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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Gary Arthur Brown, Jr., 

Defendant. 

No. CR-15-01301-001-PHX-JJT

ORDER 

 The court has read the Parties’ submissions regarding the need for unanimity 

instruction, which also includes Defendant’s proposed new instruction on the subject. 

(Docs. 94, 95.) United States v. Ruiz, 710 F.3d 1077 (9th Cir. 2013) is controlling on the 

issue when it states that “there is no general requirement that the jury reach agreement on 

the preliminary factual issues which underlie the verdict, since different jurors may be 

persuaded by different pieces of evidence even when they agree on the bottom line.” 710 

F.3d at 1081 (internal quotations omitted). 

Ruiz also provides an exception to the above general rule, however, noting that if 

there is “a genuine possibility of jury confusion, or if a conviction may occur as the result 

of different jurors concluding that a defendant committed different acts, then an 

instruction should be given to the effect that the jury may not convict unless it 

unanimously agrees to a particular set of facts.” (citing United States v. Anguiano, 710 

F.3d 1314, 1319 (9th Cir. 1989)(internal quotations omitted). A critical difference 

between Ruiz and the instant case is that in Ruiz, the defendant was charged with 

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possession of firearm and ammunition, which can be a continuing offense. Here, the 

offense of abusive sexual contact is not a continuing offense, or at least is not under the 

evidence adduced by the government. The Court thus concludes there is a genuine 

possibility of jury confusion, and for that reason it decided at the first trial in this matter 

to deliver a unanimity instruction, upon Defendant’s motion. For the same reason, and the 

United States not objecting, The Court again will deliver a unanimity instruction, but it 

will not deliver the instruction proposed by Defendant in Doc. 95. The court disagrees 

with Defendant’s argument that the unanimity instruction used in the first trial is 

“grammatically confusing” or “fatally ambiguous,” as the Ninth Circuit found the 

challenged instruction to be in United States v. Garcia-Rivera, 353 F.3d 788, 792 (9th 

Cir. 2003). The mere use of the disjunctive “or” connector is not what made the 

instruction in Garcia-Rivera confusing or ambiguous. Nonetheless, the court will modify 

the language of the previously used instruction slightly to eliminate any possible 

ambiguity. Instruction given at trial shall read: 

You have heard evidence that there was contact with Ms. 

Claudia Frye’s breast up to two times. Before you may find the Defendant guilty, you must unanimously agree that the first contact occurred; or you must unanimously agree that the 

second contact occurred; or you must unanimously agree that both contacts occurred. 

 The government cites United States Ferris, 719 F. 2d 1405 (9th Cir. 1983), in 

support of its argument that no more specific unanimity instruction, and in fact no 

unanimity instruction at all, is necessary, although the government is clear that it does not 

object to the giving of the unanimity instruction delivered in the prior trial. While that 

interpretation has appeal upon first reading of the case, there is again, like in Ruiz, a 

critical difference between the facts of Ferris and the facts of the instant case. In Ferris, 

the challenged jury instruction dealt with a charge of possession of controlled substances, 

and defendant argued that evidence of several different instances of possession by him 

were introduced, such that different jurors could have settled on different instances of 

possession in order to convict him of the count. In Ferris, the Ninth Circuit concluded 

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that different instances of possession did not invalidate the required unanimity of the 

jury’s decision. But again, as in Ruiz, possession is a continuing offense, and the court 

reasoned in Ferris that different jurors’ conclusions that defendant might have been in 

possession of controlled substance at different times was therefore not inconsistent with 

the unanimity of the verdict. In the instant case, the charges of a different nature, and not 

a continuing offense. For that reason, Ferris is inapposite, in the Court concludes that, to 

avoid the danger of jury confusion, the unanimity instruction is at least favored, and may 

be necessary. 

 IT IS THEREFORE ORDERED that the Court will deliver to the jury the above 

unanimity instruction at trial. 

 Dated this 19th day of September, 2016. 

Honorable John J. Tuchi

United States District Judge 

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