U.S. v. Bass, s. 85-2034

• Decision Date: 01 July 1986
• Docket Number: 85-2035,Nos. 85-2034,s. 85-2034
• Parties: 21 Fed. R. Evid. Serv. 354 UNITED STATES of America, Appellee, v. Michael Monroe BASS, Appellant. UNITED STATES of America, Appellee, v. Charles Earl PRICE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1305

794 F.2d 1305

21 Fed. R. Evid. Serv. 354

UNITED STATES of America, Appellee, v. Michael Monroe BASS, Appellant.

UNITED STATES of America, Appellee, v. Charles Earl PRICE, Appellant.

Nos. 85-2034, 85-2035.

United States Court of Appeals,

Eighth Circuit.

Submitted March 12, 1986.

Decided July 1, 1986.

Donald R. Cooley, Springfield, Mo., for Michael Monroe Bass.

R. Steven Brown, Springfield, Mo. for Charles Earl Price.

Robin J. Aiken, Springfield, Mo., for appellee.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and HARPER, ^* Senior District Judge.

JOHN R. GIBSON, Circuit Judge.

Three principal issues are before us in these appeals. First, whether Michael Monroe Bass and Charles Earl Price may be convicted in the same proceeding both of transporting a stolen firearm in interstate commerce, in violation of Title IV of the Omnibus Crime Control Act, 18 U.S.C. Secs. 922(i), 924 (1982) and 18 U.S.C. Sec. 2 (1982), and of being a felon in possession of firearms, in violation of Title VII of the Omnibus Crime Control Act, 18 U.S.C. app. Sec. 1202(a)(1) (1982) and 18 U.S.C. Sec. 2. Second, whether the district court ¹ erred in admitting evidence of other crimes committed during the criminal transaction giving rise to the offenses charged in this indictment. Third, whether the district court erred in sentencing Bass under section 1202(a) for a conviction under section 922(i) of the Act. We hold that the double jeopardy clause does not prohibit separate sentences on Counts II and III of appellants' indictment and that the district court did not err in denying appellant Price's motion to suppress the other crimes evidence. We conclude, however, that the district court erred in sentencing Bass under section 1202(a) of the Act for his conviction under section 922(i), and remand to the district court for sentencing on Count II under section 924(a) of the Act.

On April 4, 1985, Bass and Price escaped from the Tucker Prison Farm, Tucker, Arkansas, where they both were serving felony sentences. A 1977 Ford truck owned by the Arkansas Department of Correction was reported missing on the same day. Price and Bass were seen in the missing vehicle on that day; Price was driving the vehicle. The truck later was found abandoned.

Harold Reeder testified that on April 6, 1985, he made a security check of a house in Greer's Ferry, Arkansas, and was confronted by Bass and Price with rifles in their hands. Bass and Price tied him up and stole his 1979 International Scout truck. The owner of the house identified two .22 caliber rifles, a bow and arrow and a hunting knife later found in appellants' possession as stolen from his home.

Guy Pace testified that on April 6, 1985, at about 6:30 p.m., he saw the 1979 Scout in Taney County, Missouri. The truck was parked on the shoulder of a highway; Bass and Price were working onthe engine and Pace stopped to render assistance. According to Pace, as he inspected the engine, Bass and Price displayed the two stolen rifles and Bass threatened to kill him. He testified that Bass and Price took him into the woods and menaced him with the stolen weapons and the bow and arrow. Bass and Price then stole Pace's pick-up truck, taking the two stolen rifles with them, and left Pace with the Scout stolen from Reeder.

Shortly thereafter, Mr. and Mrs. John King stopped to assist Pace. As Pace was getting into the Kings' car, Bass and Price returned in Pace's pick-up and stopped in front of the Kings' car. One of the appellants fired at the King vehicle, hitting the windshield. Pace testified that Price told him to get into the pick-up truck and again threatened his life. Bass took custody of the Kings and their two children. As Pace got into the pick-up with Price, he grabbed Price's rifle, a shoot-out occurred, and Pace, Bass and Price all were wounded.

