U.S. v. Munoz-Romo

• Decision Date: 05 November 1991
• Docket Number: D,No. 89-2345,MUNOZ-ROM,89-2345
• Citation: 947 F.2d 170
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco Javierefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 170

947 F.2d 170

UNITED STATES of America, Plaintiff-Appellee, v. Francisco Javier MUNOZ-ROMO, Defendant-Appellant.

No. 89-2345.

United States Court of Appeals Fifth Circuit.

Nov. 5, 1991.

Rehearing Denied Dec. 3, 1991.

Marc D. Murr, Bracewell & Patterson, Houston, Tex. (Court-appointed), for defendant-appellant.

Jeffery A. Babcock, Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS and BARKSDALE, Circuit Judges, and MENTZ, District Judge. ¹

BARKSDALE, Circuit Judge.

Double jeopardy is the principal issue in this appeal. Review of several issues is limited by the failure to raise them in the district court. Although Francisco Javier Munoz-Romo does not appeal his convictions on two counts of cocaine distribution, he does challenge them on several counts of illegal firearms possession and money laundering. He also contends that he was improperly sentenced twice for one of the firearms offenses. We AFFIRM the convictions, and, with respect to the sentence, AFFIRM IN PART and VACATE IN PART.

I.

Since late 1987, Munoz-Romo had been the subject of a ongoing drug trafficking investigation by several federal and state agencies. A government informant, wearing a wireless microphone transmitter monitored by the Victoria, Texas, police, purchased a total of 14 grams of cocaine from Munoz-Romo on August 30 and 31, 1988.

On September 14, 1988, search warrants were issued for property owned or rented by Munoz-Romo in Victoria. The first locale searched was a house he rented on East Warren Street. Munoz-Romo and his wife were present during the search. Law enforcement officers discovered an RG revolver hidden in a maroon suitcase in the bathroom. Approximately $59,000 in cash was found throughout the house. ² A set of scales and a bottle of lactose were also seized.

The second location searched was an apartment registered to Munoz-Romo on Sherwood Avenue. An Excam revolver was discovered between the mattress and box springs of the bed in the bedroom. Two empty bottles of lactose were found; and, other items of drug paraphernalia were seized, including a Triple Beam Balance scale, a small mirror, a razor blade, a soda straw, and a "coke spoon". Officers also discovered a plastic cooler, containing jewelry and several thousand dollars, buried in the ground behind the apartment. Law enforcement officials also searched a house Munoz-Romo owned on North Wheeler Street, seizing various tax records of Munoz-Romo and his wife.

In early October 1988, Munoz-Romo was charged in a two-count indictment for distribution of the cocaine sold on August 30 (count 1) and 31 (count 2), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Later that October, an 11-count superseding indictment was filed against him. In addition to the two distribution charges, he was charged with (1) being a felon in possession of the Excam revolver (count 3) and the RG revolver (count 5), in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(1)(B), as well as being an illegal alien in possession of the revolvers (counts 4 and 6), in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(1)(B); (2) being in possession of the RG revolver while having previously been convicted of three drug offenses, each punishable by a term of imprisonment exceeding ten years, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (count 7); and (3) money laundering in the purchase of the North Wheeler Street residence (count 8), a Dodge truck (count 9), and Nissan (count 10) and Chevrolet (count 11) automobiles, in violation of 18 U.S.C. § 1956(a)(1)(A).

A jury trial was conducted in December 1988. At the close of the government's case, Munoz-Romo moved for a judgment of acquittal on all counts. The government agreed that it had not met its burden of proof on count 11 (money laundering in the purchase of the Chevrolet). The motion was granted on that count, but denied as to the remainder. However, after presentation of all evidence, including Munoz-Romo testifying, he did not renew the acquittal motion. The jury returned a verdict of guilty on the remaining ten counts.

A sentencing hearing was held in February 1989. Munoz-Romo was sentenced to 240 months' imprisonment on each of counts 1, 2, 8, 9, and 10 (cocaine distribution and money laundering) (the first set), with the sentences to run concurrently with each other. He was sentenced to 22 months' imprisonment on each of counts 3, 4, 5, and 6 (firearms possession), with the sentences to run concurrently with each other, and to run concurrently with the sentences on the first set. He was further sentenced to 180 months on count 7 (firearms (RG revolver) possession enhancement), with the sentence to run concurrently with all other sentences, resulting in a total imprisonment of 240 months. He also received supervised release terms of five years each on counts 1, 2, 8, 9, and 10, and three years each on counts 3, 4, 5, 6, and 7, with all terms to run concurrently. Finally, he was ordered to pay a $50 special assessment on each of the ten counts, for a total of $500. He made no objections at the sentencing hearing, nor were any objections to the presentence investigation report (PSI) filed. Munoz-Romo timely appealed. ³

II.

