concurring in part and dissenting in part.
I agree with the court that the defendant’s conviction should be affirmed, but I cannot accept the conclusion that the trial judge erred in refusing to instruct the members of the jury that they were required to agree unanimously with respect to the particular offenses that made up the “continuing series” of violations that were necessary for the defendant’s conviction under the Continuing Criminal Enterprise (“CCE”) statute, 21 U.S.C. § 848. Unlike the majority, I am convinced that Congress had no intention of imposing such a requirement when it enacted the CCE statute. I also conclude that such an instruction is not constitutionally required.
For these reasons, I concur in the judgment, but I join only part III of the court’s opinion, which discusses harmless error. I approve this part of the court’s opinion because, assuming for the sake of argument that the trial judge erred, I agree with the court that the error was harmless. I also join Judge Garth’s opinion, but I write separately to explain in somewhat different terms why I disagree with the court’s analysis of the jury-unanimity issue.
I.
I will first address the majority’s statutory interpretation argument, i.e., its argument that Congress meant to include as part of the CCE statute a special jury-unanimity requirement that is independent of that contained in Fed.R.Cr.P. 31(a) (which simply requires a unanimous “verdict”) and of constitutional requirements (which I discuss in Part II of this opinion). I think that the majority’s interpretation of the CCE statute is wrong because it has no support in the language or legislative history of the CCE statute and because Congress has not followed the practice of including special jury-unanimity requirements as a part of criminal statutes (other than a few recent statutes setting out capital sentencing procedures.)1
A. The pertinent part of the CCE statute, 21 U.S.C. § 848(c), provides as follows:
For purposes of subsection (a) of this section [which sets out penalties], a person is engaged in a continuing criminal enterprise if—
(1) he violates any provision of this sub-chapter or subchapter II of this chapter the punishment for which is a felony, and
(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter—
(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and
(B) from which such person obtains substantial income or resources.
There is nothing in this language or any other portion of the CCE statute that even hints that Congress intended to require jury unanimity with respect to the particular offenses needed to satisfy 21 U.S.C. § 848(e)(2) — and the majority does not contend otherwise. See Maj. Op. at 815. Indeed, the majority does not identify any statutory language that could serve as a reference point for its interpretation. Thus, even if there were extra-textual support for the proposition that Congress intended to impose a special jury-unanimity requirement in CCE cases, the majority’s interpretation would run into difficulty, for as the Supreme Court has noted, “ ‘courts have no authority to enforce [a] principle] gleaned solely from the legislative history that has no statutory reference point.’ ” Shannon v. United States, — U.S.-,-, 114 S.Ct. 2419, 2426, 129 L.Ed.2d 459 (1994) (citation omitted); accord United States v. Fisher, 10 F.3d 115, 120 (3rd Cir.1993).2
*830B. Finding no support for a special jury-unanimity requirement in the language of § 848(c), I turn to the legislative history of that provision, and again I find no support. As the majority states, neither the parties nor the majority itself has unearthed any indication in the legislative history that Congress intended to adopt such a special requirement. See Maj. Op. at 818. Thus, the two sources on which we most frequently rely in interpreting statutes, the statutory language and the legislative history, provide no basis for holding that § 848(c) contains á special jury-unanimity requirement — or even for concluding that there is any ambiguity on this point.
C. If this is not enough to refute the majority’s interpretation, any remaining doubt must vanish when it is noted that Congress has not customarily included special jury-unanimity requirements in federal criminal statutes (other than the few I mentioned earlier that concern capital sentencing procedures). Indeed, I have not found any federal criminal statutes outside the field of capital sentencing that contain special unanimity requirements. If I have overlooked any, I hope that my colleagues in the majority will call them to my attention. But if I am right that Congress, as a uniform or general practice, has not adopted such special unanimity requirements, that practice seems to me to be telling. With no congressional custom of adopting such special unanimity requirements and no hint in the statutory language or legislative history that Congress meant to break new ground and impose such a requirement under § 848(c), I think that the majority’s interpretation can confidently be rejected.
