United States v. Dennis Franklin and Shane Sahm, vacating panel decision, (884 F.3d 331 (2018)) granting rehearing, and certifying a question to the Wisconsin Supreme Court; question answered, 2019 WI 64
This doesn’t happen every day! The Seventh Circuit has issued an opinion certifying a criminal law question to the Wisconsin Supreme Court:
Whether the different location subsections of the Wisconsin burglary statute, Wis. Stat. § 943.10(1m)(a)–(f), identify alternative elements of burglary, one of which a jury must unanimously find beyond a reasonable doubt to convict, or whether they identify alternative means of committing burglary, for which a unanimous finding beyond a reasonable doubt is not necessary to convict?
The subsections in question list the various locations that can be burgled:
943.10 (1m) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place is guilty of a Class F felony:
(a) Any building or dwelling; or
(b) An enclosed railroad car; or
(c) An enclosed portion of any ship or vessel; or
(d) A locked enclosed cargo portion of a truck or trailer; or
(e) A motor home or other motorized type of home or a trailer home, whether or not any person is living in any such home; or
(f) A room within any of the above.
So the question is whether each of these location alternatives is a distinct element about which jurors would have to unanimously agree at trial. Or, to put it another way, does § 943.10(1m) define one crime or six?
If each of the location alternatives is a distinct element of six different offenses, then a burglary defendant could theoretically win acquittal by causing jurors to disagree on whether he burglarized a dwelling or a motor home. But then a prosecutor could also theoretically charge at least two distinct counts of burglary for every single burglary of a building—one for the building itself ((1m)(a)) and one for each room within the building ((1m)(f)).
It is safe to say that state practitioners are currently operating under the assumption that this is not the law.
Why, you may ask, does the Seventh Circuit care about this arcane (and arguably obvious) bit of state law? The short answer—it could get much longer—is that there is a federal sentence enhancement that applies to certain defendants with certain prior convictions, one of which is burglary. 18 U.S.C. § 924(e)(2)(B)(ii). But it doesn’t apply to just any burglary—only burglary of a building, rather than a railroad car, ship, etc. Taylor v. United States, 495 U.S. 575 (1990). And when applying that enhancement, the federal courts are not permitted to consider whether the defendant in fact burglarized a building–they may only consider the essential elements of the statutory offense of conviction–those things about which jurors would have to unanimously agree. Mathis v. United States, 136 S. Ct. 2267 (2011).
So for the defendants in the Seventh Circuit case, their statutory sentencing structure depends on whether Wis. Stat. § 943.10(1m)’s location subsections are essential elements about which jurors would have to agree, or merely different modes of commission, as are, for example, the different subsections of the child enticement statute. State v. Derango, 2000 WI 89, ¶ 6, 236 Wis. 2d 721, 613 N.W.2d 833. That’s a question of state law, and the one the Seventh Circuit has now asked the Wisconsin Supreme Court to answer.
UPDATE: As noted above, the supreme court answered the question by unanimously holding that the location alternatives are not elements, so jurors do not need to unanimously agree on the location the burglary occurred.