United States v. Patrick Sangmeister, 685 F.2d 1124 (9th Cir. 1982). · Go Syfert
United States v. Patrick Sangmeister, 685 F.2d 1124 (9th Cir. 1982). Cases Citing This Book View Copy Cite
56 citation events (19 in the last 25 years) across 14 distinct courts.
Strongest positive: United States v. Young-Bey (dcd, 2025-02-28)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 33 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Young-Bey
D.D.C. · 2025 · confidence medium
Circuit held that, because a “hung jury is failure of the jury to reach a verdict as to the coconspirator, we are not faced with inconsistent verdicts.” Id. at 1065 (quoting United States v. Sangmeister, 685 F.2d 1124, 1227 (9th Cir. 1982).
discussed Cited as authority (rule) United States v. John Pierce
9th Cir. · 2021 · confidence medium
The essential elements of conspiracy are “an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense.” United States v. Sangmeister, 685 F.2d 1124, 1126 (9th Cir. 1982) (citation omitted).
discussed Cited as authority (rule) United States v. Pragedio Espinoza-Valdez
9th Cir. · 2018 · confidence medium
United States v. Sangmeister, 685 F.2d 1124, 1127 (9th Cir 1982) ([“A]n accused may be found guilty of a conspiracy if there is sufficient evidence of an unnamed unindicted co-conspirator. . . .”) (citations omitted).
discussed Cited as authority (rule) Jason Ryan McDermott v. State
Idaho Ct. App. · 2012 · confidence medium
We need not decide whether Idaho would follow this rule because, as the Ninth Circuit Court of Appeals has explained, when “only one conspirator is brought to trial or the conspirators are tried separately, the conviction of the other conspirator may stand.” United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir. 1982).
discussed Cited as authority (rule) In Re Disciplinary Proceeding Against Smith
Wash. · 2011 · confidence medium
See Standards at 7 (defining "[i]ntent" as "the conscious objective or purpose to accomplish a particular result."); see also Salinas v. United States, 522 U.S. 52, 63 , 118 S.Ct. 469 , 139 L.Ed.2d 352 (1997) (stating that the partners in a conspiracy "must agree to pursue the same criminal objective."); United States v. Becker, 720 F.2d 1033, 1035 (9th Cir.1983) ("The essential elements of conspiracy are `an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substan…
discussed Cited as authority (rule) In Re Disciplinary Proceeding Against Smith
Wash. · 2011 · confidence medium
See Standards at 7 (defining "[i]ntent" as "the conscious objective or purpose to accomplish a particular result."); see also Salinas v. United States, 522 U.S. 52, 63 , 118 S.Ct. 469 , 139 L.Ed.2d 352 (1997) (stating that the partners in a conspiracy "must agree to pursue the same criminal objective."); United States v. Becker, 720 F.2d 1033, 1035 (9th Cir.1983) ("The essential elements of conspiracy are `an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substan…
discussed Cited as authority (rule) In re the Disciplinary Proceeding Against Smith
Wash. · 2011 · confidence medium
Ed. 2d 352 (1997) (stating that the partners in a conspiracy “must agree to pursue the same criminal objective”); United States v. Becker, 720 F.2d 1033, 1035 (9th Cir. 1983) (“The essential elements of conspiracy are ‘an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense.’ ” (quoting United States v. Sangmeister, 685 F.2d 1124, 1126 (9th Cir. 1982))); United States v. Adkinson, 158 F.3d 1147, 1153 (11th Cir. 1998) (stating that a conv…
cited Cited as authority (rule) Getsy v. Mitchell
6th Cir. · 2007 · confidence medium
Cir. 1983) (same); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir. 1982) (same); United States v. Espinosa-Cerpa, 630 F.2d 328, 333 (5th Cir. 1980) (same).
discussed Cited as authority (rule) Getsy v. Mitchell (2×)
6th Cir. · 2007 · confidence medium
In other words, it is not necessarily inconsistent for two juries to reach differing results."); see also Cortis v. Kenney, 995 F.2d 838, 840 (8th Cir.1993) (same); United States v. Lewis, 716 F.2d 16, 22 (D.C.Cir.1983) (same); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir.1982) (same); United States v. Espinosa-Cerpa, 630 F.2d 328, 333 (5th Cir.1980) (same).
discussed Cited as authority (rule) Jason Getsy v. Betty Mitchell, Warden (2×)
6th Cir. · 2006 · confidence medium
