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United States v. Echeverry

United States Court of Appeals, Ninth Circuit
Jan 31, 1983
719 F.2d 974 (9th Cir. 1983)

Summary

concluding that potential for such confusion exists when the jury presents questions indicating their confusion concerning multiple conspiracies

Summary of this case from U.S. v. Jimenez Recio

Opinion

No. 81-1630.

Argued and Submitted September 8, 1982.

Decided January 31, 1983. Order October 4, 1983.

Daniel H. Smith, Seattle, Wash., for defendant-appellant.

David Marshal, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, Chief Judge, TUTTLE and REINHARDT, Circuit Judges.

Honorable Elbert Parr Tuttle, Senior Judge, United States Court of Appeals for the Eleventh Circuit, sitting by designation.


The opinion, 698 F.2d 375, is modified by adding the following paragraphs:

The trial judge did give to the jury a single general instruction that their verdict had to be unanimous. This court has held that in a routine case when a jury is presented with multiple counts or schemes, it may be possible to protect the defendant's right to an unanimous jury verdict by such a general instruction. See United States v. Ferris, 719 F.2d 1405 (9th Cir. 1983) (a general unanimity instruction suffices when a case involving multiple acts within one count of an indictment is sufficiently clear in its presentation so that unanimity can be presumed); United States v. Friedman, 445 F.2d 1076 (9th Cir. 1971) (the jury must be presumed to have followed the unanimity instruction and all agreed to at least one of several possible conspiracies even though no specific instruction was given to that effect); Vitello v. United States, 425 F.2d 416 (9th Cir. 1970). See also United States v. Natelli, 527 F.2d 311 (2d Cir. 1975).

When it appears, however, that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice. To correct any potential confusion in such a case, the trial judge must augment the general instruction to ensure the jury understands its duty to unanimously agree to a particular set of facts. Such circumstances are certainly present in this case. The jury's written questions indicated their confusion concerning multiple conspiracies and should have alerted the trial judge to the potential for a nonunanimous verdict. See United States v. Mastelotto, 717 F.2d 1238 (9th Cir. 1983) (variance between the proof at trial and the indictment in a case involving multiple schemes to defraud presents such a potential for juror confusion that special unanimity instructions are required).

The Petition for rehearing is denied.


Summaries of

United States v. Echeverry

United States Court of Appeals, Ninth Circuit
Jan 31, 1983
719 F.2d 974 (9th Cir. 1983)

concluding that potential for such confusion exists when the jury presents questions indicating their confusion concerning multiple conspiracies

Summary of this case from U.S. v. Jimenez Recio

concluding that potential for such confusion exists when the jury presents questions indicating their confusion concerning multiple conspiracies

Summary of this case from U.S. v. Recio

concluding that potential for such confusion exists when the jury presents questions indicating their confusion concerning multiple conspiracies

Summary of this case from Villa v. Mitchell

reversing the defendant's conviction where jurors were instructed they could convict if they found the existence of a conspiracy for "some period of time" within the six months covered in the indictment, because different jurors may have concluded that the defendant committed different acts

Summary of this case from U.S. v. Johal

discussing importance of specific unanimity instruction to avoid jury confusion

Summary of this case from U.S. v. Garcia-Rivera

modifying 698 F.2d 375 (9th Cir. 1983)

Summary of this case from U.S. v. North

In Echeverry, the court held that the trial court must augment the general unanimity instruction "[w]hen it appears... that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts."

Summary of this case from Walker v. Neven

In Echeverry, the defendant was charged with conspiring to distribute cocaine throughout a seven-month period, from December 1980 to June 1981, and actual distribution of cocaine on three separate occasions.

Summary of this case from Walker v. Neven
Case details for

United States v. Echeverry

Case Details

Full title:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. CLARET ECHEVERRY…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jan 31, 1983

Citations

719 F.2d 974 (9th Cir. 1983)

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