Tuesday, September 25, 2007

Jury Unanimity as to Gun Not Required Under 922(g); TSR Condition Requiring Compliance with State Sex Offender Registration Laws OK

United States v. Talbert, No. 06-31233 (5th Cir. Sept. 25, 2006) (Higginbotham, Garza, Benavides)

Although brief, this opinion breaks new ground for the Fifth Circuit on two important issues: 1) whether the felon-in-possession statute, 18 U.S.C. § 922(g), requires jurors to unanimously agree that the defendant possessed a particular gun, and 2) whether a district court may order a defendant to comply with a state sex offender registration scheme as a condition of supervised release.

Gun Unanimity Under § 922(g)
Talbert's indictment alleged that he possessed two guns which were found in his car on the night of his arrest. At trial, the court instructed the jury, over Talbert's objection, that
[i]t is not necessary for the government to prove that the defendant possessed both firearms. It is only necessary that you find that the government has proven beyond a reasonable doubt that the defendant possessed a firearm.

On appeal, Talbert argued that this instruction
improperly allowed conviction even if the jurors were not unanimous as to which gun he actually possessed. This is not just theoretical, he asserts, because defense witnesses at his trial testified that the two guns were left in the vehicle on separate occasions, one days or weeks before the arrest and the other on the day of arrest. Consequently, he asserts, jurors may have disagreed as to which gun he knowingly possessed.

The court rejected Talbert's argument, adopting the reasoning of the First Circuit's decision in United States v. Verrecchia:
  1. § 922(g) refers to "any firearm," suggesting that "any firearm" is the element and the particular firearm is the means;
  2. the statutory structure and legislative history focus on felon status rather than the number of guns possessed;
  3. "Usually, the only issue under § 922(g)(1) is whether the defendant possessed a gun, so there is little risk that jurors will ignore underlying factual detail."; and
  4. other courts, including the Fifth Circuit, have held that unanimity on a particular firearm is not required under § 924(c).
Requiring State Sex Offender Registration as a Condition of Supervised Release
"At sentencing, the district court voiced concern about Talbert’s lengthy and serious prior criminal history, particularly his two state convictions for sex-related offenses." After asking Talbert whether he'd ever been required to register as a sex offender under state law, the court stated that it was "reserv[ing] to the probation department the right to order him to do that[.]" The written judgment "included as a 'Special Condition' of supervised release that Talbert 'shall register as a sex offender under state law if required to do so.'"

On appeal, Talbert challenged the condition itself, as well as the district court's delegation to the probation officer. The court rejected both arguments. It construed the written condition as a requirement that Talbert obey the law, which a district court may include as a condition of supervised release. (It left open the question of whether a court can required a defendant to register as a sex offender in the absense of state law requiring such registration.) As for the delegation question,
Presumably whether Talbert is required to register under state law is a mechanical, straightforward question – one the court did not address merely for lack of definitive information about Talbert’s prior sex-related convictions and state law. This, along with the fact that probation officers are often given wide discretion in enforcing conditions of supervised release–indeed, the United States Probation Office is a branch of the federal judiciary and “an investigatory and supervisory arm” of the sentencing court, see United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998)–lead us to find no error in with the discretion given here.

We'll leave for another day the question of whether application of a state sex offender registration scheme is as mechanical and straightforward as the court believes, not to mention the troubling separation-of-powers concerns raised by the grant of investigatory and quasi-prosecutorial duties to an agency within the judicial branch.

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