U.S. v. Correa-Ventura ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-8632
_____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
ARMANDO CORREA-VENTURA
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
(November 1, 1993)
Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER*,
District Judge:
KING, Circuit Judge:
Armando Correa-Ventura ("Correa") was convicted in the court
below of several drug-related crimes, including the use of a
firearm in the commission of a drug trafficking offense. He was
sentenced to a term of imprisonment of ninety months, a fine of
$6,000.00, supervised release for five years, and the mandatory
special assessment of $150.00. Correa appeals all of the
convictions on several related theories. Finding no error, we
affirm.
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
I. Background of the Case.
As a result of information received from a confidential
informant, the Austin Police Department obtained and executed a
search warrant on Correa's home at approximately 9:00 p.m. on
October 21, 1991.1 Soon after entering the residence, the
officers secured Correa in a bedroom which he identified as being
the one he shared with his wife. With the assistance of a
bilingual police officer, Correa cooperated in pointing out the
drugs and weapons in his home. In Correa's bedroom, the officers
located approximately four ounces of cocaine, wrapped in a red
towel, scales, and a Cobray M-11 9mm semiautomatic pistol under
the bed. The cocaine and pistol were approximately four to six
feet apart, and the gun was not loaded. The officers found
nearly $900.00 in currency and a Browning 9mm pistol in a dresser
drawer adjacent to the bed. Finally, the police discovered a
Taurus .380 pistol in a boot next to a pair of men's pants with
$410.00 in currency in one of the pockets. Both the Browning and
the Taurus were loaded.
The officers also went into another bedroom occupied by
Correa's daughter and son-in-law in which they discovered more
cocaine and a .12 gauge Winchester short-barreled shotgun.
Correa then directed the police to his garage/storage room where
1
The informant, Tomas Herrera ("Herrera"), had himself been
the subject of a prior warrant search, in which the Austin Police
had recovered marijuana and cocaine from the Herrera home.
Herrera told the Austin Police that he had received the drugs
from Correa. Herrera was subsequently convicted by a Texas state
court of possession of marijuana and possession of cocaine with
intent to deliver and was sentenced to ten years probation.
2
he pointed out two suitcases, one of which held more than five
pounds of marijuana, and the other contained marijuana residue.
The search also yielded two long-range rifles in the living-
room fireplace, two more shotguns in a rack on the living-room
wall, a Spanish Fork .22 calibre rifle in the dining room, and a
Marlin .22 calibre rifle behind the seat of a pickup truck
located in the driveway.2 In all, the officers located
approximately 140 grams of cocaine, 5.2 pounds of marijuana, ten
firearms, and $1200.00 in currency throughout the Correa
residence.
After being advised of his Miranda3 rights, Correa orally
assumed total responsibility for the drugs found in his bedroom
and the garage area. He admitted that he had started selling
drugs about four months before the search and that he had
procured these drugs for resale. He also acknowledged ownership
of the guns, but claimed they were for hunting and for protection
of his automotive shop.
The next day, after having received another Miranda warning,
Correa gave a written statement to the Austin police in which he
reiterated his responsibility for the drugs and ownership of the
weapons. However, Correa maintained that the guns were for
hunting, protection, and collection purposes, and claimed that
one was purchased for a police officer in Mexico.
2
The Marlin rifle was registered to Amalia Correa, Correa's
wife.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
3
The Austin Police reported the results of the search and
Correa's corresponding statements to Drug Enforcement Agency
("DEA") authorities who obtained a grand jury indictment against
Correa for possession with intent to distribute cocaine and
marijuana, both in violation of 21 U.S.C. § 841(a)(1), and for
the use or carrying of a firearm in connection with these drug
trafficking offenses in violation of 18 U.S.C. § 924(c) ("Section
924(c)"). Correa was arrested on November 13, 1991, by DEA
officers and was taken back to the Austin Police Department
Repeat Offenders Program Unit Headquarters4 for questioning.5
Correa again conceded that he had obtained the drugs found in the
October 21 search for distribution. He claimed that he acquired
the cocaine from an individual named Oscar Garcia and from a man
he knew as "Jesse."
At his November 27, 1991, arraignment, Correa pled "not
guilty" to all three counts of the indictment.6 Count Three of
4
We note that Correa did not have a prior criminal history
at the time of his arrest and that the involvement of the Austin
Police Department Repeat Offenders Program was mere coincidence.
5
During the interview with the DEA agents, Correa made
statements to the effect that he had not sold any of the cocaine,
a position contrary to the acknowledgments he had previously made
to the Austin police. When this inconsistency was brought to his
attention, however, Correa acknowledged the previous
declarations.
6
At trial, however, Correa did not appear to defend the
drug charges, but rather focused solely upon the firearm count.
In fact, Correa's attorney conceded that he was "not going to
waste [the jury's] time in an argument on Count 1 [possession
with intent to distribute cocaine] or Count 2 [possession with
intent to distribute marijuana]. What's at stake here is whether
or not [he] knowingly was using a weapon in relation to his
possession in Count 1 or Count 2."
4
the indictment charged Correa with using or carrying "a" firearm
in connection with the drug trafficking crimes charged in Counts
One and Two. Correa filed a motion to dismiss Count Three based
upon (1) the failure to allege that he "knowingly" employed a
firearm and (2) his perception that the government's failure to
identify a particular weapon rendered the indictment fatally
defective. In response, the government filed a superseding
indictment on July 16, 1992, adding an allegation that Correa
"knowingly" used or carried a firearm in connection with the drug
charges, and filed a Bill of Particulars listing all ten of the
guns recovered as possible weapons which "the government may
introduce at trial to prove [Correa's] use of a firearm."
During the trial, the government placed in evidence all ten
of the weapons seized from Correa's home and identified in the
government's Bill of Particulars. The government did not
identify to the jury any one of these as being the specific
firearm charged in Count Three, but rather elicited testimony as
to the location and condition of each of these guns, specifically
demonstrating that at least four of the guns were located in
close proximity either to narcotics or to admitted proceeds from
drug dealing.7
7
As discussed above, the unloaded Cobray M-11 semi-
automatic was under the bed in Correa's bedroom approximately
four to six feet from a sizeable amount of cocaine. The loaded
Taurus and Browning pistols were located near $1,200.00 in
currency that Correa confessed to have received from drug sales.
Finally, the Winchester short-barreled shotgun was found next to
a container of cocaine in Correa's daughter's room.
5
The jury convicted Correa of all three counts after twelve
minutes of deliberation. The district court sentenced him to
thirty months imprisonment for each of the possession offenses
charged in Counts One and Two with the sentences to run
concurrently. With respect to the firearm offense, the court
sentenced Correa to sixty months of imprisonment to run
consecutively to the other sentences in accordance with the
mandatory penalty provisions of Section 924(c). The district
court additionally imposed a $6,000 fine and a five-year term of
supervised release after the prison term was completed.
II. Failure to Rearraign
In his first point of error, Correa argues that the
superseding indictment, issued eleven days before trial, required
rearraignment. Although this indictment was virtually identical
to the original -- except that it added "knowledge" to the
elements of the firearm violation alleged in Count Three --
Correa argues that he was entitled to another arraignment and
that the district court's failure to hold one requires reversal.
An arraignment is required so that a defendant may be
informed of the substance of the charges against him and given an
opportunity to plead to them. FED. R. CRIM P. 10. The interests
at issue are the defendant's right to know of the charges made
and the right to have adequate information from which to prepare
a defense. United States v. Rogers, 469 F.2d 1317, 1318 (5th
Cir. 1972). These rights may be prejudiced by the lack of formal
charge and entry of a plea until the beginning of the trial
6
proceedings. Id. However, a conviction will not be vacated for
lack of formal arraignment proceedings unless possible prejudice
is shown. United States v. Grote, 632 F.2d 387, 389 (5th Cir.
