U.S. v. Gann

• Decision Date: 03 May 1984
• Docket Number: No. 83-3029,83-3029
• Citation: 732 F.2d 714
• Parties: 15 Fed. R. Evid. Serv. 988 UNITED STATES of America, Plaintiff-Respondent, v. Terry Louis GANN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 714

732 F.2d 714

15 Fed. R. Evid. Serv. 988

UNITED STATES of America, Plaintiff-Respondent, v. Terry Louis GANN, Defendant-Appellant.

No. 83-3029.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 8, 1983.

Decided May 3, 1984.

Kenneth C. Bauman, Asst. U.S. Atty., Portland, Or., for plaintiff-respondent.

Richard D. Senders, Rose & Senders, Portland, Or., for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before FLETCHER and ALARCON, Circuit Judges, and JAMESON, ^* District Judge.

ALARCON, Circuit Judge:

Defendant Terry Gann appeals from a judgment of conviction of the following counts: (1) possession of an unregistered firearm (i.e., a sawed-off shotgun) in violation of 26 U.S.C. Secs. 5845, 5861(d), and 5871; (2) ex-convict in possession of a shotgun in violation of 18 U.S.C.App. Sec. 1202(a)(1); (3) ex-convict in possession of shotgun ammunition, in violation of 18 U.S.C. Secs. 922(h), 924(a); (4) ex-convict in possession of a .22 caliber rifle in violation of 18 U.S.C.App. Sec. 1202(a)(1); and (5) ex-convict in possession of rifle ammunition (multiple caliber) in violation of 18 U.S.C. Secs. 922(h) and 924(a). The district court sentenced Gann to a five-year prison term for count I, and suspended the imposition of sentence for counts 2 through 5. Gann was placed on probation for five years, the Gann seeks reversal alleging that the district court erred in denying his motions (1) to require the election or dismissal of counts due to multiplicity; (2) to suppress the firearms and ammunition seized from his home and car; (3) to suppress oral statements made to his attorney while the search was conducted; (4) to dismiss the indictment because of vindictive prosecution; (5) to exclude expert testimony as to the place where the firearms and ammunition were manufactured. Gann also challenges the denial of his motion for a mistrial and his motion for judgment of acquittal. None of Gann's contentions is meritorious.

period to run concurrently for each of counts 2 through 5 after completion of the prison term.

I. FACTS

On April 28, 1982, the United States National Bank in Portland, Oregon was robbed of approximately $800 in currency and $18,000 in travelers' checks by Patrick Dussault. Dussault was observed fleeing in a yellow Mustang driven by Gann.

On May 19, 1982, warrants were issued for the search of Gann's home and of a 1972 green Vega automobile registered in his name.

A brown athletic bag was recovered from the vehicle. Inside the athletic bag was a black and red nylon bag which contained a sawed-off shotgun and a box of .20 gauge ammunition. A .22 caliber rifle and ammunition of several different caliber was found in the residence. The rifle was found in the bedroom closet. The ammunition was found in a dresser drawer.

Detective Gary Fantz of the Portland Police Bureau arrested Gann for being an ex-convict in possession of a firearm. Fantz seized the sawed-off shotgun.

On May 20, 1982, Patrick Dussault confessed to robbing a bank on April 23 and April 28, 1982. Dussault stated that Gann was the driver of the getaway car on each occasion. Dussault also told the officers that Gann had a sawed-off shotgun in his possession on these occasions.

On May 27, 1982, an Oregon grand jury returned an indictment charging Gann with being an ex-convict in possession of a firearm. On June 15, 1982, the federal grand jury returned an indictment charging Dussault and Gann with the April 28, 1982 bank robbery. The state firearm charges were dismissed against defendant on June 25, 1982, because the same weapon was used in the bank robbery. The federal prosecutor became aware of the dismissal of the state charges in mid-July, 1982. At that time, the Assistant United States Attorney assigned to the prosecution of Gann requested the Alcohol, Tobacco and Firearms (ATF) Division to investigate the case for federal firearms violations.

The government attempted to convince Dussault that he should testify against Gann should federal firearms charges be filed. He refused.

On July 17, 1982, Gann was arraigned in federal court for the June 15, 1982 bank robbery. On August 17, 1982, the grand jury returned a superceding indictment against Dussault and Gann. A severance motion was granted.

During his own trial, Dussault testified that Gann was involved in the April 23 and April 28 bank robberies. Dussault was convicted. Gann's trial on the robbery charges began on October 26, 1982. Dussault refused to testify. A mistrial was declared after the jury announced it could not reach a verdict.

