UNITED STATES of America, Plaintiff-Appellee v. John Harry WOOLSEY, Jr., Defendant-Appellant.
No. 13-3543.
United States Court of Appeals, Eighth Circuit.
Submitted: May 12, 2014. Filed: July 17, 2014.
759 F.3d 905
Finally, in response to Carico Farms’ motion for judgment on the pleadings, Packard submitted an index of evidence along with her brief, but the district court declined to consider the additional evidence. “A court has wide discretion in electing to consider matters outside the pleadings.” Skyberg v. United Food & Commercial Workers Int‘l Union, 5 F.3d 297, 302 n. 2 (8th Cir.1993). The district court did not abuse its discretion here. Additional evidence would not change the district court‘s prediction that the Nebraska Supreme Court, under the allegations of this case, would determine, as a matter of law, that a privаte citizen has no legal duty to control traffic on Nebraska highways.
III. CONCLUSION
We affirm the district court‘s well-reasoned opinions and judgment.
Richard J. Henderson and Scott D. McGregor, Federal Public Defenders Office, argued, Fаrgo, ND, for appellant.
Scott J. Schneider, AUSA, argued, Fargo, ND, for appellee.
Before MURPHY, MELLOY, and BENTON, Circuit Judges.
A jury found John Harry Woolsey, Jr. guilty of two offenses: (1) being a felon in possession of a firearm, and (2) being a felon in possession of ammunition, both in violation of
I.
On April 20, 2012, Deputy Michael Gavere found Eric Burley in Burley‘s vehicle in Ardoch, North Dakota. Burley was injured from a self-inflicted gunshot wound, and hе later died from his injuries. During the investigation into Burley‘s suicide, Deputy Gavere recovered a .22 caliber pistol and a box of ammunition from inside Burley‘s vehicle. Deputy Gavere eventually learned that the gun and ammunition may have belonged to Woolsey.
Deputy Gavere contacted Woolsey, and Woolsey agreed to talk to him. Woolsey told Deputy Gavere that he purchased the gun a few years ago when hе was living in Montana. He said he purchased the gun at a yard sale in Wyoming, and that at the time, he intended to use the gun to protect himself from bears because the noise could scare away a bear. Woоlsey was friends with Burley, and sometimes they shot guns at targets, such as tin cans, together. Around December 2011, Woolsey gave Burley the gun with the expectation that Burley would return it once Burley acquired his own. Woolsey said he did nоt know what Burley intended to do with the
In early April 2012, Burley asked Woolsey if he wanted to go shooting with him again. Burley asked Woolsey to bring ammunition. Burley told Woolsey he was out of bullets and did not know where to buy more. Woolsey gave him a box of ammunition that he said he bought at Wal-Mart. Roughly two weeks later, Burley killed himself using the gun and ammunition from Woolsey.
After initially speaking with Woolsеy, Deputy Gavere learned that Woolsey was a convicted felon at the time Woolsey possessed the gun and ammunition. Woolsey has felony convictions for aggravated assault and resisting arrest from 2001, and a 2006 conviction for resisting arrest. Based on Deputy Gavere‘s investigation, Woolsey was later indicted on two counts of being a felon in possession. Count One alleged that Woolsey unlawfully possessed a firearm “[i]n or between December 2011 and April 20, 2012, in the District of North Dakota.” Count Two alleged that Woolsey unlawfully possessed ammunition “[o]n or about April 19 and 20, 2012, in the District of North Dakota, and elsewhere.”
Prior to trial, Woolsey filed a motion to dismiss the indictment, alleging that the felon-in-possession statute violated the Second Amendment. The district court denied the motion. On August 21, 2013, a jury found Woolsey guilty of both
II.
