United States v. Kelly

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2008 Decided January 13, 2009

No. 07-3032

UNITED STATES OF AMERICA,
APPELLEE

v.

EDWARD KENNETH KELLY, JR.,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 06cr00153-01)

Raymond J. Rigat, appointed by the court, argued the cause
for the appellant.
SuzAnne C. Nyland, Assistant United States Attorney,
argued the cause for the appellee. Jeffrey A. Taylor, United
States Attorney, and Roy W. McLeese III and Mary B. McCord,
Assistant United States Attorneys, were on brief.
Before: GINSBURG, HENDERSON and ROGERS, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge ROGERS.
 2

KAREN LECRAFT HENDERSON, Circuit Judge: Edward
Kenneth Kelly, Jr. (Kelly) appeals his conviction on one count
of unlawfully possessing with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a), (b)(1)(C) and one count of
using, carrying and possessing a firearm during a drug
trafficking crime in violation of 18 U.S.C. § 924(c). Kelly
claims that his guilty plea was not voluntary, knowing,
intelligent or adequately supported by the record; his plea to the
section 924(c) violation in particular violated the Double
Jeopardy Clause of the United States Constitution; and he
received ineffective assistance of counsel regarding the
section 924(c) plea. For the reasons set forth below, we affirm
the judgment of the district court.
I.
In June 2004, pursuant to court order the FBI began
intercepting and recording Kelly’s telephone conversations. The
wiretap concluded on August 28, 2004 and, on September 1,
2004, the FBI applied for, and obtained, warrants to search
Kelly’s vehicle and his girlfriend’s apartment located at 1526
Potomac Ave., S.E., Washington, D.C. The warrants were
executed on September 2, 2004 at 6:37 a.m. Upon searching the
apartment, the FBI discovered in the living room a backpack
containing two plastic bags that held 497.1 grams of cocaine
hydrochloride and, approximately twenty feet from the backpack
and under a mattress, a loaded Glock 9-millimeter handgun.
FBI agents also retrieved approximately $46,500 from inside the
apartment.
On June 1, 2006, a federal grand jury indicted Kelly on (1)
one count of unlawfully possessing with intent to distribute
(PWID) cocaine, in violation of 21 U.S.C. § 841(a), (b)(1)(c);1

1
21 U.S.C. § 841(a) makes it “unlawful for any person knowingly
or intentionally . . . to manufacture, distribute, or dispense, or possess
 3

(2) one count of unlawful possession of a firearm and
ammunition by a person convicted of a crime punishable by
imprisonment for a term exceeding one year, in violation of 18
U.S.C. § 922(g)(1); and (3) one count of using, carrying and
possessing a firearm during a drug trafficking offense, in
violation of 18 U.S.C. § 924(c).2 Indictment at 1-2, United
States v. Kelly, Cr. No. 06-153 (D.D.C. June 1, 2006) (D.C.
Indictment).
The district court held plea hearings on October 31, 2006
and November 2, 2006. At the November 2nd hearing, Kelly
entered into a plea agreement in which he agreed to plead guilty
to the first and third counts in exchange for the dismissal of the
second count and the government’s withdrawal of a notice of a
prior felony drug conviction. Plea Agreement at 1-2, United
States v. Kelly, Cr. No. 06-153 (D.D.C. Nov. 2, 2006). Kelly
also agreed to the above-mentioned facts, accepting them as
“fair[] and accurate[].” Id. at 2; see also Statement of Offense
at 3, United States v. Kelly, Cr. No. 06-153 (D.D.C. Nov. 2,
2006).
During the earlier October 31st plea hearing, Kelly verified
that he had fully read and discussed the plea agreement with
defense counsel. Transcript of Guilty Plea at 20, United States

with intent to manufacture, distribute, or dispense, a controlled
substance.” 21 U.S.C. § 841(b)(1)(C) provides that “[i]n the case of
a [schedule I or II controlled substance], . . . [a] person [violating
§ 841(a)] shall be sentenced to a term of imprisonment of not more
than 20 years.”
2
18 U.S.C. § 924(c) provides that “any person who, during and in
relation to any . . . drug trafficking crime . . . uses or carries a firearm,
or who, in furtherance of any such crime, possesses a firearm, shall,
in addition to the punishment provided for such . . . drug trafficking
crime” be sentenced to an additional and consecutive term of
imprisonment.
 4

