Page:United States Reports 502 OCT. TERM 1991.pdf/216

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GRIFFIN v. UNITED STATES Opinion of the Court

Petitioner also seeks to distinguish Turner on the basis that it applies only where one can be sure that the jury did not use the inadequately supported ground as the basis of conviction. That assurance exists, petitioner claims, when the prosecution presents no evidence whatever to support the insufficient theory; if the prosecution offers some, but insufficient, evidence on the point, as it did in this case, then the Yates “impossible to tell” rationale controls. This novel theory posits two different degrees of failure of proof—a failure that is sufficiently insufficient, to which Turner would apply, and one that is insufficiently insufficient, to which Yates would apply. Besides producing an odd system in which the greater failure of proof is rewarded, the rule seems to us full of practical difficulty, bereft of support in Turner, and without foundation in the common-law presumption upon which Turner is based. Finally, petitioner asserts that the distinction between legal error (Yates) and insufficiency of proof (Turner) is illusory, since judgments that are not supported by the requisite minimum of proof are invalid as a matter of law—and indeed, in the criminal law field at least, are constitutionally by petitioner, that invalidate general conspiracy verdicts on the basis of legal deficiency of some of the objects rather than inadequacy of proof; these are of course irrelevant. See, e. g., United States v. Irwin, 654 F. 2d 671, 680 (CA10 1981), cert. denied, 455 U. S. 1016 (1982); United States v. Head, 641 F. 2d 174, 178–179 (CA4 1981), cert. denied, 462 U. S. 1132 (1983); United States v. Kavazanjian, 623 F. 2d 730, 739–740 (CA1 1980); United States v. Carman, 577 F. 2d 556, 567–568 (CA9 1978); United States v. Baranski, 484 F. 2d 556, 560–561 (CA7 1973); Van Liew v. United States, 321 F. 2d 664, 672 (CA5 1963). Some other cases cited by petitioner do not involve a conspiracy charge at all, e. g., United States v. Natelli, 527 F. 2d 311, 324–325 (CA2 1975), cert. denied, 425 U. S. 934 (1976), or apply their ruling to both substantive and conspiracy charges, e. g., United States v. Garcia, 907 F. 2d 380, 381 (CA2 1990)—which means that they flatly contradict Turner and offer no support for the distinction that petitioner suggests. Still others have been distinguished (or effectively overruled) by later cases within the Circuit, see, e. g., United States v. Berardi, 675 F. 2d 894, 902 (CA7 1982).