U.S. v. Parker

• Decision Date: 21 November 2007
• Docket Number: No. 05-2798.,05-2798.
• Citation: 508 F.3d 434
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesse James PARKER, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

508 F.3d 434

UNITED STATES of America, Plaintiff-Appellee, v. Jesse James PARKER, III, Defendant-Appellant.

No. 05-2798.

United States Court of Appeals, Seventh Circuit.

Argued January 12, 2007.

Decided November 21, 2007.

Jesse M. Barrett (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.

William C. O'Neil (argued), Winston & Strawn, Chicago, IL, for Defendant-Appellant.

Before POSNER, WOOD, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Jesse James Parker was convicted of making a false statement on a federal firearms form, being a felon in possession of a firearm, and being an illegal drug user in possession of a firearm. He raises four challenges to his convictions and sentence: that his trial violated the Speedy Trial Act, that his firearm possession convictions are multiplicitous, that he received ineffective assistance of counsel, and that his term of supervised release was imposed in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

We reject all but the multiplicity challenge. We agree that the two firearm possession convictions—under 18 U.S.C. § 922(g)(1) and (3)—are multiplicitous, as they arise from a single incident of firearm possession. Parker did not raise the multiplicity objection in the district court, however, so our review is for plain error. Parker was sentenced to concurrent prison terms on these counts but was subjected to an additional $100 special assessment for the second firearm possession conviction; we held in United States v. McCarter, 406 F.3d 460, 464 (7th Cir.2005), that this is not a sufficiently serious error to warrant correction under the plain-error standard. See also United States v. Baldwin, 414 F.3d 791, 796 (7th Cir.2005) (following McCarter). We now conclude that this holding is inconsistent with Supreme Court precedent and out of step with other circuits that have addressed the question. We therefore overrule this aspect of McCarter and Baldwin.¹ The case is remanded with instructions to vacate the sentence on one of the firearm possession counts and merge the two convictions.

I. Background

Jesse James Parker was prohibited from possessing a firearm because he was a convicted felon. On January 29, 2004, Parker paid Mamie Army $100 to complete a straw purchase of an AK-47 assault rifle for him. At Parker's direction and with money he supplied, Army went into a gun shop and bought the rifle, falsifying a federal firearms sale form by identifying herself as the purchaser. She then turned the rifle over to Parker. Parker later confessed his involvement in this scheme to federal agents, and also told them that he smoked marijuana regularly around the time of the straw purchase. Based on these facts, a jury found Parker guilty of one count of aiding and abetting a false statement on a federal firearms form, 18 U.S.C. § 922(a)(6); one count of being a felon in possession of a firearm, id. § 922(g)(1); and one count of being an illegal drug user in possession of a firearm, id. § 922(g)(3).

A. Pretrial Proceedings

Certain pretrial dates and events are important to our resolution of Parker's Speedy Trial Act claim. The three charges brought against Parker were counts four through six of an indictment that included five other defendants: Army, Devin Smith, Frederick Williams, Michael Griffis, and Kathleen Miller. After being indicted, Parker first appeared before a magistrate judge in the Northern District of Indiana on October 20, 2004. At that time, the government moved to detain Parker, and the court scheduled a hearing on that motion for October 25 to give Parker time to obtain counsel. When that date arrived, Parker had yet to obtain counsel, so the court rescheduled the hearing for October 28. On that date, Parker again appeared alone and requested appointment of counsel; the court granted the request and rescheduled the hearing for November 1. The detention motion was finally heard on November 1, and Parker was detained after pleading not guilty. That same day, Williams filed a motion to suppress evidence, which was denied on November 29. Codefendants Miller and Smith filed petitions to enter guilty pleas on October 29 as did Griffis on November 5, Army on November 23, and Williams on January 13, 2005. Their pleas were accepted on the following dates: Miller on November 16, Smith and Griffis on November 17, Army on December 13, and Williams on January 14. In sum, the motions and plea petitions of Parker's codefendants were pending from October 29 through December 13, 2004, and on January 13 and 14, 2005.