v. Kelly, Cr. No. 06-153 (D.D.C. Oct. 31, 2006) (Tr.). In
explaining the government’s burden of proof, the district court
specified that, as to count one, the government would have to
prove beyond a reasonable doubt that Kelly “possessed
cocaine[,] . . . that [he] did so with the intent to distribute it, and
. . . that [he] knew that the substance that [he] possessed was a
controlled substance, namely cocaine.” Id. at 33. As to count
three, the district court explained that the government would
have to prove that Kelly “committed the crime of unlawful
possession with intent to distribute cocaine” and that he
“knowingly used or carried a firearm during and in relation to
the commission of that crime or [he] knowingly possessed a
firearm in furtherance” thereof. Id. at 33-34. Kelly agreed with
the government’s factual proffer except that he denied telling the
FBI that “[t]here was a loaded gun in the bedroom.” Id. at 37-
38. Kelly explained to the district court that the cocaine in the
backpack was not his but instead belonged to someone else who
had swapped vehicles with Kelly the day before and left the
cocaine in a backpack in Kelly’s vehicle. Id. at 39, 61-62.
Kelly thought there was money in the backpack but, after
receiving a telephone call from the person stating that he needed
to get the package from the vehicle, Kelly “thought it was drugs
and it was.” Id. at 48, 61-62. Kelly further explained that he
transferred the backpack to the apartment because his car had
been broken into earlier. Id. at 63-64, 93. He also stated that he
kept the gun in the apartment in order to protect himself, his
girlfriend “and whatever was in there.” Id. at 63.
At the November 2nd hearing, Kelly clarified that he had
first become aware of the drugs in the backpack when he parked
his car in the driveway of his girlfriend’s residence. Id. at 87-
88. He explained that he knew who the drugs belonged to and
believed that the owner was in fact going to sell the drugs. Id.
at 88-89. When asked whether he took the drugs into the
apartment to protect them, Kelly responded that he “didn’t give
it that much thought . . . [but] fe[lt] like it’s probably a better
 5

chance that the bag would be safe [sic] in the house than in the
truck.” Id. at 92-93. He also agreed that “if somebody broke
[into the apartment] and [he] saw them trying to take some of
[his] property, [he] wouldn’t hesitate to think about using the
gun to keep them from stealing [his] property.” Id. at 96. The
district court then observed that, although “this is one of the
most razor-thin proffers [it had] ever taken[, it] think[s] given
the facts that have come out . . . we may be able to go forward.”
Id. at 98. As the plea hearing continued, Kelly alerted the judge
to the fact that he had been charged with another section 924(c)
violation in Maryland and that he believed it was the same
section 924(c) violation as the one to which he was then
pleading guilty. Id. at 104-05.3 The district court nonetheless
reasoned that because “the facts that occurred on September 2,
2004, that are the subject of this charge could well have been
multiple crimes” – so that the predicate crime for each
section 924(c) count was different – “there may not be a double
jeopardy problem.”4 Id. at 117. Kelly’s counsel agreed. Id. at
118 (“Right, and even though it’s the same gun, it’s a different

3
Kelly had been charged earlier in Maryland on three counts of a
21-count indictment. The counts included: (1) conspiracy to distribute
and possess with intent to distribute cocaine and cocaine base between
November 2000 and December 2004 in the District of Maryland, the
District of Columbia and elsewhere, in violation of 21 U.S.C. § 841;
(2) using a communication facility in furtherance of a narcotics
conspiracy, in violation of 21 U.S.C. § 843(b); and (3) using and
possessing a firearm in furtherance of conspiracy to distribute and
possess with intent to distribute cocaine and cocaine base on
September 2, 2004 in the District of Maryland, in violation of 18
U.S.C. § 924(c). Fourth Superseding Indictment at 1-2, 15, 19, United
States v. Briscoe, No. AW-04-0559 (D. Md. Jan. 25, 2006) (Md.
Indictment).
4
The Double Jeopardy Clause bars any person “subject for the
same offence to be twice put in jeopardy of life or limb.”
 6