1980), cert. denied, 454 U.S. 819 (1981).8
As noted above, the record indicates that approximately two
months prior to trial, Correa filed a motion to dismiss the
firearm count for failure to include the required element of
"knowingly" in the indictment. Eleven days before trial, the
government responded to this motion by filing a superseding
indictment to correct the omission. Correa was not rearraigned
on the superseding indictment.
Correa argues that the lack of arraignment on the
superseding indictment prejudiced his defense by forcing him to
trial on the possession charges as well as on the firearm
offense. He claims in his brief that he never intended to
contest his guilt to the possession charges and that he was
prejudiced in the eyes of the jury when he admitted his guilt to
those charges at trial. However, at his prior arraignment,
Correa pled "not guilty" to all three counts of the indictment.
The superseding indictment did not modify the possession charges.
8
Correa cites to United States v. Boruff, 909 F.2d 111 (5th
Cir.), cert. denied, 111 S. Ct. 1620 (1991), for the proposition
that failure to rearraign on a superseding indictment constitutes
error. See Brief of Appellant at 10. It is important to note,
however, that the court in Boruff specifically found that the
error was not prejudicial, since the superseding indictment
merely clarified certain allegations previously made. 909 F.2d
at 118. Thus, the error was held to be harmless. Id.
Similarly, on the record in the instant case, we hold that the
error in failing to rearraign, if any, was harmless.
7
Moreover, there is no evidence in the record that Correa
subsequently desired to plead guilty on any of these counts. The
trial took place over eight months after the arraignment, and
Correa never indicated any wish to plead guilty on the possession
offenses. In fact, the Amended Scheduling Order entered by the
lower court on June 1, 1992, made clear that Correa could have
changed his mind -- and that the court would accept plea
agreements -- up to and including July 23, 1992, four days before
trial. There is no evidence in the record that Correa attempted
to invoke this provision or otherwise to enter a guilty plea in
the proceedings. Consequently, Correa has not demonstrated that
he was prejudiced by the lack of formal arraignment proceedings.
See Rogers, 469 F.2d at 1318. Correa's first point of error is
thus overruled.
III. Motions For Continuance
Correa next argues that the trial court erred in failing to
grant his motions for continuance made after the filing of the
superseding indictment and after the late disclosure of allegedly
withheld discovery materials. We note that trial judges have
broad discretion in deciding whether to grant continuances.
United States v. Gentry, 839 F.2d 1065, 1073 (5th Cir. 1988). To
prevail upon appeal, Correa must therefore demonstrate an abuse
of discretion resulting in serious prejudice. United States v.
Kelly, 973 F.2d 1145, 1147-48 (5th Cir. 1992). Because we find
that the district court did not abuse its discretion in denying
the two requests, we overrule this point of error as well.
8
Correa's first request for a continuance about which he
complains9 came after the government obtained the superseding
indictment -- to cure the very defect argued by Correa in his
motion to dismiss. Correa maintained that the superseding
indictment necessitated a change in defense strategy, requiring
additional time to prepare.
Under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., a
criminal trial cannot begin less than thirty days from the date
on which the defendant first appeared through counsel. 18 U.S.C.
§ 3161(c)(2). A thirty-day abatement period is not required,
however, for each superseding indictment once the original
thirty-day period runs after the initial indictment. E.g. United
States v. Rojas-Contreras, 474 U.S. 231, 234 (1985). However, if
a superseding indictment operates to prejudice a defendant, the
trial judge may grant a continuance when necessary to allow
further preparation "if `the ends of justice served by taking
such action outweigh the best interest of the public and the
defendant in a speedy trial.'" Id. at 236 (quoting 18 U.S.C.
§ 3161(h)(8)).
For reasons similar to those discussed above with respect to
Correa's first point of error, we cannot find that the
government's attempt to cure a defect in the indictment,
presumably brought to its attention by Correa's motion to
dismiss, somehow prejudiced Correa. The government informed the
9
We note that this first request was for a continuance of
the hearing on pretrial motions -- not of the trial itself.
9
trial court that the sole reason for the superseding indictment
was to add a mens rea allegation in response to Correa's motion
to dismiss. Correa did not, and does not, dispute the
government's statements in this regard. Indeed, the very fact
that he moved to dismiss, in part, on the basis that scienter was
not alleged, tells us that he was quite conscious of the crime's
required elements. Further, the addition of the term "knowingly"
hardly changed the nature of the crimes charged against Correa.
Thus, we find that Correa has failed to demonstrate any prejudice
suffered as a result of the change in the superseding indictment.
Correa also argues that he was entitled to a continuance on
the basis of certain Brady10 material that he allegedly failed to
receive until the day of trial. Specifically, Correa alleges
that he did not discover the existence of a tape recording of a
telephone conversation he had with an informant until the first
day of his trial. The late discovery of this evidence, he
concludes, warranted a continuance of the trial.
The record shows that Correa learned of the tape recording
from the informant, Tomas Herrera ("Herrera"), the weekend before
the trial as he prepared Herrera to testify. Correa filed an
emergency motion for the production of any Brady materials, and
the government acknowledged at the hearing that the tape
recording of the conversation between Correa and Herrera was in
its possession. The government argued, however, that the tape
had been previously produced to Correa's prior counsel and that
10
Brady v. Maryland, 373 U.S. 83 (1963).
10
it had made all of the evidence available to Correa's substituted
trial counsel. Correa's trial attorney did not, however, take
advantage of the government's offer to inspect the materials
which had been previously produced to his first counsel. The
district court nonetheless allowed a brief recess before the jury
was selected so that Correa's counsel could review the tape
recording. Correa's trial counsel conceded, after a full
opportunity to hear the tape, that it did not contain Brady
material. Since the tape recording was not put into evidence for
our review, we must assume this admission to be correct. As
such, we cannot find that the district court abused its
discretion in denying the trial continuance on that basis.
Correa's second point of error is thus overruled.
IV. The Jury Charge
In his third and final point of error, Correa complains that
the district court erroneously omitted his requested instruction
on unanimity from the jury charge. As noted previously, Correa
was charged in Count Three of the indictment with using or
carrying "a" firearm in connection with one of the predicate drug
offenses. The court charged the jury generally to render a
unanimous verdict on each count of the indictment. With respect
to Count Three regarding firearms, counsel for Correa had
tendered an instruction additionally requiring the members of the
jury to agree as to which gun in particular they believed was
used to commit the offense. Specifically, defense counsel had
requested that the jury be instructed as follows:
11
In order to find the defendant guilty of Count Three
you must unanimously agree on which weapon the
defendant used or carried in connection with the crime
charged in Count One or Count Two.
The district court denied this request and overruled defense
counsel's objection to its omission in the charge. Instead, the
court instructed the jury in pertinent part as follows:
For you to find the Defendant guilty of this
crime, you must be convinced that the Government has
proved each of the following beyond a reasonable doubt:
First, that the Defendant committed the crimes alleged
in Counts One or Two . . . and [s]econd, that the
Defendant knowingly used or carried a firearm during
and in relation to the Defendant's commission of the
crimes alleged in Counts One or Two.
You are instructed that possession alone of a
firearm is not sufficient to find the Defendant guilty
of Count Three. You must be convinced beyond a
reasonable doubt that at least one of the firearms in
evidence played a role in or facilitated, or had the
potential of facilitating, the commission of a drug
offense. In other words, you must find that at least
one of the firearms was an integral part of the drug
offense charged . . . .
(emphasis added).
A. Standard of Review
Since defense counsel properly preserved error on this
point, we review the charge omission for abuse of discretion.
