United States of America, Plaintiff-Respondent v. Terry Louis Gann
1984 U.S. App. LEXIS 22888, 732 F.2d 714 (1984)
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Rule of Law:
Separate federal statutes criminalizing the possession of a firearm by a felon and the receipt of ammunition by a felon may be charged as distinct offenses for the same course of conduct, as each statute requires proof of a fact which the other does not, thereby satisfying the Blockburger test.
Facts:
- Patrick Dussault robbed a United States National Bank in Portland, Oregon and was seen fleeing in a yellow Mustang driven by Terry Gann.
- Approximately three weeks later, law enforcement obtained and executed search warrants for Gann’s home and his 1972 green Vega automobile.
- Inside Gann's vehicle, officers found a bag containing a sawed-off shotgun and a box of .20 gauge ammunition.
- Inside Gann's residence, officers discovered a .22 caliber rifle in a bedroom closet and ammunition of several different calibers in a dresser drawer.
- Gann later testified that he acquired the shotgun from his mother's barn and that the ammunition found with it was already in the bag he used to transport it.
- Gann also testified that his father-in-law gave him the rifle, while the ammunition found in the house was leftover from a previous hunting trip.
Procedural Posture:
- An Oregon state grand jury indicted Terry Gann for being an ex-convict in possession of a firearm.
- A federal grand jury indicted Gann and Patrick Dussault for bank robbery.
- The state firearms charges against Gann were dismissed.
- After Gann's first federal bank robbery trial ended in a mistrial, a federal grand jury returned a superseding indictment charging Gann with five federal firearms violations.
- In the United States District Court, Gann moved to compel the government to elect or dismiss counts of the indictment, arguing they were multiplicitous; the court denied the motion.
- A jury convicted Gann on all five federal firearms counts.
- Gann, as the appellant, appealed his conviction to the United States Court of Appeals for the Ninth Circuit, arguing the district court erred in denying his motion.
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Issue:
Does charging a defendant with both possession of a shotgun under 18 U.S.C. App. § 1202(a) and receipt of ammunition under 18 U.S.C. § 922(h), when the items were discovered together, constitute a multiplicitous indictment in violation of the Double Jeopardy Clause?
Opinions:
Majority - Alarcon, Circuit Judge
No. Charging a defendant for possessing a firearm under § 1202(a) and receiving ammunition under § 922(h) is not multiplicitous because the two statutes define separate offenses. The court applied the Blockburger test, which permits separate prosecutions if each statute requires proof of a fact that the other does not. Here, the statutes differ in at least three ways: 1) one charge requires proof of a 'firearm' while the other requires proof of 'ammunition'; 2) § 922(h) requires proof that the item traveled in interstate commerce, a different jurisdictional element than § 1202(a)'s 'in or affecting commerce' requirement; and 3) the statutes define the prerequisite 'felony' differently. The court also noted that even if the statutes were otherwise identical, the charges were proper here because Gann's own testimony established that he acquired the firearms and ammunition at separate times and stored them in separate places.
Concurring - Fletcher, Circuit Judge
No. The conviction should be upheld, but only on the narrow grounds that Gann's testimony proved he received the firearms and ammunition separately. The majority's primary reasoning that a single, simultaneous possession of a firearm and ammunition can be charged as two separate offenses under §§ 922 and 1202 is incorrect. This circuit's precedent in United States v. Conn implicitly held that the minor statutory differences cited by the majority are insufficient to meet the Blockburger test. For purposes of § 922(h), firearms and ammunition are interchangeable, and their simultaneous possession constitutes a single offense; the government should not be able to create two offenses from one act simply by charging the gun under one statute and the ammunition under another that is functionally equivalent.
Analysis:
This decision solidifies the government's ability to 'stack' charges against defendants in federal firearms cases by treating the possession of a gun and ammunition as separate prosecutable offenses. By applying a strict reading of the Blockburger test, the court established a precedent in the Ninth Circuit that allows for multiple convictions arising from what a defendant might perceive as a single act of possession. The concurrence highlights a significant tension in the circuit's case law, suggesting that the majority's reasoning is inconsistent with other rulings and that the issue of multiplicity for simultaneous possession remains unsettled. This ruling provides prosecutors with greater leverage while creating potential inconsistencies for future courts to resolve.
