United States v. Hurt

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 5, 2008 Decided June 13, 2008

No. 06-3183

UNITED STATES OF AMERICA,
APPELLEE

v.

GREGORY HURT,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 05cr00418-01)

Hesham M. Sharawy, appointed by the court, argued the
cause for appellant. With him on the briefs was Douglas J.
Behr, appointed by the court.

Amanda J. Williams, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III, Elizabeth
Trosman, and Michael Atkinson, Assistant U.S. Attorneys.

Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
 2
GRIFFITH, Circuit Judge: A jury found Gregory Hurt
guilty of theft of government property under 18 U.S.C. § 641.
On appeal, Hurt challenges the jury instructions and his trial
counsel’s performance in shaping them. Seeing no reversible
error, we affirm the judgment of conviction.

I.

Hurt developed Post-Traumatic Stress Disorder after
serving in the Vietnam War. On December 19, 2002, the
Department of Veterans Affairs (“VA”) determined that Hurt
was entitled to a benefits award of $243,500.10, dating back
to the first manifestation of his disability in 1983. Because
Hurt had already received $9,140.00 in benefits, the VA owed
him $234,360.10. Hurt took his lump-sum award in a series of
checks. The first check, dated January 3, 2003, was for
$99,999.10; the second check, dated February 6, 2003, was
for $99,999.00; the third check, dated February 12, 2003, was
for $34,362.00. Upon receipt, Hurt negotiated each of the
checks and deposited the funds in his account at Andrews
Federal Credit Union (“AFCU”).

Between April and July of 2003, Hurt went to the VA on
several occasions to lodge a pair of grievances about the
amount of benefits he had received: one having to do with
benefits for his wife, the other with a supposedly missing
check. During these visits, he met with a benefits counselor
named Diana Hannah. Hurt complained that the VA’s
calculation of his benefits award had not included his wife as
a dependent. Hannah explained that Hurt had provided
insufficient marriage documentation, an error Hurt was
invited to fix by submitting additional information. Hurt also
complained he had not received the $99,999.10 check. When
Hannah informed Hurt that he would have to fill out certain
forms before the VA could send a replacement check, he
 3
demanded to speak with supervisor James Wear. Using the
VA’s computerized records, Wear was able to determine that
all three checks had been sent to Hurt, but he could not tell
whether Hurt had received and negotiated them. Hurt insisted
that he had not gotten the $99,999.10 check and Wear,
sympathetic to what he thought was a veteran in need,
relented. Forgoing the usual paperwork, Wear directed a VA
finance clerk named Bruce Britton to send a replacement
check to Hurt for $99,999.10, which he did on July 28, 2003.
On July 31, 2003, Hurt negotiated this fourth check and
deposited the full amount into his AFCU account.

The fourth check was more than Hurt was owed because
he had not actually missed any checks. The VA soon realized
its slip-up. After running a tracer on the four checks, Britton
learned that Hurt had negotiated the supposedly missing first
check just a few days after its issuance. On August 5, 2003,
Britton sent Hurt a letter demanding the return of the VA’s
mistakenly issued $99,999.10 replacement check. Hurt did not
return any money. Instead, on August 14, 2003, Hurt moved
$160,000 from his AFCU account to a new account at
SunTrust Bank. On August 21, 2003, Britton sent Hurt
another letter explaining that he must either return the funds
or have his future VA benefits garnished. Hurt still did not
return the $99,999.10 the VA had overpaid.

A grand jury returned an indictment against Hurt on the
charge of theft of government property, 18 U.S.C. § 641, as
well as related theft charges under local law that were later
dismissed. Hurt was tried before a jury in the United States
District Court for the District of Columbia. The government
put on several witnesses and argued that Hurt had committed
theft either through stealing the fourth check by falsely
claiming he had not received the first check, or else through
knowingly converting the fourth check by acting to deprive
 4
the government of the mistakenly disbursed funds. The
defense, which did not call Hurt or any other witness to the
stand, argued that Hurt had a good faith belief that the fourth
check amounted to spousal benefits and therefore belonged to
him.

Counsel clashed over the instructions the jury would
receive. The district court ultimately instructed the jury it
could only convict Hurt of theft of government property if the
government had proved beyond a reasonable doubt that the
money had a value of more than $1,000; that the money
belonged to the United States; and that Hurt took the money
knowing it was not his and with the intent to deprive the
owner of the use or benefit of the money. The district court
further explained that the government could prove theft of
government property by stealing or by knowing conversion.