drug trafficking offense.”). Kelly then advised the court that he
was ready to plead guilty to counts one and three of the
indictment and that he did so “voluntarily and of his own free
will.” Id. at 126-27. The district court accepted Kelly’s guilty
plea, id. at 127, and subsequently sentenced him to 50 months’
imprisonment on count one and 60 months’ imprisonment on
count three, to run consecutively, followed by 36 months of
supervised release on count one and 48 months on count three,
to run concurrently. Kelly filed his notice of appeal on March
7, 2007.
II.
A. Double Jeopardy
Kelly argues that his guilty plea on the section 924(c) count
should be vacated because he had previously been charged with,
and acquitted of, a section 924(c) violation in Maryland
involving the same handgun and, therefore, the district court
plainly erred in not recognizing that the Double Jeopardy Clause
barred the second section 924(c) charge. Kelly also contends
that his section 924(c) conviction should be vacated (or at least
remanded for an evidentiary hearing) because his trial counsel
was ineffective in not raising a double jeopardy defense and,
thus, violated Kelly’s Sixth Amendment right to counsel. We
apply plain error review to the double jeopardy issue because
Kelly “allow[ed] [the] alleged error to pass without objection”
below. In re Sealed Case, 283 F.3d 349, 352 (D.C. Cir. 2002);
see also United States v. Olano, 507 U.S. 725, 732 (1993)
(under plain error standard, appellant must establish that (1)
there was an “error,” (2) it was “plain,” (3) it “affect[ed]
substantial rights” and (4) it “seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings”) (internal
citations and quotation marks omitted). To establish ineffective
assistance of counsel, “a criminal defendant must show . . . that
his lawyer made errors ‘so serious that counsel was not
functioning as the ‘counsel’ guaranteed . . . by the Sixth
 7

Amendment,’ and that . . . there is a ‘reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” United States v.
Rashad, 331 F.3d 908, 909 (D.C. Cir. 2003) (internal citations
omitted).
As a starting point, we note that “when the judgment of
conviction upon a guilty plea has become final and the offender
seeks to reopen the proceeding, the inquiry is ordinarily
confined to whether the underlying plea was both counseled and
voluntary. If the answer is in the affirmative then the conviction
and the plea . . . foreclose the collateral attack . . . [unless] on the
face of the record the court had no power to enter the conviction
or impose the sentence.” United States v. Broce, 488 U.S. 563,
569 (1989). It is clear from the face of the record that the
district court was authorized to accept Kelly’s guilty plea to the
section 924(c) charge. The section 924(c) charge included in the
Maryland indictment alleged that “[o]n or about September 2,
2004, in the District of Maryland,” Kelly possessed/used a
firearm in furtherance of a drug trafficking crime, namely,
“conspiracy to distribute and possess with intent to distribute
[cocaine and cocaine base].” Md. Indictment at 19 (emphases
added). The section 924(c) charge sub judice, on the other hand,
alleged that “[o]n or about September 2, 2004, within the
District of Columbia,” Kelly possessed/used a firearm in
furtherance of a drug trafficking crime, namely, “possession
with intent to distribute cocaine.” D.C. Indictment at 1-2
(emphases added). Thus, the predicate crimes supporting the
section 924(c) charges are not the same.
In United States v. Felix, 503 U.S. 378 (1992), the United
States Supreme Court held that double jeopardy did not bar the
subsequent prosecution of the defendant on a conspiracy charge
where “two of th[e] nine overt acts [supporting the conspiracy
charge] were based on conduct that had been the subject of the
earlier . . . prosecution” on a substantive crime (attempting to
 8

manufacture methamphetamine). 503 U.S. at 382, 388-91. In
so concluding, the Court noted the long-standing “rule that a
substantive crime and a conspiracy to commit that crime are not
the ‘same offence’ for double jeopardy purposes.” Id. at 389.
Accordingly, it held that “the conspiracy charge against [the
defendant] was an offense distinct from any crime for which he
had been previously prosecuted, and the Double Jeopardy
Clause did not bar his prosecution on that charge.” Id. at 391-
92.
Applying the Court’s analysis in Felix, we believe that
double jeopardy plainly does not bar Kelly’s prosecution on the
section 924(c) count before us on review. Even if the same gun
supported both charges, the predicate offense required for each
charge to stand—conspiracy in Maryland and PWID cocaine
here—are different “for double jeopardy purposes.” Felix, 503
U.S. at 389; see also United States v. Phipps, 319 F.3d 177, 184
(5th Cir. 2003) (explaining application of same-elements test of
Blockburger v. United States, 284 U.S. 299 (1932), to multiple
section 924(c)(1) charges).5 Kelly’s constitutional claim