In the meantime, Parker's trial was scheduled to begin on January 18. At the final pretrial conference on January 13, the judge informed the parties he would be unavailable for about four to six weeks beginning January 17 for medical reasons. He proposed a new trial date of February 22, but Parker's counsel indicated he was unavailable. Trial was then scheduled to commence February 24. On February 18, the government filed a motion to allow a law student to participate in the trial; that motion was granted on February 22. On February 23, Parker filed a motion to dismiss under the Speedy Trial Act, claiming that more than the 70 allowable days had elapsed since his first appearance. The district court denied Parker's motion the same day it was filed, stating that the trial date "was set in open court with this defense counsel present" and "[i]f present defense counsel thought there was a Speedy Trial problem he should not have waited until the eve of trial to bring it up." The court made no findings regarding the number of countable days that had elapsed while Parker was waiting to be tried.

B. Trial Proceedings

Trial commenced as scheduled on February 24. That morning, Parker's counsel provided the government with an affidavit from codefendant Williams, who was scheduled to testify against Parker, purporting to recant his prior statements implicating Parker.² Counsel admitted the document had been obtained from Williams outside the presence of Williams's counsel while Parker and Williams were incarcerated in the same facility. Parker's counsel informed the court that Parker told him during one of his prison visits that Williams was going to sign an affidavit. During that visit, a prison employee entered the room where Parker and his counsel were meeting and informed them he was bringing a typed document to Williams. The employee returned shortly thereafter with an affidavit signed by Williams. Parker's counsel acknowledged that this had occurred more than a month and half prior to trial; his explanation for not disclosing it earlier was that he was uncertain whether Williams would testify.

The district court expressed concern about the manner in which the affidavit was obtained and the attorney's failure to disclose it sooner. The judge barred any mention of the affidavit during opening statements and further stated he was inclined to preclude use of the affidavit for impeachment purposes but would defer ruling until Williams testified. Trial proceeded, with the court recessing during Williams's cross-examination to make a final ruling on the affidavit. The court ultimately concluded the affidavit itself could not be admitted, but Parker's counsel could cross-examine on its contents, and the prosecution could question Williams on the circumstances under which the recantation was made. Williams testified that he recanted to dispel rumors that he had implicated Parker as "a big time drug dealer ... buying all of these guns and putting them on the street and stuff." However, he stood by his testimony that Parker had paid Army to purchase the single AK-47 as charged in the indictment.

C. Posttrial Proceedings

Parker was sentenced to concurrent 27-month prison terms and two years of supervised release; he was also ordered to pay a $100 special assessment for each of the three offenses. In imposing supervised release, the district court said that "a term of supervised release is not only required but also is appropriate in this case." Parker filed a timely notice of appeal, but his trial counsel moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he saw no nonfrivolous basis for appeal. Parker filed a response seeking new counsel for his appeal because his trial counsel faced a potential conflict of interest regarding the matter of Williams's affidavit. We agreed and ordered the appointment of new appellate counsel. United States v. Parker, No. 05-2798, 2006 WL 1367385 (May 3, 2006). Parker's counsel now raises the following challenges on appeal: whether a Speedy Trial Act violation occurred; whether Parker's convictions for being both a felon and drug user in possession of a firearm are impermissibly multiplicitous; whether Parker's trial counsel was ineffective; and whether the district court erred in imposing a term of supervised release under the mistaken belief that supervised release was mandatory.

II. Discussion

A. Speedy Trial Act Violation

The Speedy Trial Act ("the Act") provides that no more than 70 days may elapse between a defendant's initial appearance in court and the commencement of trial. 18 U.S.C. § 3161(c)(1). The district court made no factual findings regarding how many countable days elapsed, and the parties dispute the proper method of calculation. "We review the district court's denial of Speedy Trial Act motions de novo when calculation of time is at issue." United States v. Baskin-Bey, 45 F.3d 200, 203 (7th Cir.1995).

Although a total of 126 days elapsed between Parker's first appearance in court and the commencement of his trial, not all of this time counts toward the Act's 70-day limitation. The parties agree that the delay attributable to pleas by Parker's codefendants is excluded. See 18 U.S.C. § 3161(h)(7) (excluding "[a] reasonable period of delay when the defendant is joined for trial...