D. The majority claims that its interpretation of § 848(c) is supported by two canons of construction — the rule of lenity and the rule that an ambiguous statute should be interpreted where possible to avoid “ ‘grave and doubtful constitutional questions.’ ” Maj. Op. 819 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836 (1909)). Neither of these canons, however, is applicable here. Both canons may properly be invoked only when the statute in question is legitimately ambiguous on the point at issue. These canons are, after all, tools for identifying, not overriding, congressional intent. As the Supreme Court recently noted, the rule of lenity “applies only if, ‘after seizing everything from which aid can be derived,’ we can make ‘no more than a guess as to what Congress intended.’” Reno v. Koray, — U.S. -, -, 115 S.Ct. 2021, 2029, 132 L.Ed.2d 46 (1995) (citation omitted); See also United States v. Turcks, 41 F.3d 893, 901 (3d Cir.1994) (rule of lenity “operates only after it is determined that a criminal statute is ambiguous, not at the beginning of the process of construction, as an overriding consideration of being lenient to wrongdoers”) (citation and internal quotations omitted); United States v. Lanier, 73 F.3d 1380, 1390 (6th Cir.1996) (when applying the rule of lenity courts should not go to extreme lengths to characterize criminal statutes as ambiguous when they can be read as relatively well-defined); United States v. Valencia-Andrade, 72 F.3d 770, 774 (9th Cir.1995) (rule of lenity serves as aid for resolving ambiguity; it is not used to beget one). Likewise, “resort to an alternative construction to avoid deciding a constitutional question is appropriate only when such a course is ‘fairly possible’ or when the statue provides a ‘fair alternative’ construction.” Swain v. Pressley, 430 U.S. 372, 378 n. 11, 97 S.Ct. 1224, 1228 n. 11, 51 L.Ed.2d 411 (1977); *831See also Friedrich v. United States, 974 F.2d 409, 418-19 (3d Cir.1992) (“Although a statute should be interpreted in a fashion that does not defeat the congressional purpose, ... a court may not rewrite an unambiguous law”) (citation omitted); United States v. Salisbury, 983 F.2d 1369, 1380 (6th Cir.1993) (same); Block v. Meese, 793 F.2d 1303, 1310 (D.C.Cir.1986) (Scalia, J.) (court may not read limitation into statute to avoid constitutional issue where no language in statute supports such interpretation). In this case, therefore, in the absence of any ambiguity as to whether Congress intended to include a special - jury-unanimity requirement in § 848(c) — and for the reasons explained above, I see no such ambiguity — neither of the canons advances the majority’s argument.
E. The only remaining source of authority invoked by the majority — and thus the sole pillar on which its entire statutory construction argument rests — is its understanding of “general historical tradition in criminal jurisprudence.” Maj. Op. at 818. The majority states:
Criminal trials have long ensured substantial jury agreement as to the facts establishing the offense. This is became criminal statutes and the common law have generally defined crimes in terms of conduct (and accompanying mental state) that takes place in a single place at some specific time. For example, murder statutes require that the defendant killed some other person, an act occurring in some specified time and place. Thus, when a jury delivers a general guilty verdict for such a crime, we are confident that the jury agreed on most of the actions engaged in by the defendant.
Id. (emphasis added).
The majority cites no authority for this reading of “general historical tradition in criminal jurisprudence,” and I believe that the majority has overstated the principle that can legitimately be drawn from established criminal law precedents. To be sure, our law has traditionally demanded a degree of specificity in criminal prosecutions. Many rules of law, including those governing charging instruments3 and bills of particulars,4 work toward this end. But it is simply not true that the jury is always required to “agree[ ] on most of the actions engaged in by the defendant.” Maj. Op. at 818. Nor is it true that the prosecution has invariably5 been required to establish the “specified time and place” where a charged offense occurred. Id.
In invoking “general historical tradition in criminal jurisprudence,” the majority relies on the law of murder, but I believe that this body of law exposes the weakness of the majority’s analysis. It is not correct, for example, that in a murder case the jury is required to “agree[ ] on most of the actions engaged in by the defendant.” Maj. Op. at 818. Both the holding and the controlling opinions in Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), illustrate this point.
Under the holding of Schad, which followed traditional practice (see id. at 640-42, 111 S.Ct. at 2501-03 (opinion of Souter, J.); id. at 648-50, 111 S.Ct. at 2505-07 (opinion of Scalia, J.)), a defendant may be convicted of first-degree murder even if some of the jurors base their guilty votes on the theory of felony-murder and others do not. Suppose, therefore, that the evidence in a murder case shows that the victim was driving in a remote area when he picked up the defendant, who was hitchhiking. Suppose that the victim’s body is later found at the bottom of a cliff, *832that the medical examiner attributes death to a fall, that the defendant is later stopped while driving the victim’s car and is found to have made many purchases using the victim’s credit cards, and that forensic evidence ties the defendant to the victim’s death. Suppose that six jurors conclude that the defendant deliberately pushed the victim off the cliff but that the remaining six jurors think that the victim accidentally fell to his death while attempting to flee from the defendant, who was robbing him. Schad teaches that the jury could find the defendant guilty of first-degree murder despite this important disagreement about the defendant’s conduct.