5
Kelly’s reliance on United States v. Finley, 245 F.3d 199 (2d Cir.
2001), and United States v. Wilson, 160 F.3d 732 (D.C. Cir. 1998), in
support of his argument that this prosecution on the section 924(c)
charge violates double jeopardy is misplaced. Finley and Wilson did
not apply the Double Jeopardy Clause but rather the rule of lenity,
holding that the Congress did not intend section 924(c) to authorize
multiple charges given the facts of each case. In Finley, the Second
Circuit reversed a second section 924(c) conviction because the
predicate offenses for both section 924(c) charges “were simultaneous
or nearly so” and therefore “consisted of virtually the same conduct
with the same criminal motivation.” Finley, 245 F.3d at 207. There,
the first section 924(c) charge was based on the defendant’s
possession of a firearm in furtherance of cocaine distribution; the
second section 924(c) charge was based on his possession of the same
firearm in furtherance of his possession with intent to distribute the
 9

therefore fails, as does his claim under Fed. R. Crim. P. 11 that
the district court should have advised him he was pleading guilty
to a charge the government could not bring.
Kelly’s claim of ineffective assistance of counsel also fails.
Kelly believes his counsel’s ineffectiveness is apparent from the
record and, therefore, we need not remand for an evidentiary
hearing, which is our normal practice on direct appeal. See
United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997).
Although we agree with Kelly that a remand for an evidentiary
hearing is not necessary, we believe Kelly’s claim of ineffective
assistance fails at the first step of the Strickland test: his
counsel’s conduct “was within the range of competence
demanded of attorneys in criminal cases.” Hill v. Lockhart, 474
U.S. 52, 56 (1985) (internal quotation marks omitted); see
Strickland v. Washington, 466 U.S. 668, 687-89 (1984). The
Strickland analysis examines the information available to

same cocaine plus additional cocaine discovered “minutes after”
Finley sold the drugs to an officer. Id. at 207. Assuming Finley is
persuasive, the case is inapposite. Here, the Maryland indictment
makes clear that the conspiracy charge was predicated on more than
Kelly’s PWID in the District on September 2, 2004: it charged Kelly
with knowingly and intentionally using a cell phone on June 11, 2004
in order to further the conspiracy. Md. Indictment at 15. Therefore,
the conspiracy charged in Maryland and the PWID in the District were
not “simultaneous or nearly so.” Finley, 245 F.3d at 207. In Wilson,
this Court vacated one section 924(c) conviction because the
defendant used the firearm only once and was charged with two
section 924(c) violations—one with the predicate offense of first
degree murder and the other with the predicate offense of killing a
witness with the intent to prevent him from testifying. Wilson, 160
F.3d at 748-50. Wilson is inapposite because the defendant in that
case was charged with only one predicate act: discharging a firearm.
By contrast, Kelly both conspired to possess and possessed drugs, two
acts involving distinct conduct. See Felix, 503 U.S. at 389-90
(“agreement to do [an] act is distinct from the act itself”).
 10

Kelly’s counsel when he recommended a plea and asks whether
his counsel’s decision prejudiced the proceedings that followed.
Even assuming that the same firearm was involved in both
section 924(c) charges and that the District PWID was an overt
act included in the Maryland conspiracy charge, there is
nevertheless no constitutional bar to the section 924(c) charge
we are reviewing. The substantive offense of PWID is not a
lesser-included offense of the conspiracy to commit that offense,
as Felix makes clear. See 503 U.S. at 389. No additional fact-
finding would change that rule of law and, thus, we need not
remand Kelly’s claim. It plainly fails inasmuch as his counsel
was not obliged to raise a meritless defense.
B. Rule 11
Kelly makes three additional arguments under Fed. R. Crim.
P. 11.6 First, he argues that the factual proffer was insufficient
to support his conviction on PWID cocaine. Second, he makes
the same argument regarding the factual proffer supporting his
conviction under section 924(c). Third, he claims that he did not
understand that he had to intend to distribute the cocaine in
order to be guilty of PWID and therefore did not understand the
nature of the charge. Again, we review these arguments for
plain error because he failed to make them in district court. In
re Sealed Case, 283 F.3d at 352.
Kelly’s first argument fails because there was “sufficient
evidence from which a reasonable jury could conclude” that
Kelly committed, or at least aided and abetted the commission
of, the offense of PWID cocaine. United States v. Abreu, 964