See United States v. Newton, 389 F.3d 631, 636 (6th Cir.), vacated in part on other grounds, - U.S. -, 126 S.Ct. 280 , 163 L.Ed.2d 35 (2005); United States v. Crayton, 357 F.3d 560, 564 (6th Cir.2004); Cortis v. Kenney, 995 F.2d 838, 840 (8th Cir.1993); United States v. Sachs, 801 F.2d 839, 845 (6th Cir.1986); United States v. Lewis, 716 F.2d 16, 22 (D.C.Cir.1983); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir.1982); United States v. Espinosa-Cerpa, 630 F.2d 328, 333 (5th Cir.1980).
cited Cited as authority (rule) Getsy v. Mitchell
6th Cir. · 2006 · confidence medium
Cir. 1983); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir. 1982); United States v. Espinosa- Cerpa, 630 F.2d 328, 333 (5th Cir. 1980).
cited Cited as authority (rule) United States v. Oakar
D.D.C. · 1996 · confidence medium
United States v. Sangmeister, 685 F.2d 1124, 1127 (9th Cir.1982).
discussed Cited as authority (rule) United States v. Martinez
S.D.N.Y. · 1994 · confidence medium
See United States v. Delgado, 903 F.2d 1495, 1499 (11th Cir.1990), cert. denied, 498 U.S. 1028 , 111 S.Ct. 681 , 112 L.Ed.2d 673 (1991); United States v. Sangmeister, 685 F.2d 1124, 1127 (9th Cir.1982) (“A nolle pro-sequi has been found not the equivalent of an acquittal.”).
discussed Cited as authority (rule) Steven A. Cortis v. Mike Kenney
8th Cir. · 1993 · confidence medium
See, e.g., United States v. Walker, 871 F.2d 1298 , 1304 n. 5 (6th Cir.1989); United States v. Irvin, 787 F.2d 1506, 1512 (11th Cir.1986); United States v. Lewis, 716 F.2d 16, 22 (D.C.Cir.), cert. denied, 464 U.S. 996 , 104 S.Ct. 492 , 78 L.Ed.2d 686 (1983); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir. 1982); Espinosa-Cerpa, 630 F.2d at 333 .
discussed Cited as authority (rule) United States v. Christian Lopez
1st Cir. · 1991 · confidence medium
It remained within the province of the Lopez jury to determine, from the evidence presented at trial, whether in fact Lopez and Mateo agreed and intended to facilitate the possession of heroin found in their bedroom, and elsewhere, for purposes of distribution. 5 See United States v. Pratt, 913 F.2d 982, 992 (1st Cir.1990) (affirming conspiracy conviction after jury failed to reach unanimous verdict on codefendant, where two other possible coconspirators were never indicted); United States v. Coronado, 554 F.2d 166 , 171 n. 7 (5th Cir.), cert. denied, 434 U.S. 870 , 98 S.Ct. 214 , 54 L.Ed.2d 1…
cited Cited as authority (rule) State v. Shaw
Conn. App. Ct. · 1991 · confidence medium
See United States v. Sachs, 801 F.2d 839, 845 (6th Cir. 1986); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir. 1982); annot., 19 A.L.R.4th 192 .
cited Cited as authority (rule) United States v. Connie Lee Boling, A/K/A Heller Boling (88-3130) Thomas A. Lauback (88-3216)
6th Cir. · 1989 · confidence medium
This is known as the “traditional rule,” id. or the “rule of consistency.” United States v. Sangmeister, 685 F.2d 1124, 1126 (9th Cir.1982).
discussed Cited as authority (rule) United States v. Wayne S. Dakins
D.C. Cir. · 1989 · confidence medium
When faced with this precise problem in United States v. Sangmeister, 685 F.2d 1124, 1127 (9th Cir.1982), the court observed that “[a]s the hung jury is the failure of the jury to reach a verdict as to the coconspirator, we are not faced with inconsistent verdicts.” We agree.
discussed Cited as authority (rule) United States v. Israel Valles-Valencia, United States of America v. Ricardo Vigil Bustamante, United States of America v. Guillermo Soto-Leal
9th Cir. · 1987 · confidence medium
This court has recognized two exceptions to the Lubin rule: (1) when an indictment refers to unindicted or unnamed persons and the government presents “substantial evidence that the defendant conspired with those persons,” Wright, 742 F.2d at 1224 ; see also United States v. Patterson, 678 F.2d 774, 781 (9th Cir.) cert. denied, 459 U.S. 911 , 103 S.Ct. 219 , 74 L.Ed.2d 174 (1982); (2) when the co-defendant’s escape from the conspiracy charge is not equivalent to an acquittal on the merits, as when the jury is hung, United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir.1982), or w…
discussed Cited as authority (rule) United States v. Lee William Sachs (2×)
6th Cir. · 1986 · confidence medium
This is known as the “traditional rule,” id., or the “rule of consistency.” United States v. Sangmeister, 685 F.2d 1124, 1126 (9th Cir.1982).
discussed Cited as authority (rule) United States v. Thomas Reese, United States of America v. Linda Reese
9th Cir. · 1985 · confidence medium
The essential elements of conspiracy consist of “an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense.” United States v. Becker, 720 F.2d 1033, 1035 (9th Cir.1983) (quoting United States v. Sangmeister, 685 F.2d 1124, 1126 (9th Cir.1982); United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir.1980)).
