United States v. Rivera

United States Court of Appeals,

Eleventh Circuit.

No. 95-3126.

UNITED STATES of America, Plaintiff-Appellee,

v.

Miguel Angel RIVERA, a/k/a Swan, a/k/a Gambit, Defendant-
Appellant.

March 20, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 95-14-CR-FtM-24D), Ralph W. Nimmons, Jr.,
Judge.

Before ANDERSON and BLACK, Circuit Judges, and FAY, Senior Circuit
Judge.

PER CURIAM:

Appellant Miguel Rivera challenges the district court's denial

of his motion to dismiss the indictment on grounds of double

jeopardy and collateral estoppel. We affirm.

I. BACKGROUND

Appellant was indicted on one count of possessing a firearm as

a felon1 in violation of 18 U.S.C. § 922(g)(1). Appellant is the

alleged leader of the "Latin Kings" gang in Ft. Myers. On August

12, 1994, Appellant accompanied Jose Gonzalez, a member of the

Latin Kings, to a pawn shop where Gonzalez purchased a Winchester

12-gauge shotgun. On February 5, 1995, Fort Myers police,

investigating another matter, arrived at Appellant's residence.

Upon consent to search the premises, the police found and seized

the shotgun located in Appellant's bedroom.

1
In October 1993, Appellant was convicted of vehicular
invasion under Illinois law, a crime punishable by up to 15
years' imprisonment.
 The original indictment, filed April 12, 1995, charged

Appellant with one count of possession "[o]n or about February 5,

1995." A superseding indictment was filed on May 30, 1995,

charging Appellant with one count of possession "[o]n or about

August 12, 1994 and February 5, 1995." Appellant proceeded to

trial on June 5, 1995. At trial, the Government introduced

evidence attempting to prove that Appellant was the true party in

control and possession of the weapon on August 12, 1994, as well as

February 5, 1995. The Government also introduced evidence that

Appellant possessed the weapon at various times in the interim.

Upon submission to the jury, the district court utilized a

special verdict form dividing the indictment into two "charges,"

one charging possession on August 12, 1994, and one charging

possession on February 5, 1995. The jury was instructed that it

could not find Appellant guilty unless it found Appellant possessed

the firearm on or about August 12, 1994, or February 5, 1995.

Further, the district court instructed the jury that any verdict,

guilty or not guilty, must be unanimous, and that unanimity applied

to both charges.2

The jury was unable to reach a verdict as to the August 12,

1994, possession, but reached a verdict of not guilty as to the

February 5, 1995, possession. The district court declared a

2
Although the verdict form referred to the "charge" of
possession on each of these two dates and asked whether Appellant
was "guilty" or "not guilty" of each "charge," the jury was not
being asked to determine Appellant's guilt on two separate counts
of possession of a firearm by a convicted felon. Instead, the
jury was asked whether the Government had demonstrated, beyond a
reasonable doubt, that Appellant had possessed the shotgun on one
or both dates.
mistrial as to the August 12, 1994, possession. Appellant moved to

dismiss the indictment on grounds of collateral estoppel and double

jeopardy. The district court denied Appellant's motion, and

Appellant timely appealed.

II. STANDARD OF REVIEW

A motion to dismiss based upon double jeopardy grounds is a

question of law subject to de novo review. United States v.

Nyhuis, 8 F.3d 731, 734 (11th Cir.1993) (quoting United States v.

Benefield, 874 F.2d 1503, 1505 (11th Cir.1989)), cert. denied, ---

U.S. ----, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994).

III. DISCUSSION

Appellant makes two arguments on appeal: (1) double jeopardy

or collateral estoppel bars his retrial as to the August 12, 1994,

possession; and (2) if retrial is permissible, collateral estoppel

would preclude the introduction of any evidence introduced at the

first trial.

A. Retrial.

"The Double Jeopardy Clause protects against a second

prosecution for the same offense after acquittal, a second

prosecution for the same offense after conviction, and multiple

punishments for the same offense." Department of Revenue of

Montana v. Kurth Ranch, --- U.S. ----, ----, 114 S.Ct. 1937, 1941

n. 1, 128 L.Ed.2d 767 (1994) (citation omitted). Appellant has not

been convicted, nor has punishment been imposed. Therefore, the

issue is whether retrial of the August 12, 1994, possession would

constitute a "second prosecution for the same offense after

acquittal."
 Appellant contends that he has been charged with a continuous

and uninterrupted possession of the same weapon and that a finding

of not guilty as to the February 5, 1995, date constitutes a

finding of not guilty as to the continuing offense. We agree that

generally, possession "is a course of conduct; by prohibiting

possession Congress intended to punish as one offense all of the

acts of dominion which demonstrate a continuing possessory interest

in a firearm." United States v. Jones, 533 F.2d 1387, 1391 (6th

Cir.1976), cert. denied, 431 U.S. 964, 97 S.Ct. 2919, 53 L.Ed.2d

1059 (1977); see also United States v. Horodner, 993 F.2d 191, 193

(9th Cir.1993) (finding the possession in that case to be "one

uninterrupted course of conduct," and therefore one conviction was

appropriate). Where there is no proof that possession of the same

weapon is interrupted, the Government may not arbitrarily carve a

possession into separate offenses. See Jones, 533 F.2d at 1391.

