dissenting.
In my judgment, the trial evidence and the jury instructions in this case lead to the inescapable conclusion that Phillips was denied both his right to be tried only on an *1370indictment returned by a grand jury, and his right to a unanimous jury verdict. In its zeal to uphold a conviction that is fatally flawed in these two constitutional respects, the majority wishes these problems away by mischaracterizing the issues, misreading the indictment, and relying on inapposite cases. Because I find the majority opinion legally and logically unsound, I respectfully dissent.
I.
The right to be tried only upon charges considered and returned by a grand jury is not a constitutional curiosity that the passage of time has rendered obsolete. In a recent discussion of the issue, the Supreme Court reaffirmed the “importance of a grand jury’s intervention as ‘a substantial safeguard against oppressive and arbitrary proceedings,’ ” and pointedly observed that “ ‘the grand jury is designed to interpose an independent body of citizens between the accused and the prosecutor and the court.’ ” United States v. Miller, 471 U.S. 130, 143 n. 7, 105 S.Ct. 1811, 1819 n. 7, 85 L.Ed.2d 99 (1985) (citations omitted). The Court confirmed the continuing vitality of “[t]he proposition that a defendant cannot be convicted of an offense different from that which was included in the indictment.” Id. at 142, 105 S.Ct. at 1818. In so doing, the Court condemned practices by which
“ ‘the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says “no person shall be held to answer,” may be frittered away until its value is almost destroyed.’ ”
Id. at 142-43, 105 S.Ct. at 1818 (quoting Ex parte Bain, 121 U.S. 1, 10, 7 S.Ct. 781, 786, 30 L.Ed. 849 (1887)).
The superseding indictment in this case charged Phillips as follows:
“COUNT I
“On or about the 11th day of December 1985, at Santa Fe, in Santa Fe County, in the State and District of New Mexico, the defendant, HAROLD LLOYD PHILLIPS, aka Phil Phillips, aka Jimmy Needham, aka J.A. Needham, with unlawful and fraudulent intent, did willfully cause to be transported in interstate commerce to Santa Fe, in the State and District of New Mexico, from Andrews, Texas, a falsely made and forged security, to wit: Check No. 2649 of the United States Vacuumite Corporation account, Account Number 00-3958-6 drawn on the Capital Bank of Santa Fe, dated December 5,1985, payable to J.A. Needham in the amount of $389.20, on which the signature of the authorized maker was forged and falsely made and the defendant then and there knew said check to be forged and falsely made.
“In violation of 18 U.S.C. 2314.
“COUNT II
“On or about the 12th day of December, 1985, at Santa Fe, in Santa Fe County, in the State and District of New Mexico, the defendant, HAROLD LLOYD PHILLIPS, aka Phil Phillips, aka Jimmy Needham, aka J.A. Needham, with unlawful and fraudulent intent, did willfully cause to be transported in interstate commerce to Santa Fe, in the State and District of New Mexico, from Littlefield, Texas, a falsely made and forged security, to wit: Check No. 2470 of the United States Vacuumite Corporation account, Account Number 00-3958-6 drawn on the Capital Bank of Santa Fe, dated December 5, 1985, payable to J.A. Needham in the amount of $389.20, on which the signature of the authorized maker was forged and falsely made and the defendant then and there knew said check to be forged and falsely made.
“In violation of 18 U.S.C. 2314.”
Rec., vol. I, doc. 17 (emphasis added).
The Government presented evidence at trial that the Vacuumite checking account upon which the checks were drawn had been closed long before the date on which the checks were written. Two store clerks identified Phillips as the person who had cashed the checks, and testified that Phillips had represented himself as J.A. Need-ham, the payee. The Government also in*1371troduced evidence that George Smith, the maker of the checks, was not an authorized maker on the signature card for the closed Yacuumite account. The Government’s handwriting expert, who was asked to compare Phillips’ handwriting with the J.A. Needham endorsement signature on the two subject checks, gave his qualified conclusion that there was a slight possibility Phillips had endorsed the checks. When questioned by the court out of the presence of the jury, the expert stated that he could not give an opinion as to whether the maker of the checks was the same person who endorsed the checks.