discussed Cited as authority (rule) United States v. Nobuo Kiriki
9th Cir. · 1985 · confidence medium
The essential elements of conspiracy are “an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense.” United States v. Sangmeister, 685 F.2d 1124, 1126 (9th Cir.1982); United States v. Becker, 720 F.2d at 1035 .
discussed Cited as authority (rule) United States v. Corey Wright, United States of America v. Perry Puccinelli, United States of America v. Terry Stearns, United States of America v. Terry Stearns
9th Cir. · 1984 · confidence medium
Thus in United States v. Sangmeister, 685 F.2d 1124, 1127 (9th Cir.1982), we let stand the defendant's conspiracy conviction even though the jury had been unable to reach a verdict as to his coconspirator.
discussed Cited as authority (rule) United States v. Wright
9th Cir. · 1984 · confidence medium
Thus in United States v. Sangmeister, 685 F.2d 1124, 1127 (9th Cir.1982), we let stand the defendant’s conspiracy conviction even though the jury had been unable to reach a verdict as to his coconspirator.
discussed Cited as authority (rule) United States v. Timothy Becker
9th Cir. · 1983 · confidence medium
The essential elements of conspiracy are “an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense.” United States v. Sangmeister, 685 F.2d 1124, 1126 (CA9 1982); United States v. Melchor-Lopez, 627 F.2d 886, 890 (CA9 1980).
cited Cited "see" United States v. Gilbert Medina
9th Cir. · 2018 · signal: see · confidence high
See United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir. 1982).
cited Cited "see" United States v. Delbert Frame
9th Cir. · 1992 · signal: see · confidence high
See United States v. Sangmeister, 685 F.2d 1124, 1127 (9th Cir.1982) ("[A]n accused my be found guilty of a conspiracy if there is sufficient evidence of an unnamed unindicted co-conspirator.").
discussed Cited "see" United States v. James L. Pratt, Jr.
1st Cir. · 1990 · signal: see · confidence high
See United States v. Sangmeister, 685 F.2d 1124, 1127 (9th Cir.1982); United States v. Becton, 632 F.2d 1294 (5th Cir.1980), ce rt. denied, 454 U.S. 837 , 102 S.Ct. 141 , 70 L.Ed.2d 117 *993 (1981) (hung jury may reflect independence of jury rather than insufficient evidence).
discussed Cited "see" United States v. Parvez Sharif
9th Cir. · 1987 · signal: see · confidence high
See United States v. Sangmeister, 685 F.2d 1124 (9th Cir.1982); see also United States v. Lee, 694 F.2d 649, 650-52 (11th Cir.) (conviction of intermediary for conspiracy to import cocaine upheld where buyer was government agent and defendant agreed to facilitate deal that “fell through”), cert. denied, 460 U.S. 1086 , 103 S.Ct. 1779 , 76 L.Ed.2d 350 (1983).
cited Cited "see" People v. Marquiz
Colo. Ct. App. · 1984 · signal: see · confidence high
See U.S. v. Sangmeister, supra. Defendant’s remaining contention of error is without merit.
cited Cited "see, e.g." United States v. Micha Terragna
9th Cir. · 2010 · signal: see, e.g. · confidence medium
See, e.g., United States v. Sangmeister, 685 F.2d 1124, 1127 (9th Cir.1982).
discussed Cited "see, e.g." World Of Sleep, Inc. v. La-Z-Boy Chair Company
10th Cir. · 1985 · signal: see, e.g. · confidence medium
See, e.g., United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir.1982); United States v. Coppola, 526 F.2d 764, 776 (10th Cir.1975); cf. United States v. Hopkinson, 631 F.2d 665, 668 (10th Cir.1980), cert. denied, 450 U.S. 969 , 101 S.Ct. 1489 , 67 L.Ed.2d 620 (1981) 3 We have examined the authorities cited by La-Z-Boy to support its theory and find that they are factually distinguishable.
discussed Cited "see, e.g." World of Sleep, Inc. v. La-Z-Boy Chair Co.
10th Cir. · 1985 · signal: see, e.g. · confidence medium
See, e.g., United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir.1982); United States v. Coppola, 526 F.2d 764, 776 (10th Cir.1975); cf. United States v. Hopkinson, 631 F.2d 665, 668 (10th Cir.1980), cert. denied, 450 U.S. 969 , 101 S.Ct. 1489 , 67 L.Ed.2d 620 (1981). .
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Patrick SANGMEISTER, Defendant-Appellant
80-1823.
Court of Appeals for the Ninth Circuit.
Aug 31, 1982.
685 F.2d 1124
1982 U.S. App. LEXIS 26019
Kenneth G. Freitas, Wiener, Waldman & Gordon, Las Vegas, Nev., for defendant-appellant., Edward J. Kane, Asst. U. S. Atty., Reno, Nev., for plaintiff-appellee.
Skopil, Browning, Sko-Pil, Norris.
Cited by 40 opinions  |  Published
Reporter's Syllabus editorial summary, not part of the Court's opinion