Moreover, even if the jurors in a murder case all agree that the defendant intentionally killed the victim, both Justice Souter’s and Justice Scalia’s opinions in Schad make clear that the jurors need not agree on how the killing was accomplished. Justice Souter discussed Andersen v. United States, 170 U.S. 481, 18 S.Ct. 689, 42 L.Ed. 1116 (1898), in which the Court upheld a murder conviction despite the fact that the indictment did not specify whether the death was caused by shooting or drowning. See 501 U.S. at 681, 111 S.Ct. at 2496-97. He then observed:
We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission.... In these cases, as in litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.... ”
501 U.S. at 631-32, 111 S.Ct. at 2496-97 (citation omitted). Justice Scalia made the same point by means of a hypothetical. He wrote:
When a woman’s charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her.
501 U.S. at 650, 111 S.Ct. at 2506-07 (Scalia, J., concurring). Thus, it seems clear to me that the majority is wrong in saying that under traditional practice the jury in a murder case must always “agree[ ] on most of the actions engaged in by the defendant.” Maj. Op. at 820.
Nor is the prosecution in a murder case always required to nail down the “specified time” or “specified ... place” of the killing. To take another hypothetical case, suppose that a motorist is seen picking up a hitchhiker at one end of a state and that the hitchhiker is stopped many days later at the other end of the state driving the motorist’s car. Suppose also that blood stains are found in the trunk, that the motorist’s bullet-ridden body is discovered in a wooded area in another part of the state and that other evidence tying the hitchhiker to the crime is gathered. Would anybody suggest that the hitchhiker cannot be convicted unless the prosecution can prove specifically where and when the killing occurred?
In short, I do not think that it is possible to distill from “general historical tradition in criminal jurisprudence” the principle that the jury must always “agree[] on most of the actions engaged in by the defendant” or the principle that the prosecution must always prove that a charged offense occurred at a specific place or time. Instead, I think that our law has traditionally allowed some flexibility with respect to these matters, and thus I do not discern any traditional practice that provides appreciable support for the majority’s interpretation of § 848(c). Certainly I do not see anything that can begin to overcome the lack of support for that interpretation in either the statutory language or the legislative history and the absence of any congressional practice of imposing special jury-unanimity requirements as part of criminal statutes (other than the few I mentioned concerning capital sentencing). I therefore conclude that § 848(c) does not include any special jury-unanimity requirement.
II.
A. Because I reject the majority’s statutory interpretation argument, I now turn to the question whether the Constitution obligated the trial judge in this case to instruct the members of the jury that they were *833required to reach unanimous agreement as to the particular offenses that made up the “continuing series” of violations that the defendant committed. Because this is a federal ease, the only constitutional provision relevant to the issue of jury-unanimity, in my view, is the Sixth Amendment. Unlike the majority, I do not think that the Due Process Clause of the Fifth Amendment has any bearing on this issue.6 See Maj. Op. 819-20.
B. The Sixth Amendment guarantees the right to a “trial by jury” in “all criminal prosecutions” in federal court. In 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), five Justices concluded that this right includes the right to a unanimous verdict. Justice Powell, who cast the deciding vote, reasoned as follows:
[I]n 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. It therefore seems to me, in accord both with history and precedent, that the Sixth Amendment requires a unanimous jury verdict to convict in a federal criminal trial.
Johnson v. Louisiana, 406 U.S. 366, 371, 92 S.Ct. 1635, 1637-38, 32 L.Ed.2d 162 (Opinion of Powell, J.) (emphasis added) (footnote omitted).
As the highlighted portion of Justice Powell’s opinion states, the common law and American practice at the time of the adoption of the Bill of Rights required a unanimous jury verdict —and, as far as I am aware, nothing more.7 And subject to the proviso discussed in part II C of this opinion, I do not think that the Sixth Amendment goes any further. Thus, in my view, the Sixth Amendment requires that jurors be instruct*834ed regarding the elements of the offense with which the defendant is charged, and each juror, before deciding to vote “guilty,” must decide in his or her own mind that every element was proven beyond a reasonable doubt. When the jurors vote, they must unanimously vote “guilty” in order for there to be a conviction. But assuming that they all vote “guilty,” the Sixth Amendment unanimity requirement does not demand anything more. It does not require unanimity with respect to any subsidiary factual determinations that the individual jurors may have made in their own minds before casting their votes.
