What does it mean to say that an overt act is required for conviction of a general conspiracy (including a Klein conspiracy)? Certainly, the indictment must plead the overt act element and the jury must find the existence of the element in order to convict. But many indictments merely plead generally the existence of at least one overt act in furtherance of the conspiracy, without specifying the overt act itself; the jury then finds in a general guilty verdict that at least one unspecified overt act occurred. Must the indictment be more specific as to the precise overt act or acts alleged to support conviction? Must the jury specifically find and reach unanimity as to one or more overt acts that support the general verdict of conviction? The sparse authority addressing the issue directly seems to support the proposition that the jury need not be unanimous as to any overt act.In United States v. Molen, 2015 U.S. App. LEXIS 19614 (9th Cir. 2015), unpublished, here, the Ninth Circuit addressed much the same question in the tax obstruction statute, § 7212(a), here.
3. We need not address whether the 26 U.S.C. § 7212(a) charge required a specific unanimity instruction because Molen's substantial rights were not violated. See United States v. Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011) (explaining that, where defendant does not object to jury instructions at trial, relief is unwarranted unless there has been plain error that affects the defendant's substantial rights and the fairness or integrity of the proceedings). The jury's guilty verdict on counts one and two, the § 1521 charges, established a unanimous finding that Molen filed a false lien against IRS officers, one of the obstructive means alleged in the indictment. See United States v. Chen Chian Liu, 631 F.3d 993, 1000-01 (9th Cir. 2011). Moreover, overwhelming evidence demonstrated that Molen filed the lien with an intent to secure an unlawful benefit, satisfying the requirement under § 7212(a) that the obstructive means were undertaken "corruptly." See United States v. Massey, 419 F.3d 1008, 1010-11 (9th Cir. 2005).The tax obstruction statute has been described as a one-person Klein / defraud conspiracy. See CTM 17.02 (2001 ed.) where DOJ Tax asserted that tax obstruction may be charged where the Klein conspiracy is “unavailable due to insufficient evidence of conspiracy,” although that statement is omitted from the 2008 ed.); see also David F. Axelrod, Larry A. Campagna, James A. Bruton III, The “New” Tax Laws - 26 U.S.C. Section 7212(a) and the One-Person Conspiracy (Paper prepared for ABA National Institute on Criminal Tax Fraud in 1999). So, the learning from the overt act requirement appears relevant. Keep in mind that the Ninth Circuit's resolution of the issue in Molen was under the stringent plain error standard -- it might have been error if properly and timely raised; it was just not plain error.
I offer the briefs of the parties which develops the issue reasonably well.
The Government's summary of its argument on the unanimity issue in the answering brief is:
The omission of a unanimity instruction was not plain error because none was required, and there was no legal precedent for such an instruction. Moreover, even if a unanimity instruction was required, neither Molen’s substantive rights, nor the fairness of his trial, was affected because the jury returned a unanimous verdict convicting him (twice) of at least one of the means of violating § 7212(a) (the filing of false liens), and the United States also proved beyond a reasonable doubt the other means alleged in the indictment.Close to what the Court held. The details of the argument are fleshed out later in the brief. The Ninth Circuit obviously accepted the argument. Consider the following from the detailed argument:
Molen cites no case suggesting that a unanimity instruction is required as to a violation of the IRS obstruction statute, and there is no precedent in this Circuit to suggest that any such instruction is required. A review of model jury instructions related to § 7212(a) reveals a variation among the Circuits who have addressed the issue of whether 7212(a) necessitates a unanimity instruction. See, e.g., Fed. Crim. Jury Instr. 7th Cir. § 7212 (2013 ed.) (listing four elements, but no unanimity requirement); but see Fed. Crim. Jury Instr. 11th Cir. § 7212 (describing two elements, but noting that jurors “must all agree on which method the defendant corruptly used”). Thus, the lack of a unanimity instruction where the trial court correctly instructed the jury to the elements of the violation cannot constitute error that is plain.The point is, I suppose, that a different result might obtain if the argument is made timely.
This also points up a truism of our geographical federal system that there can be disagreements as to key aspects of the law that affect parties' rights -- here whether unanimity is required as to the obstructive act. While the substantive offense convictions may have permitted the Ninth Circuit to infer unanimity, that is not the same as having the jury, properly instructed, determine unanimity.