In United States v. Jockisch, No. 14-13577 (May 26, 2017) (Julie Carnes, Jordan, Robreno), the defendant was charged under 18 U.S.C. 2422(b) with attempting to persuade a 15-year old minor to engage in sexual activity that, if consummated, would have violated Alabama law. The indictment listed three Alabama statutes that the defendant could have been charged with had that sexual activity occurred: second-degree rape, second degree sodomy, and second degree sexual abuse. The Court rejected the defendant's argument that the jury was required to unanimously agree as to which Alabama offense the sexual activity would have violated. Finding these to be means rather than elements of the offense, and distinguishing the Supreme Court's decision in Richardson, the Court held that the jury need unanimously agree only that the sexual activity being enticed would have violated at least one of the listed Alabama statutes had it been carried out. Alternatively, the Court held that the jurors were necessarily unanimous that the defendant could have been charged with second degree sexual abuse.
Judge Jordan concurred in the judgment, disagreeing with the majority's analysis. Agreeing with a contrary decision from the Seventh Circuit, he would have required the jury to unanimously agree on the underlying state offense. He concurred because he believed that the error in this case was harmless.