United States v. Pineda-Ortuno, 952 F.2d 98, 105 (5th Cir.),
cert. denied, ___ U.S. ___, 112 S. Ct. 1990 (1992). The starting
point in our analysis is that a trial court is afforded great
latitude in determining what instructions are merited by the
evidence presented. United States v. Rochester, 898 F.2d 971,
978 (5th Cir. 1990). Counterbalancing this presumption, however,
is the defendant's need to have the jury instructed as to
12
potentially exculpating particulars of his defense which could
ultimately affect its verdict. United States v. Rubio, 834 F.2d
442, 447 (5th Cir. 1987). Accordingly, where the district court
"refuse[s] a charge on a defense theory for which there is an
evidentiary foundation and which, if believed by the jury, would
be legally sufficient to render the accused innocent," this court
presumes that the lower court has abused its discretion. Rubio,
834 F.2d at 446 (quoting United States v. Lewis, 592 F.2d 1282,
1285 (5th Cir. 1979)). This Circuit has developed a tripartite
test for determining reversible error when the trial court
refuses a defense-tendered instruction:
(1) The instruction is substantially correct;
(2) The requested issue is not substantially covered
in the charge actually given to the jury; and
(3) The instruction "concerns an important point in
the trial so that the failure to give it seriously
impaired the defendant's ability to effectively
present a given defense."
United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981). See
also U.S. v. Daniel, 957 F.2d 162, 170 (5th Cir. 1992). We note,
as a preliminary matter, that these conditions are worded in the
conjunctive; in other words, all three prongs of the test must be
met to obtain a reversal of the district court's refusal to give
the specific unanimity instruction. Rochester, 898 F.2d at 978.
Under the facts of this case, the first prong of the Grissom
test is the most critical. If Correa is correct in asserting
that his proposed specific unanimity instruction is a
"substantially correct statement of the law," then we would be
13
hard pressed to find that it was covered by the general unanimity
instruction elsewhere in the charge. Further, we cannot reach
the third branch of the inquiry unless Correa's instruction is in
fact legally accurate.
B. History of the Unanimity Rule
To determine whether Correa's proposed instruction that all
twelve jurors agree as to the particular firearm "used" or
"carried" is an accurate reflection of the law, we must first
review the constitutional underpinnings of the "unanimous
verdict" requirement. It has long been the position of the
United States Supreme Court that "unanimity is one of the
indispensable features of a federal jury trial." Johnson v.
Louisiana, 406 U.S. 356, 369-70 (Powell, J., concurring)
(emphasis and citations omitted). See also Andres v. United
States, 333 U.S. 740, 748-49 (1948).
The source of this right to a unanimous verdict is derived
from historical common law practice both in England and the
colonies. Id. at 370-71 & nn.6&7. Although the right does not
specifically originate in the Constitution, it was recognized at
common law as a means of insuring that the government has met its
burden of proving all facts necessary to show the defendant's
guilt. E.g., 4 WILLIAM BLACKSTONE, COMMENTARIES *343-44. See also
Johnson, 406 U.S. at 370-71 (Powell, J., concurring). As the
Supreme Court has noted, "[t]he origins of the unanimity rule are
shrouded in obscurity." Apodaca v. Oregon, 406 U.S. 404, 407 n.1
(1972). However, by the Eighteenth Century, the right to a
14
unanimous verdict was well-established. 3 WILLIAM BLACKSTONE,
COMMENTARIES *379-80.
The unanimity rule is a corollary to the reasonable-doubt
standard, both conceived as a means of guaranteeing that each of
the jurors "reach[] a subjective state of certitude" with respect
to a criminal defendant's culpability before rendering a
conviction. In re Winship, 397 U.S. 358, 364 (1970). In
Winship, the Supreme Court had held that proof beyond a
reasonable doubt of each element of the crime charged was
constitutionally required in order for a conviction to stand.
The Winship Court noted:
"Due process commands that no man shall lose his
liberty unless the Government has borne the burden of
. . . convincing the factfinder of his guilt." To this
end, the reasonable-doubt standard is indispensable,
for it "impresses on the trier of fact the necessity of
reaching a subjective state of certitude of the facts
in issue."
Id. (quoting Speiser v. Randall, 357 U.S. 513, 525-26 (1958), and
Dorsen & Rezneck, In re Gault and the Future of Juvenile Law, 1
FAMILY LAW QUARTERLY, No. 4, pp. 1, 26 (1967)). The requirement
that all twelve jurors be in agreement as to a defendant's guilt
is employed to give substance to the reasonable-doubt standard;
if a verdict is less than unanimous, the dissension tends to show
that a reasonable doubt exists as to the criminal activity
charged.11 Scott W. Howe, Jury Fact-Finding in Criminal Cases:
11
There appears to be some question as to whether the
unanimity requirement is derived from the Sixth Amendment right
to trial by jury or from the due process clauses of the Fifth and
Fourteenth Amendments. In his concurrence in Johnson v.
Louisiana, Justice Powell maintained that the source of the
15
Constitutional Limits on Factual Disagreements Between Convicting
requirement is in the Sixth Amendment, which adopted the
procedural protections known at common law into the requirement
of trial by jury. 406 U.S. 356, 371 (1972) ("The reasoning that
runs throughout this Court's Sixth Amendment precedents is that,
in amending the Constitution to guarantee the right to jury
trial, the framers desired to preserve the jury safeguard as it
was known to them at common law."). However, he recognized that
the due process clause of the Fourteenth Amendment did not
require the states to "apply the federal jury-trial right with
all its gloss." Id. Justice Douglas, in his dissent in Johnson,
also reasoned that the right was derived from the Sixth
Amendment. 406 U.S. at 383. See also United States v. Gipson,
553 F.2d 453, 456 (5th Cir. 1977) (FED. R. CRIM. P. 31(A) codifies
"a requirement that the Supreme Court has long assumed to inhere
in a federal criminal defendant's sixth amendment right to a
trial by jury."); United States v. Beros, 833 F.2d 455, 462 (3d
Cir. 1987); Andres v. United States, 333 U.S. 740, 748 (1948)
(Sixth Amendment guarantees a right to a unanimous jury verdict
in federal criminal trials).
Conversely, the plurality in Apodaca v. Oregon, 407 U.S.
404, 412 (1972) -- decided the same day as Johnson -- stated that
the unanimity rule was based upon the reasonable-doubt standard,
which was "rooted, in effect, in due process." Further, the
Johnson Court recited that the Supreme Court "has never held jury
unanimity to be a requisite of due process of law," 406 U.S. at
359, thus implying that it has some relationship to due process.
Nonetheless, whether unanimity was derived from the Fifth
Amendment -- as the plurality in Apodaca seemed to believe -- or
was simply a "judicial gloss" on the Sixth Amendment -- as
Justices Powell and Douglas and other precedents indicate -- it
was not considered to be grounded deeply enough in the
Constitution to require its imposition upon the fifty states
through the Fourteenth Amendment. Apodaca, 407 U.S. at 412;
Johnson, 406 U.S. at 363.
More recently, the Supreme Court has apparently agreed that
the requirement of jury consensus as to a defendant's course of
action "is more accurately characterized as a due process right
than as one under the Sixth Amendment." Schad v. Arizona, ___
U.S. ___, 111 S. Ct. 2491, 2498 n.5 (1991) (plurality opinion of
Souter, J.); id. at 2506-07 (Scalia, J., concurring); and id. at
2508 (White, J., dissenting)). See also Scott W. Howe, Jury
Fact-Finding in Criminal Cases: Constitutional Limits on Factual
Disagreements Between Convicting Jurors, 58 MO. L. REV. 1, 8-9
n.36 (1993) (In Schad, the "Supreme Court unanimously agreed that
the factual concurrence mandate stems, not from the Sixth
Amendment, but from the residual protections of due process.").
16
Jurors, 58 MO. L. REV. 1, 12 (1993).
In order to remove any doubt as to whether a federal
criminal trial necessitated a unanimous verdict, Federal Rule of
Criminal Procedure 31(a) codified existing case-law as discussed
above. See FED. R. CRIM. P. 31(a) & advisory committee comment.
See also United States v. Gipson, 553 F.2d 453, 456 & n.3 (5th
Cir. 1977).
C. The Reach of Required Consensus
Having determined that a total consensus verdict is required
in federal criminal cases does not, however, end the inquiry.
