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.