Kenneth G. Freitas, Wiener, Waldman & Gordon, Las Vegas, Nev., for defendant-appellant.

Edward J. Kane, Asst. U. S. Atty., Reno, Nev., for plaintiff-appellee.

Appeal from United States District Court for the District of Nevada.

Before BROWNING, Chief Judge, SKOPIL and NORRIS, Circuit Judges.

SKOPIL, Circuit Judge:

Lead Opinion

SKOPIL, Circuit Judge:

Patrick Sangmeister and Michael Dennis Jones were indicted under 21 U.S.C. § 841(a)(1) for conspiracy to possess and distribute cocaine. Other unnamed conspirators were charged in the original indictment. At the commencement of trial the Government acknowledged that it did not have sufficient evidence of the existence of other conspirators. The jury found Sangmeister guilty but was unable to reach a verdict as to Jones. Jones was granted a new trial, but Sangmeister’s motion for a new trial or alternatively for judgment of acquittal was denied. After Jones was convicted and sentenced for a similar offense, the Government dismissed the case against Jones.

Sangmeister appeals his conviction contending that (1) there was insufficient evidence to convict Jones, the only possible co-conspirator and (2) inability of the jury to reach a verdict as to Jones requires reversal of Sangmeister’s conviction. We affirm.

I.

On May 3, 1980 Shirley Ann Fair, working on behalf of the Drug Enforcement Administration (“DEA”), telephoned Michael Dennis Jones, a former paramour. They discussed the idea of contacting Patrick Sangmeister, a mutual acquaintance in Las Vegas, as a possible supplier of cocaine. Fair represented that she had a customer for the drug named “Ron,” (a DEA agent) for whom she would act as a go-between with Jones. Jones’ role in the drug scheme was to provide his knowledge of suppliers such as Sangmeister and others who “he thought had . .. cocaine.” Because “Patrick Sangmeister didn’t know [Fair] as well as Michael did,” Jones was to vouch for Fair and to assure Sangmeister of her trustworthiness as a dealer.

