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273.9 Jury Unanimity As To Predicate Acts Of Compound Offenses

    273.9.1 Jury Unanimity Required As To Predicate Acts Which Are Elements
    273.9.2 Unanimity Required As To Acts Which Raise Different Factual Issues, Or Defense, Or Carry Disparate Sentencing Consequences
    273.9.3 Unanimity Required As To Timing Or Other Relationships Between Predicate Offenses Necessary For Compound Offense

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PRACTICE NOTE: In Richardson v. U.S. (1999) 526 US 813, 824 [119 SCt 1707; 143 LEd2d 985] the U.S. Supreme Court held that jury unanimity is required as a matter of law, as to predicate offenses under the federal Continuing Criminal Enterprise (CCE) statute (21 USC 848). Under Richardson, if statutory construction indicates that enumerated predicate acts or offenses are necessary elements of the overall, compound-offense crime, jurors must agree unanimously that the defendant committed a particular charged act or offenses before it can be counted as a predicate act under the ultimate compound-offense statute. (Ibid.)

    On the other hand, if the statutory construction indicates that such predicate acts or offenses are not discrete elements of the larger, compound-offense charge (but rather merely alternative means of committing that crime) jury unanimity may not be required as to those predicate acts or offenses. (Richardson, 526 US at 821.) While Richardson limited its holding to the CCE statute (Richardson, 526 US at 824), the criteria it applied are fundamental, and arguably apply to any federal or state statute requiring predicate acts to liability. (See e.g., California’s criminal street gang statute (Penal Code § 186.22) and Massachusetts’ stalking statute (see Commonwealth v. Martinez (MA 1997) 683 NE2d 699, 702 [stalking statute which requires more than two incidents of "following" requires jury to find a specific number of predicate offenses before finding the defendant guilty of the ultimate charge].)

RESEARCH NOTES:

See Eric S. Miller, "Compound-Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts," 104 Yale L.J. 2277 (1995).

See also generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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    273.9.2    Jury Unanimity Is Required As To Predicate Acts Which Require Different Factual Findings, Are Subject To Different Defenses, Or Carry Disparate Sentencing Consequences

PRACTICE NOTE: Even where courts determine that no categorical unanimity requirement exists as to predicate acts under a given statute, case specific considerations may entitle a particular defendant to a special jury unanimity instruction as to such predicate acts or offenses. For example, courts have rejected a unanimity requirements as to predicate acts under particular statutes by characterizing such predicate acts either as subsumed within a "continuous course of conduct" or as alternative means of committing a single offense. (See People v. Funes (CA 1994) 23 CA4th 1506, 1525 [28 CR2d 758] [no unanimity requirement as to predicate offenses under Criminal Street Gang statute, given California’s continuous course of conduct exception to unanimity rule].) Under either rationale, jurors need not agree as to which particular component acts a defendant committed as long as each juror is persuaded beyond reasonable doubt that the defendant committed a sufficient number of predicate acts for conviction.

    However neither the "continuous course of conduct" exception nor the "multiple theory/means" exception can dispel a defendant’s right to jury unanimity, as to predicate acts or offenses which require disparate factual findings, or which are subject to different defenses, or which carry disparate sentencing consequences. Such considerations preserve a defendant’s right to jury unanimity because a conviction premised on the consolidation of inconsistent or conflicting factual rationales may violate the due process and trial by jury provisions of the 5th, 6th and 14th Amendments and/or the applicable state constitution. (See FORECITE National™ 273.2 [Legal Authority For Requirement Of Juror Unanimity As To Which Act Constitutes The Charged Offense]; see also FORECITE National™ 273.3 [Jury Unanimity Required By 6th Amendment When More Than Two Acts Are Shown]; see also FORECITE National™ 273.4 [State Constitutions].)  For example in U.S. v. Russell (3rd Cir. 1998) 134 F3d 171, 177 the Circuit held that a RICO charge violated the 6th Amendment, where the record indicated many possible predicate offenses, but the verdict failed to indicate unanimity as to any one predicate act.

    This is so because "substantial agreement on a discrete set of actions is essential to ensure that the defendant is guilty beyond a reasonable doubt of some specific illegal conduct. [Citation]." (U.S. v. Edmonds (3rd Cir. 1996) 80 F3d 810, 819; see also Eric S. Miller, Compound/Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts (1995) 104 Yale L.J. 2277 (1995).)

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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    273.9.3    Jury Unanimity Is Required As To The Timing Or Other Relationships Between Predicate Offenses Which Must Be Shown For Conviction Of A Compound Offense

PRACTICE NOTE: Where a compound offense statute requires that predicate offenses have a specified relationship defendants are entitled to a special unanimity instruction as to the existence of that relationship. For example, California courts have held that offenses charged as establishing a pattern of illegal gang activity must have preceded an offense for which a "criminal street gang" enhancement is sought. (In re Nathaniel C. (CA 1991) 228 CA3d 990, 1000-04 [279 CR 236]; People v. Gamez (CA 1991) 235 CA3d 957, 965 [286 CR2d 894]; In re Lincoln J. (CA 1990) 223 CA3d 322, 328 [272 CR 852].) Jury unanimity is therefore logically required as to this finding.)

    A similar unanimity requirement exists as to other relationships between different offenses which are necessary elements of an ultimate guilty verdict. For example where a statute increases sentencing exposure for one crime, based on defendant’s intent to commit a related act or offense, jury unanimity is required as to defendant’s intent as to the enhancing act or offense. (U.S. v. Theodoropoulos (3d Cir.1989) 866 F2d 587, 597 [weapons violation conviction reversed because several guns in question were not sufficiently proximate to the crime scene to be considered to be "in relation to" the predicate drug offenses]; Luchenburg v. Smith (4th Cir. 1996) 79 F3d 388, 392 [counsel ineffective for failure to request instruction requiring preliminary guilty verdict finding for predicate crime of violence, as prerequisite to ultimate conviction on weapons charge]; People v. Estrada (CA 1997) 57 CA4th 1270, 1275 [67 CR2d 596] [special unanimity instruction required when defendant’s intent when entering building was relevant to sentencing].)

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].