Criminal Law Blog

No Plain Error In Denying a Special Unanimity Instruction Where Multiple Threats Uttered During an Abduction Were Not Clearly or Obviously Factually or Legally Separate

Angela Guevara & Demecio Lopez v. United States, Nos. 11-CF-209 & 11-CF-280 (decided October 10, 2013)
Players:  Glickman, Oberly, Belson.  Opinion by Senior Judge Belson.  PDS for Ms. Guevara.  Phillip C. Zane for Mr. Lopez.  Trial judge:  Craig Iscoe.
Facts:  After an argument, Demecio Lopez and his brother Armando seized Silvano Lopez (their former brother-in-law), forcing him into a van driven by Angela Guevara and occupied by an unidentified man.  They drove around for a while, then stopped, and Armando and the unknown man stabbed Silvano.  They later left him near Catholic University.  In the course of the kidnapping and stabbing, Silvano was threatened three times.  When Silvano first entered the van, the unidentified man held a knife to his throat and told him he was going to die.  When Silvano’s cell phone rang during the van ride, the same man told Silvano he would cut him if he answered.  And when leaving Silvano after the stabbing, Demecio told him he would murder him in the hospital if Silvano identified his assailants to police.  Based on this incident, Demecio Lopez was convicted of armed kidnapping, related assault charges, and threats.  Angela Guevara was convicted only of threats.   
Issue 1:  Did the trial court commit plain error in failing to give a sua sponte special unanimity instruction telling the jury that in order to convict Ms. Guevara of threatening to injure or kill Silvano Lopez it must unanimously decide which of three possible threats served as the basis for conviction?
Issue 2:  Did the trial court’s failure to correct translation problems at trial amount to plain error entitling Demecio Lopez to a new trial? 
Holding 1:  No.  Any error was not plain because it was not clear or obvious that the three threats were factually or legally distinct, and the trial court reasonably could have seen the threats as part of a “single unbroken chain of events.”  Nor did Ms. Guevara show prejudice to her substantial rights, where the prosecutor’s closing argument referred to only one of the threats.
Holding 2:  No.  There was no plain error where the trial court “took precautions from the outset to ensure an accurate translation” and “assiduously policed the translation issues as they arose.”
Of Note:      
  • Indications that the three threats were not “factually separate” included the facts that    they all occurred during the course of the abduction, all were “communicated in a similar manner and to the same person,” all took place within a “relatively short” period of about forty-five minutes, and all were motivated by a desire to silence Silvano Lopez.  Slip op. at 16-17. 
  • Even though the Court identified these reasons to believe that the three threats were not            factually distinct, it “recognize[d] . . . that if defendant’s counsel had asked for a special unanimity instruction and stated the basis for it, the court might have been obliged to give such an instruction to the jury.”  Slip op. at 22.
How To Use:  Given its recognition that a special unanimity instruction might have been required on the facts of this case if counsel had requested one, the opinion may offer support for a request for a special unanimity instruction at trial if the evidence shows distinct factual bases for a charged offense “separated by time, location, and surrounding circumstances.”  See Slip op. at 22 n.19.  MW.

Read full opinion here