In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 23-2311 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

ANTHONY DAY, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division. 

No. 19-cr-00126 — Jon E. DeGuilio, Judge.

____________________ 

ARGUED APRIL 16, 2024 — DECIDED JULY 1, 2024 

____________________ 

Before ST. EVE, JACKSON-AKIWUMI and PRYOR, Circuit 

Judges. 

ST. EVE, Circuit Judge. Anthony Day challenges the district 

court’s denial of a unanimity instruction that would have required jurors to agree on which of two weapons he possessed 

for purposes of an 18 U.S.C. § 922(g)(1) charge. Because Day

possessed the two firearms simultaneously, no such instruction was required. We affirm. 
2 No. 23-2311 

I. Background

A. Factual Background 

On October 8, 2019, two men robbed a bank in Hammond, 

Indiana. One, later identified as Anthony Day, brandished a 

silver revolver and wore a fake beard and mustache, sunglasses, beige shirt, and hat. The other man, Omarr Williams, 

carried an OGIO-brand bag and wore a fake beard and mustache, sunglasses, dreadlock wig, and baseball hat. Cash in 

hand, the two men fled in a black minivan. The signal from a 

GPS tracker embedded in the cash led police to Day, and they 

arrested him seventeen minutes later. 

Officers searched the wooded area near the location of 

Day’s arrest and found broken pieces of the GPS tracker, cash, 

an OGIO bag, and parts of the robbers’ disguises including 

the fake facial hair, dreadlock wig, hats, and sunglasses. 

Nearby, they also discovered an abandoned tire. Inside that 

tire, a loaded silver Smith & Wesson revolver lay next to a 

loaded American Tactical assault rifle. Law enforcement arrested the other suspect, Williams, half a mile away, confiscating a handgun and bag of cash from the robbery. 

B. Procedural Background

A grand jury charged Day with one count of bank robbery 

in violation of 18 U.S.C. § 2113(a), one count of brandishing a 

firearm during a crime of violence in violation of 18 U.S.C. 

§ 924(c)(1)(A)(ii), and one count of being a felon in possession 

of a firearm in violation of 18 U.S.C. § 922(g)(1). 

Prior to trial, Day moved to exclude reference to the American Tactical assault rifle as there was no evidence that he 

used it during the robbery. In the alternative, Day argued that
No. 23-2311 3

the court should give the jury a unanimity instruction on the 

§ 922(g)(1) count—meaning the jurors must agree on which 

gun (the silver Smith & Wesson or American Tactical assault 

rifle) Day possessed for purposes of the charge. The district 

court denied both of Day’s requests, citing this court’s decision in United States v. Pollock, 757 F.3d 582 (7th Cir. 2014). It

instructed the jury, however, that it could only consider evidence relating to the American Tactical assault rifle for purposes of the § 922(g)(1) charge. 

At trial, the government presented evidence that Day 

brandished the silver Smith & Wesson revolver during the 

robbery and that his DNA was on the American Tactical firearm found next to the revolver and near the disguises. After 

the close of evidence, the court instructed the jury that its verdict must be unanimous on each count. The jury ultimately 

found Day guilty on all three counts, and the court sentenced

him to 292 months’ imprisonment. 

He timely appealed his § 922(g)(1) conviction, challenging 

the district court’s failure to give his requested jury instruction, but does not appeal his other convictions. 

II. Discussion

We review Day’s argument de novo because “the underlying assignment of error implicates a question of law.” 

United States v. Bloom, 846 F.3d 243, 255 (7th Cir. 2017). 

The Sixth Amendment guarantees the right to trial by an 

impartial jury, which the Supreme Court has interpreted to 

compel jury unanimity, at least with respect to convictions for 

serious crimes. Ramos v. Louisiana, 590 U.S. 83, 90 (2020). But

the “juror unanimity” requirement only applies to the 
4 No. 23-2311 

elements of the offense. Richardson v. United States, 526 U.S. 

813, 817, 819 (1999). As a result, “a federal jury need not always decide unanimously which of several possible sets of 

underlying brute facts make up a particular element, say, 

which of several possible means the defendant used to commit an element of the crime.” Id. at 817. 

Section 922(g)(1) prohibits felons from “possess[ing] ... any firearm.” We explained in Pollock that “the 

particular firearm possessed is not an element of the 

crime ... but instead the means used to satisfy the element of 

‘any firearm.’” 757 F.3d at 588; see also United States v. Verrecchia, 196 F.3d 294, 296 (1st Cir. 1999). As a result, jurors need 

not agree on which weapon the defendant possessed. Pollock, 

757 F.3d at 588. “If one juror believed the defendant possessed 

a rifle, but a different juror believed the defendant possessed 

a shotgun, both would still be in agreement that the defendant 

possessed ‘any firearm,’” satisfying that element of 

§ 922(g)(1). Id.

