UNITED STATES of America, Plaintiff-Appellee, v. Donald Ray GOODINE, Defendant-Appellant.
No. 04-4320.
United States Court of Appeals, Fourth Circuit.
Argued: Dec. 3, 2004. Decided: March 15, 2005.
400 F.3d 202
V.
For the reasons set forth above, the judgment of the district court is
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Robert Albert Jamison Lang, Assistant United States Attorney, Office of the United States Attorney, Greensboro, North Carolina, for Appellee.
Anna Mills Wagoner, United States Attorney, Greensboro, North Carolina.
Before LUTTIG, TRAXLER, and KING, Circuit Judges.
Affirmed and remanded by published opinion. Judge KING wrote the opinion, in which Judge LUTTIG joined. Judge TRAXLER wrote a separate opinion concurring in part and concurring in the judgment.
OPINION
KING, Circuit Judge.
Donald Ray Goodine was tried in April 2004 in Greensboro, North Carolina, on a two-count federal indictment, resulting in a hung jury on one charge and an acquittal on the other. Goodine has appealed the district court‘s post-trial ruling that he could be retried on the charge on which the jury hung (and on which a mistrial was declared) without contravening the Double Jeopardy Clause of the Constitution. As explained below, we conclude that the indictment against Goodine was not multiplicitous, and that there is no constitutional impediment to his second trial. We therefore affirm and remand.
Goodine was indicted by the grand jury in the Middle District of North Carolina on December 16, 2003, for two offenses. First, he was charged with being a felon in possession of a firearm, a .32 caliber pistol, in contravention of
Goodine was tried on April 12 and 13, 2004. The prosecution presented hotly contested evidence that, just before midnight on August 11, 2003, Goodine and his girlfriend, Tammy Miller, became involved in an argument, which escalated into a violent confrontation, in his second-floor apartment in a rooming house in Winston-Salem. Prosecution witness Wanda Brown, another rooming house resident who described herself as a friend of Miller, testified that late on August 11, she was drinking beer with Miller in the kitchen Goodine shared with other residents of his apartment (“Apartment C“) when, around 11:00 p.m., Goodine returned home and appeared to be angry. Brown then returned to the living room of her own apartment, which was also on the second floor and near Goodine‘s bedroom.3
Julius Petree, describing himself as a resident of Apartment C whose bedroom was next to Goodine‘s, also testified for the prosecution.4 According to Petree, he saw Miller and Goodine “throwing stuff, hitting each other,” during the argument, which apparently then continued in Goodine‘s bedroom. Petree testified that, along with his girlfriend and her friend, he went into his own bedroom and closed the door. In Petree‘s version of events, Goodine then knocked on Petree‘s bedroom door, telling him to “bring your butt out here,” and yelling, “you think you bad” and to stop “getting in my business.” When Petree opened the bedroom door, Goodine pointed a pistol in his face. Petree slammed the door, and he and the two women then laid down on the floor, fearful that Goodine might shoot through the door. Once Goodine was back inside his own room, Petree
Brown also heard the arguing and the gunshot, and called the police. She testified that after she heard the gunshot, she saw Goodine leave the rooming house with a pistol and go downstairs and outside. Brown, who was already outside the rooming house, then witnessed Goodine “bend over as if he was going to place the gun in a [nearby] station wagon.” Instead, however, Goodine stopped and returned upstairs with the pistol in his hand—according to Brown, possibly because he knew she was watching. Brown appears to have followed him upstairs, where, watching through a glass storm door, she saw him place the firearm in a trash can.
The first Winston-Salem police officer to arrive on the scene of the events, Officer Mendez, saw Petree (who was apparently downstairs) at the back stairs of the rooming house. Mendez questioned Petree about the gunshot incident, and Petree gave him permission to enter the rooming house. Mendez then went upstairs with Officer Miller, who had just arrived. Mendez testified that, once upstairs, he saw Goodine at the kitchen sink washing his hands. He frisked Goodine for weapons, found none, and gained consent to search the area. Officer Miller then discovered a Davis Industries .32 caliber pistol, containing one fired ammunition casing, in the trash can next to the kitchen sink where Goodine had been standing.
Winston-Salem Police Officer Oliver then arrived on the scene, and he placed Goodine under arrest. By all accounts, Goodine was cooperative with the officers while Miller, his girlfriend, was uncooperative.5 Oliver then searched Goodine twice, first at the rooming house when he was arrested, and later at the Forsyth County Detention Center (“the Jail“) after transporting him there. The Jail search uncovered an unfired .32 caliber bullet, which “was no thicker than perhaps a wad of chewing gum,” in the change pocket of Goodine‘s blue jean shorts.