The difficulty in the mandate of unanimity lies in ascribing the
appropriate definition of a "unanimous verdict" to situations in
which differing factual theories have been presented in support
of the same ultimate issue. We note that there are two levels of
unanimity necessarily involved in this question: unanimity as to
verdict and unanimity as to the critical facts necessary to
support that verdict. The unanimous verdict guaranteed by FEDERAL
RULE OF CRIMINAL PROCEDURE 31 does not necessarily insure that all
twelve -- or in some cases, even a majority -- concurred in the
factual basis for liability. As will be discussed in greater
detail below, some sort of factual concurrence is required by due
process concerns. Gipson, 553 F.2d at 458 ("Requiring twelve
jurors to convict a defendant does little to insure that his
right to a unanimous verdict is protected unless this
prerequisite of jury consensus as to the defendant's course of
action is also required."). Courts have repeatedly struggled
17
with some way to define which facts warrant total consensus and
which may be subject to disagreement without threatening the
integrity of the guilty verdict. Compare Andres, 333 U.S. at 748
("In criminal cases this requirement of unanimity extends to all
issues -- character or degree of the crime, guilt and punishment
-- which are left to the jury."), with United States v. Bouquett,
820 F.2d 165, 169 (6th Cir. 1987) ("[T]his court does not require
jurors to agree unanimously as to a theory of guilt where a
single generic offense may be committed by a variety of acts.")
and Holland v. State, 91 Wis. 2d 134, 280 N.W.2d 288, 292-3 (1979)
(Jury consensus is required "only with respect to the ultimate
issue of the defendant's guilt or innocence of the crime charged
. . . ."), cert. denied, 445 U.S. 931 (1980). On the one hand,
"[u]nanimity . . . means more than a conclusory agreement that
the defendant has violated the statute in question; there is a
requirement of substantial agreement as to the principle factual
elements underlying a specified offense." United States v.
Ferris, 719 F.2d 1405, 1407 (9th Cir. 1983). See also United
States v. Beros, 833 F.2d 455, 462 (3d Cir. 1987) ("Conviction by
a jury that was not unanimous as to the defendant's specific
illegal action is no more justifiable than is a conviction by a
jury that is not unanimous on the specific count."). On the
other hand, the courts recognize the concern that demanding total
factual concurrence on each detail of the crime's commission is
not warranted and will make it impossible for the government to
obtain a conviction. Chicago & Northwestern Ry v. Dunleavy, 129
18
Ill. 132, 22 N.E. 15, 17-18 (1889) ("To require unanimity, not
only in [the jurors'] conclusions, but in the mode by which those
conclusions are arrived at, would in most cases involve an
impossibility . . . [and] would be practically destructive of the
entire system of jury trials."). The Supreme Court has
repeatedly recognized that "different jurors may be persuaded by
different pieces of evidence, even when they agree upon the
bottom line. Plainly there is no general requirement that the
jury reach agreement on the preliminary factual issues which
underlie the verdict." McKoy v. North Carolina, 494 U.S. 433,
449 (1990) (Blackmun, J. concurring).
In sum, juror disagreement as to the critical facts of the
offense might reflect a "reasonable doubt" that the defendant
actually engaged in criminal activity. The duty of the court is
to determine which "fact[s] [are] necessary to constitute the
crime," Winship, 397 U.S. at 364, and to require consensus on
these "facts." Essentially, the inquiry is how much disagreement
between individual jurors as to the factual predicate for an
offense can be tolerated without undermining the integrity of the
guilty verdict.
D. United States v. Gipson and the "Distinct Conceptual
Groupings" Test
Correa argues that this court's precedent in Gipson mandates
reversal of the district court's exclusion of his unanimity
instruction. In Gipson, this court was confronted with the
construction of a statute which criminalized any of six
proscribed acts -- "receiving, concealing, storing, bartering,
19
selling, or disposing" -- involving a stolen vehicle moving in
interstate commerce. 553 F.2d at 458. Evidence was introduced
at trial that the defendant had engaged in each of the prohibited
acts. Id. at 455. Since all six alternatives were given to the
jury in a single count, the jurors requested guidance as to
whether they must agree on one of the acts in particular before a
conviction could be returned. Id. at 455-56. In response, the
trial court specifically instructed the jury as follows:
A third question that may be the one the jury is really
asking is, must there be an agreement by all twelve
jurors as to which act of those several charged in
Count Two, that the defendant did . . . . If all twelve
agreed that he had done some one of those acts, but
there was not agreement that he had done the same act,
would that support a conviction? The answer is yes.
Id. at 456. Not surprisingly, the jury convicted Gipson of this
count when it resumed deliberations. This court reversed,
holding that it was impermissible to submit such disparate
theories in one count and to instruct the jurors that they need
not agree on which act the defendant had committed in violation
of the statute. Id. at 458-59. Instead, the trial court should
have split the acts into "distinct conceptual groupings" to
preserve the defendant's right to a unanimous verdict. Id.12
This Circuit considered it impermissible to fold together the two
groupings into one charge question since they were "sufficiently
different" that the jury may have been "permitted to convict
12
Judge Wisdom, writing for the court, stated that "[t]hese
six acts fall into two distinct conceptual groupings; the first
consisting of receiving, concealing, and storing, and the second
comprised of bartering, selling, and disposing." United States
v. Gipson, 553 F.2d 453, 458 (5th Cir. 1977).
20
Gipson even though there may have been significant disagreement
among the jurors as to what he did." Id. However, within each
of these groupings, "the acts are sufficiently analogous to
permit a jury finding of the actus reus of the offense to be
deemed `unanimous' despite differences among jurors as to which
of the intragroup acts the defendant committed." Id. at 458.
The "conceptual groupings" test, as it came to be known, was
adopted in several jurisdictions. E.g., United States v. Duncan,
850 F.2d 1104, 1113 (6th Cir. 1988), cert. denied sub nom.
Downing v. United States, 493 U.S. 1025 (1990); United States v.
Peterson, 768 F.2d 64, 66-7 (2d Cir.), cert. denied, 474 U.S. 923
(1985).
The Supreme Court has recently criticized the Gipson
rationale when it interpreted the unanimity requirement in the
context of the Arizona first-degree murder statute. See Schad v.
Arizona, ___ U.S. ___, 111 S. Ct. 2491, 2494 (1991). The
government implies that Schad has drained Gipson of its vitality.
Brief of Appellee at p. 23. Schad involved a constitutional
attack upon Arizona's first-degree murder statute which allows
for conviction either for premeditated murder or for felony
murder. Justice Souter, writing for the plurality, framed the
issue as one of what limits may be imposed upon a state in
defining alternative means to commission of a criminal action.
111 S. Ct. at 2496. Specifically, the Court was to determine
whether Arizona could, in accordance with the federal
Constitution, define premeditated murder and felony murder as
21
alternative means to satisfy the mens rea element of first degree
murder. Id. Asserting that there was "no reason . . . why the
rule that the jury need not agree as to mere means of satisfying
the actus reus element of an offense13 should not apply equally
to alternative means of satisfying the element of mens rea," 111
S. Ct. at 2497, the plurality advocated a new approach to
defining the permissible limits for statutory alternatives. Id.
at 2500. In doing so, Justice Souter rejected the Gipson
"distinct conceptual groupings" test as being "too indeterminate
to provide concrete guidance to courts faced with verdict
specificity questions." 111 S. Ct. at 2498. According to the
plurality, instead of "deriv[ing] any single test for the level
of definitional and verdict specificity permitted by the
Constitution," the court should instead focus upon "a distillate
of the concept of due process with its demands for fundamental
fairness . . . and for the rationality that is an essential
component of that fairness." Id. In applying this fairness and
rationality approach in a given case, Justice Souter counseled
13
The plurality cites only to Justice Blackmun's
concurrence in McKoy v. North Carolina, 494 U.S. 433, 449 (1990),
in support of its conclusion that there exists a "rule that the
jury need not agree as to mere means of satisfying the actus reus
element of an offense . . . ." 111 S. Ct. at 2497. In McKoy,
Justice Blackmun reflected that "there is no general requirement
that the jury reach agreement on the preliminary factual issues
which underlie the verdict." 494 U.S. at 449. However, in a
footnote, Justice Blackmun makes clear that, where unanimous
verdicts are required -- such as in federal criminal prosecutions
-- "`there is a requirement of substantial agreement as to the
principal factual elements underlying a specified offense.'"