The court asked the Government what evidence demonstrated that the checks were forged and falsely made. The Government responded by pointing to the testimony that Phillips had used a fictitious name in representing himself to be the payee Needham. After the parties had rested, the court again requested the Government to state precisely “what its theory is in reference to what constitutes the conduct of the defendant, the alleged conduct of the defendant, which violates the language of the statute; falsely made or forged.” Rec., vol. IV, at 350. The Government answered that Phillips had violated the statute because the checks had an unauthorized signature as maker, or had a fictitious payee, or were drawn on a non-existent account. Significantly, the Government further stated that these were alternative theories, any one of which would support defendant’s conviction.
The court’s jury instruction tracked the Government’s alternative theories of viola-, tion by stating that:
“A check is falsely made or forged for the purpose ... of this law and this case if: one, the maker of the check was not authorized to sign on the account of which check was drawn; or two, the check was drawn on a closed account; or three, the check was made payable to a fictitious payee and proof of any one or more of these is sufficient.
Id. at 405 (emphasis added).
Phillips contends on appeal that the above instruction constitutes a constructive amendment of the indictment.1 In my judgment, the record in this case makes such a conclusion unavoidable. “An indictment is constructively amended if the evidence presented at trial, together with the jury instructions, raises the possibility that the defendant was convicted of an offense other than that charged in the indictment.” United States v. Apodaca, 843 F.2d 421, 429 (10th Cir.1988). The indictment here set forth a single theory of criminal liability by charging that the statute was violated because the signature of the maker was forged and falsely made. The Government argued at trial, however, that Phillips had violated the statute not only because the maker was unauthorized, but alternatively because the payee was fictitious, and/or the account was non-existent. The evidence and the court’s instructions encompassed these latter two means of violating the statute even though they had not been set out in the indictment. Phillips was thus subjected to criminal liability on facts and theories not returned by the grand jury. Other courts have construed analogous expansions of an indictment as impermissible constructive amendments. See United States v. Adams, 778 F.2d 1117, 1124-25 (5th Cir.1985) (“when only one particular kind of falsity is charged to have been made ..., a conviction must rest on that charge and not another”); United States v. Yeo, 739 F.2d 385, 386-87 (8th Cir.1984) (defendant cannot be convicted under instruction including extortionate acts not set out in indictment); United States v. Cusmano, 659 F.2d 714, 719 (6th Cir.1981) (defendant charged with extortion through threat of economic loss cannot be convicted *1372under instruction including threats of physical violence), cert. denied, 467 U.S. 1252, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984); United States v. Jones, 647 F.2d 696, 700 (6th Cir.) (defendants charged with illegally making and constructing a bomb cannot be convicted under instruction on illegally possessing a bomb), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981). In the instant case, as in those cited above, the instructions constructively amended the indictment by expanding the bases of criminal liability.
The majority does not distinguish or even acknowledge these highly relevant decisions. Instead, the majority relies on the language in four cases, all of which concern the facial sufficiency of an indictment and none of which address the issue of constructive amendment. See United States v. Freeman, 813 F.2d 303, 304-05 (10th Cir.1987); United States v. Maggitt, 784 F.2d 590, 598 (5th Cir.1986); United States v. Martin, 783 F.2d 1449, 1452 (9th Cir.1986); United States v. Joseph, 781 F.2d 549, 554 (6th Cir.1986). In each of these cases, the defendant alleged that the indictment or information was deficient on its face because it failed to set out the elements of the crime of which he was convicted. The issue in each case was thus whether the indictment or information provided the defendant with adequate notice of the charges against him. The discussion in those cases cited and quoted by the majority dealt solely with the issue of notice, and simply has no bearing on an assertion of constructive amendment.