6
Fed. R. Crim. P. 11 requires, inter alia, that the sentencing court
determine that (1) there is a “factual basis for a plea,” (2) the
defendant understands “the nature of each charge to which the
defendant is pleading” and (3) “that the plea is voluntary and did not
result from force, threats or promises (other than promises in a plea
agreement).”
 11

F.2d 16, 19 (D.C. Cir. 1992). To prove a violation of
section 841(a), the government must show beyond a reasonable
doubt that the defendant (1) “knowingly or intentionally” (2)
possessed a controlled substance (3) with intent to distribute it.
21 U.S.C. § 841(a).7 To aid and abet, however, “‘all that is
necessary is to show some affirmative participation which at
least encourages the principal offender to commit the offense,
with all its elements, as proscribed by the statute.’” United
States v. Monroe, 990 F.2d 1370, 1374 (D.C. Cir. 1993) (quoting
United States v. Garrett, 720 F.2d 705, 713-14 (D.C. Cir.
1983)). Moreover, “[w]hoever . . . aids, abets . . . induces or
procures [an offense’s] commission, is punishable as a
principal.” 18 U.S.C. § 2(a). Even though Kelly was not
indicted as an aider or abettor, we have explained that “an
indictment need not specifically include an aiding and abetting
charge because, ‘whether specified or not,’ the federal statute
creating liability for aiding and abetting . . . ‘is considered
embodied in full in every federal indictment.’” United States v.
Lam Kwong-Wah, 924 F.2d 298, 302 (D.C. Cir. 1991) (quoting
United States v. Michaels, 796 F.2d 1112, 1118 (9th Cir. 1986))
(emphasis in Michaels). Thus, as long as the proffer allows the
district court to conclude that a reasonable jury could find that
Kelly aided and abetted the PWID cocaine, it suffices.
The proffer manifests that Kelly meant to aid the owner’s
possession of the cocaine by protecting it from loss. He stated
that he kept a firearm in the apartment to protect himself and his
property, see Tr. at 95 (“Yeah. I mean—yeah, if it came to it,
yes. I’m mean, I’m in the house, I ain’t going to let you come
in there and take nothing, not while I’m in there.”), and that he
intended to return the drugs to their owner, see id. at 93. He
further explained that he put the backpack in the apartment
because his car had previously been broken into. Id. at 63-64,

7
See supra note 1.
 12

93. When asked whether he transferred the drugs to the
apartment to protect them, Kelly responded that he “didn’t give
it that much thought . . . [but] fe[lt] like it’s probably a better
chance that the bag would be safe [sic] in the house than in the
truck.” Id. at 92-93. This is sufficient to show that Kelly
intended to aid the owner’s possession of the cocaine.
Moreover, based upon the amount of cocaine involved (497.1
grams) as well as Kelly’s admission that he believed the owner
was going to sell the cocaine, id. at 89, a reasonable jury could
also find that he intended to aid the owner’s distribution of
cocaine. See United States v. Gaulteau, 4 F.3d 1003, 1003 (D.C.
Cir. 1993) (“intent to distribute may be inferred from possession
of . . . a quantity of drugs larger than needed for personal use”)
(internal citations and quotation marks omitted).
Kelly next argues that the proffer was insufficient to support
his guilty plea on count three—the section 924(c) count. In
order to support a conviction under 18 U.S.C. § 924(c), the
government must show beyond a reasonable doubt that (1)
“during and in relation to” a “drug trafficking crime,” (2) the
defendant “use[d] or carrie[d] a firearm, or . . . in furtherance of
. . . such crime, possesse[d] a firearm.” 18 U.S.C.
§ 924(c)(1)(A). PWID cocaine, charged in count one, is a “drug
trafficking crime” under the statute. See id. § 924(c)(2).
Moreover, it is undisputed that the firearm belonged to Kelly.
Regarding the nexus between the gun possession and the drug
trafficking crime, we have identified a multi-factor test,
including “the type of drug activity conducted; accessibility of
the firearm; type of firearm; whether the firearm is stolen;
whether the possession of the firearm is legal or illegal; whether
the firearm is loaded; the proximity of the firearm to the drugs
or drug profits; and the time and circumstances under which the
firearm is found.” United States v. Wahl, 290 F.3d 370, 376
(D.C. Cir. 2002) (citing United States v. Ceballos-Torres, 218
F.3d 409, 414-15 (5th Cir. 2000)). Relying on these factors, we
concluded that there was sufficient evidence to sustain the
 13

