United States District Court, W.D. Pennsylvania
JOY FLOWERS CONTI, Chief District Judge.
On April 29, 2014, a federal grand jury in the Western District of Pennsylvania returned a one-count indictment charging defendant Jason T. Korey ("Korey") with possession of a firearm and ammunition by a convicted felon, on or about April 17, 2014, a violation of 18 U.S.C. § 922(g)(1). (ECF No. 1.) On May 14, 2014, Korey pleaded not guilty to count one of the indictment. (ECF No. 17.) On March 11, 2015, the government filed a superseding indictment against Korey charging him with: (1) possession of a firearm and ammunition by a convicted felon, on or about April 17, 2014, a violation of 18 U.S.C. § 922(g)(1); and (2) possession of a stolen firearm, on or about April 17, 2014, a violation of 18 U.S.C. § 922(j). (ECF No. 59.) On March 20, 2015, Korey pleaded not guilty to the charges contained in the superseding indictment. (ECF No. 69.)
On May 5, 2015, a jury trial commenced against Korey with respect to the charges against him in the indictment. On May 14, 2015, during a conference with respect to the final charge to the jury, the court asked counsel for the government and Korey whether a jury instruction requiring the jurors to be unanimous with respect to whether Korey possessed a firearm or ammunition was appropriate and necessary in this case. The court gave the parties time to meet and confer following the conference with respect to that issue.
On May 15, 2015, the government submitted a request to the court asking that the following instruction be given to the jury in this case:
Although all jurors must agree that the defendant possessed a firearm or ammunition, you need not all agree on the exact item possessed. For example: if a defendant was charged with possessing a pistol found in the bedroom, a rifle found in the kitchen, and shotgun ammunition found in the basement; you must all unanimously agree that he possessed at least one of these items. You do not have to agree on which one, or if he possessed more than one. It would be sufficient if one juror determined that he possessed the pistol, five jurors determined that he possessed the rifle, two jurors determined that he possessed the shotgun ammunition, and four jurors determined that he possessed them all.
Korey opposed the government's request arguing the facts of this case are likely to confuse the jury, and under those circumstances, a jury unanimity instruction with respect to whether Korey possessed a firearm or ammunition is required. Korey requested the following instruction be given to the jury:
4.03 UNANIMITY ON SPECIFIC ACTS
Count 1 of the indictment alleges that the defendant committed certain specific acts. The government need not prove that each and every specific alleged act was committed by the defendant. However, the government must prove that the defendant committed at least one of the specific acts which are alleged in Count 1. In order to find that the government has proved the defendant committed a specific act, the jury must unanimously agree on which specific act that defendant committed.
For example, if some of you find defendant did knowingly possess the.40 caliber Beretta pistol and the rest of you find defendant did knowingly possess a Glock 9 millimeter magazine containing 15 rounds of ammunition, then there is no unanimous agreement on which act has been proved. On the other hand, if all jurors find defendant did knowingly possess at least one of those specific items (with all agreeing on the same item) then there is unanimous agreement.
Based upon the foregoing, the issue currently before this court is whether a jury unanimity instruction is required in this case with respect to count one of the indictment, which charges Korey with being a felon in possession of a firearm and ammunition.
In United States v. Tann, 577 F.3d 533 (3d Cir. 2009), the Court of Appeals for the Third Circuit held that a defendant's "possession of both a firearm and ammunition, seized at the same time in the same location, supports only one conviction and sentence under § 922(g)(1)." Tann, 577 F.3d at 537 (citing Untied States v. Parker, 508 F.3d 434, 440 (7th Cir. 2007); United States v. Olmeda, 461 F.3d 271, 280 (2d Cir. 2006); United States v. Richardson, 439 F.3d 421, 422 (8th Cir. 2006); United States v. Verrecchia, 196 F.3d 294, 297-98 (1st Cir. 1999); United States v. Dunford, 148 F.3d 385, 390 (4th Cir. 1998)). The court explained that "the allowable unit of prosecution under § 922(g) is the incident of possession, regardless of whether a defendant possessed more than one firearm, or possessed a firearm and ammunition." Tann, 577 F.3d at 537. The Court of Appeals for the Third Circuit in United States v. Kennedy, 682 F.3d 244 (3d Cir. 2012), explained what it means for a defendant to possess any firearm or ammunition in the "same location." The court commented that "[w]hat matters is the defendant's course of... treatment of the firearms, ' which may not be viewed in a frozen, momentary state immediately prior to the seizure.'" Kennedy, 682 F.3d at 255-56 (quoting United States v. Mullins, 698 F.2d 686, 687 (4th Cir. 1983)). The district court in Kennedy determined "same location' to mean same street address, ' inferring that because the guns were discovered in vehicles parked at the same address, [the defendant] possessed them simultaneously." Kennedy, 682 F.3d at 256. The court of appeals held the district court was incorrect, explaining that the district court's interpretation of "same location"
marked [an] expansion of Tann and collides with myriad decisions of Courts of Appeals outside this circuit that understand the concept of simultaneous possession in the same location more narrowly. See, e.g., United States v. Verrecchia, 196 F.3d 294, 296, 298 (1st Cir.1999) (holding that it was appropriate to bring two charges under § 922(g)(1), one for guns seized from defendant's barn and a second for guns seized from defendant's truck that had previously been stored with the guns in the barn); United States v. Keen, 104 F.3d 1111, 1112, 1118 & n. 11 (9th Cir.1996) (holding that simultaneous seizure of a shotgun and ammunition from the same room supports one § 922(g)(1) conviction, but observing that "[g]uns that are acquired at different times or stored in separate places permit separate punishment to be imposed for each violation of § 922(g)"); United States v. Hutching, 75 F.3d 1453, 1460 (10th Cir.1996) (explaining that "simultaneous possession of multiple firearms generally constitutes only... one offense unless there is evidence that the weapons were stored in different places, " and finding that firearms stored in the defendant's bedroom, a car in his garage, and his truck could be charged as separate offenses) (quotation marks omitted); United States v. Bonavia, 927 F.2d 565, 569 (11th Cir.1991) (explaining that "separate possessions can be established by showing... that the ...