United States of America, Plaintiff-appellee, Cross-appellant, v. Nolberto Zuniga-salinas, Defendant-appellant, Cross-appellee, 952 F.2d 876 (5th Cir. 1992)

We determined, sua sponte, to rehear this case en banc, see United States v. Zuniga-Salinas, 947 F.2d 1530 (5th Cir. 1991), at the suggestion of the panel, see id. 945 F.2d 1302, 1307 (5th Cir. 1991), in order to consider whether a verdict convicting one defendant of conspiracy must be set aside where an inconsistent verdict is returned in the same trial acquitting the sole alleged co-conspirator. Concluding that an inconsistent verdict is not a bar to conviction, we reverse the district court's judgment of acquittal on the conspiracy count. In so doing, we overrule Herman v. United States, 289 F.2d 362 (5th Cir.), cert. denied, 368 U.S. 897, 82 S. Ct. 174, 7 L. Ed. 2d 93 (1961), and its progeny. In all other respects, we reinstate the panel opinion.

The facts are set forth in the panel opinion, 945 F.2d at 1303-04. The appellant, Nolberto Zuniga-Salinas, was convicted of possession of marihuana with intent to distribute. Though the jury found him guilty of conspiracy to possess marihuana, the district court granted his motion for acquittal on that count because of the jury's acquittal of his co-defendant, Ruben Olvera-Garcia. The district court, while predicting that this court ultimately would change its posture on this issue, perceived itself bound by United States v. Sheikh, 654 F.2d 1057, 1062 (5th Cir. Unit A Sept.1981), cert. denied, 455 U.S. 991, 102 S. Ct. 1617, 71 L. Ed. 2d 852 (1982), in which we held that "the conviction of only one defendant will not be upheld when all other alleged co-conspirators on trial are acquitted."

In Herman, without citation to any caselaw, we held that "where all but one of the charged conspirators are acquitted, the verdict against the one will not stand." 289 F.2d at 368. Frequently we have recognized the criticism of Herman,¹  but we have not squarely overruled it--an action that can be taken only en banc, see Sandia Fed. Sav. & Loan Ass'n v. Vernon Sav. & Loan Ass'n, 860 F.2d 608, 610 (5th Cir. 1988), vacated on other grounds sub nom. Sandia Fed. Sav. & Loan Ass'n v. FSLIC, 490 U.S. 1062, 109 S. Ct. 2058, 104 L. Ed. 2d 624 (1989), or in light of "an overriding Supreme Court decision or a change in statutory law," United States v. Don B. Hart Equity Pure Trust, 818 F.2d 1246, 1250 (5th Cir. 1987). See United States v. Albert, 675 F.2d 712, 713 (5th Cir. 1982).

In its brief to the panel, the government suggested that Herman and Sheikh had been overruled implicitly by United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). There, the Court unanimously upheld a verdict finding the defendant guilty of using the telephone to facilitate a felony yet innocent of the predicate felony. Id. at 59-60, 105 S. Ct. at 473-74. The Court reasoned that "where truly inconsistent verdicts have been reached, ' [t]he most that can be said ... is that the verdict shows that either in the acquittal or 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.' " Powell, 469 U.S. at 64-65, 105 S. Ct. at 476 (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed. 356 (1932)). "It is ... 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, 105 S. Ct. at 476. "The fact that the inconsistency may be the result of lenity, coupled with the Government's inability to invoke review, suggests that inconsistent verdicts should not be reviewable." Id. at 66, 105 S. Ct. at 477 (footnote omitted). Finally, the Court noted that "a criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts." Id. at 67, 105 S. Ct. at 478.

The panel, 945 F.2d at 1307, declined to accept the government's invitation to deem Herman and Sheikh to have been overruled by Powell, while "recogniz [ing] that First and Ninth Circuit panels have held that Powell overruled their previous rules of consistency" (citing United States v. Bucuvalas, 909 F.2d 593, 597 (1st Cir. 1990), and United States v. Valles-Valencia, 823 F.2d 381 (9th Cir.), modifying on panel rehearing 811 F.2d 1232 (9th Cir. 1987)). Id. at 1307 n. 2.²  Instead, the panel opted to follow the lead of the Eleventh Circuit in United States v. Andrews, 850 F.2d 1557, 1561 (11th Cir. 1988) (en banc), cert. denied, 488 U.S. 1032, 109 S. Ct. 842, 102 L. Ed. 2d 974 (1989), by recommending that the matter be reviewed en banc, concluding that " [s]ince agreement, which requires more than one person, is the key element of conspiracy, Herman, 289 F.2d at 368, we cannot see that Powell equally overrules Herman and Sheikh." 945 F.2d at 1307.

The Eleventh Circuit, like this court, was bound by Herman, as Herman was a Fifth Circuit decision issued prior to the split of the Fifth and Eleventh Circuits effective October 1, 1981, and the Eleventh Circuit has adopted existing Fifth Circuit decisions as precedent. See Bonner v. City of Prichard, 661 F.2d 1206, 1207-08 (11th Cir. 1981) (en banc). Like the instant case, Andrews involved the acquittal of all of the defendant's alleged co-conspirators. The court overruled Herman as Eleventh Circuit precedent, concluding that " [c]onsistent verdicts are unrequired in joint trials for conspiracy: where all but one of the charged conspirators are acquitted, the verdict against the one can stand. The compelling rationale of Dunn and its progency [sic], including Powell, brings us to this conclusion." 850 F.2d at 1561.

We agree. An inconsistent verdict should no longer be a bar to conviction where all other co-conspirators are acquitted. For the reasons enunciated in Powell (including specifically the possibility of mistake, compromise, or lenity, and the independent availability of sufficiency-of-the-evidence review), such verdicts should not be subject to review for inconsistency.³ 

The judgment of acquittal is REVERSED. In all other respects, the judgment of the district court is AFFIRMED and, except for part V and the relevant portion of part VI thereof, the panel opinion is reinstated. This matter is REMANDED to the district court for appropriate further proceedings consistent herewith. Herman v. United States, 289 F.2d 362 (5th Cir.), cert. denied, 368 U.S. 897, 82 S. Ct. 174, 7 L. Ed. 2d 93 (1961), and United States v. Sheikh, 654 F.2d 1057 (5th Cir. Unit A Sept.1981), cert. denied, 455 U.S. 991, 102 S. Ct. 1617, 71 L. Ed. 2d 852 (1982), and their progeny are hereby OVERRULED.