The majority’s concern with notice appears to derive from its belief that the indictment gave Phillips sufficient notice of a possible fictitious payee and a closed account, and that the grand jury therefore necessarily had to have considered and returned those charges. Not surprisingly, the majority cites no authority for this novel approach. The fundamental flaw in the majority’s analysis is its attempt to equate the issue of notice with the issue of constructive amendment. Indeed, except for a perfunctory reference to the right to be tried only on an indictment returned by a grand jury, a reader of the majority’s analysis and authorities would conclude that Phillips had alleged a facially insufficient indictment, rather than the constructive amendment of an indictment the facial validity of which he has not challenged. Although two of the purposes of an indictment are to provide a defendant with notice of the charges against him and to ensure that he is tried only on charges found by a grand jury, these two functions are separate. They involve different considerations and different dispositive factors. See generally United States v. Radetsky, 535 F.2d 556, 561-65 (10th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976), (distinguishing between notice and grand jury guaranty). Even assuming that the indictment at issue here gave Phillips some notice of the Government’s intent to present evidence of an unauthorized payee and a closed account — an issue not as clear as the majority would have it — that question is simply irrelevant to whether the grand jury actually returned those charges upon a finding of probable cause.
As the majority emphasizes, the indictment alleges that Phillips was also known as J.A. Needham and that the checks were payable to J.A. Needham. However, a check is not forged or falsely made when it is payable to a person using a fictitious name if the maker intends the check to be paid to that person.2 The grand jury, while obviously believing that Phillips sometimes used the name Needham and that the check was made out to Needham, nonetheless did not charge that an otherwise genuine check was forged or falsely made because a fictitious payee was inserted to enable an unauthorized payee to cash the check. See, e.g., Gearing v. United, 432 F.2d 1038, 1041 (5th Cir.1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). Rather, the grand jury specifically charged *1373an unauthorized maker. I do not believe that the mere recitation of “aka J.A. Need-ham” and “payable to J.A. Needham” constitutes a grand jury charge that the check was forged and falsely made because the payee was fictitious. If anything, the grand jury’s refusal to make such a specific charge, despite its belief that Phillips used the name J.A. Needham, should be viewed as a grand jury finding that probable cause did not exist to charge a forged or falsely made check resulting from a fictitious payee.
An even more untenable result of the majority’s analysis is the conclusion that the grand jury charged a closed account by merely reciting, without more, the account number and the bank. When the grand jury charges a statutory violation by specific conduct, courts and prosecutors are simply not at liberty “ ‘to change the charging part of an indictment to suit [their] own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes.’ ” Stirone v. United States, 361 U.S. 212, 216, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960) (quoting Ex parte Bain, 121 U.S. at 10, 7 S.Ct. at 786). As discussed, above, the majority’s “notice” theory of constructive amendment achieves exactly the result proscribed in Stirone.
Finally, the majority’s analysis here is contrary to our decision in United States v. Sloan, 811 F.2d 1359 (10th Cir.1987). There the defendant was indicted for kidnapping the victim by force in violation of 18 U.S.C. § 1201.3 However, the court in Sloan instructed the jury that “ ‘[w]hoever unlawfully seizes, confines, inveigles, decoys, kidnaps, or carries away ... any per-, son’ is guilty of violating 18 U.S.C. § 1201.” Id. at 1363 (emphasis added in Sloan). The evidence in the case was equivocal regarding the use of force and tended to indicate that the victim initially complied with the defendant’s wishes because of a falsehood he told her. Id. Citing Stirone, we reversed the conviction because “[t]he defendant was not charged with inveigling or decoying his victim. The indictment charged that the victim was ‘seized, abducted, confined, and kidnapped,’ and the expedient of instructing the jury in the language of the statute violated the Fifth Amendment by effectively adding elements not charged.” Id.
I can see no significant distinction between Sloan and this case. The elements of a violation of section 1201, in addition to the interstate component, are “(1) knowing and willful kidnapping, [and] (2) an intent to gain a benefit from that seizure.” United States v. Crosby, 713 F.2d 1066, 1070 (5th Cir.), cert. denied, 464 U.S. 1001, 104 S.Ct. 506, 78 L.Ed.2d 696 (1983). “Comprehensive language was used [in the statute] to cover every possible variety of kidnapping followed by interstate transportation.” Chatwin v. United States, 326 U.S. 455, 463, 66 S.Ct. 233, 237, 90 L.Ed. 198 (1946). Presumably the indictment in Sloan set out the date of the alleged kidnapping and other pertinent details, just as the indictment here gave the number of the falsely forged check, the account on which it was drawn, and other details. But here, as in Sloan, the grand jury particularized how the statute was violated and because it did so, Stirone and Sloan tell us that it is a violation of the Fifth Amendment for the trial court “ ‘to change the charging part of an indictment to suit its own notions of what it ought to have been.’ ” Sloan, 811 F.2d at 1363 n. 6 (quoting Stirone, 361 U.S. at 216, 80 S.Ct. at 273).