defendant’s section 924(c) conviction where “[t]he firearm was
on the top shelf of the entertainment center, in front of which
[the defendant] was standing when the police entered[; t]he gun
was loaded . . . [and] found in close proximity to 5.6 grams of
cocaine base and a small amount of cash[;] the gun was
recovered shortly after a drug transaction had taken place[; and
the defendant] possessed the gun illegally.” Id. at 376-77.
Similarly here, “the FBI found the 497.1 grams of cocaine
hydrochloride within 20 feet of appellant’s illegally possessed,
loaded, Glock 9-mm. gun, which was under the mattress in the
bedroom when the FBI arrived . . . [and] agents also found
$46,500 in cash [in the apartment].” Br. of Appellee at 28.
These facts closely parallel those in Wahl and would allow a
reasonable jury to find Kelly guilty of violating section 924(c).
Finally, Kelly argues that his plea was not knowing and
voluntary because “[h]e was not aware of the necessary element
that he needed to ‘intend’ to distribute the cocaine in order for
him to be guilty of [possession with intent to distribute] and that
‘intent to distribute’ means a heightened level of scienter.” Br.
of Appellant at 20-21.8 A plea “cannot be truly voluntary unless
the defendant possesses an understanding of the law in relation
to the facts.” McCarthy v. United States, 394 U.S. 459, 466
(1969). The court must “have a colloquy with the defendant that
would lead a reasonable person to believe that the defendant
understood the nature of the charge.” United States v. Dewalt,
92 F.3d 1209, 1212 (D.C. Cir. 1996) (internal quotation marks
and citations omitted). “[A] defendant’s ignorance of the mens
rea element of the offense with which he is charged renders his
guilty plea involuntary as a matter of constitutional law.” Id. at
1211. Here Kelly’s colloquy with the court manifests that Kelly

8
Although we have found the proffers as to both counts sufficient
to support them, Kelly’s voluntariness challenge calls for a different
inquiry.
 14

understood the nature of the charge. He was advised by the
court that to prove the PWID count, the government would have
to show that he possessed cocaine and that he “did so with the
intent to distribute it.” Tr. at 33. Furthermore, as the
government highlights, Kelly was “actively participating”
during the discussion regarding the requisite intent to distribute
the cocaine. Br. of Appellee at 24; Tr. at 45-65. Finally, the
submission Kelly filed before the plea hearing explicitly recited
all of the elements of PWID, including the intent to distribute,
and noted in particular that “an intent to distribute the narcotics
personally is unnecessary as long as distribution by someone is
the end purpose of the possession.” Kelly’s Submission in
Connection with Plea Hearing at 1-2, United States v. Kelly, Cr.
No. 06-153 (D.D.C. Nov. 1, 2006) (emphasis in original). The
colloquy—together with Kelly’s pre-hearing filing—plainly
would lead a reasonable jury to believe that Kelly understood
the nature of the PWID charge. Because we hold that the
district court did not plainly err, we need not decide whether, as
the government argues, Kelly invited the errors of which he
complains. See Br. of Appellee at 22-23.
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.
 ROGERS, Circuit Judge, concurring in the judgment: The
Double Jeopardy Clause bars any person “subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const.
amend. V. It provides three protections, against (1) prosecution
for the same offense after acquittal; (2) a second prosecution for
the same offense after conviction; and (3) multiple punishments
for the same offense. North Carolina v. Pearce, 395 U.S. 711,
717 (1969). This case concerns the interaction of the first of
those protections with 18 U.S.C. § 924(c), which imposes an
additional term of imprisonment for “any person who, during
and in relation to any . . . drug trafficking crime . . . uses or
carries a firearm, or who in furtherance of any such crime,
possesses a firearm.”