A grand jury returned a three-count indictment against Bass and Price. Count I charged them with willfully and knowingly transporting a stolen vehicle, the Scout truck, in interstate commerce, in violation of 18 U.S.C. Secs. 2, 2312. Count II charged them with knowingly transporting in interstate commerce firearms which they knew to be stolen, in violation of 18 U.S.C. Secs. 2, 922(i), and 924(a). Count III charged them with possession of firearms which were in or affected commerce, having been convicted of felonies, in violation of 18 U.S.C. app. Sec. 1202(a)(1) and 18 U.S.C. Sec. 2. Both were convicted on all counts. Bass was sentenced to terms of three years on Count I and fifteen years on Counts II and III, to run concurrently. The sentences on Counts II and III were entered under 18 U.S.C. app. Sec. 1202(a), which authorizes an enhanced sentence of fifteen years without possibility of parole for persons having three previous robbery convictions. Price was sentenced to terms of five years on Counts I and II and two years on Count III, all to run consecutively.

I.

Both Bass and Price argue that their conviction on charges of transporting stolen firearms in interstate commerce, in violation of section 922(i), and of being felons in possession of firearms, in violation of section 1202(a)(1), constitutes multiple punishment for a single offense and, therefore, violates the double jeopardy clause of the fifth amendment. The appellants maintain that the two statutes describe the same offense because the same acts violate both statutes: the same guns were involved in both counts, and the interstate commerce requirement of both offenses is satisfied by their movement from the State of Arkansas into the State of Missouri.

The fifth amendment proscribes being "twice put in jeopardy of life or limb" for the same offense. U.S. Const. Amend. V. The Supreme Court has interpreted this provision to proscribe both multiple trials and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Court made clear, however, that the double jeopardy clause bars multiple punishment for a single offense in one proceeding only when the legislature did not intend cumulative punishment. Id. at 366, 103 S.Ct. at 678 ("[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does not more than prevent the sentencing court from prescribing greater punishment than the legislature intended"). When the same act violates two distinct statutory provisions, whether the legislature intended to create two separately punishable offenses or one is determined by the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger inquiry is whether each statute requires proof of an additional fact which the other does not. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. The Supreme Court has held that Blockburger states a rule of statutory construction, not a constitutional requirement. Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). Therefore, the Blockburger rule is not controlling where there is clear indication of a contrary legislative intent. Hunter, 459 U.S. at 368, 103 S.Ct. at 679; Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981). Thus, in the case before us, appellants' convictions in a single proceeding under sections 922(i) and 1202(a)(1) of the Omnibus Crime Control Act violate the double jeopardy clause only if Congress intended that these statutes describe a single offense and there is no evidence that Congress intended to impose cumulative punishment for violation of these provisions.

Applying the Blockburger test to the present case, it is evident that sections 1202(a)(1) and 922(i) of the Omnibus Crime Control Act describe separate offenses. To establish a violation of section 1202(a)(1), the government must prove that a person who has previously been convicted of a felony in a federal or state proceeding received, possessed, or transported a firearm which had been in or affected commerce. To establish a violation of section 922(i), the government must prove that a person (whether or not a convicted felon) transported or shipped in interstate commerce a stolen firearm or ammunition. Proof of a section 1202(a)(1) offense does not necessarily establish a section 922(i) offense, since the latter requires proof that the weapon was stolen. Likewise, proof of a section 922(i) violation does not necessarily prove a violation of 1202(a)(1), since the latter requires proof that the perpetrator was a convicted felon.

The appellants stress the Court's decision in Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), to support the argument that sections 1202(a)(1) and 922(i) create only one offense. In Ball, the defendant was convicted of receiving a firearm in violation of 18 U.S.C. Sec. 922(h)(1), and possessing that firearm in violation of 18 U.S.C. app. Sec. 1202(a)(1). Applying the Blockburger test, the Court found "proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon." Id. 105 S.Ct. at 1672 (emphasis in original). Given this unavoidable overlap in the statutes, the Court concluded that Congress did not intend these provisions to proscribe separate offenses. Finding nothing in the legislative history to rebut this determination, the Court concluded that when a single act establishes the receipt and the possession of a firearm, the double jeopardy clause bars defendant's conviction under both sections 922(h)(1) and 1202(a)(1) of the Omnibus Crime Control Act. ² Id. at 1674.

We find Ball clearly distinguishable. The holding in Ball is specific to the sections of the Omnibus Crime Control Act in issue in that case. As discussed above, the Blockburger test yields a different result when applied to sections 922(i) and 1202(a)(1) of the Act. Proof of a section 922(i) violation does...