Under this approach, it is apparent that the breadth of the legislative definition of an offense substantially affects the degree of unanimity that is required. The more narrowly an offense is defined, the less room there will be for jurors to disagree on subsidiary factual matters. And the more broadly an offense is defined, the more room there will be for such disagreement. Suppose that State A defines first-degree murder as knowingly or purposely causing the death of another person. Suppose that State B defines first-degree murder as knowingly or purposely causing the death of another human being or causing the death of another human during the commission of a felony. The degree of unanimity required in State A is greater than in State B because in the latter a defendant could be convicted of first-degree murder even if some jurors think that he caused the death knowingly or purposely and others think he merely caused the death during the commission of a felony. But as Schad instructs, the scheme adopted by State B does not offend the Constitution.
C. I now come to the proviso to which I previously referred. Because of the relationship noted above between the breadth of the legislative definition of an offense and the degree of jury-unanimity needed to produce a unanimous verdict, Congress could circumvent the Sixth Amendment’s guarantee of a unanimous verdict by lumping together incongruous elements under the rubric of a single offense. I do not think that the Sixth Amendment would tolerate such a stratagem. If a new offense contained a combination of elements having no rational basis other than the evasion of the Sixth Amendment’s jury unanimity requirement, that combination would be unconstitutional.
In Schad, both Justice Souter’s and Justice Scalia’s opinions pointed out that there could be extreme circumstances in which the Constitution would require jury-unanimity with respect to something other than the jury’s general verdict of guilty. Justice Souter’s opinion recognized that the meaning of the right to a unanimous verdict in a particular case depends on the legislative definition of the offense with which the defendant is charged, and he noted that this right could be undermined if a legislative body simply lumped together incongruous elements under the rubric of a single offense. 501 U.S. at 630-33, 111 S.Ct. at 2496-98. Concluding that the Constitution would not permit such a ploy, he observed that “nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of ‘Crime’ so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction.” Id. at 633, 111 S.Ct. at 2497-98 (footnote omitted).
Justice Souter stressed, however, that considerable deference should be given to a legislative judgment concerning the definition of a criminal offense — or, in other words, to a legislative judgment that a particular combination of elements should be regarded as constituting a single rather than multiple offenses. See id. at 637-40, 111 S.Ct. at 2499-2502. He spoke of “a threshold presumption of legislative competence,” the importance of “judicial restraint,” and the need to avoid “judicial second-guessing.” Id. at 637-38, 111 S.Ct. at 2499-2500. Emphasizing that a legislature’s “ ‘definition of the elements of [an] offense is usually disposi-tive,’ ” he nevertheless made clear that “ ‘there are obviously constitutional limits beyond which [a legislative body] may not go.’ ” Id. at 639, 111 S.Ct. at 2500-01 (citation omitted). In deciding whether these limits have been violated, he concluded, both “history and widely shared practices” are instructive. Id. at 640, 111 S.Ct. at 2501. He also *835observed that, when a statute sets out alternative elements, it is appropriate to consider whether they can reasonably be viewed as reflecting “notions of equivalent blameworthiness or culpability” or whether, as in his previous example of the offense of “Crime,” no such view of the definition can reasonably be entertained. Id. at 643, 111 S.Ct. at 2503.
Justice Scalia’s concurrence set out a similar but not identical analysis. He noted that “one can conceive of novel ‘umbrella’ crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.” Id. at 650, 111 S.Ct. at 2506-07 (Scalia, J. concurring). In a somewhat similar vein, he later added that “[w]e would not permit ... an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday.” Id. at 651, 111 S.Ct. at 2507. Applying his view that the Due Process Clause of the Fourteenth Amendment does not proscribe deeply rooted historical practices, he concluded that Arizona’s definition of murder, which represented the historical norm, did not violate due process. Id. at 651, 111 S.Ct. at 2507. Since Schad grew out of a state prosecution, both these opinions discussed the requirements of the Due Process Clause of the Fourteenth Amendment, rather than the Sixth Amendment, but I believe that it is appropriate to translate their discussion into Sixth Amendment terms.