Appellant relies on Brown v. Ohio, 432 U.S. 161 (1977),
and United States v. Rosenberg, 888 F.2d 1406 (D.C. Cir. 1989),
for the proposition that the Double Jeopardy Clause serves a
constitutional policy that “protects the accused from repeated
litigation of facts underlying a prior acquittal, and from the
prosecutor’s desire to secure additional punishment where the
government is dissatisfied with the result of the first trial,”
Rosenberg, 888 F.2d at 1409 (construing Brown, 432 U.S. at
165-66). Specifically, appellant contends that his possession of
the same gun at the same location on the same date provided the
basis for the § 924(c) charges in both the Maryland and D.C.
indictments, and that the D.C. charge therefore was barred under
the Double Jeopardy Clause. The federal indictment returned in
Maryland charged appellant with conspiracy to distribute and
possess with intent to distribute (“PWID conspiracy”) cocaine
and cocaine base between November 2000 and December 2004
in Maryland, the District of Columbia, and elsewhere, in
violation of 21 U.S.C. § 846, use of a communications facility
in connection therewith in violation of 21 U.S.C. § 843(b), and
using, carrying, and possessing a firearm with respect to that
conspiracy, in violation of 18 U.S.C. § 924(c) on September 2,
2004 in Maryland. The federal indictment returned in the
 2

District of Columbia charged appellant with a violation of § 841
for possession with intent to distribute (“PWID”) of cocaine on
September 2, 2004 in D.C., and a violation of § 924(c) for
possession, use, and carrying of a firearm with respect to the
PWID. Appellant was acquitted on all charges in Maryland
after a jury trial. See Judgement of Acquittal, Edward Kenneth
Kelly, United States v. Briscoe, No. 04-0559 (D. Md. May, 12,
2006). Although the Assistant U.S. Attorney in D.C. was
unfamiliar with the Maryland charges, the record indicated that
the Maryland conspiracy encompassed the same time period as
the D.C. charges. Further, appellant claims that the gun at issue
was seized by the FBI at appellant’s home in the District of
Columbia on September 2, 2004. Thus, the question arose at the
plea hearing whether, having lost its case against appellant in
Maryland, the United States was pursuing appellant once again
in the District of Columbia for the same gun offense of which he
had been acquitted in Maryland.

The district court, sua sponte, raised the double jeopardy
issue and continued the plea hearing to allow government and
defense counsel to examine the issue. After a brief recess, the
district court was unable to resolve whether the gun seized from
appellant’s home in the District of Columbia by the FBI was the
same gun underlying the § 924(c) Maryland charge but
concluded that the D.C. § 924(c) charge was not barred by the
Double Jeopardy Clause because there were different predicate
offenses charged in the Maryland and D.C. indictments, namely
the § 846 PWID conspiracy as distinct from the § 841 PWID.
This court, relying on United States v. Felix, 503 U.S. 378
(1992), affirms. Op. at 8. Although I agree that double jeopardy
does not bar appellant’s § 924(c) prosecution, Felix, alone, does
not decide the question.

Felix was decided when the Supreme Court employed a
different definition of “same offence” in the Double Jeopardy
 3

Clause for successive prosecutions than for multiple
punishments in the same prosecution. In Grady v. Corbin, 495
U.S. 508, 521 (1990), the Supreme Court applied a same-
conduct test for successive prosecutions, reasoning that the
same-elements (or Blockburger1) test, which had been
developed in the context of multiple punishments imposed in a
single prosecution, was insufficient to account for the
constitutional concerns raised by successive prosecutions. 495
U.S. at 518. Under Grady, “any subsequent prosecution in
which the government, to establish an essential element of an
offense charged in that prosecution, will prove conduct that
constitutes an offense for which the defendant has already been
prosecuted” was barred. Id. at 521 (citations omitted). Felix
simply carved out an exception to Grady for conspiracy
offenses, see Felix, 503 U.S. 390-91, and reaffirmed the rule that
“a substantive crime and a conspiracy to commit that crime are
not the ‘same offence’ for double jeopardy purposes,” id. at 389
(citations omitted).