McKoy, 494 S. Ct. at 449 n.5. (quoting United States v. Ferris,
719 F.2d 1405, 1407 (9th Cir. 1983)).
22
that the court must "look both to history and wide practice as
guides to fundamental values, as well as to narrower analytical
methods of testing the moral and practical equivalence of the
different mental states that may satisfy the mens rea element of
a single offense." Id.14 The plurality then concluded that
equating premeditation and felonious intent as comparably
culpable mental states "finds substantial historical and
contemporary echoes," and is therefore permissible. Id. at
2501.15
E. United States v. Holley and the "Multiple Offenses"
Approach
Contrary to the arguments of both Correa and the government,
we do not find either Schad or Gipson to control the outcome of
this case. Both involved statutes where the respective
legislatures had set forth particular alternatives for satisfying
a given element of a statutorily defined crime. The specific
issue in both was whether differences between jurors as to which
of the statutorily enumerated means was used to commit the same
14
It is important to note that this analysis was undertaken
with a "threshold presumption of legislative competence to
determine the appropriate relationship between means and ends in
defining the elements of a crime." Schad, 111 S. Ct. at 2500.
15
Justice Scalia joined only in the judgment of the Court
under his view that Arizona's statutory scheme for defining
first-degree murder was so historically-ingrained that it was
beyond fundamental fairness review. 111 S. Ct. at 2507.
However, but for the fact that defining first-degree murder in
such a fashion was so settled in this country, he argued that he
might well have gone with the dissent. Id. (Scalia, J.,
concurring).
23
crime were Constitutionally permissible.16 This case, by
contrast, does not present an election between statutory means;
instead, the issue is one of pure unanimity.17 We are not faced
with statutory alternatives to meeting a given element of a
924(c) offense, but rather whether the firearm component of the
crime requires factual concurrence. This court, in United States
v. Holley, 942 F.2d 916 (5th Cir. 1991), appropriately
16
Schad is a difficult decision for this court for several
reasons, not the least of which is that it is a plurality
decision which fails to reconcile two quite divergent analyses to
obtain a majority result. Schad is additionally troublesome in
application to the facts presented because it involved review of
the state court of Arizona's interpretation of its own murder
statute and was evaluated only for error of constitutional
magnitude. Further, as discussed above, the Supreme Court was
evaluating the propriety of equating alternative statutory mens
rea to determine whether they were sufficiently interchangeable
to support a permissible patchwork verdict. In contrast, we are
presented in the instant case with an interpretation of a federal
statute in the first instance to determine whether federal law
requires a specific consensus as to the historical facts
supporting one particular element of the crime. Thus, to the
extent that Schad counsels us to look to any common law
predecessor of the firearm statute or to interpretations of
similar laws in other jurisdictions or to "moral equivalence"
balancing tests, it simply has no application here.
Nonetheless, to the extent the combination of views in Schad
sheds light upon the proper interpretation of an unanimity
requirement with respect to a criminal statute generally, we
attempt to employ its rationale. We read Schad's broader message
to be that, in evaluating the level of generality necessitating
agreement, one must first look to the general history of the
statute. In the instant case, the legislative history of Section
924(c) and federal case-law interpreting the statute are thus the
relevant concerns.
17
As the Schad plurality itself noted, "[t]he issue . . .
then is one of the permissible limits in defining criminal
conduct, as reflected in the instructions to jurors applying the
definitions, not one of jury unanimity." Schad, 111 S. Ct. at
2496 (emphasis added).
24
distinguished Schad from a pure unanimity situation similar to
the one presented as follows:
In Schad, there was a single killing of one individual,
and Justice Souter, stressing that under Arizona law
first degree murder was "a single crime," concluded
that there was no more need for jury unanimity as to
alternative mental states, each satisfying the mens rea
element of the offense, than there was for the jurors
to all agree on the precise means employed to cause
death. This differs, however, from the situation where
a single count, as submitted to the jury embraces two
or more separate offenses, though each be a violation
of the same statute.
942 F.2d at 927 (emphasis added). In other words, Schad involved
alternative statutory means for committing one offense; Holley,
on the other hand, involved distinct instances of the same crime
which could have resulted in potentially multiple convictions.
In Holley, the defendant was convicted of two counts of
perjury in connection with his deposition testimony in an
adversary personal bankruptcy proceeding. For each count,
however, the indictment alleged multiple statements, each of
which would have constituted a separate violation of the perjury
statute. Id. at 927-28. Cf. Bins v. United States, 331 F.2d
390, 393 (5th Cir.), cert. denied, 379 U.S. 880 (1964) (where
false statements made on two separate loan applications, filing
of each false document would constitute a separate crime). The
trial court rejected a jury instruction to the effect that the
jury must be unanimous as to at least one statement in each
count. Holley, 942 F.2d at 922. This court held that the counts
alleging multiple instances of perjury were in fact, separate
25
offenses, and consequently the indictment was duplicitous.18 Id.
at 928-29. To cure the duplicity, the district court was
required to give the jury Holley's tendered instruction on
specific unanimity. Id. at 929. Its failure to do so was
reversible error. Id.
Holley would appear to counsel that unanimity is closely
related to the issue of duplicity -- i.e., that a specific
unanimity instruction may be required where two separate
"offenses" are included in the same count. Accord United States
v. Baytank, Inc., 934 F.2d 599, 690-10 (5th Cir. 1991)
(suggesting that unanimity may be at issue only if the count is
duplicitous). It is true that the concern under either
procedural posture is the same -- the jury should not be
permitted to evaluate separate and distinct offenses about which
they may disagree in rendering a patchwork guilty verdict:
The vice of duplicity is that there is no way in which
the jury can convict of one offense and acquit of
another offense contained in the same count. A general
verdict of guilty will not reveal whether the jury
found the defendant guilty of one crime and not guilty
of the others, or guilty of all. It is conceivable
that this could prejudice [the] defendant in
sentencing, in obtaining appellate review, and in
protecting himself against double jeopardy.
18
Duplicity has been defined as follows: "[I]f the statute
is read as creating a single offense involving a multiplicity of
ways and means of action and procedure, the charge can be laid in
a single count . . . . But if the statute includes several
offenses, to charge them in a single count would be duplicitous."
1 CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 2D § 142 at
470-72 (1982) (citations omitted). Thus, the focus of the
duplicity inquiry is whether distinct and separate "offenses" are
alleged in one count. Id.
26
1 CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 2D § 142 at
475 (1982) (citations omitted).
Although the cases analyzing duplicity may be helpful,
defining unanimity in terms of "separate offenses" or "separate
crimes" would result in an unworkable "brightline" test.
Moreover, the issues of duplicity and unanimity are evaluated at
different procedural stages of the criminal proceedings --
duplicity is generally reviewed during the pretrial phase,
whereas unanimity must be determined after all the evidence has
been introduced at trial. For this reason, the inquiry as to
whether offenses are distinct for purposes of duplicity is not
identical to the analysis employed in determining whether the
actions charged are so dissimilar that unanimity is required. As
this court noted in Holley, "[c]ourts rejecting duplicity
challenges to multiple-predicate counts often premise their
rulings on the condition that later augmented jury instructions
will adequately protect the defendant against the risk of an
ununanimous verdict." Id. at 928 n.14 (quoting Duncan, 850 F.2d
at 1108 n.4). Nonetheless, mindful of these distinctions, we
find the cases involving duplicity to be somewhat instructive for
determining whether factual concurrence is required in a given
case.
F. The Approach for this Case
We conclude that factual concurrence must be viewed on a
case-by-case basis to address the concerns discussed above and to
27
insure that the purposes of unanimity are satisfied.19 "[S]ince
the set of material issues changes composition with the facts of
each case, precedents cannot necessarily be used to construct a
clear definition of materiality." Note, Right to Jury Unanimity
on Material Fact Issues: United States v. Gipson, 91 HARV. L.
