United States of America v. Anthony Day

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2311
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY 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.
____________________
A RGUED A PRIL 16, 2024 — DECIDED J ULY 1, 2024
____________________
Before S T. EVE, JACKSON -A KIWUMI and PRYOR , Circuit
Judges.
ST. EVE, Circuit Judge. Anthony Day challenges the district
court’s denial of a unanimity instruction that would have re-
quired 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 instruc-
tion was required. We affirm.

-- 1 of 7 --

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, sun-
glasses, beige shirt, and hat. The other man, Omarr Williams,
carried an OGIO-brand bag and wore a fake beard and mus-
tache, 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 ar-
rested the other suspect, Williams, half a mile away, confis-
cating 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 Amer-
ican Tactical assault rifle as there was no evidence that he
used it during the robbery. In the alternative, Day argued that

-- 2 of 7 --

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 deci-
sion in United States v. Pollock, 757 F.3d 582 (7th Cir. 2014). It
instructed the jury, however, that it could only consider evi-
dence relating to the American Tactical assault rifle for pur-
poses 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 fire-
arm found next to the revolver and near the disguises. After
the close of evidence, the court instructed the jury that its ver-
dict 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 instruc-
tion, but does not appeal his other convictions.
II. Discussion
We review Day’s argument de novo because “the under-
lying 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

-- 3 of 7 --

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 al-
ways 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 com-
mit an element of the crime.” Id. at 817.
Section 922(g)(1) prohibits felons from “pos-
sess[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. Verrec-
chia, 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 gov-
ernment may only bring one § 922(g)(1) charge if the defend-
ant’s possession of the firearms was “simultaneous and un-
differentiated.” 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 multiplic-
itous because the possession of the firearms together consti-
tutes 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

-- 4 of 7 --

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 pos-
session of the firearms, not two distinct instances of posses-
sion. Buchmeier, 255 F.3d at 421–22. As a result, Pollock con-
trols.
Key to that conclusion is the timeframe of the criminal ep-
isode, 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 pos-
session of the firearm at the bank to his constructive posses-
sion 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 &

-- 5 of 7 --

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 de-
fendant of two § 922(g)(1) violations under these circum-
stances, the government must present evidence that the de-
fendant 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 govern-
ment prosecuted the case as “a single course of illegal con-
duct” 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 obstruc-
tion 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 con-
clusion. See United States v. Parker, 508 F.3d 434, 440 (7th Cir.
2007). We explained in Buchmeier that storing weapons to-
gether is evidence of “simultaneous and undifferentiated pos-
session” 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

-- 6 of 7 --

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 rob-
bery 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 (ex-
plaining 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 sepa-
rated from his possession of the silver revolver on October 8,
2019. That compels Pollock’s application. No unanimity in-
struction 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 under-
pinned 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 A FFIRMED.

-- 7 of 7 --