Where a defendant possessed multiple firearms, the government may only bring one § 922(g)(1) charge if the defendant’s possession of the firearms was “simultaneous and undifferentiated.” United States v. Buchmeier, 255 F.3d 415, 422 

(7th Cir. 2001). If weapons are found together, for example,

convicting a defendant of two § 922(g)(1) charges is multiplicitous because the possession of the firearms together constitutes one instance of possession and therefore a single offense. 

United States v. Miles, 86 F.4th 734, 739 (7th Cir. 2023); see also

United States v. Bloch, 718 F.3d 638, 641, 643 (7th Cir. 2013) 

(holding that a felon could be convicted of only one 

§ 922(g)(1) charge where he possessed two guns: one on a 

nightstand in a bedroom and another in an open closet). In 
No. 23-2311 5

contrast, two convictions are warranted if the government 

“produce[s] evidence demonstrating that the firearms were 

stored or acquired separately and at different times or 

places.” United States v. Conley, 291 F.3d 464, 470 (7th Cir. 

2002) (quoting Buchmeier, 255 F.3d at 423). 

Here, contrary to Day’s contention, the evidence supports

a single “simultaneous and undifferentiated” course of possession of the firearms, not two distinct instances of possession. Buchmeier, 255 F.3d at 421–22. As a result, Pollock controls. 

Key to that conclusion is the timeframe of the criminal episode, from commission of the bank robbery to Day’s arrest. 

Only seventeen minutes transpired between when Day fled 

the bank and when he was apprehended. During that short 

time, he drove at speeds nearing 100 miles per hour until he 

arrived at the 500-block of Burr Street, stashed his robbery 

weapon with the American Tactical, and hid in the overgrown 

brush. 

Day’s possession of the silver revolver was continuous

during this short time period, extending from his actual possession of the firearm at the bank to his constructive possession of the firearm when he concealed it in a tire near other 

robbery paraphernalia. See United States v. Ellis, 622 F.3d 784, 

794 (7th Cir. 2010), as amended (Sept. 27, 2010) (“[A] felon who 

unlawfully possesses a firearm and then relinquishes actual

possession while maintaining constructive possession has 

committed only one violation of § 922(g)(1).”). The presence 

of Day’s DNA on the American Tactical supports an inference 

of simultaneous constructive possession at the storage site. 

That same evidence also confirms that it was no coincidence 

that officers found the American Tactical with the Smith & 
6 No. 23-2311 

Wesson and near items used during the robbery. Put another 

way, Day did not accidentally stash the robbery weapon next 

to a gun to which he had no connection.

As we explained in United States v. Jackson, to convict a defendant of two § 922(g)(1) violations under these circumstances, the government must present evidence that the defendant lost possession of one of the guns. 479 F.3d 485, 491 

(7th Cir. 2007). There was no such evidence in Day’s case—no 

suggestion that at any point in the seventeen-minute incident 

Day lost possession of either weapon. Instead, the government prosecuted the case as “a single course of illegal conduct” spanning from the robbery until officers arrested Day 

and confiscated the guns. See id. (holding juror unanimity as 

to the precise moment of possession was not necessary where 

there was no evidence the defendant lost possession of the 

weapon during a three-day period). With that context, Day’s 

actions are best characterized as a single course of conduct. 

See Ellis, 622 F.3d at 794; United States v. Berardi, 675 F.2d 894, 

898 (7th Cir. 1982) (holding that three separate acts of obstruction could be considered for a single 18 U.S.C. § 1503 violation 

because all three instances “occurred within a relatively short 

period of time”). 

How Day stored the two weapons supports the same conclusion. See United States v. Parker, 508 F.3d 434, 440 (7th Cir. 

2007). We explained in Buchmeier that storing weapons together is evidence of “simultaneous and undifferentiated possession” warranting only a single § 922(g)(1) charge. 255 F.3d 

at 423. Here, Day took precious minutes out of his flight to 

stash the Smith & Wesson revolver brandished during the 

robbery next to the American Tactical, concealing both in an 

old tire in a wooded area. Cf. United States v. Washington, 666 
No. 23-2311 7

F. App’x 544, 546 (7th Cir. 2016) (“[S]toring some weapons in 

a vehicle and others in a building represent separate acts of 

possession.”). While officers found other items from the robbery haphazardly discarded nearby—the disguises, clothing, 

cash, and broken tracker—Day’s choice to hide the two guns 

together is significant. See Verrecchia, 196 F.3d at 296, 298 (explaining that “the place of possession”—here, how the guns 

were stored—dictates the number of permissible § 922(g)(1) 

charges).

The evidence leads us to the unavoidable conclusion that 

Day’s possession of the American Tactical cannot be separated from his possession of the silver revolver on October 8, 

2019. That compels Pollock’s application. No unanimity instruction was required. Jurors were free to consider either the 

silver Smith & Wesson or the American Tactical for purposes 

of the § 922(g)(1) charge. Regardless of which weapon underpinned that conviction, the jury was unanimous in finding 

that Day—a felon—unlawfully possessed a firearm. That is 

sufficient.

III. Conclusion

For the reasons explained, the judgment of the district 

court is AFFIRMED.