As noted, Munoz-Romo does not appeal his convictions or sentences (concurrent terms of 240 months) on the two counts of cocaine distribution. He contends that (1) his convictions concerning each of the two revolvers for the single act of possession of each firearm as both a convicted felon and an illegal alien subjected him to double jeopardy, (2) there was insufficient evidence to support his convictions for the firearms and money laundering offenses, (3) he received ineffective assistance of counsel at trial, (4) comments by the trial judge to him and his counsel substantially prejudiced his right to a fair trial, and (5) he was erroneously sentenced twice for possession of the RG revolver as a felon under 18 U.S.C. §§ 922(g)(1) and 924(e).

A.

Among other things, the Double Jeopardy Clause of the Fifth Amendment " 'protects ... against multiple punishments for the same offense.' " Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)). Munoz-Romo was convicted of two violations each of 18 U.S.C. §§ 922(g)(1) and 922(g)(5), which provide:

It shall be unlawful for any person--

(1) who has been convicted in any court of[ ] a crime punishable by imprisonment for a term exceeding one year; [or]

* * * * * *

(5) who, being an alien, is illegally or unlawfully in the United States;

* * * * * *

to ... possess in or affecting commerce, any firearm....

Munoz-Romo contends that these two provisions proscribe the same offense--possession of a firearm. Therefore, he maintains that, because he was convicted of possession of each firearm as both a convicted felon and an illegal alien, he was improperly subjected to multiple punishments for a single offense as to each revolver.

Although his contentions are generally framed as a double jeopardy challenge, Munoz-Romo is essentially contending that counts 3 and 4 (possession as felon and illegal alien of Excam revolver), and 5 and 6 (possession as felon and illegal alien of RG revolver), are multiplicious. " 'Multiplicity' is charging a single offense in more than one count in an indictment. Accordingly, it 'addresses double jeopardy; and where the jury is allowed to return convictions on multiplicious counts, the remedy is to remand for resentencing, with the government dismissing the count(s) that created the multiplicity.' " United States v. Lemons, 941 F.2d 309, 317 (5th Cir.1991) (quoting United States v. Moody, 923 F.2d 341, 347 (5th Cir.1991)). " 'The chief danger raised by a multiplicious indictment is the possibility that the defendant will receive more than one sentence for a single offense.' " Lemons, 941 F.2d at 317 (quoting United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir.), cert. denied, 474 U.S. 825, 106 S.Ct. 81, 88 L.Ed.2d 66 (1985)).

Munoz-Romo did not raise the double jeopardy (or multiplicity) issue in the district court. "Multiplicity of an indictment must be raised as a defense pursuant to Fed.R.Crim.P. 12(b) to be preserved for appeal." United States v. Stovall, 825 F.2d 817, 821 (5th Cir.1987) (citing United States v. Gerald, 624 F.2d 1291, 1300 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981)). "Failure to object to an indictment on grounds of multiplicity prior to trial constitutes a waiver of that objection." Lemons, 941 F.2d at 316 n. 4. Accord United States v. Marroquin, 885 F.2d 1240, 1245 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1807, 108 L.Ed.2d 938 (1990). This failure precludes Munoz-Romo from challenging his firearms convictions as multiplicious.

Despite this waiver, "[a] complaint about multiplicity of sentences ... can be raised for the first time on appeal." Stovall, 825 F.2d at 821. But, if the sentences are to be served concurrently, a defendant is still precluded from asserting a multiplicity claim not raised prior to trial. Marroquin, 885 F.2d at 1245. However, if monetary assessments under 18 U.S.C. § 3013 are imposed on separate counts of conviction, the sentences on those counts are not concurrent, and the concurrent sentence doctrine does not apply. Ray v. United States, 481 U.S. 736, 736-37, 107 S.Ct. 2093, 2093-94, 95 L.Ed.2d 693 (1987); Marroquin, 885 F.2d at 1245. As noted, the district court imposed a $50 assessment against Munoz-Romo on each count of conviction. Accordingly, Munoz-Romo has not waived his right to challenge on appeal the alleged multiplicity of these sentences.

In United States v. York, 888 F.2d 1050, 1058 (5th Cir.1989), this court stated that, "[i]n...