At trial, Goodine testified extensively in his own defense. He insisted that the prosecution‘s evidence was entirely false—that he had attempted to end his relationship with Miller, and that, knowing he could not lawfully possess a firearm, she and her friends had retaliated by fabricating the entire incident underlying his prosecution. He denied possessing or shooting the pistol, maintained that there had been no argument with Miller and no gunshot, stated that he had no knowledge of the bullet found in his pants pocket, and asserted that Miller had herself laid them out for him to wear. He portrayed his relationship with Miller as on-again, off-again, and he asserted that their recurring breakups were caused by her relapses into drug abuse. He contended that Miller had a history of reacting violently to romantic breakups. Specifically, he testified that after his previous attempts to end their relationship, she had stabbed him in 2000 and hit him with a glass ashtray in 2001. He then introduced medical records to support these allegations, which were not disputed by the prosecution.
On April 13, 2004, the court submitted the case to the jury. After several hours of deliberations, the jury advised the court that it was unable to reach a verdict on
On April 19, 2004, Goodine moved to dismiss the Gun Count on double jeopardy grounds, and the prosecution objected. The district court denied Goodine‘s motion on April 23, 2004, and scheduled the Gun Count for retrial. On April 30, 2004, Goodine filed a Notice of Interlocutory Appeal in the district court. On May 7, 2004, the court conducted a status conference and orally opined that an appeal by Goodine on the double jeopardy issue was neither frivolous nor interlocutory.
II.
We possess jurisdiction over Goodine‘s appeal under the “collateral order doctrine.” He contends that the district court‘s refusal to dismiss the Gun Count contravened his rights under the Double Jeopardy Clause of the
III.
The Double Jeopardy Clause of the
Goodine maintains, however, that his acquittal by the jury on the Bullet Count bars his retrial on the Gun Count. He contends, relying on our decision in United States v. Dunford, 148 F.3d 385 (4th Cir.1998), that the indictment against him was multiplicitous,6 that the Bullet Count and the Gun Count were in reality the same “offense,” and that his acquittal on either charge would serve necessarily as his acquittal on both. In the alternative, he contends that his acquittal on the Bullet Count resolved in his favor a critical factual issue underlying the Gun Count, such that the doctrine of criminal collateral estoppel precludes his retrial on that charge. We assess these alternative contentions in turn.
Goodine first contends that, in these circumstances, illegal firearm possession and illegal ammunition possession were actually two factual predicates for a single criminal offense, which the indictment defectively split into two charges. He therefore asserts that his retrial on the Gun Count would place him twice in jeopardy for the same offense, in violation of the Double Jeopardy Clause of the
In assessing whether Goodine‘s retrial is barred by the prohibition against double jeopardy, we must first decide whether the indictment against Goodine was indeed multiplicitous—in other words, whether the Gun Count and the Bullet Count each charged the “same offense.” Inquiries concerning whether two charges are actually the “same offense” normally involve the inverse of the situation here—that is, they involve an indictment which has charged multiple statutory offenses premised on the same conduct, and require us to look to whether each charged offense requires proof of some fact that the other does not require. See Blockburger v. United States, 284 U.S. 299, 304 (1932). In such a situation, the Supreme Court has held that a defendant may be prosecuted a second time for a different statutory offense even
In contrast, the situation here—whether Goodine can be reprosecuted for the same statutory violation based on different (albeit somewhat related) conduct—is simple in the abstract. It is well-settled that a defendant may be charged and prosecuted for the same statutory offense multiple times when each prosecution is based on discreet acts that each constitute a crime. For instance, in Ashe v. Swenson, 397 U.S. 436 (1970), the Supreme Court addressed the situation of a defendant who had robbed multiple victims in a single incident. After a jury returned an acquittal on a charge as to one victim, the prosecution sought to retry the defendant for the same crime, but as committed against another victim of the same robbery. Id. at 439-40. The Supreme Court treated the acts against different victims as separate crimes, but held that the doctrine of collateral estoppel applied to the second prosecution. Id. at 444-46 (determining that first jury had necessarily decided that defendant was not culprit). See also United States v. Walsh, 194 F.3d 37, 46 (2d Cir.1999) (determining that indictment alleging same criminal offense based on two different instances of same act, occurring in “different, but overlapping time frames” was not multiplicitous); United States v. Swaim, 757 F.2d 1530, 1536-37 (5th Cir.1985) (concluding that counts of indictment charging violation of same statute based on “different evidence” were not multiplicitous).
The difficulty here, however, comes from the application of our ruling in Dunford to this case. In Dunford, we concluded that the defendant‘s simultaneous possession of six firearms and ammunition was in actuality a single “offense,” and thus could result in only one
We, however, decline to extend Dunford to the facts of this case. The key to the Dunford decision was the fact that the multiple firearms involved in that prosecution were “seized at the same time.” 148 F.3d at 390. In Dunford, we applied our decision in United States v. Mullins, 698 F.2d 686 (4th Cir.1983), and concluded that, under the predecessor statute to
In this situation, critical aspects of the Gun and Bullet Counts are different: a successful
B.