REV. 499, 502 & n.27 (1977). Statutory language and
construction, legislative intent, historical treatment of the
crime by the courts, duplicity concerns with respect to defining
the offense, and the likelihood of jury confusion in light of the
specific facts presented are all necessary inquiries to be
addressed before a trial judge can ascertain whether he must
instruct the jury to concur in predicate facts as well as in
result. In making these determinations, the court must consider
exactly what conduct the statute is designed to punish and deter.
United States v. Jackson, 879 F.2d 85, 88 (3d Cir. 1989). The
Jackson court, in construing the federal continuing criminal
enterprise ("CCE") statute, 21 U.S.C. § 848, aptly recognized a
distinction between those issues necessitating unanimity and
those issues upon which the jury need not agree:
While the jury must reach a consensus on the fact that
there were five or more underlings, which is an
essential element of the CCE offense, there is no
logical reason why there must be unanimity on the
identities of these underlings. Unlike the three
offenses necessary to constitute a series, which is the
19
The Supreme Court has recognized that such inquiries must
be made based upon the specific facts in a given case. See
Griffin v. United States, ___ U.S. ___, 112 S. Ct. 466, 468
(1991) (Scalia, J.) ("The question presented for review . . . is
simply whether a general verdict of guilty under circumstances
such as existed here `is reversible.'") (emphasis added).
28
conduct which the CCE statute is designed to punish and
deter,[20] the identity of these underlings is
peripheral to the statute's other primary concern,
which is the defendant's exercise of the requisite
degree of supervisory authority over a sizeable
enterprise.
Id. at 88-89. See also United States v. Linn, 889 F.2d 1369,
1374 (5th Cir. 1989), cert. denied, ___ U.S. ___, 111 S. Ct. 43
(1990). Although recognizing that the approach we advance today
does not yield any brightline tests for making such
determinations, we note that the dictates of due process do not
often lend themselves to easy application. Against this
backdrop, we turn to the case presented.
G. Section 924(c)
As noted above, Correa was charged with one violation of
Section 924(c), and the government introduced evidence of ten
different firearms which could have been used to commit the
offense. Section 924(c) provides that:
Whoever, during and in relation to any crime of
violence or drug trafficking crime (including a crime
of violence or drug trafficking crime which provides
for an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) for which he may
be prosecuted in a court of the United States, uses or
carries a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking
crime, be sentenced to imprisonment for five years
. . . .
20
In addition to the offense at issue in Jackson, which
required that the defendant supervise five or more persons in the
context of a criminal enterprise, the CCE statute also allows
conviction upon proof that the defendant engaged in a "series" of
three related predicate crimes. See generally 21 U.S.C. § 848.
In United States v. Echeverri, the Third Circuit had previously
determined that jury consensus was necessary for each of the
three offenses in the series. 854 F.2d 638, 643 (3d Cir. 1988).
29
18 U.S.C. 924(c). In light of the unanimity concerns addressed
above, the issue in the instant case should be framed as follows:
If some jurors believe that one gun was used to commit the
Section 924(c) offense, and others believe another gun was used,
does that disagreement evidence a reasonable doubt that Correa
used a firearm in committing a drug trafficking crime? The facts
of this case do not appear to warrant a reasonable doubt.21
1. Wording of the Statute
In accordance with the approach set forth above, we first
turn to the plain language of the statute. The mere carrying or
use of a firearm is not the criminal actus reus proscribed --
rather it is the employment of the weapon in the context of
21
The following hypothetical of Professor Howe may be
helpful in this regard:
Suppose that a defendant named Barnes is charged with
an assault against a person on Tuesday. One witness
saw the incident and thought that Barnes struck the
complainant on the side of the head with the butt of a
dark-colored pistol. Another witness testifies that
she saw Barnes strike the complainant on the side of
the head with a blackjack, not a pistol. No more than
seven jurors agree upon the weapon employed.
Nonetheless, all of the jurors agree that Barnes
committed an act of assault on the complainant,
although they do not agree precisely on the nature of
that act. Is conviction for assault proper here?
Surely it is. Here, the disagreement among jurors
concerns a detail so trivial that it creates no doubt
that Barnes engaged in conduct proscribed by the
relevant statute.
Scott W. Howe, supra note 11 at 23-4. Although we recognize that
this example is not identical to the facts of the instant case,
it provides another useful way to view the issue presented --
whether the identity of the individual firearm or firearms used
is "a detail so trivial that it creates no doubt that [Correa]
engaged in the conduct proscribed by [Section 924(c)]." Id.
30
another predefined crime. 18 U.S.C. § 924(c)(1). The fact that
the firearm offense is conditioned upon proof beyond a reasonable
doubt of an underlying crime is indicative of legislative intent.
Indeed, Section 924(c)'s dependence upon the basic felony
contributes to the appearance that it is akin to a penalty
enhancement provision.22 The contingent nature of the offense as
defined demonstrates that the focal point -- or "essence" -- of
the offense was that a criminal defendant used a firearm in
committing another federal crime. Accordingly, the plain
language of the statute does not imply a requirement of unanimity
as to the particular firearm employed.
2. Legislative History
It is also appropriate to seek guidance from the legislative
history of Section 924(c), since there is no common law
predecessor to the statute.23 In doing so, we are mindful of the
22
However, in different contexts, the federal courts have
made clear that a Section 924(c) violation is a separate crime
and not merely an enhancement provision. See United States v.
Munoz-Fabela, 896 F.2d 908, 909 (5th Cir.) (conviction of
predicate crime not necessary to sustain 924(c) conviction),
cert. denied, ___ U.S. ___, 111 S. Ct. 76 (1990); United States
v. Wilson, 884 F.2d 174, 176 n.2 (5th Cir. 1989) (defendant need
not even be charged with underlying crime); United States v.
Hill, 971 F.2d 1461, 1467 (10th Cir. 1992) (en banc) (Conviction
for conspiring to violate 924(c) is proper since 924(c) is a
separate federal offense sufficient to support conspiracy.).
Nonetheless, it is contingent upon the establishment of a
predicate crime and has the effect of a sentencing enhancement
since the mandatory penalties in the statute require that
sentencing run consecutively with the sentence for the underlying
crime. 18 U.S.C. § 924(c). From this scheme, we can discern an
intent that the use of any firearm in connection with the
classified predicate crimes be punished.
23
As the plurality in Schad acknowledged, statutory crimes
are treated differently from those recognized at common law:
31
Supreme Court's caution that "[d]ecisions about what `fact[s]
[are] necessary to constitute the crime' and therefore must be
proven individually, and what facts are mere means, represent
value choices more appropriately made in the first instance by
the legislature than by a court." Schad, 111 S. Ct. at 2500.
Although the very limited materials available at the time of
Section 924(c)'s enactment do not provide much guidance, see
Busic v. United States, 446 U.S. 398, 405 (1980), we are
persuaded that the focus of Congress in enacting Section 924(c)
was upon maximum deterrence against using firearms in connection
with another crime. See id. at 404 n.9. In proposing the
legislation, its sponsor, Representative Poff, stated that a
primary objective of the provision was to "persuade the man who
is tempted to commit a Federal felony to leave his gun at home."
114 Cong. Rec. 22231 (1968). Congress enacted Section 924(c) as
part of the Gun Control Act of 1968, Pub. L. 90-618, 82 Stat.
1213, in the wake of the assassinations of Martin Luther King and
Robert Kennedy, as part of a comprehensive response to the
"increasing rate of crime and lawlessness and the growing use of
firearms in violent crime." H. R. Rep. No. 1577, 90th Cong., 2d
Sess. 7 (1968). Although at the time of the enactment there
We note, however, the perhaps obvious proposition that
history will be less useful as a yardstick in cases
dealing with modern statutory offenses lacking clear
common law roots . . . .