Under either Justice Souter’s or Justice Scalia’s analysis, Congress’s definition of a “continuing criminal enterprise” does not, in my opinion, exceed the broad limits allowed for legislative judgment in determining whether particular elements should be combined to form a single offense. I readily acknowledge that the CCE statute, unlike the Arizona murder statute at issue in Schad, is not based on a long and widely accepted model but instead, as I discuss below, represents a innovative approach developed by Congress some 25 years ago. In light of these origins, the CCE statute cannot claim the protection from constitutional challenge that a more traditional criminal statute might enjoy, but this does not mean that the CCE statute is automatically suspect. As patterns of crime change, legislative bodies must have the freedom, within constitutional limits, to devise new ways of responding to those changes, including the creation of new crimes that are not closely modelled on any common law antecedents.
Although the CCE statute does not enjoy the protection of ancient lineage, I believe that both its structure and background support its constitutionality and comfortably distinguish it from the examples of impermissible statutes that were cited in the Schad plurality and concurring opinions. Justice Souter’s example — an offense called “Crime” that would require proof that the defendant committed at least one act of “embezzlement, reckless driving, murder, burglary, tax evasion, or littering” (501 U.S. at 633, 111 S.Ct. at 2497-98 (opinion of Souter, J.)) — seems to represent a combination of elements having no rational basis other than the circumvention of otherwise applicable jury-unanimity requirements. No element other than proof of one of the predicate offense appears to be necessary for conviction, and the predicate offenses are widely dissimilar. It is hard to imagine what legitimate basis there could be for such a combination of elements.
The hypothetical laws discussed by Justice Scalia seem to me to have similar flaws. What legitimate basis could there be for creating a crime “consisting of either robbery or failure to file a tax return” or permitting a defendant to be prosecuted for the offense of assaulting “either X on Tuesday or Y on Wednesday”? See 501 U.S. at 651, 111 S.Ct. at 2507 (Scalia, J., concurring).
The CCE statute differs sharply from these monstrosities. For one thing, there are important structural differences. The CCE statute sets out several elements in addition to the commission of the predicate offenses that must be proven in every case. Specifically, it must be shown, not only that the defendant committed a “continuing series of violations,” but that (a) he undertook this activity “in concert with five or more other persons,” (b) that “with respect to [these persons] he occupie[d] a position of organizer, a supervisory position, or any other position of management,” and (e) that he “obtain[ed] substantial income or resources” *836from this series of violations. 21 U.S.C. § 848(c). The presence of these additional elements supports the view that the CCE statute represents an effort to define a distinct type of criminal activity.
The background of the CCE statute fortifies this view. The CCE statute was enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513, 84 Stat. 1236. After study and consideration, Congress concluded that drug abuse was “approaching epidemic proportions,” that existing federal drug laws were inadequate, and that new approaches were needed. H.R.Rep. 91-1444, 91st Cong., 2d Sess., at 6, reprinted in 1970 U.S.Cong. & Admin.News 4566, 4571-72. The CCE statute represented one such innovative approach. Drafted to address what Congress considered a rapidly growing problem, this statute departed significantly from common law models and prior drug laws. Much like the RICO statute, see 18 U.S.C. §§ 1961-64, which was passed at roughly the same time, the CCE statute created a new crime by reference to a criminal organization or “enterprise.” In enacting both of these groundbreaking statutes, it was apparently Congress’s judgment that a new organizational approach was necessary in order to mount an effective attack on criminal groups that were causing great societal damage.
To my mind, this background must be taken into account in considering whether Congress exceeded constitutional bounds by creating the offense set out in 21 U.S.C. § 848(c). This background shows, I believe, that Congress had a rational and legitimate basis for crafting the particular combination of elements required under 21 U.S.C. § 848(c)(2). Specifically, this background demonstrates that it was the judgment of Congress that a new type of criminal activity was growing in importance and that a new type of criminal statute, keyed to the organizational scope of that activity, was needed. This legislative judgment, in my view, is entitled to substantial respect. See Schad, 501 U.S. at 637-39, 111 S.Ct. at 2499-2501 (opinion of Souter, J.).
Based on the structure and background of the CCE statute, I am persuaded that the statute does not contravene the Sixth Amendment’s jury unanimity requirement but instead constitutes a permissible of exercise of Congress’s broad power to define the scope of federal criminal offenses.
III.
For these reasons, I do not think that the trial judge in this case erred in refusing to instruct the members of the jury that they were required to agree unanimously on the predicate offenses committed by the defendant. If the trial judge had erred, however, I think that the error would be harmless for the reasons explained in part III of the opinion of the court.
. See 18 U.S.C. § 3593; 21 U.S.C. § 848(k). I discuss 21 U.S.C. § 848(k) in footnote 2, infra.