Woolsey appeals, arguing for the first time that the
A. Multiplicitous Counts
Normally, this court would review de novo Woolsey‘s claim that the counts were multiplicitous. See United States v. Platter, 514 F.3d 782, 785 (8th Cir.2008). However, Woolsey did not raise this сlaim before the district court, so we review for plain error only. See United States v. Pirani, 406 F.3d 543, 550 (8th Cir.2005) (en banc). For Woolsey to prevail, he “must show that the district court committed an error that is plain, i.e. clear under current law, that he was prejudiced by the error, and that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Delgado, 653 F.3d 729, 735 (8th Cir.2011).
“The rule against multiplicitous prosecutions is based on the Fifth Amendment‘s Doublе Jeopardy Clause, which ‘protects against multiple punishments for the same offense.‘” United States v. Emly, 747 F.3d 974, 977 (8th Cir.2014) (citations omitted). When “an indictment includes more than one count charging the same statutory violation,” the court must detеrmine “whether Congress intended the facts underlying each count to make up a separate unit of prosecution.” Id. (internal quotation marks omitted).
Woolsey bases his claim on United States v. Richardson, 439 F.3d 421, 422 (8th Cir.2006) (en banc) (per curiam), which held that a defendant could not be prosecuted on separate counts for being a
Woolsey argues that plain error occurred here because he was charged, tried and cоnvicted on two
A felon‘s possession of both a firearm and ammunition comprises only one offense, “barring proof that the firearms were obtained at different times or stored separately.” Richardson, 439 F.3d at 422; see also United States v. Cunningham, 145 F.3d 1385, 1398 (D.C.Cir.1998); United States v. Hutching, 75 F.3d 1453, 1460 (10th Cir.1996). Thus, where the prosecution seeks “more than one charge under section 922(g), separate acquisition and storage of the weapons is an element of the crimes charged.” Cunningham, 145 F.3d at 1398. This element presents a question of fact to be submitted to the jury, “not a question of law for the court.” Id. at 1399. The record here indicates that this element was never submitted to the jury.
We conclude, however, that no plain error occurred. Woolsey‘s argument on appeal that some overlapping time requires possession be charged in a single count is a misunderstanding of the law. The test is not whether there was any period of overlap, but whether the twо items were separately acquired or stored. It is undisputed on this record that Woolsey acquired the firearm and ammunition at separate times and in separate places, thus providing two separate “units of prosecution.” See Richardson, 439 F.3d at 422. Woolsey acquired the gun at a yard sale in Wyoming several years before giving it to Burley, and he acquired the ammunition at Wal-Mart in North Dakota more recently.
While there are overlapping dates in the indictment for when Woolsey possessed both the gun and the bullets, there was a months-long gap between when Woolsey gave Burley the gun in December 2011 and when Woolsey gave Burley the ammunition used to kill himself in April 2012. Thus, it is undisputed that the gun and ammunition were stored separately during that time.
Further, under plain error review, Woolsey cannot show he was prejudiced by the decision to prosecute him on two counts. Woolsey‘s presentence report grouped both counts into one group, see
B. Constitutionality of 18 U.S.C. § 922(g)(1)
Woolsey next argues that
To the extent the Eighth Circuit has left open the possibility that a person could bring a successful as-applied challenge to
[The defendant] has not presented “facts about himself and his background that distinguish his cirсumstances from those of persons historically barred from Second Amendment protections.” United States v. Barton, 633 F.3d 168, 174 (3d Cir.2011). He does not allege, for example, that his stipulated prior felony conviction was for a non violent оffense or that he is “no more dangerous than a typical law-abiding citizen.” Id. [The defendant‘s] assertion that he possessed the gun for self defense is insufficient to successfully challenge his conviction under the felоn in possession statute.
Prior to trial, Woolsey stipulated that he had three prior felony convictions, which included two convictions for resisting arrest and one for aggravated assault. These are not non-violent crimes. Woolsey has not shown that he is “no more dangerous than a typical law-abiding citizen.” Brown, 436 Fed.Appx. at 726. We reject Woolsey‘s as-applied challenge to the constitutionality of
III.
The judgment of the district court is affirmed.