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UNITED STATES OF AMERICA v. BEN GRANBERRY, Defendant.

Robert L. Hinkle United States District Judge

ORDER ON JURY INSTRUCTION ADDRESSING MULTIPLE FIREARMS

The indictment charges the defendant with possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g). The indictment identifies six firearms. As is clear and as both sides apparently agree, a conviction would be proper based on possession of any one of the six firearms. The defendant asserts the jury must unanimously agree on which firearm the defendant possessed. The government asserts the jury need only unanimously find that the defendant possessed a firearm listed in the indictment—that it would be sufficient if some jurors found he possessed one firearm while others found he possessed a different firearm.

To date, neither side has cited authority on this issue. Several circuits have resolved the issue in the government's favor. See United States v. Pollock, 757 F.3d 582, 587-88 (7th Cir. 2014); United States v. Talbert, 501 F.3d 449, 452 (5th Cir. 2007); United States v. DeJohn, 368 F.3d 533, 542 (6th Cir. 2004); United States v. Verrecchia, 196 F.3d 294, 296-301 (1st Cir. 1999); United States v. Sims, 975 F.2d 1225, 1240-41 (6th Cir. 1992). The draft jury instructions that are being circulated simultaneously with this order follow these decisions.

If the defendant cites controlling or persuasive authority that supports its position, or if the government consents, this language could be added to the instructions:

The government does not have to prove that Mr. Granberry possessed all six of the firearms described in the indictment. Any one of the firearms would be sufficient—but only if you unanimously agree that Mr. Granberry possessed that specific firearm. It would not be sufficient for some of you to find Mr. Granberry possessed one firearm and others to find only that Mr. Granberry possessed a different firearm.

This language has been provided here for discussion only; the current plan is not to give it.

SO ORDERED on December 3, 2018.

s/ Robert L. Hinkle


United States District Judge

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United States v. Granberry
(Dec 3, 2018)