Failure to require the jurors to unanimously agree upon at least one of several offenses shown by the evidence is not reversible error when there is no basis in the evidence to differentiate among the acts. For example, United States v. Allen, 603 F.3d 1202, 1216 (10th Cir. Wyo., No. 09‑8008, 5/7/2010) held such an error harmless when the evidence suggested a “sharp choice” – either the defendant was guilty of all the alleged acts or none of them:
In short, because the four telephone calls occurred within a very short time span (about 62 minutes) and all involved Ms. Myhre coming to Ms. Allen's house within that time span (or returning to the house), the calls were very clearly related rather than separate incidents. The testimony suggested a sharp choice – either all the calls were about methamphetamine, as Ms. Myhre testified, or none were, as Ms. Allen testified. The jury was thus necessarily convinced beyond a reasonable doubt that the calls were all about methamphetamine. Any error in refusing to give an instruction requiring specific unanimity was clearly harmless beyond a reasonable doubt.
For subscription based briefing and sample instructions on this and related issues see:
Forecite NationalÔ
Forecite CaliforniaÔ