. It is worth noting that another portion of the CCE statute, 21 U.S.C. § 848(k), expressly requires jury unanimity with respect to a different finding. In 1988, death penalty provisions were *830added to the CCE statute. See Anti-Drug Abuse Act of 1988, Pub.L. 100 — 690, § 7001, 100 Stat. 4387. Under one of these new provisions, 21 U.S.C. § 848(k), a death sentence may be imposed only if aggravating factors are found to exist, and this provision expressly provides that "[a] finding with respect to any aggravating factor must be unanimous.” While this provision was enacted well after the portion of the statute, 21 U.S.C. § 848(c), with which we are now concerned, the presence of an express jury-unanimity requirement in another subsection of the CCE statute weighs against the proposition that Congress, in enacting § 848(c), intended to impose an analogous requirement but either felt that it was unnecessary or neglected to insert any statutory language manifesting such an intent. The express jury unanimity requirement in 21 U.S.C. § 848(k) “shows that Congress knew how to draft [such a requirement] when it wanted to.” City of Chicago v. Environmental Defense Fund, - U.S. -, -, 114 S.Ct. 1588, 1593, 128 L.Ed.2d 302 (1994).
. See, e.g., Fed.R.Crim.P. 3 (a complaint sets out “the essential facts constituting the offense charged”); Fed.R.Crim.P. 7(c)(1) (the indictment or the information must set out "the essential facts constituting the offense charged.”).
. See Fed.R.Crim.P. 7(f).
. I am aware that the majority states that "criminal statutes and the common law have generally defined crimes in terms of conduct (and accompanying mental state) that takes place in a single place at some specified time.” Maj. Op. at 818 (emphasis added). If this rule is only "generally” true, however, then there must be instances in which it is not true. And if that is so, then I think it is incumbent upon the majority to explain when the rule does not apply and why the present case is not analogous to those in which this rule has not traditionally held true. The majority provides no such explanation.
. My evaluation of the constitutional issue presented in this case would not change if I believed that the Due Process Clause of the Fifth Amendment were applicable here, but I do not think that it is.
The Sixth Amendment expressly guarantees the right to "trial by jury” and has been held to require a unanimous verdict in a federal criminal prosecution. See 816, infra. The Due Process Clause of the Fifth Amendment, of course, provides general protection for "liberty.” "Where a particular amendment 'provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.’ ” Albright v. Oliver, — U.S.-,-, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994)(plurality)(quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). See also id. at -, 114 S.Ct. at 814 (Scalia, J., concurring); cf. id. at -, 114 S.Ct. at 817 (Ginsburg, J., concurring); id. (Kennedy, J., concurring); id. at-, 114 S.Ct. at 819-22 (Souter, J., concurring). Furthermore, the proposition that the Due Process Clause of the Fifth Amendment guarantees jury unanimity to a greater degree than does the Sixth Amendment seems to be inconsistent with the Supreme Court decisions holding that the Due Process Clause of the Fourteenth Amendment requires less jury unanimity than does the Sixth Amendment. See Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).
In Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), both the plurality opinion (see id. at 632-645, 111 S.Ct. at 2497-2504) and Justice Scalia’s concurrence (see id. at 649-652, 111 S.Ct. at 2506-08) discussed the constitutional restrictions imposed by the Due Process Clause of the Fourteenth Amendment because Schad was a state prosecution and the Sixth Amendment’s implicit guarantee of a unanimous jury verdict is not applicable to tire states. Johnson v. Louisiana, supra; Apodaca v. Oregon, supra. (This is my interpretation of the main thrust of footnote 5 of the Schad plurality opinion (501 U.S. at 634 n. 5, 111 S.Ct. at 2498 n. 5), which the majority discusses. See Maj. Op. 822 n. 16.)
Some of the hypothetical statutes mentioned in the Schad plurality opinion and in Justice Sca-lia’s concurrence could raise due process concerns unrelated to the question of jury unanimity. But insofar as jury unanimity is concerned, I see no justification for looking further than the Sixth Amendment.
. See, e.g., 4 W. Blackstone, Commentaries *376; Virginia Declaration of Rights, sec. 8 (protecting right "to a speedy trial by an impartial jury of [the] vicinage, without whose unanimous consent [a defendant] cannot be found guilty”); Delaware Declaration of Rights and Fundamental Rules, § 14 (protecting “right to a speedy Trial by an impartial Jury, without whose unanimous Consent [a defendant] ought not to be found Guilly”); Vt. Constitution of 1777 ch. 1, art. X (defendant cannot be found guilty without "the unanimous consent” of the "jury”).