Monday, July 30, 2018

US v. Mickey, No. 16-50343 (7-30-18)(McKeown w/Wardlaw & Donato).  Do the "means" of an offense constitute the ends of "elements" for unanimity purposes? Here, the 9th says "no" in a sex trafficking case.  The defendant was charged by the grand jury with four types of means used to sex traffic under 18 USC 1591(a) and (b)(1).  The statute reads that any combination of such means could be used.  At the end of a five day trial, with a number of victims, this "combination of means" wasn't good enough for the gov't.  The prosecutors asked for, and received, a more specific special verdict detailing the means and asking for special findings.  This led the jury to ask whether it had to be unanimous on the means.  The district court said "no," and denied the giving of a specific unanimity instruction for the means; general unanimity was sufficient.  The 9th affirmed this decision.  There were alternate means or ways to commit the crime.  The 9th chided the govt though injecting risk of error by asking the jury to decide on the means when a general unanimity was sufficient for "any combination of means."  The 9th also found no constructive amendment of the indictment took place.  The defendant had notice.

The decision is here:


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