Such a rule, however, does not compel the result argued by

Appellant.

Although the indictment charges two dates of possession in

the conjunctive, the Government is not required to prove possession

on both dates to establish a violation of 18 U.S.C. § 922(g)(1).

The general rule is that when a jury returns a guilty verdict
on an indictment charging several acts in the conjunctive ...
the verdict stands if the evidence is sufficient with respect
to any one of the acts charged.

Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24

L.Ed.2d 610 (1970) (citations omitted); see also United States v.

Griffin, 705 F.2d 434, 436 (11th Cir.1983) (citing United States v.

Haymes, 610 F.2d 309, 310-11 (5th Cir.1980)); United States v.

England, 480 F.2d 1266, 1269 (5th Cir.) ("[T]he Government need not
prove all facts charged in the indictment as long as it proves

other facts charged in the indictment which do satisfy the

essential elements of the crime."), cert. denied, 414 U.S. 1041, 94

S.Ct. 543, 38 L.Ed.2d 332 (1973).3 Proof of possession of a

firearm as a convicted felon on one day within an alleged

continuous possession is sufficient to support a conviction.

The protection of the Double Jeopardy Clause "applies only if

there has been some event, such as an acquittal, which terminates

the original jeopardy." Richardson v. United States, 468 U.S. 317,

325, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984) (citations

omitted). Appellant has been found "not guilty" as to one of the

dates charged. The jury's finding that the defendant was "not

guilty" of the "charge" of possessing the shotgun on February 5,

1995, was merely a finding that the Government had not demonstrated

possession on this date beyond a reasonable doubt. This does not,

however, constitute an acquittal of the charged possession as a

whole because proof of possession on February 5, 1995, is not

necessary to support a conviction for the charged offense. When

the jury deadlocked as to the August 12, 1994, date, and the

district court declared a mistrial, jeopardy did not fully

terminate. Therefore, the Double Jeopardy Clause does not bar a

second prosecution as to the alleged August 12, 1994, possession.

See Id. at 325-26, 104 S.Ct. at 3086 (declaration of mistrial

following hung jury does not terminate the original jeopardy).

3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), this Court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to close
of business on September 30, 1981.
 Collateral estoppel also does not bar a second prosecution in

this case. Collateral estoppel will completely bar prosecution "if

a fact necessarily determined in a former trial is an essential

element of a conviction." United States v. Bennett, 836 F.2d 1314,

1316 (11th Cir.) (emphasis omitted) (citation omitted), cert.

denied, 487 U.S. 1205, 108 S.Ct. 2847, 101 L.Ed.2d 884 (1988). The

"finding of fact must be inconsistent with a finding of guilt in a

second trial." Id. (citing United States v. Hewitt, 663 F.2d 1381,

1387 (11th Cir.1981)). Possession on February 5, 1995, is not a

required element of a conviction supported by possession on August

12, 1994. Nor is a finding of not guilty for February 5, 1995,

inconsistent with a finding of guilt of possession on August 12,

1994. Therefore, collateral estoppel does not bar a second trial

as to the August 12, 1994, date.

Finally, Appellant contends that the conjunctive indictment

was so duplicitous as to violate the Fifth Amendment. Appellant

cannot have it both ways. We agree that the possession as charged

was a continuous course of conduct. It was therefore appropriate,

and indeed, necessary, that the acts be charged in one count.4 To

charge the separate dates in separate counts would result in a

multiplicitous indictment, creating the risk of multiple

convictions and punishments for a single offense in violation of

the Double Jeopardy Clause. Further, it was proper to charge the

separate dates in the conjunctive because it served to fully notify

4
We note that, in any case, Appellant has waived this
challenge on appeal by failing to object on this ground prior to
trial. See Fed.R.Crim.P. 12(b), (f).
Appellant of the charge against him.5

B. Preclusion of Evidence.

Appellant contends that the doctrine of collateral estoppel

would preclude the introduction in a second trial of any evidence

introduced in the first trial. The doctrine of collateral estoppel

does not go so far. This principle does not bar introduction of

all evidence, but merely the prosecution or argumentation of facts

necessarily established by an earlier final judgment. Bennett, 836

F.2d at 1316. The district court held that collateral estoppel

would protect Appellant from retrial on the basis of the February

5, 1995, possession and reserved the question of whether the

Government would necessarily be precluded from offering evidence of

that possession under Fed.R.Evid. 404(b) in a second trial for the

August 12, 1994, possession. While it was appropriate for the

district court to reserve this question, because it is not clear

what evidence the Government may seek to introduce, we note that it

is difficult to imagine what relevance, if any, evidence of

possession on February 5, 1995, has to the August 12, 1994,

possession. Moreover, even if relevant, it is questionable whether

the probative value of such evidence would not be substantially

outweighed by unfair prejudice under Fed.R.Evid. 403.

IV. CONCLUSION

For the foregoing reasons, we hold: (1) the Government is not

barred by double jeopardy or collaterally estopped from

5
See, e.g., United States v. McGinnis, 783 F.2d 755, 757
(8th Cir.1986) (federal pleading requires charging in the
conjunctive in order to fully inform the accused of the charges).
reprosecuting Appellant for the August 12, 1994, possession, and

(2) collateral estoppel does not preclude the introduction of all

evidence from the first trial in a subsequent trial.

AFFIRMED.