Whether Specific Unanimity Instruction Is Required When Single 922(g) Count Alleges Multiple Firearms Must Be Determined On Case-By-Case Basis

United States v. Villegas, No. 06-20165 (5th Cir. July 25, 2007) (per curiam) (Jones, King, Davis)

Villegas was charged with being a felon in possession of a firearm, in a count that alleged nine different firearms. At trial, he requested that the court instruct the jury that it must make a unanimous finding as to at least one of the nine firearms. The court denied the instruction, and Villegas was convicted.

Villegas pressed that issue on appeal. The court observed that "[a]lthough the right to a jury trial carries with it a right to a unanimous verdict, absolute factual concurrence is not mandatory and, indeed, would be unworkable[,]" and that "[t]he duty of the court is to determine which facts are necessary to constitute the crime and to require consensus on those facts." Thus, the question of whether unanimity is required as to the factual basis for a conviction is a question that must be answered on a case-by-case basis after consideration of several factors from Richardson v. United States, and United States v. Correa-Ventura. Those factors include:

• "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 juror confusion in light of the specific facts of the case"
• "the risk that allowing the jury to avoid addressing specific factual details will cover up disagreement among the jurors about the defendant’s conduct, or that the jury might convict based on evidence that generally paints the defendant in a bad light rather than focusing on the facts of the case"
• "whether defining a crime that allows a jury to convict while disagreeing about means 'risks serious unfairness and lacks support in history or tradition'"

The court held that in this case, the Richardson-Correa-Ventura factors did not require a specific unanimity instruction. First, the text of the statute and its legislative history place the emphasis on the type of person who is prohibited from possessing a firearm, not on the firearm itself. Second, "simultaneous possession of multiple firearms has been treated uniformly as a single offense regardless of the number of weapons involved[,]" thus assauging duplicity concerns. Finally, given the facts of the case, there was little likelihood that the jurors would be confused, that they would disagree about Villegas's possession of a firearm (mitigating any disagreement about a particular firearm), or that they "would ignore underlying factual details and convict on an improper basis."

Although a specific unanimity instruction wasn't required here, the court made a point of saying that "[w]e do not mean to suggest, however, that such an instruction is never required in a § 922(g) case, and we decline to speculate as to which factual scenarios might require such an instruction." Note that the opinion doesn't flesh out the facts of this case in great detail, so there should be ample room to argue for such an instruction in other cases.