In sum, I would reverse on the ground that the indictment in this case was constructively amended in violation of the Fifth Amendment.
II.
Even if I believed that the indictment had not been constructively amended, I *1374could not vote to affirm the conviction because Phillips was denied his right to a unanimous jury verdict. The court instructed the jury that it could find Phillips guilty of forgery if he committed any one of three distinct acts: (1) passing a check with an unauthorized signature, (2) passing a check on a closed account, or (3) passing a check made payable to a fictitious payee. The court did not tell the jury that it had to agree unanimously on at least one of these theories. The prosecution presented considerable proof that Phillips committed the latter two acts and arguably presented sufficient evidence to support a conclusion that he passed a check with an unauthorized signature as well. See maj. op. at 1366 n. 1. Thus, a genuine possibility exists that the jury did not unanimously agree on what criminal act Phillips committed. Under these circumstances, the court’s failure to instruct the jury that each member had to agree that Phillips committed the same criminal act constitutes reversible error. United States v. Beros, 833 F.2d 455, 461 (3rd Cir.1987); United States v. Echeverry, 719 F.2d 974, 975 (9th Cir.1983).
Fed.R.Crim.P. 31(a) governing verdicts in federal criminal trials states that “[t]he verdict shall be unanimous.” This practice is so well settled that a majority of the Supreme Court held in the companion cases of Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) and Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), that a unanimous jury verdict requirement is implicit in the Sixth Amendment. See 406 U.S. at 395, 92 S.Ct. at 1650 (Brennan, J., dissenting) (“a majority of the Court agrees that the Sixth Amendment requires a unanimous verdict in federal criminal jury trials”).4 As Justice Powell articulated:
“In an unbroken line of cases reaching back into the late 1800’s, the Justices of [the Supreme] Court have recognized, virtually without dissent, that unanimity is one of the indispensable features of federal jury trial. In these cases, the Court has presumed that unanimous verdicts are essential in federal jury trials, not because unanimity is necessarily fundamental to the function performed by the jury, but because that result is mandated by history. The reasoning that runs through [the] Court’s Sixth Amendment precedents is that, in amending the Constitution to guarantee the right to jury trial, the framers desired to preserve the jury safeguard as it was known to them at common law. At the time the Bill of Rights was adopted, unanimity had long been established as one of the attributes of a jury conviction at common law. [I]n accord both with history and precedent, ... the Sixth Amendment requires a unanimous jury verdict to convict in a federal criminal trial.”
Id. at 369-71, 92 S.Ct. at 1635, 1637-38 (citations and footnotes omitted). Although a majority of the Court has held that the unanimity requirement does not apply to the states, the Court has unanimously agreed that no verdict can withstand constitutional scrutiny if less than six jurors can agree. Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979) (six person jury must be unanimous); see Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978) (Sixth Amendment requires at least six jurors in criminal trial).
The instructions in the instant case not only permitted the jury to return a non-unanimous verdict of guilty, but actually allowed a conviction if only four jurors agreed upon any one criminal act committed by Phillips. For example, four jurors *1375may have believed that Phillips passed á check with a forged signature, but not that he passed a check on a closed account or one payable to a fictitous payee; four jurors may have believed that Phillips cashed a check on a closed account, but not that he committed the other two acts; and finally, four jurors may have believed that Phillips only criminal act was passing a check made payable to a fictitious payee. Cf United States v. Gipson, 553 F.2d 453, 458 n. 8 (5th Cir.1977) (presenting a similar example).