On May 4,1980 Jones and Fair flew from Reno to Las Vegas to attend a wedding and, according to Fair, to arrange for procurement of cocaine from Sangmeister. On May 5, 1980 Sangmeister met with Fair and Jones and entered preliminary negotiations for an agreement to distribute the drug. Tape recordings of later telephone conversations between Fair and Sangmeister introduced by the Government indicated that Sangmeister “had a contact in Los Angeles that . . . could get pretty good quantities of cocaine and good quality.” Fair testified, however, that they did not come to a specific agreement because “I told him that I had to talk to Ron before I made any commitments.” On May 6, 1980 Fair returned to Reno and in subsequent telephone calls[*1126] made arrangements with Sangmeister who agreed to supply one ounce of cocaine. No transaction ever took place.

On June 19, 1980 a three-count indictment charged Sangmeister and Jones with conspiracy to distribute cocaine.[1] A three-day jury trial resulted in the conviction of Sangmeister and a hung jury with respect to Jones. Sangmeister’s motion for a new trial was denied, and he filed timely notice of appeal.

II.

Viewing the evidence in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Wolfson, 634 F.2d 1217, 1218 (9th Cir. 1980), there was sufficient evidence of “an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense.” United States v. Bailey, 607 F.2d 237, 243 (9th Cir. 1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769 (1980) (quoting United States v. Friedman, 593 F.2d 109, 115 (9th Cir. 1979)). See United States v. Kaiser, 660 F.2d 724, 730 (9th Cir. 1981); United States v. Federico, 658 F.2d 1337, 1343 (9th Cir. 1981). The prosecution’s case rested on the testimony of Fair, and her testimony, if believed, would have shown that Jones agreed to find suppliers of cocaine, which Fair would deliver to buyers, and that Jones arranged with Sangmeister for him to sell cocaine to Fair.

III.

Because a person cannot conspire with himself, the Government must prove that at least two people were involved in the conspiracy. Iannelli v. United States, 420 U.S. 770, 785, 95 S.Ct. 1284, 1293, 43 L.Ed.2d 616 (1975); 18 U.S.C. § 371. See United States v. Andreen, 628 F.2d 1236, 1248 (9th Cir. 1980); United States v. Melchor-Lopez, 627 F.2d 886, 892 (9th Cir. 1980). Sangmeister argues that as Jones was his only possible co-conspirator,[2] the jury had to find Jones guilty for the verdict against Sangmeister to stand. Sangmeister argues that the hung jury acted as an acquittal of Jones because it indicated that the “jury had some question as to whether or not [Jones was] part of the conspiracy.” United States v. Heath, 580 F.2d 1011, 1021 (10th Cir. 1978), cert. denied, sub nom. Babb v. United States, 439 U.S. 1075, 99 S.Ct. 850, 59 L.Ed.2d 42 (1979). Compare United States v. Becton, 632 F.2d 1294, 1295 (5th Cir. 1980), cert. denied, - U.S. -, 102 S.Ct. 141, 70 L.Ed.2d 117 (1981) (hung jury may not reflect insufficient evidence but merely independence of jury).

While “[i]nconsistency in a verdict is not a sufficient reason for setting it aside,” Harris v. Rivera, - U.S. -, -, 102 S.Ct. 460, 464, 70 L.Ed.2d 530 (1981); Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); see United States v. Dunn, 564 F.2d 348, 360 (9th Cir. 1977); United States v. Zamora-Corona, 465 F.2d 427, 428 (9th Cir. 1972), Sangmeister properly asserts that a limited rule of consistency applies to conspiracies. This rule requires that, when all possible co-conspirators are tried jointly, an “acquittal of one of two conspirators operates as an acquittal of the other.” United States v. Gardner, 475 F.2d 1273, 1277 (9th Cir. 1973). See United States v. Duz-Mor Diagnostic Laboratory, Inc., 650 F.2d 223, 226 n.3 (9th Cir. 1981); United States v. Dunn, supra, at 360 n.24.

