Defendant's second argument is that a jury question was not properly answered. During deliberations, a note was sent by the jury asking whether it could find defendant guilty of income tax evasion without convicting him of extortion. I told the jury that it could do so, that the answer to the question, as asked, was simply, Yes. I refused defendant's request for a further instruction that "under the government's theory and its proof the only income received by [defendant] was through this process of extortion and if [you] find that he did not receive any income through . . . the scheme of extortion, or whatever they want to call it, [you] cannot properly convict on the income [tax] counts either."
It has been held repeatedly that a jury verdict in a criminal case may defy rationality, the jury having "the power to bring in a verdict in the teeth of both law and facts." Horning v. District of Columbia, 254 U.S. 135, 138, 41 S. Ct. 53, 54, 65 L.Ed 185 (1920) (per Holmes, J.). See 3 Wright, Federal Practice and Procedure Criminal § 514 (2d ed. 1982). A multiple count indictment is considered as if each count were a separate indictment, and the verdicts on various counts need not be consistent. Harris v. Rivera, 454 U.S. 339, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981). Even if the defendant could not have committed one crime without committing both, an acquittal of one will not upset a conviction on the other, so long as the conviction was sufficiently evidenced. E.g., United States v. Wilmoth, 636 F.2d 123 (5th Cir. 1981).
Here, the verdicts were not necessarily inconsistent. Under the evidence, the jury could have readily concluded that defendant received the alleged payments, but not in an extortionate context, more as a mutually contrived arrangement or perhaps as bribery. The most the professed victims would say was that they understood and believed the payments were prerequisite to their receipt of business from Sears, Roebuck, and the jury may not have regarded the circumstantial evidence of extortion as persuasive.
Moreover, the defendant's requested instruction was potentially misleading. It could have been interpreted by the jury as an "all or nothing" direction, which, as noted, would have usurped the jury's function. See United States v. Rockwell, supra. Depending on the jury's analysis of the evidence, it could also have been prejudicial to the government or to the defendant, bringing about a conviction or an acquittal on all counts because the jury erroneously was led to believe it was limited to those choices. For these reasons, I believe it would have been a mistake to have given the requested instruction.