UNITED STATES of America, Plaintiff-Appellee, v. Armando CORREA-VENTURA, Defendant-Appellant.
No. 92-8632.
United States Court of Appeals, Fifth Circuit.
Nov. 1, 1993.
Conclusion
Newport has raised genuine issues of material fact on its claims for breach of contract, fraud and detrimental reliance. As a result, we REVERSE the decision of the district court and REMAND for further proceedings.
Richard L. Durbin, Jr., Asst. U.S. Atty., James H. DeAtley, U.S. Atty., San Antonio, TX, for plaintiff-appellee.
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.
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
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 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.
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
At his November 27, 1991, arraignment, Correa pled “not guilty” to all three counts of
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
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
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.
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.
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.
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,
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 trial court that the sole reason for the superseding indictment was to add a mens rea allega
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 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:
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, 504 U.S. 928, 112 S.Ct. 1990, 118 L.Ed.2d 587 (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 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:
- The instruction is substantially correct;
- The requested issue is not substantially covered in the charge actually given to the jury; and
- 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 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, 92 S.Ct. 1620, 1637, 32 L.Ed.2d 152 (1972) (Powell, J., concurring) (emphasis and citations omitted). See also Andres v. United States, 333 U.S. 740, 748-49, 68 S.Ct. 880, 884, 92 L.Ed. 1055 (1948).
The source of this right to a unanimous verdict is derived from historical common law practice both in England and the colonies. Johnson, 406 U.S. at 370-71 & nn. 6 & 7, 92 S.Ct. at 1637-38 & 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, 92 S.Ct. at 1637-38 (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. 2, 92 S.Ct. 1628, 1632 n. 2, 32 L.Ed.2d 184 (1972). However, by the Eighteenth Century, the right to a 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
“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, 78 S.Ct. 1332, 1341-42, 2 L.Ed.2d 1460 (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: Constitutional Limits on Factual Disagreements Between Convicting 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,
C. The Reach of Required Consensus
Having determined that a total consensus verdict is required in federal criminal cases
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, 90 S.Ct. at 1073, 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, selling, or disposing“—involving a stolen vehicle moving in interstate commerce. 553 F.2d at 458. Evidence was introduced at trial that the defen
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 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, 110 S.Ct. 732, 107 L.Ed.2d 751 (1990); United States v. Peterson, 768 F.2d 64, 66-67 (2d Cir.), cert. denied, 474 U.S. 923, 106 S.Ct. 257, 88 L.Ed.2d 264 (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, 501 U.S. 624, 111 S.Ct. 2491, 2494, 115 L.Ed.2d 555 (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. Id. at 2496. Specifically, the Court was to determine whether Arizona could, in accordance with the federal Constitution, define premeditated murder and felony murder as 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,” id. at 2497, the plurality advocated a new approach to defining the
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 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 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, 85 S.Ct. 149, 13 L.Ed.2d 87 (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 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 du
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.
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 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,
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 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, 498 U.S. 809, 111 S.Ct. 43, 112 L.Ed.2d 19 (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.
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....
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 another predefined crime.
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 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, 501 U.S. at 638, 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, 100 S.Ct. 1747, 1752, 64 L.Ed.2d 381 (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, 100 S.Ct. at 1751 n. 9. In proposing
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, 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 rather than concur
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, 503 U.S. 912, 112 S.Ct. 1279, 117 L.Ed.2d 505 (1992). The fact that 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. 1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991); United States v. Henry, 878 F.2d 937, 942 (6th Cir. 1989); United States v. Fontanilla, 849 F.2d 1257, 1258-59 (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, 501 U.S. at 631-32, 111 S.Ct. at 2496 (“In Arizona, first degree murder is only one crime regardless of whether it occurs as a premeditated murder or a felony murder.“) (quoting State v. Schad, 163 Ariz. 411, 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, 102 S.Ct. 1451, 71 L.Ed.2d 663 (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 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, 942 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.
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 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 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.”
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
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 (
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.
KING
CIRCUIT JUDGE