The Supreme Court has never defined what is meant by a unanimous jury verdict. Most importantly for this case, the Court has never decided whether a defendant’s right to a unanimous jury verdict is denied where a criminal statute provides a number of ways of satisfying the actus reas element of the offense charged and not all members of the jury agree upon which act the defendant committed although they agree he committed one of the prohibited acts. “A superficial analysis of the problem might yield the conclusion that since every juror was still required to find all elements of the charged offense present in order to convict the defendant, there was necessarily unanimous jury agreement as to his guilt.” Gipson, 553 F.2d at 457. This simplistic analysis has been roundly rejected, however, because it conflicts with the proper interpretation of the function of the jury and the desirability of a unanimous verdict. The Third, Fifth, and Ninth Circuits have explicitly rejected the view that if the jury is in complete agreement as to the defendant’s guilt, and sufficient evidence supports a finding of guilt under some applicable theory, an appellate court must affirm the conviction.5 Beros, 833 F.2d at 461; United States v. Payseno, 782 F.2d 832, 834-37 (9th Cir.1986); Gipson, 553 F.2d at 457-58. In the words of Judge Higgenbotham,
“Just as the sixth amendment requires jury unanimity in federal criminal cases on each delineated offense that it finds a defendant culpable, ... it must also require unanimity regarding the specific act or acts which constitutes that offense. Absent such certainty, the unanimity requirement would provide too little protection in too many instances.”
Beros, 833 F.2d at 461 (citation omitted).
In my judgment, this conclusion is undoubtedly correct. While it is true that within our legal system a unanimous jury has the unconstrained power to pronounce a defendant innocent of the charges against him no matter how compelling the government’s proof, the jury has no similar power to find a defendant guilty. Criminal sanction requires at least two distinct elements: the defendant must possess the requisite criminal intent, mens rea; and he must have committed a criminal act, actus reas. If only the former requirement were relevent, the role of the jury might be limited to the ultimate question of guilt, because a unanimous finding of guilt necessarily connotes unanimous agreement that mens rea existed. Within the American criminal justice system, however, a jury may not pronounce a man guilty solely because it unanimously believes he has the requisite criminal intent necessary to violate a statute. It must also find that he committed a criminal act prohibited by the statute. Cf. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939) (holding statute unconstitutionally vague for failure to condemn a specific act or omission). Thus, the constitutional right to trial by jury is the right “to have a jury pass on the ultimate question of guilt or innocence and to ascertain the facts relevant to that determination.” 2 W. LaFave & J. Israel, Criminal Procedure § 21.1 (Supp.1987) (emphasis added).
*1376Because the jury’s prerogative to pronounce a man guilty is limited in these two ways, I can imagine no rationale that would render constitutionally unnecessary a unanimous verdict as to a federal defendant’s particular criminal act. Because a criminal sanction can only be justified by a finding of a criminal intent and a criminal act, and a reliable intent finding requires agreement by twelve members of a federal defendant’s community, logic requires us to conclude that similar agreement as to that defendant’s criminal act is constitutionally required. See Case Comment, Right to Jury Unanimity on Material Fact Issues: United States v. Gipson, 91 Harvard Law Review 499, 501 (1977) (“The Fifth Circuit was correct in holding that the sixth amendment requires that a federal jury conviction rest upon a consensus on a specific actus reas, in addition to a general agreement on the guilt of the defendant.”).
Judge Wisdom, writing for the court in Gipson, recognized a twofold problem with an unqualified requirement of unanimity as to criminal act. First, the distinction between certain acts may be no more than subjective conceptualization. For example, “[t]he single act of keeping a vehicle in a certain place may constitute both concealing and storing.” Gipson, 553 F.2d at 458. Similarly, the difference between two acts may be no more than a definitional distinction. For example, “[o]ne juror may view a defendant’s actions in housing a stolen vehicle as receiving, while another juror may conclude that the same actions constitute concealing or storing.” Id. The Fifth Circuit suggested in Gipson that such distinctions should not be deemed to undermine the unanimity of the jury’s verdict. I agree, because this conclusion necessarily assumes that the jury unanimously agreed as to the defendant’s actual behavior, although its members may not have agreed to the name attached to that behavior.
The problem recognized in Gipson is not relevant to the instant case. The three acts prohibited by the statute under which Phillips was tried, although they could all be performed at the same time, are conceptually and definitionally distinct. Differentiating between passing a check with an unauthorized signature, passing a check on a closed account, and passing a check made payable to a fictitious payee “presents neither the conceptualization nor the characterization problems posed by distinguishing" between storing and receiving stolen merchandise. Gipson, 553 F.2d at 458. “The individual jurors and the collective jury could be expected to perceive and understand” the distinctions between the three relevant acts in this case. Id. In other words, Phillips’ jury found that he cashed a check, but the relevant criminal act was not cashing a check but doing so in one of three proscribed ways. Since the instructions permitted the jury to return a verdict of guilty without agreement on which of the proscribed acts the defendant did, and rational jurors could easily distinguish between those acts, the omission of a specific unanimity instruction constituted constitutional error.
