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A jury does not have to unanimously decide the type of sexual activity the defendant attempted to commit on a minor to violate federal statute.

Defendant Freeman Jockisch was indicted and convicted of a violation 18 USC §2422(b) which prohibits the use of the Internet to attempt to persuade a minor to engage in sexual activity. The indictment alleged he tried to commit rape in the second degree, sodomy in the second degree, and sexual abuse in the second degree. The indictment listed three sexual offenses under Alabama statutes, which had Jockisch consummated with the minor, would have resulted in criminal charges under Alabama state law or federal law.  Jockish is a former Mobile County, Alabam Commissioner.

The defendant began an email correspondence with someone he believed to be a 15-year old girl on Craigslist and said multiple times during his emails that he wanted to make love to the young woman. Eventually they agreed to meet and when the defendant arrived at the address and time she provided, he only found police officers waiting for him.

The district court turned down a defense instructed instruction and instead instructed the jury that it only had to unanimously find the defendant knowingly used the internet to attempt to persuade the minor to engage in unlawful sexual activity and that if the sexual activity had occurred the defendant could have been charge with a criminal offense under the laws of Alabama.

In his challenge on appeal Jockisch argues that the district court erred by refusing to instruct the jury that it must unanimously agree as to which of the above three sex acts, in violation of Alabama law, that the defendant could have attempted to persuade the minor girl to perform had he not been arrest and had there been a real minor.

The court of appeals rejected the challenge and upheld the court’s instruction. While the defendant could not be convicted unless the jury unanimously agreed that each element of a criminal offense has been proved beyond a reasonable doubt, the appellate court pointed out that not every fact important to a determination of guilt constitutes an element of the offense. As to a fact that is not an element of the federal crime, unanimity by jurors of the fact is not required.

A jury need not unanimously decide which of several possible sets of underlying facts make up a particular element or, as an example, which of several possible means the defendant used to commit an element of the crime.   If a fact is an element, then the jury must unanimously agree it has been proven beyond a reasonable doubt. But if a fact is nothing more than a possible means by which a defendant met an element of the offense, then no unanimity is required.

In this case the court found the underlying federal criminal law does not require proof that the defendant commit the underlying sexual crimes described in the charge, nor does it require the defendant actually engage in the sexual activity. It only requires the attempt to do so. This federal criminal ruling applies to federal criminal cases in Georgia and Florida.