The unanimous jury found Hurt guilty of theft of
government property. Hurt moved for a new trial, arguing that
the jury instructions were flawed. The district court denied the
motion and sentenced Hurt to imprisonment for time served
plus twelve days; supervised release for a period of three
years; a special assessment of $100.00; and restitution in the
amount of $99,999.10. Hurt appeals. We have jurisdiction
under 28 U.S.C. § 1291.

II.

Hurt’s first argument concerns the district court’s refusal
to deliver a requested theory-of-defense instruction. Theft of
government property under 18 U.S.C. § 641 is a specific
intent crime. See Morissette v. United States, 342 U.S. 246,
270–76 (1952); United States v. Rhone, 864 F.2d 832, 836
(D.C. Cir. 1989); United States v. Baker, 693 F.2d 183, 186
(D.C. Cir. 1982). As such, a thief under § 641 is one who
 5
takes property knowing it belongs to another with an intent
permanently to deprive the owner of possession. A person
who harbors a good faith but mistaken belief that property
belongs to him lacks the necessary mens rea for theft. See 3
WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 19.5(a)
(2d ed. 2003); cf. Richardson v. United States, 403 F.2d 574,
575–76 (D.C. Cir. 1968) (holding that a defendant cannot be
convicted of robbery, a specific intent crime, if he believed
himself entitled to the money taken). Hurt asked the district
court to deliver a theory-of-defense jury instruction
explaining that he could not be convicted if he had a good
faith but mistaken belief that the fourth check belonged to
him. The district court refused this request, explaining that
there was no evidence to support such an instruction because
Hurt had not testified as to his state of mind. We review de
novo this failure to provide a requested jury instruction.
United States v. Perkins, 161 F.3d 66, 69 (D.C. Cir. 1998).

The district court asked too much of Hurt in rejecting his
request. A theory-of-defense instruction is in order if there is
“ ‘sufficient evidence from which a reasonable jury could
find’ ” for the defendant on his theory. United States v.
Glover, 153 F.3d 749, 754 (D.C. Cir. 1998) (quoting Mathews
v. United States, 485 U.S. 58, 63 (1988)). There was sufficient
evidence presented at trial from which a reasonable jury could
have found that Hurt had a good faith belief that the fourth
check was his. Hannah, the VA benefits clerk, testified that
Hurt had attempted to secure benefits for his wife and
subsequently received a check. Hannah’s testimony is not
direct evidence of Hurt’s state of mind, but courts often infer
state of mind on the basis of circumstantial evidence. Indeed,
it was on the basis of such inference that Hurt was convicted
of theft, a specific intent crime, without taking the stand. See
United States v. Schaffer, 183 F.3d 833, 843 (D.C. Cir. 1999)
(“[A]s with most cases in which the defendant’s state of mind
 6
is at issue, it may be near impossible to establish the requisite
mens rea through direct evidence. In the absence of any
specific statement or other contemporaneous documentation
of the defendant’s subjective motivation, the trier of fact can
do no more than ascribe an intent on the basis of the
circumstances surrounding the defendant’s actions.”). The
inference from the Hannah testimony is straightforward. Hurt
complained to Hannah that he deserved compensation for his
wife, submitted the VA’s required documentation, and shortly
thereafter received a check from the government that bore no
mention of its purpose. One could reasonably infer that Hurt
had a good faith belief that the fourth check belonged to him
as a benefits award to cover his wife. Sufficient evidence
supported the rejected instruction.

Hurt’s victory is fleeting, however, because the district
court’s mistaken refusal of the requested instruction does not
require reversal. “As a general rule, the refusal to give an
instruction requested by a defendant is reversible error only if
the instruction . . . was not substantially covered in the charge
actually delivered to the jury . . . .” United States v. Taylor,
997 F.2d 1551, 1558 (D.C. Cir. 1993) (citation and quotation
marks omitted). Taking the instructions as a whole, Estelle v.
McGuire, 502 U.S. 62, 72 (1991); United States v. Whoie, 925
F.2d 1481, 1485 (D.C. Cir. 1991) (Thomas, J.), our task is to
determine whether the trial court adequately conveyed the
substance of the requested instruction to the jury.