Goodine‘s second contention is that the doctrine of criminal collateral estoppel bars his retrial on the Gun Count. First of all, we recognize that, in assessing such a contention, the concept of collateral estoppel is a constitutionally based doctrine falling within the scope of the Double Jeopardy Clause. See Ashe, 397 U.S. at 445-46. It precludes an ultimate factual issue that was necessarily decided in a defendant‘s favor in an earlier criminal proceeding from being relitigated against the same defendant. Id. at 443-44. In our decision in United States v. Fiel, Judge Ervin carefully identified and explained the relevant factors for a proper analysis of a criminal collateral estoppel claim (the ”Fiel test“):
(1) whether the issue in question is identical to the issue adjudicated in a prior proceeding;
(2) whether the issue was actually determined in the prior adjudication;
(3) whether the issue was necessarily decided in that proceeding;
(4) whether the resulting judgment settling the issue was final and valid; and
(5) whether the parties had a full and fair opportunity to litigate the issue in the prior proceeding.
35 F.3d 997, 1006 (4th Cir.1994).
In order for his retrial on the Gun Count to be barred under the Fiel test, each of
IV.
Pursuant to the foregoing, the ruling of the district court is affirmed and this case is remanded for such other and further proceedings as may be appropriate.
AFFIRMED AND REMANDED
TRAXLER, Circuit Judge, concurring in part and concurring in the judgment:
I fully concur in the result reached by the majority in this case, and I concur in the majority‘s analysis except with regard to the multiplicity issue addressed in Section III. I write separately to explain how I would approach that issue.
In United States v. Dunford, 148 F.3d 385 (4th Cir.1998), we held that the simultaneous possession of multiple firearms generally amounts to a single
The general rule is that when a convicted felon acquires two or more firearms in one transaction and stores and possesses them together, he commits only one offense under
United States v. Mullins, 698 F.2d 686, 687 (4th Cir.1983) (citations omitted); see also Dunford, 148 F.3d at 390.
In my view, the facts of this case are insufficient to bring this case within the separate-possession exception recognized in Dunford and Mullins. While the bullet in Goodine‘s pocket was discovered at the jail, that was only because the police missed the bullet when they searched Goodine at the rooming house. Had a proper search been done, the gun and the bullet would have been seized at the same time, in the same place. Under these circumstances, Goodine‘s possession of the bullet was no more temporally or spatially distinct from his possession of the gun at the
That the indictment was multiplicitous, however, does not in this case carry with it any Double Jeopardy implications. The Double Jeopardy Clause “protects defendants against second prosecutions for the same offense after either an acquittal or a conviction and against multiple punishments for the same offense.” United States v. Bowe, 309 F.3d 234, 238 (4th Cir.2002).
Because Goodine has not been convicted of anything, the prohibition against a second prosecution after a conviction is obviously inapplicable. The prohibition against multiple punishments for a single offense, of course, would be implicated if separate sentences were imposed on each count of a multiplicitous indictment. In such cases, the Double Jeopardy problem would be cured by vacating all convictions save one and imposing a single sentence. See, e.g., United States v. Leftenant, 341 F.3d 338, 347-48 (4th Cir.2003), cert. denied, 540 U.S. 1166 (2004); Dunford, 148 F.3d at 390. But because no sentence, much less multiple sentences, has been imposed on Goodine, the Double Jeopardy concerns of Dunford are not implicated in this case.
Thus, the only Double Jeopardy interest arguably at issue in this case is the protection against successive prosecutions after acquittal. For the protections of the Double Jeopardy Clause to be triggered, however, there must first be “some event, such as an acquittal, which terminates the original jeopardy.” Richardson v. United States, 468 U.S. 317, 325 (1984). It is beyond dispute that the declaration of a mistrial because of the jury‘s inability to reach a verdict on the Gun Count did not terminate the original jeopardy. See id. at 326. And in my view, the “acquittal” on the Bullet Count likewise did not terminate the original jeopardy.
Although there can be but one
The government‘s error in charging the offense in separate counts should not change this analysis. The jury‘s determination that Goodine did not knowingly possess the bullet did not amount to a complete acquittal of the offense, but instead was simply a determination that Goodine did not commit the offense in one of the two possible means. Since there has been no complete acquittal on the
Although my analysis of this issue differs from that of the majority, the result is the same. Accordingly, I concur in the result reached by the majority in Section III of the opinion, and I fully concur in the remainder of the opinion.