Antonin Scalia

“ 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. ”

“ Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law-whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. ”

“ We set forth as the prevailing rule: "when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner's indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged." Id., at 420, 90 S.Ct. at 654. Cf. United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 1815, 85 L.Ed.2d 99 (1985) .
Although petitioner does not ask us to overrule Turner, neither does she give us any adequate basis for distinguishing it. She claims that we have not yet applied the rule of that case to multiple-act conspiracies. ”

“ Petitioner cites no case, and we are aware of none, in which we have set aside a general verdict because one of the possible bases of conviction was neither unconstitutional as in Stromberg, nor even illegal as in Yates, but merely unsupported by sufficient evidence. If such invalidation on evidentiary grounds were appropriate, it is hard to see how it could be limited to those alternative bases of conviction that constitute separate legal grounds ”

“ Petitioner argues, however, that-whether as a matter of due process or by virtue of our supervisory power over federal courts-a result contrary to the earlier practice has been prescribed by our decision in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957) . Yates involved a single-count federal indictment charging a conspiracy " (1) to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence, and (2) to organize, as the Communist Party of the United States, a society of persons who so advocate and teach." ”

“ Then, by proper and ordinary construction, a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has "or," and it will not be double, and it will be established at the trial by proof of any one of them." ”

“ It also applied to the analogous situation at issue here: a general jury verdict under a single count charging the commission of an offense by two or more means. For example, in reviewing a count charging defendants with composing, printing, and publishing a libel, Lord Ellenborough stated:
"It is enough to prove publication. If an indictment charges that the defendant did and caused to be done a particular act, it is enough to prove either. ”

“ The first of these objects (the "advocacy" charge) violated § 2 (a) (1) of the Smith Act of 1940, and the second of them (the "organizing" charge) violated § 2 (a) (3) . 18 U.S.C. § 2385. We found that the "organizing" object was insufficient in law, since the statutory term referred to initial formation, and the Communist Party had been "organized" in that sense at a time beyond the period of the applicable statute of limitations. ”

“ The distinction runs through the whole criminal law, and it is invariably enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified." King v. Hunt, 2 Camp. 583, 584-585, 170 Eng.Rep. 1260 (N.P. 1811) .
The latter application of the rule made it a regular practice for prosecutors to charge conjunctively, in one count, the various means of committing a statutory offense, in order to avoid the pitfalls of duplicitous pleading.
"A statute often makes punishable the doing of one thing or another, . . . ”

“ 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) . ”