Schad, supra, at 2501 n.7. Because the legislative history
behind a "modern statutory crime" is similar in this respect to
the "roots" of a common law offense, it would be appropriate for
consideration.
32
already existed statutorily-enhanced penalties for the use of
deadly weapons in the commission of certain crimes -- e.g., armed
assault on federal officers, 18 U.S.C. § 111, or armed robbery
under 18 U.S.C. § 2113 -- this statute extended an mandatory
enhanced penalty to any situation where a defendant used a
firearm in the commission of a federal felony.24
The history of subsequent amendments to the statute is also
of certain value in this inquiry. See United States v. Wilson,
884 F.2d 174, 178 n.7 (5th Cir. 1989) ("[A] later Congress'
understanding of the legislative intent of an earlier Congress is
entitled to deference."). One of the earlier amendments --
requiring that the "use[] or carry[ing]" of the firearm be
"during and in relation to" the predicate crime -- was made in
response to concerns that persons who lawfully carried a
concealed weapon could be liable for an enhanced penalty even
though the firearm was completely unrelated to the underlying
offense.25 In amending the statute to address this concern,
24
The original version of Section 924(c) prohibited the use
of firearms during the commission of a federal felony. See Gun
Control Act of 1968, Pub. L. 90-618, 82 Stat. 1213. Since that
time, the statute has been amended several times to enlarge its
reach beyond "felon[ies]" to "any crime of violence or drug
trafficking crime." Comprehensive Crime Control Act of 1984,
Pub. L. 98-473, § 1005, 98 Stat. 1837, 2138 (changing "felony" to
"crime of violence"); Firearm Owners' Protection Act, Pub. L. No.
99-308, § 104, 100 Stat. 449, 457 (1986) (adding "drug
trafficking crime" to "crime of violence").
25
Comprehensive Crime Control Act of 1984, supra note 24,
98 Stat. at 2138-39. The legislative history indicates that this
qualifier was the product of a compromise when Congress deleted
the former limitation that the use or carrying of the firearm be
"unlawful." It was employed to allay the fears of certain
members of Congress who were concerned that the deletion of the
33
Congress reiterated that the Section 924(c) penalty was
inextricably intertwined with the underlying offense.
Moreover, a common thread throughout the amendments to
Section 924(c) is the consistent increase in deterrence value.
For example, in response to Supreme Court decisions holding that
a Section 924(c) penalty could not be layered onto a predicate
statute containing its own enhancement provision,26 Congress
amended the statute to make clear its intent that the defendant
be sentenced under both enhancement schemes, thus maximizing the
punishment.27 The remainder of substantive changes to the
statute have similarly increased the severity of the punishment:
(1) requiring that the mandatory sentence run consecutively
"unlawful use" requirement would potentially subject persons
lawfully carrying concealed weapons to double punishment -- even
where the weapon was not shown or referenced. S. Rep. 98-225,
98th Cong. 2d Sess. 314 n.10 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3492. "The requirement that the firearm's use
or possession be `in relation to' the crime would preclude
[Section 924(c)'s] application in a situation where its presence
played no part in the crime, such as a gun carried in a pocket
and never displayed or referred to in the course of a pugilistic
barroom fight." Id. Congress subsequently rejected a more pro-
defendant requirement that the firearm be carried "in furtherance
of any such crime of violence" -- as opposed to "during and in
relation to" -- as "unnecessary to prevent injustice." H. R.
Rep. 99-495, 99th Cong., 2d Sess. 9 (1986), reprinted in 1986
U.S.C.C.A.N. 1327, 1335.
26
Simpson v. United States, 435 U.S. 6, 16 (1978); Busic v.
United States, 446 U.S. 398, 404 (1980).
27
Comprehensive Crime Control Act of 1984, supra note 24,
98 Stat. at 2138-39. See also S. Rep. 98-225 at 312-15,
reprinted in 1984 U.S.C.C.A.N. at 3490-92. In fact, the Senate
Report reflects a Congressional frustration that the "drafting
problems and interpretations of [Section 924(c)] in recent
Supreme Court decisions have greatly reduced its effectiveness as
a deterrent to violent crime." Id. at 312, reprinted in 1984
U.S.C.C.A.N. at 3490.
34
rather than concurrently with that of the predicate crime,28
(2) substantially increasing the mandatory penalties for
violations,29 and (3) denying parol or probation privileges
during the 924(c) sentence.30 The statute was also amended to
increase the penalties for various classes of weapons -- e.g.,
short-barrelled shotguns and rifles, automatic weapons, and
firearms equipped with silencing devices.31 Consequently, the
legislative history does not support a holding that verdict
specificity as to the actual firearm used is required.
3. Interpretive Case-Law and the Issue of Duplicity
We find additional support for this conclusion in the
federal cases interpreting the statute. Most telling is the line
of cases which instructs that the number of firearms "used" or
"carried" is irrelevant for conviction purposes; employment of
more than one firearm will not support more than one conviction
under 924(c) based upon the same predicate crime. United States
v. Privette, 947 F.2d 1259, 1262-63 (5th Cir. 1991), cert.
denied, ___ U.S. ___, 112 S. Ct. 1279 (1992). The fact that
28
See Omnibus Crime Control Act of 1970, Pub. L. No. 91-
644, 84 Stat. 1880, reprinted in 1970 U.S.C.C.A.N. 2206, 2216-17.
29
Ibid. See also Comprehensive Crime Control Act of 1984,
supra note 24, 98 Stat. at 2138-39; Anti-Drug Abuse Act, Pub. L.
No. 100-690, § 6460, 102 Stat. 4181, 4373-74 (1988).
30
Comprehensive Crime Control Act of 1984, supra note 24,
98 Stat. at 2139.
31
Firearms Owners' Protection Act, supra note 24, 100 Stat.
at 457; Crime Control Act of 1990, Pub. L. No. 101-647, § 1101,
104 Stat. 4789, 4829.
35
virtually all federal courts consider it to be one offense
regardless of how many weapons are actually "used or carried"
tends to shed light upon the federal courts' view of the level of
concurrence necessary. See, e.g., United States v. Henning, 906
F.2d 1392, 1399 (10th Cir.), cert. denied, ___ U.S. ___, 111
S. Ct. 789 (1990); United States v. Henry, 878 F.2d 937, 942 (6th
Cir. 1989); United States v. Fontanilla, 849 F.2d 1257, 1258-9
(9th Cir. 1988). But see United States v. Freisinger, 937 F.2d
383, 390 (8th Cir. 1991) (although one predicate crime may
support multiple counts based upon number of weapons, sentences
must run concurrently). The reasoning in these cases reinforces
our conclusion that the focus of the statute is upon the use of
any firearm so long as it is used in the commission of an
enumerated predicate crime. As noted above, where alternative
factual scenarios will support only one crime even if all are
proven, the courts appear less likely to require factual
concurrence. E.g., Schad, 111 S. Ct. at 2496 ("In Arizona,
first degree murder is only one crime regardless whether it
occurs as a premeditated murder or a felony murder.'") (quoting
State v. Schad, 788 P.2d 1162, 1168 (1989)); United States v.
Sutherland, 656 F.2d 1181, 1202 (5th Cir. 1981) (no need for jury
to agree as to single object in multiple-object conspiracy),
cert. denied, 455 U.S. 949 (1982). Cf. Hill, 971 F.2d at 1468
(Jurors need not agree as to which predicate crime was the
intended objective of a conspiracy to violate Section 924(c) as
long as they are convinced that each conspirator intended to use
36
a firearm in the commission of a drug trafficking offense).
Conversely, where each instance of allegedly criminal activity
could be a separate offense, courts are more inclined to require
that jurors be unanimous as to which instance is the basis of
liability. Holley, 924 F.2d at 928-29. See also United States
v. Payseno, 782 F.2d 832, 837 (9th Cir. 1986) (Where three
separate acts of extortion, directed at different victims, are
introduced in support of one count, jury must agree as to one
such act for the basis of liability.); Beros, 833 F.2d at 460-62
(Jury must unanimously agree as to which act was committed by the
defendant where each of two challenged counts alleges multiple
theories of criminal activity predicated on several transactions
"any of which might have provided the basis for a guilty
verdict."). Although, as we stated earlier, duplicity is not the
sole consideration for determining whether unanimity is
necessary, it is a relevant concern, and it weighs heavily in
favor of the government's position in this case.