This circuit’s two previous encounters with the unanimous jury issue constitute a larger obstacle to the adoption of my position by a panel of this court. In United States v. McClure, 734 F.2d 484, 494 (10th Cir.1984), we upheld a conviction where the instructions permitted the jury to find the defendant guilty if some of the jurors believed that he possessed a pound of cocaine and others believed he possessed a separate package containing a gram. Similarly in United States v. Barton, 731 F.2d 669 (10th Cir.1984), we upheld a conviction where the instructions permitted the jury to find the defendant guilty of possession of a firearm if he possessed it during one of two specific transactions. In both cases, we purported to adopt Gipson’s reasoning, but to distinguish its facts. Unlike Gipson and every other circuit court opinion to address the issue, however, our opinions adopted the maxim that as long as the jurors probably agreed that the defendant did some prohibited act at some time or other, the verdict must stand.6 McClure, *1377734 F.2d at 494 (holding unanimous finding of connection to cocaine sufficient); Barton, 731 F.2d at 673 (holding unanimous finding of possession sufficient). To the extent that McClure and Barton prevent this court from adopting my position, I believe that we should reconsider their reasoning.
In sum, I would follow the well reasoned decisions of the Third, Fifth, and Ninth Circuits, and hold that the verdict in a federal trial must be unanimous as to the criminal act of the defendant.
I would reverse.
. In its brief on appeal, the Government simply did not respond to Phillips' contention that a constructive amendment occurred. Instead, it criticized Phillips for not objecting to the indictment before trial, an absurd argument in that the error Phillips raises did not take place until the trial. The Government also argued that the instructions correctly stated the law and were supported by the evidence. Assuming these two facts to be true, they have no bearing on Phillips’ assertion that the evidence and instructions impermissibly broadened the basis of his criminal liability from that set out in the indictment.
. Under the definition of "fictitious payee” in Black’s Law Dictionary, it is stated:
"Negotiable instrument is drawn to fictitious payee whenever payee named in it has no right to it, and its maker does not intend that such payee shall take anything by it.”
Black's Law Dictionary 562 (5th ed. 1979).
. Section 1201 provides in relevant part:
“(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a • minor by the parent thereof, when:
"(1) the person is willfully transported in interstate or foreign commerce;
shall be punished by imprisonment for any term of years or for life.”
. In Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), Justices Burger, White, Blackmun and Rehnquist concluded that the Sixth Amendment does not require jury unanimity and accordingly approved a state court conviction based on a less-than-unanimous verdict. Justices Douglas, Brennan, Marshall, and Stewart concluded that a unanimous verdict is an essential element of the Sixth Amendment right to a jury trial, and that this right was made applicable to state criminal trials by the Fourteenth Amendment. Justice Powell concluded that although the Sixth Amendment requires a unanimous verdict in federal trials, this requirement is not incorporated into the Due Process Clause of the Fourteenth Amendment, and therefore does not apply to the states.
. The issue Phillips raises in this case is distinct from a challenge to the sufficiency of the evidence.
"[A]bsent competent evidence to the contrary, a court has no reason to assume that an inconsistent or compromise verdict is not unanimous, and therefore has no justification for inquiring into the logic behind the jury’s verdict. The situation here is different. [The defendant’s] non-unanimity challenge is based not on the result reached by the jury, but on a court instruction that may have judicially sanctioned a non-unanimous verdict."
Gipson, 553 F.2d at 457 (footnote omitted).
. In McClure, we also held that a general unanimity instruction must be presumed adequate. *1377This portion of our panel opinion (if not the entire opinion) must be viewed with some suspi-. cion, however, because the panel members labored under the mistaken impression that a unanimous jury verdict was not constitutionally-required. See McClure, 734 F.2d at 495 (incorrectly citing Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), for the proposition that "jury unanimity not required by the sixth amendment” when in fact five justices concluded otherwise).