Former president Trump was recently convicted of 34 felonies relating to false business records. Payments made to Michael Cohen were falsely recorded as legal expenses when in actuality those payments were made to conceal Stormy Daniel's disclosure of a sexual relationship with Trump and the negative publicity the story would have on Trump's election campaign.
Ordinarily false business records in NY state are charged as a misdemeanor but can be charged as a felony if done to conceal or assist in commission of another crime. The prosecution provided 3 different underlying crimes: improper and excessive FECA contribution , under payment / reporting of tax liability, and the creating the other falsified business records. Judge Merchan, in his jury charge, said the jury needed to unanimously agree that "Trump knowingly conspired to prevent a person from being elected to public office by unlawful means" but jury does not need to be unanimous as to which unlawful means were used.
The Supreme Court of the United States (SCOTUS) has held via past precedent such as Schad v. Arizona that juries need not be unanimous as to the means of how a crime is committed. In contrast, SCOTUS has repeatedly ruled the elements of a crime, including sentence enhancing factors aside from previous conviction, must be decided by a jury beyond a readonable doubt. (Apprendi , Blakely, and Alleyne) Finally, per SCOTUS, if a machine gun (as opposed to another type of gun such as pistol) was used in a crime of violence (924 c), a separate crime is being committed despite a machinegun being a subtype of gun.
Is the jury charge by Judge Merchan that specific unlawful means used by Trump need not be decided unanimously, viable upon appeal?
What principles do courts use to distinguish between elements of a crime and means to committing that crime? That I can commit a armed robbery with a pistol and not be charged with a separate crime (than had I used a machinegun) seems strange as both are weapons.