Other cases expanding the reach of Section 924(c) are
enlightening from a corollary standpoint. For example, this
court has determined that Section 924(c)'s qualification that the
weapon be used "during and in relation to" a crime means only
that the firearm have played "an integral part [in] the felony."
United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir. 1988).
The weapon need not actually be used or brandished. United
States v. Coburn, 876 F.2d 372, 375 (5th Cir. 1989). The firearm
does not even have to be visible. Robinson, 857 F.2d at 1010
37
(citing with approval United States v. Matra, 841 F.2d 837, 839
(8th Cir. 1988)). Moreover, an unloaded gun can serve as the
basis for a conviction. Coburn, 876 F.2d at 375. As in the
instant case, "[i]t is enough that the firearm was present at the
drug-trafficking scene, that the weapon could have been used to
protect or facilitate the operation, and that the presence of the
weapon was in some way connected with the drug trafficking."
United States v. Boyd, 885 F.2d 246, 250 (5th Cir. 1989). These
broad-sweeping interpretations of the "during and in relation to"
provision demonstrate this court's willingness to construe the
statute broadly.
Correa argues that the Third Circuit's opinion in United
States v. Theodoropoulos, 866 F.2d 587, 597 (3d Cir. 1989),
should be adopted by this court for the proposition that specific
unanimity is required as to which gun was the basis for a Section
924(c) conviction. In Theodoropoulos, the court of appeals was
presented with a fact-setting similar to that in the instant
case. The Third Circuit noted with approval that the trial judge
had "properly instructed the jury that they must unanimously
agree on which weapon [the defendant] had used . . . ." Id.32
Although giving such an instruction may be proper if the court
32
The court in Theodoropoulos focused upon whether the
evidence was sufficient to support each gun alleged to have been
used in the cocaine trafficking conspiracy. United States v.
Theodoropoulos , 866 F.2d 587, 597 (3d Cir. 1989). Finding that
three of the guns could not have legally supported the conviction
since they were not sufficiently proximate to the crime scene to
be considered to be "in relation to" the predicate drug offenses,
the court of appeals vacated the Section 924(c) conviction on
that basis.
38
believes it to be warranted by the facts,33 we do not read
Theodoropoulos to require it.
4. Particulars of the Instant Case
Finally, we turn to the facts of the instant case and the
likelihood of jury confusion from the evidence presented. As
discussed above, at least four of the firearms seized from
Correa's residence were indisputably linked to drugs or to
conceded proceeds. See supra note 7. As noted previously, the
district court instructed the jury that, in order to convict
Correa of the Section 924(c) violation:
[Y]ou must be convinced that the Government has proved
. . . beyond a reasonable doubt: that the Defendant
knowingly used or carried a firearm during and in
relation to the Defendant's commission of the crimes
alleged in Counts One or Two.
You are instructed that possession alone of a
firearm is not sufficient to find the Defendant guilty
of Count Three. You must be convinced beyond a
reasonable doubt that at least one of the firearms in
evidence played a role in or facilitated, or had the
potential of facilitating, the commission of a drug
offense. In other words, you must find that at least
one of the firearms was an integral part of the drug
offense charged . . . .
(emphasis added). The court further instructed the jury that
"[t]o reach a verdict, all of you must agree. Your verdict must
be unanimous on each count of the Superseding Indictment." In
light of our holding that an additional, specific unanimity
instruction was not mandated, we find these instructions to be
33
As the Supreme Court noted in Schad, "[w]e do not, of
course, suggest that jury instructions requiring increased
verdict specificity are not desirable . . . . We only hold that
the Constitution did not command such a practice on the facts of
this case." 111 S. Ct. at 2504.
39
sufficient. It would not appear that the individual jurors were
confused by the introduction of firearms not specifically tied to
drug trafficking, since the court specifically charged the jurors
to consider only those weapons which "played a role in or
facilitated, or had the potential of facilitating, the commission
of a drug offense."
V. Conclusion
In sum, we find that a specific unanimity instruction was
not required with respect to the identity of the firearm "used"
or "carried" by Correa.34 In doing so, we recognize that verdict
specificity may be required for some violations of 18 U.S.C.
§ 924(c).35 Even if we were permitted to do so, we would not be
34
In his post-submission brief, Correa argues that a
unanimity instruction was also required with respect to the
predicate crime upon which the 924(c) conviction was based. He
claims that some members of the jury could have believed the
firearms were used in furtherance of the cocaine possession
alleged in Count One and others that the guns were used to
protect the marijuana charged in Count Two. This contention was
not preserved in the trial court and was not briefed in this
court prior to argument. Accordingly, we do not determine
whether the failure to give a specific unanimity instruction,
requiring agreement on the predicate crime, was in error. See
Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1548 n.11 (5th
Cir.), (Court will not consider contentions raised for the first
time in briefs submitted after oral argument.), cert. denied, ___
U.S. ___, 112 S. Ct. 430 (1991).
35
We do note (without deciding) that a different situation
may be presented when the evidence tends to prove the use of more
than one weapon, and the firearms proven fall within different
classes of Section 924(c)'s proscribed weapons. For example, if
a firearm violation is asserted, and evidence is introduced as to
both shotguns and rifles (with a mandatory 5-year imprisonment
penalty) and revolvers with silencing equipment (resulting in a
30-year imprisonment), the jury may well be required to agree on
which type of weapon was used in order for the court to assess
the appropriate penalty. In that instance, a unanimity
instruction as to the class of weapon may be necessary, since the
40
able to predict in an advisory fashion which fact-settings will
necessitate such protection. As discussed above, such
determinations must be made on a case-by-case basis in light of
the charges made, the evidence presented, and the likelihood of
jury confusion. We hold only that, under the facts of this case,
no such instruction was warranted, especially in light of the
general instruction that was given. Accordingly, we AFFIRM the
judgment of the district court.
DUPLANTIER, District Judge, concurring:
I concur, with the following brief additional observation
concerning the requested "unanimity gun" charge.
The issue as to the district judge's refusal to give the
requested jury charge to the effect that the jury had to agree
unanimously on which one of the ten guns was used or carried
during and in relation to the drug trafficking crime is a close
call, as demonstrated by the well-reasoned majority opinion.
Indeed, I have given a similar charge under quite similar
circumstances when requested to do so. However, I am convinced
that, properly interpreted, the statute (18 USC 924(c)) requires
only that all twelve jurors agree that, during and in relation to
legislature, in amending Section 924(c) to provide varying
penalties for certain classified firearms, appears to have
indicated its intent that a unanimous verdict be reached with
respect to the given class of firearms. United States v. Sims,
975 F.2d 1225, 1235-36 (6th Cir. 1992), cert. denied, ___ U.S.
___, 113 S. Ct. 1315 (1993).
41
a drug trafficking crime, the defendant used or carried a firearm
(any firearm). The statute does not require that all jurors
agree on a particular firearm.
A hypothet illustrates the point. Assume that a rifle and a
pistol are found in the room in which the defendant is
apprehended during a drug transaction. A single count in an
indictment charges that both firearms were "used and carried"
"during and in relation to" the drug activity, and the prosecutor
argues to the jury that both firearms were so used. Defendant
contends that both were collector's items. Six jurors conclude
that the government proved beyond a reasonable doubt that the
rifle was "used", but not the pistol. The other six conclude
that there is reasonable doubt about the rifle, but that there is
no doubt that the pistol was "used" in the drug crime. The
defendant would properly be found guilty of violating the
statute, for each juror would have concluded that defendant used
or carried "a firearm" during and in relation to the drug
trafficking crime charged in the indictment.
I conclude that the defendant was not entitled to the
requested "unanimity gun" charge.
42