Opinion
CRIMINAL ACTION NO. 01-282, SECTION: "R"
August 19, 2003
ORDER AND REASONS
Before the Court is the post-trial motion of defendant, Johnny Davis, to dismiss multiplicative convictions under 18 U.S.C. § 922(g). Among other convictions, Davis was found guilty under Counts 7, 9, and 11 for being a felon in possession of a firearm. Under these counts, defendant possessed the same Glock, Model 27, .40 caliber semi-automatic pistol on three different dates: February 27, 2001, February 28, 2001, and March 13, 2001.
At trial, Anthony Buckles testified that after the February 27, 2001 shooting of Samuel Collins, defendant left the Glock 27 in an abandoned apartment. According to Buckles, the following day, Buckles retrieved the Glock 27 and provided it to defendant to use in the shooting of Walter Naylor. Buckles then testified that sometime in March, the Glock 27 was given to Timmy Carruth in exchange for another firearm. Soon thereafter, Buckles retrieved the Glock 27 from its location in the Magnolia Housing Development. Sometime before March 13, 2001, defendant acquired the Glock 27 again and used it in the shooting of Leonard Morgan on that date. Defendant relied on these facts at trial to support his theory that others possessed and used the firearm to commit the charged murders.
Defendant now argues that his three felon-in-possession convictions are impermissibly multiplicative under the Double Jeopardy Clause of the U.S. Constitution because they are predicated on the same underlying course of conduct, that is, possession of the same gun. For support, defendant relies on United States v. Jones, 533 F.2d 1387 (6th Cir. 1976), and United States v. Horodner, 993 F.2d 191 (9th Cir. 1993). The facts of these cases, however, are distinguishable from the facts in defendant's case. In Jones, the defendant was convicted on three counts of being a felon in possession of a firearm based on the following incidents: (1) he purchased a gun on October 15, 1970; (2) police saw this same gun on his car seat and recorded its serial number in March of 1973; and (3) police discovered this same gun during an inspection of defendant's store and recorded its serial number in December of 1973. See Jones, 533 F.2d at 1389-1390. The court held that only one offense was committed, and the three convictions were multiplicative, because "[t]here is no proof that there was any interruption in the possession by Jones of the weapon" and "[p]ossession is a course of conduct, not an act; 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." Id. at 1391.
Similarly, in Horodner, the defendant was convicted on two counts of being a felon in possession of a firearm because, after he bought a gun on January 10, 1987, he brought it back to the dealer to have it repaired and picked it up again on January 20, 1987. Horodner, 993 F.2d at 192-93. The Ninth Circuit framed the question as "whether these two instances of possession are separate criminal acts." Id. at 193. The court noted that the Sixth Circuit had held in Jones that "a new possession, separately chargeable, could begin if possession was interrupted," but that this situation did not exist in Jones. Id. (citing Jones, 533 F.2d at 1391). The court found that its facts were analogous to Jones because Horodner "retained the right to possess and control" his gun and "retained constructive possession" while it was in the repair shop. Id. The court characterized Horodner's situation as "one uninterrupted course of conduct" and distinguished it from the facts in United States v. Robbins, 579 F.2d 1151 (9th Cir. 1979). See id. at 193 n. 1. In Robbins, the Ninth Circuit rejected defendant's double jeopardy argument and upheld two felon-in-possession convictions because the defendant's firearm had been confiscated by authorities between his two instances of possession, thus interrupting his possession. See Robbins, 579 F.2d at 1154. See also United States v. Ford, 902 F.2d 35 (6th Cir. 1990) (distinguishing Robbins and finding convictions multiplicative because defendant, having shot himself in the hand, instructed a friend to store the gun in the friend's car and then bring it to defendant's house while defendant was hospitalized, such that defendant "retained the ability to resume possession of the gun at his pleasure" and knew where it was at all times).
