A panel of this court rejected most of Montanye's arguments, but reversed Montanye's attempt conviction concluding his glassware delivery was insufficient to show he attempted to manufacture methamphetamine. United States v. Montanye, 962 F.2d 1332, 1346, 1348 (8th Cir. 1992), reh'g granted and op. vacated, 962 F.2d at 1349 (July 30, 1992 Order). Although Montanye did not appeal his sentence, the panel also remanded Montanye's case for resentencing after concluding it was a gross miscarriage of justice to hold Montanye responsible for the 37.5 kilograms of methamphetamine producible from the chemicals on hand when the laboratory was discovered. Id. at 1347.

Herbert Ross Montanye is serving two concurrent 30-year prison terms for conspiracy and attempt to manufacture methamphetamine. After our en banc Court affirmed his convictions and sentence, United States v. Montanye, 996 F.2d 190 (8th Cir. 1993) ("Montanye II") (vacating United States v. Montanye, 962 F.2d 1332 (8th Cir. 1992) ("Montanye I")), Mr. Montanye filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He claimed his lawyer was constitutionally ineffective for two reasons: He did not object to the finding in the Presentence Report ("PSR") that Mr. Montanye could reasonably have foreseen the production capacity of his co-conspirators' drug laboratory, and he did not request a lesser-included-offense instruction. The District Court denied the motion, and Mr. Montanye now appeals.

See United States v. Rockelman, 49 F.3d 418, 421 (8th Cir. 1995). In United States v. Montanye, 962 F.2d 1332, 1341 (8th Cir. 1992) (subsequent history omitted) ( Montanye I), we held that the district court's refusal of a specific unanimity instruction concerning the identity of the supervised individuals was not plain error. This opinion was subsequently vacated and a suggestion for rehearing en banc was granted.

It is clear from reviewing the record that a reasonable jury could conclude that Crossland was a supplier and broker of chemicals used to make methamphetamine and that he was guilty of conspiracy and possession of iodine having reasonable cause to believe it would be used to manufacture methamphetamine. See, e.g., United States v. Montanye, 962 F.2d 1332, 1343 (8th Cir. 1992) (subsequent history omitted) (supplier who sold laboratory glassware, knowing with certainty that it would be used in illegal drug manufacturing conspiracy, was not entitled to favorable aiding and abetting instruction). This opinion was subsequently vacated and a suggestion for rehearing en banc was granted.

Id. at 880 (finding constructive possession of a gun that was locked in a safe in a storage unit when defendant admitted placing the gun there and had keys to the unit and safe). “We have found constructive possession where police found weapons after a defendant's arrest in a storage facility rented in the name of someone other than the defendant.” Id. at 881 (citing United States v. Montanye, 962 F.2d 1332, 1347–48 (8th Cir.1992)). “The government need not show that the defendant used or even touched a weapon to prove a connection between the weapon and the offense.”

We have found constructive possession where police found weapons after a defendant's arrest in a storage facility rented in the name of someone other than the defendant. United States v. Montanye, 962 F.2d 1332, 1347-48 (8th Cir. 1992). Once a district court has found that a gun was possessed during commission of the offense, the court must impose the § 2D1.1(b)(1) enhancement unless it is clearly improbable that the weapon was connected to the offense.

Norman concedes that "[p]rior Eighth Circuit authority holds that specific unanimity as to the group census element is not required in order to establish a [continuing criminal enterprise] violation." (Appellant Norman's Br. at 27 (citing United States v. Jelinek, 57 F.3d 655, 658-59 (8th Cir. 1995) and United States v. Rockelman, 49 F.3d 418, 421 (8th Cir. 1995))); see also United States v. Montanye, 962 F.2d 1332, 1341 (8th Cir. 1992), cited with approval in reh'g en banc, United States v. Montanye, 996 F.2d 190, 194 (8th Cir. 1993). He nonetheless urges us to reconsider our prior precedent in light of Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999).

Under plain error review, we conclude the general unanimity instruction was sufficient to protect Brett's constitutional rights. See United States v. Gruenberg, 989 F.2d 971, 975 (8th Cir. 1993) ("A general unanimity instruction usually protects a defendant's sixth amendment right to a unanimous verdict.") (quoting United States v. Montanye, 962 F.2d 1332, 1341 (8th Cir. 1992)). The pattern instruction provides as follows:

This court has repeatedly held that a general unanimity instruction is usually sufficient to protect a defendant's sixth amendment right to a unanimous verdict. See United States v. Gruenburg, 989 F.2d 971, 975 (8th Cir. 1993) (citing United States v. Montanye, 962 F.2d 1332, 1341 (8th Cir. 1992)). A district court may have to give a specific unanimity instruction where there is a genuine risk of jury confusion.

Even under the Sentencing Guidelines, the district court committed clear error in calculating the drug amounts attributable to Jones. For a defendant to be sentenced for drugs distributed by his or her co-conspirators, the distribution of drugs must have been: "(1) in furtherance of the conspiracy and (2) reasonably foreseeable to [the defendant]." See United States v. Montanye, 962 F.2d 1332, 1347 (8th Cir. 1992), rev'd on other grounds, 996 F.2d 190 (8th Cir. 1993) (en banc) (citations omitted). "For activities of a co-conspirator to be reasonably foreseeable to a defendant, they must fall within the scope of the agreement between the defendant and the other conspirators."