We conclude that the district court did so. The court
stressed to the jury that theft of government property is a
specific intent crime, explaining that the government must
prove beyond a reasonable doubt “that the defendant stole the
money knowing that it was not his, and with the intent to
deprive the owner of the use or benefit of the money,” and
that “if you believe that Mr. Hurt was unsure about the true
 7
ownership of the money . . . then you must acquit him of the
crime of theft of government property.” These instructions
substantially covered the same ground that Hurt requested in
his proposed instruction. The district court made abundantly
clear that the jury must acquit Hurt if they believed that he
had a good faith but mistaken belief that the money was his.
A new trial is unwarranted. See United States v. Gambler, 662
F.2d 834, 837 (D.C. Cir. 1981) (“A review of the instructions
. . . reveals that the trial court took care to emphasize the
Government’s burden of proving the element of specific
intent beyond a reasonable doubt. We believe that these
instructions sufficiently covered the particular point raised by
appellant’s requested ‘good faith’ instruction.”) (citations
omitted); United States v. Butler, 822 F.2d 1191, 1197–98
(D.C. Cir. 1987) (“[T]he jury instructions here, which stressed
that the government was required to prove that defendants
acted with specific intent to defraud others, were adequate
without an additional instruction on the good faith defense.”).

III.

There are two ways Hurt could have committed theft of
government property: he could have stolen the VA’s check, or
he could have knowingly converted the funds. See 18 U.S.C.
§ 641 (listing “[w]hoever embezzles, steals, purloins, or
knowingly converts to his use or the use of another . . . any
record, voucher, money, or thing of value of the United States
or of any department or agency thereof”). Hurt’s second
argument targets the district court’s omission of a special
unanimity instruction requiring that all twelve jurors agree
how the theft took place. On this view, conviction under
§ 641 would be improper if, say, six jurors believed that Hurt
stole the money by lying to the VA about the missing check
and six jurors believed that he knowingly converted the funds
by moving them to prevent their retrieval. Hurt leans heavily
 8
on our dicta in United States v. Mangieri, 694 F.2d 1270
(D.C. Cir. 1982), and asserts a Sixth Amendment right to a
special unanimity instruction.

Mangieri, however, actually harms Hurt’s cause. It is true
that in dicta in that case, we “urge[d]” trial courts to follow
the “sensible and appropriate” rule of Hack v. United States,
445 A.2d 634 (D.C. 1982), by which a court, sua sponte, will
give a special unanimity instruction “ ‘when one charge
encompasses two separate incidents.’ ” Mangieri, 694 F.2d at
1281 (quoting Hack, 445 A.2d at 641). But in Mangieri itself,
as here, trial counsel failed to object to the lack of a special
unanimity instruction, so our review was only for plain error.
And we ultimately concluded that the trial court’s failure to
give a special unanimity instruction sua sponte was not plain
error. Id. at 1280–81. We reach the same result here.

Hurt misreads the Sixth Amendment, as Schad v.
Arizona, 501 U.S. 624 (1991), makes clear. In Schad, a
defendant had been convicted under a first-degree murder
statute that defined mens rea as either premeditated killing or
felony murder. The defendant argued that the trial court was
obliged by the Sixth Amendment to give a special unanimity
instruction, such that he could not be convicted of first-degree
murder based on some jurors voting premeditated killing and
others voting felony murder. The Supreme Court affirmed the
conviction. Justice Souter, joined by Chief Justice Rehnquist
and Justices O’Connor and Kennedy, rejected the idea that the
Sixth Amendment requires jury unanimity as to the means by
which a crime was committed. Id. at 631 (plurality opinion)
(“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 his separate opinion,
Justice Scalia agreed that unanimity as to means is
unnecessary. Id. at 649–50 (Scalia, J., concurring in the
 9
judgment) (“As the plurality observes, it has long been the
general rule that when a single crime can be committed in
various ways, jurors need not agree upon the mode of
commission. . . . 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.”) (citations omitted). Five Justices agreed in Schad that
jurors need not reach unanimity as to the means of
committing a crime, and where the Court has gone, we have
followed. See United States v. Kayode, 254 F.3d 204, 214
(D.C. Cir. 2001) (holding that where statute required
possession of five false documents, jury need not agree on
which five documents were false, citing Schad); United States
v. Harris, 959 F.2d 246, 255 (D.C. Cir. 1992) (holding that
where statute required five members of criminal enterprise,
jury need not agree on which five people were members,
citing Schad).

