Unanimity not required on overt act element of Section 371
Lawyers know reflexively that, in order to convict, a criminal jury must be unanimous in agreeing that the government has proven all essential elements beyond a reasonable doubt. They also know that the crime of conspiracy under Section 371 of Title 18 includes among its elements the requirement of proof of the commission of an overt act, as set forth in the statute. So, it is also true that jury must unanimously agree on which overt act the defendant committed, whether or not set forth in the indictment, right? Not so much.
Judge Posner, writing recently for the Seventh Circuit, held that unanimity is not required as to the identify of the particular overt act. Proof of an overt act is a "statutory afterthought," wrote Posner in United States v. Griggs, 569 F.3d 341 (7th Cir. 2009), since common law conspiracy did not require proof of an overt act. See also 21 U.S.C. § 846 (drug conspiracy; no overt act required). It is "inconsequential" that jurors failed to agree on the identity of the overt act, since the act itself need not be criminal, as long as, presumably, they are unanimous that some step was taken by some conspiracy member to achieve the conspiratorial object.
Thus, the Seventh Circuit joined the only other circuit court of appeals to have considered the question in holding that, no matter how intuitive-seeming the proposition, unanimity as to the specific act is not required. Accord United States v. Sutherland, 656 F.2d 1181 (5th Cir. 1981).