In appellant’s case, the question is not whether the § 841
PWID charge was barred in light of the prior § 846 PWID
conspiracy charge but whether double jeopardy barred the
United States from charging appellant with violating § 924(c)
twice based on his possession of the same gun on the same day
in furtherance of overlapping drug offenses. Under Grady, a
remand would be appropriate so that the district court could
determine whether the gun-related conduct was the same in the
Maryland and D.C. charges. See United States v. Olano, 507
U.S. 725, 732 (1993); United States v. Broce, 488 U.S. 563, 569
(1989); United States v. Saro, 24 F.3d 283, 286-87 (D.C. Cir.
1994); Op. at 6. Grady was overruled, however, by United
States v. Dixon, 509 U.S. 688, 711-12 (1993), which held that
“same offence” in the Double Jeopardy Clause could not mean

1
Blockburger v. United States, 284 U.S. 299, 304 (1932).
 4

two different things, and adopted the same-elements test
described in Blockburger for both successive prosecutions and
punishments, id. at 704. That test “inquires whether each
offense contains an element not contained in the other; if not
they are the ‘same offence’ and double jeopardy bars additional
punishment and successive prosecution.” Id. at 696.

Applying the same-elements test requires construction of
United States v. Wilson, 160 F.3d 732 (D.C. Cir. 1998), and
United States v. Finley, 245 F.3d 199 (2d Cir. 2001), on which
appellant relies. In Wilson, this court held that two § 924(c)
violations could not be charged even where the defendant had
committed two predicate offenses, so long as there was only one
“use” of the firearm. 160 F.3d at 749. In that case, although the
predicate offenses did not merge, they could support only one
conviction under § 924(c) because they were distinguished only
by different mens rea rather than different conduct. Id. After
Wilson, Congress broadened § 924(c) to punish possession in
furtherance of a predicate offense, in addition to use and
carrying. 105 Pub. L. 386, 112 Stat. 3469, (Nov. 13, 1998); see
also United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir. 2002);
Wilson, 160 F.3d at 748-49. In Finley, the Second Circuit
applied Wilson to the revised § 924(c), and held that “where a
defendant is charged with the continuous constructive
possession of a firearm in furtherance of a sale of part of a
quantity of narcotics, coupled with continued possession of the
remainder immediately following a sale,” only one § 924(c)
charge can be supported even though multiple predicate offenses
have been committed. 245 F.3d at 208. The court emphasized
that the “predicate offenses were simultaneous or nearly so.” Id.
at 207.

Together, Wilson and Finley instruct that under the
possession prong of the statute, multiple § 924(c) charges may
not be based on nearly simultaneous predicate offenses, and that
 5

under the use prong, the United States may charge only as many
§ 924(c) violations as there are uses. See Finley, 245 F.3d at
208 n.7. While Wilson and Finley do not hold that double
jeopardy bars Congress from authorizing multiple § 924(c)
charges based on the same, or nearly the same, conduct, Op. at
8 n.5, they do construe the statute to authorize only one § 924(c)
charge in certain circumstances, even if the defendant has
committed more than one predicate offense. In such cases,
whether Congress could authorize separate charges is besides
the point; a second charge would be for the “same offence”
under the Double Jeopardy Clause.

Because the two § 924(c) charges allege appellant’s
possession of the firearm in furtherance of two predicate
offenses that are separate in time, place, and scope, Op. at 8 n.5,
I concur in the judgment that appellant’s claims under the
Double Jeopardy Clause, Federal Rule of Criminal Procedure
11, and for ineffective assistance of counsel each fail. Op. at 8-
9. However, because the government prosecuted appellant on
the second § 924(c) charge after he was acquitted of the first §
924(c) charge, it is worth noting that appellant does not raise a
collateral estoppel claim under Ashe v. Swenson, 397 U.S. 436
(1970). To do so appellant would have needed to show that an
issue of fact, relevant to the D.C. charges, was finally
determined in the Maryland case, see Ashe, 397 U.S. at 443-44;
see also Dixon, 509 U.S. at 710 n.15, and appellant does not
maintain that the Maryland jury necessarily grounded its not-
guilty PWID conspiracy verdict on a finding that appellant did
not possess drugs with intent to distribute them in the District of
Columbia, see Ashe, 397 U.S. at 444.