aggravated sexual abuse, id. §§ 1153(a), 2241(a), and that his convictions

therefore violate due process. Lee further argues that the evidence in the record

was insufficient to sustain his convictions on Counts II and III. For the reasons set

forth in this memorandum, we affirm Lee’s convictions.

      Lee first argues that the jury verdicts in his case violate due process due to

their inherent inconsistency. This argument fails.

      In Dunn v. United States, 284 U.S. 390 (1932), the Supreme Court

established that the return of inconsistent jury verdicts is not a basis upon which a

criminal defendant may challenge his conviction. There the jury had acquitted the

defendant of unlawful possession and sale of alcohol, but had nevertheless

convicted him of maintaining a common nuisance by keeping alcohol for sale. Id.

at 391–92. The Supreme Court affirmed the conviction, stating that “[c]onsistency

in the verdict is not necessary.” Id. at 393. The Court explained that “[t]he most

that can be said in such cases is that the verdict shows that either in the acquittal or

                                           2
the conviction the jury did not speak their real conclusions, but that does not show

that they were not convinced of the defendant’s guilt.” Id. (quoting Steckler v.

United States, 7 F.2d 59, 60 (2d Cir. 1925)).

      The Supreme Court reaffirmed the rule from Dunn in United States v.

Powell, 469 U.S. 57 (1984). That case concerned a defendant convicted of using a

communication facility to commit or facilitate a felony, but who was acquitted of

the underlying felony charges. Id. at 60. The Supreme Court explained that “[i]t

[was] equally possible that the jury, convinced of guilt, properly reached its

conclusion on the compound offense, and then through mistake, compromise, or

lenity, arrived at an inconsistent conclusion on the lesser offense.” Id. at 65. Any

concern that the jury may have reached an irrational or unsupported verdict is

obviated by the protection of sufficiency-of-the-evidence review. Id. at 67.

Accordingly, inconsistent verdicts do not warrant relief on appeal. Id. at 67–68;

see also Bravo-Fernandez v. United States, 137 S. Ct. 352, 357 (2016) (reaffirming

the rule from Powell).

      Lee cites to this court’s decision in Masoner v. Thurman, 996 F.2d 1003 (9th

Cir. 1993), for the proposition that a due process challenge to inconsistent verdicts

may stand where “the challenged verdicts are necessarily logically inconsistent.”

See id. at 1005. Lee’s reliance on Masoner is misplaced. That case discussed the

hypothetical scenario in which a defendant had been “convicted of mutually

                                          3
exclusive offenses, such that the defendant could have been guilty of one or the

other, but not both.” Id. In contrast to the hypothetical case discussed in Masoner,

Lee was not convicted of mutually exclusive offenses. Rather, as in Dunn and

Powell, Lee argues that his convictions on certain charges are inconsistent with his

acquittal on a separate charge. Thus his case falls squarely within the well-

established line of cases holding that inconsistent verdicts will not support a due

process challenge.1

      Lee’s second argument, that insufficient evidence supported his convictions,

is similarly unavailing.

      In In re Winship, 397 U.S. 358 (1970), the Supreme Court held that “the Due

Process Clause protects the accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime with which he is

charged.” Id. at 364. The Court subsequently addressed, in Jackson v. Virginia,

443 U.S. 307 (1979), the degree of evidence required to sustain a guilty verdict

when a defendant challenges his conviction as a violation of due process under

Winship. Id. at 316–17. The Court explained that “[a] ‘reasonable doubt,’ at a

minimum, is one based upon ‘reason.’ Yet a properly instructed jury may



1
      The government additionally argues that the jury’s verdicts are not
inherently inconsistent. We do not reach this point, however, as well-established
precedent holds that any potential inconsistency between Lee’s convictions and his
acquittal do not support a due process challenge.
                                         4
occasionally convict even when it can be said that no rational trier of fact could

find guilt beyond a reasonable doubt.” Id. at 317. Thus, “[a]fter Winship the

critical inquiry on review of the sufficiency of the evidence to support a criminal

conviction must be . . . whether the record evidence could reasonably support a

finding of guilt beyond a reasonable doubt.” Id. at 318.

      Here, while the victim in this case lacked visible injuries, the jury heard

testimony from her treating nurse stating that of the approximately 300 sexual

assault examinations she had performed, only one patient had sustained serious

injuries. The jury also heard witness testimony from the victim, corroborated by

an audio recording of her 911 call, and evidence that her DNA was collected from

Lee’s penis. The jury heard from the investigating agent, who testified to Lee’s

inconsistent account of events. Finally, the jury heard from Lee himself, who

stated in court that he “may have been” forceful with the victim on the night in

question. Viewed in its entirety and in the light most favorable to the prosecution,

the record contained ample evidence to support Lee’s convictions on Counts II and

III. See 18 U.S.C. §§ 113(a)(1), 1153(a) (setting forth the elements of assault with

intent to commit aggravated sexual abuse); id. § 2241(a) (aggravated sexual

abuse); id. §§ 113(a)(2), 1153(a) (assault with intent to commit abusive sexual

contact); id. § 2246(3) (sexual contact).

      AFFIRMED.

                                            5
