Possession of Firearm

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7^th Circuit Court of Appeals

Case Name: United States of America v. Anthony Day

Case No.: 23-2311

Officials: St. Eve, Jackson-Akiwumi and Pryor, Circuit Judges.

Focus: Possession of Firearm

Day and Williams were charged with robbing a bank in Hammond, Indiana. During the robbery, Day was identified as the individual who wielded a silver revolver. Following the crime, police located Day using a GPS tracker concealed within the stolen cash. They apprehended him in a wooded area where they discovered cash, an OGIO bag, parts of the robbers’ disguises, and two firearms: a silver Smith & Wesson revolver and an American Tactical assault rifle. Day and Williams were arrested, leading to a grand jury indictment of Day for bank robbery, brandishing a firearm during a violent crime, and illegal firearm possession by a felon.

In the district court, Day sought to exclude any mention of the American Tactical assault rifle, arguing lack of evidence that he used it during the robbery. He also requested a unanimity instruction from the jury, requiring agreement on which firearm he possessed for the felon in possession charge. The district court denied both requests, citing precedent from the United States Court of Appeals for the Seventh Circuit. The jury subsequently found Day guilty on all charges, resulting in a sentence of 292 months in prison.

Day appealed his conviction specifically on the charge of being a felon in possession of a firearm, challenging the district court’s refusal to give the unanimity instruction he requested.

The Seventh Circuit reviewed Day’s argument de novo. The court emphasized that the Sixth Amendment guarantees a defendant the right to a trial by an impartial jury, necessitating unanimity for convictions on serious offenses. However, this requirement applies only to elements of the offense, not to the methods used to commit those elements. The court clarified that the specific firearm possessed is not an element of the crime but serves as a means to satisfy the broader element of possessing “any firearm.” Therefore, jurors are not obligated to agree on which firearm the defendant had.

The court further noted that if a defendant possesses multiple firearms concurrently and indistinguishably, the government may only bring one charge. In Day’s case, the evidence indicated a single instance of possession involving both firearms, not two separate instances. Thus, the court affirmed, concluding that no unanimity instruction was necessary.

Affirmed.

Decided 07/01/24

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