But even as Schad rejected a Sixth Amendment argument
for a special unanimity instruction, it recognized a related
right under the Due Process Clause. The five Justices who
agreed means-unanimity is not required also acknowledged a
limit to what jury findings can be combined to support a
verdict. Schad, 501 U.S. at 632–33 (plurality opinion) (“That
is not to say, however, that the Due Process Clause places no
limits on a State’s capacity to define different courses of
conduct, or states of mind, as merely alternative means of
committing a single offense, thereby permitting a defendant’s
conviction without jury agreement as to which course or state
actually occurred. . . . [N]othing 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
 10
combination of jury findings of embezzlement, reckless
driving, murder, burglary, tax evasion, or littering, for
example, would suffice for conviction.”); id. at 650 (Scalia, J.,
concurring in the judgment) (“[O]ne 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.”). In sum, the Due
Process Clause recognizes a point at which distinct incidents
go from being different means of committing the same crime,
to being different crimes.

Were we faced with the question whether a conviction
under 18 U.S.C. § 641 without a special unanimity instruction
violates the Due Process Clause by creating a mishmash of
stealing and knowing conversion, our burden in this appeal
would be more substantial than it is. But trial counsel’s failure
to object to the lack of a special unanimity instruction relieves
us of that burden, and we review only for plain error. See
United States v. Martinez, 476 F.3d 961, 970 (D.C. Cir. 2007)
(citing FED. R. CRIM. P. 52(b)); United States v. Klat, 156
F.3d 1258, 1266–67 (D.C. Cir. 1998); Mangieri, 694 F.2d at
1280. Attempting to stave off plain error review, Hurt points
to two exchanges from the trial that he claims were objections
that properly raised the issue for the district court’s
consideration. The first is as follows:

[DEFENSE]: Judge, the only one that I can see
objecting to in the general instructions is the
unanimity instruction on 28.

[THE COURT]: You object to my giving the
unanimity instruction?
 11
[DEFENSE]: Well, the way they have it here is “Theft
by false pretenses,” or “Theft after notice from
Government of error” –

[THE COURT]: I’m just going to give the standard
unanimity instruction.

[DEFENSE]: Okay, all right.

This is the opposite of an objection. The district court rejected
the government’s proposed special unanimity instruction in
favor of “the standard unanimity instruction,” and defense
counsel agreed with this choice.

The second supposed objection is as follows:

[GOVERNMENT]: Do you think that on the
unanimity instruction that there ought to be a dual
instruction to make sure that the jurors understand that
they have to all agree on one theory?

[THE COURT]: Oh, oh, oh. On one theory?

[GOVERNMENT]: Not one theory; but either he stole
it or he converted it. I mean, six can’t say, we think he
stole it, and six say, he converted it and therefore
there’s a conviction.

[THE COURT]: Do you want me to instruct it that
way?

[GOVERNMENT]: I just pose it for your –

[THE COURT]: I think [defense counsel] would be
delighted with that one.
 12

[DEFENSE]: I’m sorry, if you could just repeat
exactly –

[THE COURT]: That’s like the conspiracy charge that
says you-all have to agree on an overt act.

[GOVERNMENT]: I just don’t want the jury to be
confused, judge. If you don’t think they’ll be
confused, then I’m happy with the instructions.

[DEFENSE]: I’m fine with the government’s change,
Your Honor.

[THE COURT]: All right. Well, we’ll have to –

[GOVERNMENT]: Your Honor –

[THE COURT]: Yeah?

[GOVERNMENT]: Judge, you know, if you want to
— I will withdraw my request. The unanimity
instruction –

[THE COURT]: You’ve rethought it, have you?

[GOVERNMENT]: Well, you know, you have more
experience than I do, judge. If you don’t think they’re
going to be confused, then I’ll defer to the Court.

[DEFENSE]: Your Honor, there are two other
instructions –
 13
[THE COURT]: We may very well get a question
from the jury on that, and we’ll cross that bridge when
we come to it.

