Denton

dissenting.

A defendant has the right to a unanimous jury verdict under both Article III, § 2 and the Sixth Amendment to the U.S. Constitution. See United States v. Garcia-Rivera, 353 F.3d 788, 792 (9th Cir.2003). He also has a right to have the jury reach a unanimous decision regarding each element of the charged offense. See Richardson v. United States, 526 U.S. 813, 817 , 119 S.Ct. 1707 , 143 L.Ed.2d 985 (1999). Here, the government sought to prove numerous acts over a two-year time span, any or all of which could have constituted an offense for which the jury could have convicted him. Nevertheless, a specific unanimity instruction was not given at trial. Without such an instruction, I believe that we are unable to determine whether the jury reached a unanimous decision as to any specific act Denton committed in violation of 18 U.S.C §§ 1951 and 2332a.

This circuit has clearly held that where there is a realistic possibility of jury confusion as to the act(s) supporting the conviction, the lack of a specific unanimity instruction constitutes plain error. See United States v. Payseno, 782 F.2d 832, 836-37 (9th Cir.1986) (vacating the defendant’s conviction because there was a…

MEMORANDUM **

Ronald Denton appeals his conviction for violation of 18 U.S.C. § 1951 (a) and 18 U.S.C. § 2332a(a)(2).

The indictment was not duplicitous. On its face, each count of the indictment under which Denton was convicted can be read to charge only one separate and distinct offense. See United States v. Ramirez-Martinez, 273 F.3d 903, 915 (9th Cir.2001). The fact that the bill of particulars identifies fifty-five days during the relevant period that Denton made threats against Chevron in furtherance of his alleged extortion plan does not render the indictment duplicitous. See Cohen v. United States, 378 F.2d 751, 754 (9th Cir.1967). Because all of the threats were allegedly made in furtherance of one plan and the dangers raised by duplicity were not present, the threats were properly charged as one distinct offense within each count.

The district court did not err in permitting Denton’s psychotherapist, Dr. Gelbart, to testify to his contemporaneous perceptions of statements Denton allegedly made during his treatment sessions. As a percipient witness, Dr. Gelbart’s testimony was highly probative as the only source of evidence relevant to assessing whether Denton’s…