United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-20165
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETE JOE VILLEGAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-238
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Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.
PER CURIAM:
Pete Joe Villegas was convicted by a jury of one count of
being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) (count one), and one count of possessing a firearm
that was not registered to him in the National Firearms
Registration and Transfer Records, in violation of 26 U.S.C.
§§ 5861(a), 5871 (count two). Villegas appeals, arguing
principally that the district court erred by failing to instruct
the jury that it had to make a unanimous finding as to at least one
of the nine firearms alleged in count one. We AFFIRM.
We review the district court’s refusal to give a
requested jury instruction for abuse of discretion. United States
v. Correa-Ventura, 6 F.3d 1070, 1076 (5th Cir. 1993). This court
has not had occasion to address the precise issue presented here -
whether a specific unanimity instruction is required when multiple
firearms are alleged in a single count charging a violation of
§ 922(g). Nevertheless, the opinion in Correa-Ventura and the
Supreme Court’s subsequent decision in Richardson v. United States,
526 U.S. 813 (1999), establish an analytical framework for
determining whether unanimity as to underlying facts supporting a
conviction is required. Also persuasive are the opinions of our
sister circuits in United States v. Verrecchia, 196 F.3d 294 (1st
Cir. 1999), and United States v. DeJohn, 368 F.3d 533 (6th Cir.
2004).
Although the right to a jury trial carries with it a
right to a unanimous verdict, absolute factual concurrence is not
mandatory and, indeed, would be unworkable. See Correa-Ventura,
6 F.3d at 1077-78. The duty of the court is to determine which
facts are necessary to constitute the crime and to require
consensus on those facts. Id. In making this determination,
courts should consider several factors, including statutory
language and construction, legislative intent, historical treatment
of the crime by the courts, duplicity concerns with respect to
defining the offense, and the likelihood of juror confusion in
light of the specific facts of the case. Id. at 1082. A court
should also consider the risk that allowing the jury to avoid
addressing specific factual details will cover up disagreement
among the jurors about the defendant’s conduct, or that the jury
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might convict based on evidence that generally paints the defendant
in a bad light rather than focusing on the facts of the case. See
Richardson, 526 U.S. at 820. Further, a court should ask whether
defining a crime that allows a jury to convict while disagreeing
about means “risks serious unfairness and lacks support in history
or tradition.” Id.
To begin, the plain language of § 922(g) prohibits any
person falling into one of nine categories from “possess[ing] in or
affecting commerce, any firearm or ammunition.” 18 U.S.C.
§ 922(g)(1). This language states that the element of the offense
is possession of any firearm. See Verrechia, 196 F.3d at 298.
Moreover, the fact that Congress juxtaposed an extensive list of
specific categories of persons prohibited from such possession -
felons, fugitives, illegal drug users and addicts, the mentally
ill, illegal aliens, persons discharged dishonorably from the
military, citizens who have renounced their citizenship, persons
subject to certain restraining orders, and persons convicted of
domestic violence - with the general term “any firearm” indicates
that the focus of § 922(g) is on the types of persons prohibited
from possession. See id. at 299.
The penalty provisions also emphasize the felon rather
than the firearm, as they turn not on the nature or quantity of
weapons but on the characteristics of the offender, such as his
knowing possession, his prior convictions, and whether the offender
qualifies for certain exceptional relief because he is not a threat
to public safety. See id.
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The legislative history of § 922(g) likewise indicates
that the statute’s emphasis is on preventing certain types of
persons from having access to firearms. See Ball v. United States,
470 U.S. 856, 863 n.12 (1985) (noting statement of Senator Tydings
that the statute was designed primarily to restrict access of
criminals, juveniles, and fugitives to handguns); Verrechia,
196 F.3d at 300 (setting out legislative history demonstrating that
Congress’s intent was to keep firearms out of the hands of felons
and others who could be dangerous); United States v. Berry,
977 F.2d 915, 919 (5th Cir. 1992) (the “evil Congress sought to
suppress by section 922 was the arming of felons; the section is
based on the status of the offender and not the number of guns
possessed”).
With respect to duplicity concerns, a violation of
§ 922(g) based on simultaneous possession of multiple firearms has
been treated uniformly as a single offense regardless of the number
of weapons involved. See United States v. Hodges, 628 F.2d 350,
351 (5th Cir. 1980) (discussing 18 U.S.C. § 1202, the predecessor
to § 922(g)); see also Verrechia, 196 F.3d at 297-98. This
mitigates any danger of duplicity because alternative factual
scenarios will support only one crime even if all are proven. See
Correa-Ventura, 6 F.3d at 1085.
Turning to the facts of this particular case, it is clear
that there was little to no likelihood of juror confusion. See id.
at 1086. The firearms were all found in a residence where Villegas
was located, including one firearm in a bag that Villegas attempted
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to grab while being arrested, one firearm under the mattress pad of
the bed Villegas had been using, and several firearms in a bag in
the bedroom between the bed and the wall. In addition, the
district court instructed the jury that it had to find that
Villegas “knowingly possessed one or more firearms as charged” and
told the jury that its verdict “must be unanimous on each count of
the indictment.” These facts weigh against a finding of juror
confusion.
In a similar vein, given the nature of the offense and
the uncomplicated facts, there was little risk of juror
disagreement about Villegas’s underlying conduct, i.e., possession
of a firearm, which mitigates the significance of any disagreement
about the particular firearm. See Verrechia, 196 F.3d at 301. It
is also unlikely that the lack of a specific unanimity instruction
increased the danger that the jury would ignore underlying factual
details and convict on an improper basis. See id.; see also
Richardson, 526 U.S. at 810.
For all of these reasons, the district court did not
abuse its discretion in refusing to instruct the jury that it had
to make a unanimous finding with respect to at least one of the
firearms set forth in count one of the indictment. We do not mean
to suggest, however, that such an instruction is never required in
a § 922(g) case, and we decline to speculate as to which factual
scenarios might require such an instruction. See Correa-Ventura,
6 F.3d at 1087; see also DeJohn, 368 F.3d at 542. Rather, such
determinations must be made on a case-by-case basis in
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consideration of the factors enunciated in Richardson and in
Correa-Ventura, 6 F.3d at 1087.
In a second point of error, Villegas argues, solely to
preserve the issue for Supreme Court review, that § 922(g) is
unconstitutional as applied because it requires a substantial
effect on interstate commerce, while the facts here established
only that the firearms traveled in interstate commerce at some
point in the past. As we have repeatedly held, “the
constitutionality of § 922(g) is not open to question.” United
States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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