The grand jury returned an indictment against Gann on this matter on November 23, 1982. During Gann's trial for firearms violations, Dussault again refused to testify. The court refused to compel him to do so because the immunity previously granted Dussault might not extend to this transaction. The jury convicted Gann of all firearm violations on February 4, 1983. The next week Gann was retried on the bank robbery charges. The jury was again unable to reach a verdict and a mistrial was declared. After Gann was sentenced on

the firearms violations, the government moved to dismiss the bank robbery indictment.

II. DISCUSSION

A. Multiplicity

Gann first contends that the court erred in denying his motion for an order requiring the election or dismissal of the multiplicitous counts. He argues that one or more of the counts was duplicated in violation of his right to due process, equal protection and freedom from double jeopardy, and in contravention of Congressional intent in enacting the firearms statutes.

1. COUNT 2 AND COUNT 3

The defendant was charged with unlawful possession of a shotgun under Sec. 1202(a) and unlawful receipt of shotgun ammunition under Sec. 922(h).

Gann contends that the two statutes overlap and proscribe precisely the same criminal conduct.

He argues as follows:

An ex-convict in possession of a single firearm may not be tried and convicted under both Sec. 1202(a) and Sec. 922(h). ¹

The receipt of a firearm and the receipt of ammunition is but one offense under Sec. 922(h). ²

Therefore, we are told, an ex-convict may not be tried and convicted for the possession of a firearm under Sec. 1202(a) and for the receipt of ammunition under Sec. 922(h) where the firearm and the ammunition are found at the same time and place.

The general rule is that a defendant may be prosecuted and sentenced for the same act under separate federal criminal statutes if each statute requires a proof of fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) ³.

The Blockburger test is a rule of statutory construction; it serves as a means of discerning congressional purpose. The rule does not apply where, for example, there is a clear indication of contrary legislative intent. Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981). The legislative history here does not give us any clear signals.

In Albernaz the Supreme Court held that the government could prosecute conspiracy to import marijuana and conspiracy to distribute marijuana as separate and distinct offenses under separate statutes, even though the legislative history was silent as to the availability of alternate charges. As the court noted:

Petitioners read this silence as an "ambiguity" over whether Congress intended to authorize multiple punishment. Petitioners, however, read much into nothing. Congress cannot be expected to specifically address each issue of statutory construction which might arise.... [I]f anything is to be assumed from Congressional silence on this point, it is that Congress was aware of the Blockburger rule and legislated with it in mind. Albernaz v. United States, 450 U.S. 333 at 341-42, 101 S.Ct. 1137 at 1143-44, 67 L.Ed.2d 275.

Under the Blockburger test, it is clear that illegal possession of firearms under Sec. 1202(a) requires the proof of distinctively different facts than illegal receipt of ammunition under Sec. 922(h).

Under Sec. 1202(a), the government must prove that a felon has "received, possessed, or transported (firearms) in commerce or affecting commerce." Section 922(h) forbids a felon to "receive any firearms or ammunition which has been shipped or transported in interstate or foreign commerce."

Proof that an object is a firearm requires proof of facts which differ vastly from the evidence required to show that an article is in fact ammunition. ⁴ See definitions of firearms and ammunition in Sec. 921(17) and Sec. 1202(c). Under Sec. 922(h) the government must show that the firearm or ammunition traveled in interstate commerce. Section 1202(a) has no such requirement. See Scarborough v. United States, 431 U.S. 563, 571-72, 97 S.Ct. 1963, 1967-68, 52 L.Ed.2d 582 (1977) [Court noted that Congress was aware of the distinction between legislation limited to activities 'in commerce' and assertion of full Commerce Clause Power to cover all activity substantially affecting interstate commerce]. The two statutes define "felony" differently: a person who received a firearm while under indictment for a felony is chargeable under Sec. 922(h), but not under Sec. 1202(a). United States v. Batchelder, 442 U.S. 114 at 121 n. 7, 99 S.Ct. 2198 at 2202 n. 7, 60 L.Ed.2d 755 (1979).

There is admittedly some overlap between Sec. 1202(a) and Sec. 922(h) both as to the conduct they proscribe and the individuals they reach. United States v. Bass, 404 U.S. 336, 341-343 and n. 9, 92 S.Ct. 515, 519-520 and n. 9, 30 L.Ed.2d 488 (1971). However, so long as each statutory element requires the proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975).

It is our view that Sec. 1202(a) a...