Unpublished Disposition, 917 F.2d 1307 (9th Cir. 1990)

MEMORANDUM^** 

Appellant Ramon Arceo-Birrueta was convicted after a jury trial of transportation of illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B). Arceo-Birrueta appeals his conviction on the ground that the verdict was not necessarily unanimous, and must be set aside. We affirm.

By indictment on August 30, 1989, Arceo-Birrueta was charged with one count of transporting illegal aliens. The indictment alleged that on July 31, 1989, Arceo-Birrueta and co-defendant Jose Arceo, transported for gain four aliens, knowing and in reckless disregard of the fact that the aliens had come to, entered and remained in the United States in violation of federal law.

On September 6, 1989, Arceo-Birrueta entered a plea of not guilty. A jury returned a guilty verdict on October 20, 1989. Arceo-Birrueta was sentenced on January 2, 1990, and filed a notice of appeal with this court the following day.

Challenges to the language or formulation of jury instructions are reviewed for an abuse of discretion. United States v. Linn, 880 F.2d 209, 217 (9th Cir. 1989).

At the end of Arceo-Birrueta's trial, the court concluded that in order to convict, the jury must unanimously agree that each element of the crime had been proven beyond a reasonable doubt as to a particular illegal alien. The jury was instructed that the crime charged possessed four elements, and that the verdict must be unanimous.

A specific instruction on unanimity is not required in every case. See United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir. 1983). A specific instruction is only required when the evidence is complex, there is a discrepancy between the indictment and the evidence, or some other particular factor creates "a genuine possibility of juror confusion." United States v. Frazin, 780 F.2d 1461, 1468 (9th Cir. 1986).

Arceo-Birrueta argues that there is a possibility that the jury did not agree unanimously that the government proved all four elements of the crime with respect to any one of the illegal aliens.

The evidence was sufficient to convict as to any one of the aliens. Arceo-Birrueta admitted all the elements of the offense as to two of the aliens in a written statement given to authorities shortly after his arrest. Arceo-Birrueta has made no claim that the written statement violated his fifth or sixth amendment rights. Proof of the elements as to the other two aliens was made largely through their own testimony. Because there was sufficient evidence to support a conviction regarding each alien, there is no threat that the jury did not reach its verdict as to Arceo-Birrueta's guilt unanimously.

Arceo-Birrueta does not argue that the evidence in this case was complex, or that there was any discrepancy between the indictment and the evidence. Based on the uncomplicated evidence before the jury, a specific unanimity instruction was not required, and the district court did not err in failing to give such.

We also note that Arceo-Birrueta's counsel failed to object to the given instructions. Counsel agreed to the unanimity instruction, but requested that the court advise the jury about the necessity of proof only if the jury later expressed questions about the issue. The jury did not have any questions for the court during its deliberations. After the verdict was announced, counsel failed to object to any ambiguity or lack of unanimity. Thus, Arceo-Birrueta failed to preserve any objection to the jury instructions for appeal.

AFFIRMED.