Hurt claims that the prosecutor requested a special unanimity
instruction and withdrew the request, and that defense counsel
joined the request but not the withdrawal. We do not derive as
much from counsel’s silence. Hurt’s lawyer did not take
ownership of the government’s request. He merely said he
was “fine” with it, then said nothing when it was withdrawn.
Defense counsel’s actions did not put the district court on
notice of his supposed concern. We are not persuaded that
counsel objected in the trial court to the lack of a special
unanimity instruction. See United States v. Johnson, 561 F.2d
832, 854 (D.C. Cir. 1977) (“[T]he issue in determining the
applicability of the plain error rule . . . is whether the issue
was raised by the defense team with sufficient clarity to put
the government and the trial court on notice that the issue had
been raised.”); see also United States v. Schalk, 515 F.3d 768,
776 (7th Cir. 2008) (“If no objection was made that would put
the district court (and the other party) on notice of the
objecting party’s concern, then the standard of review is for
plain error.”). Hurt’s argument that the district court erred by
not giving a special unanimity instruction was not properly
preserved at trial.

Accordingly, we review for plain error. This standard of
review calls for reversal if “(1) there is an error (2) that is
plain and (3) that affects substantial rights, and (4) we find
that the error ‘seriously affects the fairness, integrity or public
reputation of judicial proceedings.’ ” United States v.
Baugham, 449 F.3d 167, 183 (D.C. Cir. 2006) (quoting
United States v. Olano, 507 U.S. 725, 732 (1993) (interpreting
FED. R. CRIM. P. 52(b))). We will move to the second point
and dispose of Hurt’s argument by showing that the district
 14
court’s alleged error was by no means “plain,” given the
debate over special unanimity instructions.

The difficult question under Schad is how does a court
mark “the point at which differences between means become
so important that they may not reasonably be viewed as
alternatives to a common end, but must be treated as
differentiating what the Constitution requires to be treated as
separate offenses”? Schad, 501 U.S. at 633 (plurality
opinion). The question is further complicated by the fact that
Justices Souter and Scalia parted ways on this matter of
establishing “definitional and verdict specificity.” Id. at 637.

Speaking for a plurality of four, Justice Souter wrote,
“appropriate specificity is a distillate of the concept of due
process with its demands for fundamental fairness, and for the
rationality that is an essential component of that fairness.” Id.
(citation omitted). In applying this approach to Schad’s first-
degree murder statute, Justice Souter looked to history and
current practice among the States as nonbinding indicators of
what “we as a people regard as fundamentally fair and
rational ways of defining criminal offenses.” Id. at 640–43.
Justice Souter ultimately approved the first-degree murder
statute’s treatment of premeditation and felony murder as
alternative means of committing a single crime, concluding
that “the jury’s options in this case did not fall beyond the
constitutional bounds of fundamental fairness and
rationality.” Id. at 645.

By contrast, Justice Scalia focused on the history of the
crime at issue to determine what was due under the Due
Process Clause. Id. at 650 (Scalia, J., concurring in the
judgment). On this view, the common law tradition of
grouping premeditated killing with felony murder
indisputably established that such a grouping in a modern
 15
statute was in keeping with fundamental fairness. See id. at
648–49. History alone guided Justice Scalia’s analysis, and he
was critical of the plurality’s reliance upon “fundamental
fairness” in conducting its inquiry. “ ‘Fundamental fairness’
analysis may appropriately be applied to departures from
traditional American conceptions of due process; but when
judges test their individual notions of ‘fairness’ against an
American tradition that is deep and broad and continuing, it is
not the tradition that is on trial, but the judges.” Id. at 650.

Returning to Hurt’s case, let us assume arguendo that the
district court erred in failing to give a special unanimity
instruction as to stealing and knowingly converting. The
dispositive question is whether this error was “plain,” a term
“synonymous with ‘clear’ or, equivalently, ‘obvious.’ ”
Olano, 507 U.S. at 734 (citations omitted). “As its name
suggests, ‘plain error’ exists only when the error is ‘obvious.’
Obviousness is assessed from the perspective of the trial
court; the error must be so ‘plain’ the trial judge and
prosecutor were derelict in countenancing it, even absent the
defendant’s timely assistance in detecting it.” United States v.
Saro, 24 F.3d 283, 286 (D.C. Cir. 1994) (citations and
quotation marks omitted). Given the difficulty inherent in
deciding what may fit under the umbrella of a single crime,
and given the division among the Justices as to how to resolve
that question, this error could not have been plain to the
district court. Do fundamental fairness and rationality require
that we treat stealing and knowingly converting as separate
offenses? Even if the answer is “yes,” that result is not
obvious but instead depends on a mix-and-match examination
of practice among the States, common law history, and certain
factors left undefined in Schad’s plurality opinion. Neither the
Supreme Court nor this court has spoken to the issue, and we
have no occasion to do so today, so Hurt cannot prevail.
United States v. Whren, 111 F.3d 956, 960 (D.C. Cir. 1997)
 16
(“If there is no clear legal rule — whether expressed in a prior
decision or elsewhere — governing an issue, then the district
court’s decision cannot be a plain error.”). The district court
did not plainly err in failing to deliver a sua sponte special
unanimity instruction. Mangieri, 694 F.2d at 1280–81.