In contrast to Jones, Horodner, and Ford, and most similar to the facts before the Court, is United States v. Conley, 291 F.3d 464 (7th Cir. 2001), in which the defendant was convicted on two counts of being a felon in possession of a firearm on July 7, 1999 and January 27, 2000, respectively. At trial, the government proved that the defendant's possession of the firearm was interrupted because his friend, who purportedly owned the firearm, had possession of it for some period of time between July 7 and January 27. See Conley, 291 F.3d at 467-68. The court held that a felon may be charged and convicted on two counts of possessing the same firearm if (1) he possesses the firearm; (2) he is aware that his possession of the firearm has been interrupted; and (3) he thereafter reacquires possession of the firearm himself. See id. at 470 (citing Horodner, 993 F.2d 191; Jones, 533 F.2d 1387; other citations omitted). The court stated that, in other words, the government must prove that the firearm was "stored or acquired separately and at different times or places." Id. (citing United States v. Buchmeier, 255 F.3d 415, 423 (7th Cir. 2001); Horodner, 993 F.2d at 193). Further, the court considered whether "each count requires proof of a fact which the other does not." Id. Finding that each count did require proof of a fact that the other did not, namely, possession of the firearm on different dates, the court rejected the defendant's argument that the convictions were multiplicative and found that the two counts identified separate courses of conduct. See id. at 470-71. Further, the court rejected the defendant's argument that the government should have alleged facts in the indictment regarding interruption of possession, noting that "on numerous occasions we have sustained convictions that were obtained on multi-count indictments, charging separate courses of unlawful conduct, despite the fact that the indictments failed to allege that each course was interrupted'." Id. at 471 (citations omitted). Thus, the court concluded that "although interruption was another fact that the Government was required to prove in order to obtain successful convictions on more than one count, it was not necessary to allege this fact in any of the counts of the indictment itself." Id.
As in Conley, defendant in this case did not have continuous possession of the firearm identified in the three felon-in-possession counts. Rather, as defendant's counsel argued to the jury at trial, other individuals, including Buckles and Carruth, had possession of the Glock 27 at various times between each shooting, or else the firearm was left in an abandoned apartment. There was no evidence presented at trial that defendant considered the firearm to be in his possession and control when it was not in his actual possession, or that he knew where it was at all times during the relevant time period. Instead, the evidence at trial showed that this firearm, like many others changing hands and being stored in the Magnolia Housing Development, was in transit because it was "hot." Thus, defendant's possession of the Glock 27 was interrupted, and each instance of his possession of it was a separate criminal act. These facts meet the test set forth in Conley, because defendant possessed the firearm, was aware that his possession of the firearm had been interrupted, and thereafter reacquired possession of the firearm. For these reasons, the three felon-in-possession convictions are not multiplicative.
Without citing any specific cases for support, defendant urges the Court to extend the reasoning behind co-conspirator liability to find that the intermittent actual and constructive possession of the Glock 27 by Buckles and other co-conspirators of defendant rendered defendant's possession uninterrupted. The Seventh Circuit expressly rejected this type of argument in United States v. Walls, 225 F.3d 858 (7th Cir. 2000). In that case, the government argued that the defendant was liable for being a felon in possession of a firearm even though she lacked actual or constructive possession, because her co-conspirator possessed the firearm. The court found that stretching co-conspirator liability in this way (and other similar ways) eviscerated the purpose of the felon-in-possession statute. The court concluded, therefore, that "the felon-in-possession statute seems a particularly inappropriate vehicle for such an expanded use of Pinkerton liability." Walls, 225 F.3d at 865.
In light of Walls and the apparent lack of authority for defendant's argument, this Court rejects the proposition that a conspirator's possession of a firearm can be extended to create felon-in-possession liability for his co-conspirator, such that defendant's co-conspirators' possession of the Glock 27 created uninterrupted possession by defendant.
Accordingly, defendant's motion to dismiss multiplicative convictions under 18 U.S.C. § 922(g) is DENIED.