Conspiracy law historically has borne a number of common law doctrines, all developed long ago and all aimed at reducing the expansive reach and draconian implications of conspiracy charges. One thinks immediately of “Wharton’s Rule” as a classic example. Another was known as the “rule of consistency,” which provided that where all co-conspirators stand trial, the acquittal of all but one requires the conviction of the final defendant to be set aside, since the acquittals of the others negate the possibility that there could have been the necessary conspiratorial agreement between any two of them.
Courts have whittled away all such doctrinal limitations, and the “rule of consistency” is no different. Inconsistent verdicts among defendants generally offer no basis to set aside a conviction and, the Third Circuit held recently, conspiracies are treated no differently. United States v. Tyson, 2011 WL 3314942 (3rd Cir., Aug. 3, 2011). Tyson and one Morrell were charged with conspiring with each other, and with persons known and unknown, to illegally transport weapons into the Virgin Islands. Morrell testified in his own defense and was acquitted, while Tyson did not testify and was convicted of the conspiracy and other charges. On appeal, Tyson argued that the “rule of consistency” mandated reversal.
The Third Circuit assumed that the rule was applicable, notwithstanding the indictment’s reference to unidentified other conspirators, since the proof at trial focused exclusively on Morrell and Tyson. However, the court observed, every other court of appeals to have considered the rule’s viability had decided that it had none; if inconsistent verdicts were generally acceptable and understood to result from factors such as jury lenity, then the inconsistent conspiracy verdicts were acceptable, as well.