IV.

Anticipating our conclusion that trial counsel did not
object to the omission of a special unanimity instruction, Hurt
argues in the alternative that his lawyer’s performance
abridged his Sixth Amendment right to effective assistance of
counsel as that right has been explained in Strickland v.
Washington, 466 U.S. 668 (1984). We may address such an
argument on direct appeal, without remanding to the district
court, if trial counsel’s effectiveness or incompetence can be
established on the basis of the trial record. United States v.
Henry, 472 F.3d 910, 914–15 (D.C. Cir. 2007). To establish a
successful claim under Strickland’s “familiar two-step
framework,” a defendant must prove that counsel’s
performance fell below an objective standard of
reasonableness under prevailing professional norms, and that
this error caused prejudice. United States v. Hughes, 514 F.3d
15, 17 (D.C. Cir. 2008) (citing Strickland, 466 U.S. at 687–
88, 694). As a general matter, the bar of objective
reasonableness is set rather low. See Strickland, 466 U.S. at
687 (requiring “errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment”); Yarborough v. Gentry, 540 U.S. 1, 8
(2003) (per curiam) (“The Sixth Amendment guarantees
reasonable competence, not perfect advocacy judged with the
benefit of hindsight.”).

Hurt argues that trial counsel committed unreasonable
error by failing to adopt the prosecutor’s proposed special
 17
unanimity instruction. On Hurt’s reading of Strickland, an
objectively reasonable attorney would have avoided plain
error review by requesting such an instruction. We reject this
argument. Appellate counsel has not convinced us that trial
counsel overlooked a valid Schad claim for a special
unanimity instruction. But even if there was such a mistake, it
is not the sort of serious blunder that will singlehandedly
support a Strickland claim. To lodge a bona fide objection on
the special unanimity point, trial counsel would first have to
satisfy himself that the law was on his side. The objective
standard of reasonableness does not compel counsel to request
a jury instruction to which his client is not entitled. See United
States v. Trejo, 136 F.3d 826, 828 (D.C. Cir. 1998) (per
curiam); United States v. Debango, 780 F.2d 81, 85 n.2 (D.C.
Cir. 1986). A perfect lawyer with unlimited resources might
have made a careful study of this difficult area of law, read
the tea leaves, and lodged whatever objection his reading of
the Schad opinions might fairly support. The Sixth
Amendment, however, does not pledge perfection.
Yarborough, 540 U.S. at 8; Arroyo v. United States, 195 F.3d
54, 55 (1st Cir. 1999) (Boudin, J.) (“Under [Strickland],
counsel is not incompetent merely because he may not be
perfect. In real life, there is room not only for differences in
judgment but even for mistakes, which are almost inevitable
in a trial setting, so long as their quality or quantity do not
mark out counsel as incompetent.”). Had trial counsel
neglected a jury instruction to which his client was obviously
entitled, our conclusion might be different. But there is little
that is obvious about special unanimity instructions, as
evidenced by our refusal to find plain error in the district
court’s omission of such an instruction. It would be unduly
harsh to brand the bar incompetent for failing to grasp that
which eludes the bench.
 18
“[T]he purpose of the effective assistance guarantee of
the Sixth Amendment . . . is simply to ensure that criminal
defendants receive a fair trial.” Strickland, 466 U.S. at 689.
Hurt received a fair trial, his lawyer’s failure to object
notwithstanding, so he cannot prevail on his Strickland claim.

V.

For the foregoing reasons, the judgment of conviction is

Affirmed.