Sangmeister seeks shelter in the rule of consistency by arguing that a hung jury and later dismissal of charges against Jones was tantamount to Jones’ acquittal. It is well settled, however, that in situations in which only one conspirator is brought to trial or the conspirators are tried separately, the conviction of the other conspirator[*1127] may stand. A nolle prosequi has been found not the equivalent of an acquittal, United States v. Fox, 130 F.2d 56, 58 (3d Cir.), cert. denied, 317 U.S. 666, 63 S.Ct. 74, 87 L.Ed. 535 (1942), and “[ejonspiracy prosecutions have been allowed to proceed in a variety of contexts notwithstanding the fact that some or all of the coconspirators are immune.” Sparkman v. McFarlin, 601 F.2d 261, 274 (7th Cir. 1979). Further, the prosecution may decide to prosecute only one member of the conspiracy, see Ng Pui Yu v. United States, 352 F.2d 626, 633 (9th Cir. 1965), or an accused may be found guilty of a conspiracy if there is sufficient evidence of an unnamed unindicted co-conspirator. United States v. Gardner, supra. See also United States v. Sheikh, 654 F.2d 1057, 1062 (5th Cir. 1981). Finally, a conspiracy conviction may stand after the prosecution has dismissed conspiracy charges against the alleged co-conspirator, United States v. Coronado, 554 F.2d 166, 171 n.7 (5th Cir.), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977); or when charges against co-conspirators have been severed. United States v. Shipp, 359 F.2d 185, 189 (6th Cir.), cert. denied, 385 U.S. 903, 87 S.Ct. 213, 17 L.Ed.2d 134 (1966).

A verdict of not guilty as to Jones would require reversal of Sangmeister’s conviction, United States v. Coronado, supra. The fact that the jury was unable to reach a decision as to Jones, however, amounted neither to an acquittal nor a conviction. United States v. Becton, supra. Double jeopardy does not bar reprosecution of an accused after a hung jury, United States v. Sanford, 429 U.S. 14, 16, 97 S.Ct. 20, 21, 50 L.Ed.2d 17 (1976), and thus the failure of a jury to reach a verdict is more properly viewed as a non-event. Rather than a dismissal on the merits, this was a case, as in a nolle prosequi, where “neither guilt nor innocence of the co-conspirator had been established.” United States v. Shipp, supra.

As the hung jury is the failure of the jury to reach a verdict as to the co-conspirator, we are not faced with inconsistent verdicts. We are disinclined to expand the rule of consistency in conspiracy judgments to situations in which there is a hung jury with respect to one co-conspirator.

AFFIRMED.

1

Prior to trial, Counts II and III were dismissed as to both defendants and are not at issue here.

2

As Fair was working as a government agent, she could not have the requisite criminal intent. See, e.g., United States v. Martino, 648 F.2d 367, 405 (5th Cir. 1981).

Dissent

NORRIS, Circuit Judge,

dissenting:

I respectfully dissent from part III of the majority’s opinion. I think a “rule of consistency” requires reversal of a defendant’s conviction when a jury is unable to reach a verdict on the defendant’s only possible co-conspirator.

The only justification I see for not following the rule of consistency is that Sangmeister should not benefit from the happenstance of a joint trial: had Jones and Sangmeister been tried separately, a hung jury for Jones might not have saved Sangmeister. Cf. United States v. Shipp, 359 F.2d 185, 189 (6th Cir.) (conspiracy conviction stands after severance of charges against co-conspirator), cert. denied, 385 U.S. 903, 87 S.Ct. 213, 17 L.Ed.2d 134 (1966). But this same reason would presumably justify rejection of the rule of consistency when a jury acquits one of two conspirators; yet an “acquittal of all but one of the alleged conspirators requires acquittal of the remaining defendant.” United States v. Patterson, 678 F.2d 774, 781 (9th Cir. 1982); cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 246, 60 S.Ct. 811, 854, 84 L.Ed. 1129 (1940) (dictum) (new trial for defendant’s co-conspirators requires new trial for defendant). Thus, the rule of consistency requires that when one of two conspirators is acquitted, the other is acquitted; when one of two conspirators receives a new trial because the verdict is set aside by the trial judge or on appeal, the other receives a new trial; it follows that when one of two conspirators receives a new trial because of a hung jury, the other should receive a new trial.

I agree with the majority that the jury’s inability to agree on Jones’ verdict technically “amounted neither to an acquittal nor a conviction.” Ante, at 1127. Thus, double jeopardy would not prevent reprosecution of Jones. But I do not agree that this makes it a “non-event” for all purposes. In[*1128] this case, at least one juror voted to acquit Jones and yet convict Sangmeister of conspiring with Jones. That is not a nonevent; it is an inconsistency which, for me, compels reversal of Sangmeister’s conviction if we are to apply the rule of consistency with consistency.