U.S. v. Olmeda

• Decision Date: 29 August 2006
• Docket Number: Docket No. 05-4331-CR.
• Citation: 461 F.3d 271
• Parties: UNITED STATES of America, Appellee, v. Antonio OLMEDA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

461 F.3d 271

UNITED STATES of America, Appellee, v. Antonio OLMEDA, Defendant-Appellant.

Docket No. 05-4331-CR.

United States Court of Appeals, Second Circuit.

Argued: April 3, 2006.

Decided: August 29, 2006.

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Michael H. Sporn, New York, NY, for Defendant-Appellant.

Brendan R. McGuire, Assistant United States Attorney (John M. Hillebrecht, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before CABRANES, SOTOMAYOR, and RAGGI, Circuit Judges.

REENA RAGGI, Circuit Judge.

Defendant Antonio Olmeda appeals from an order of the United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge) denying his pre-trial motion to dismiss a one-count indictment charging him with unlawful possession of ammunition in Manhattan in June 2002 in violation of 18 U.S.C. § 922(g) ("Southern District indictment"). Olmeda contends that the Southern District indictment is barred by the Double Jeopardy Clause, see U.S. Const., amend. V, because the conduct alleged therein was subsumed within an earlier indictment charging him with ammunition possession in June 2002 "within the Eastern District of North Carolina and elsewhere" ("North Carolina indictment"), to which he had already pleaded guilty. We conclude that Olmeda's contemporaneous possessions of ammunition in the Eastern District of North Carolina and the Southern District of New York could have supported separate indictments in each district without violating double jeopardy. Nevertheless, because the law would not have precluded Olmeda's guilty plea to a single duplicitous count in one district covering both his June 2002 ammunition possessions, we must closely examine the scope of the North Carolina indictment to decide whether it bars the pending Southern District prosecution. On the particular record presented to us in this case, we conclude (1) that Olmeda has satisfied his initial burden to make a colorable objective showing that the "and elsewhere" language of the North Carolina indictment references his New York ammunition possession because, at the time prosecutors presented that indictment, they (a) knew that Olmeda had contemporaneously possessed ammunition in New York and North Carolina, (b) had no reason to think that Olmeda possessed ammunition anywhere other than in North Carolina and New York, and (c) lacked any good faith basis to think that Olmeda had ever possessed the ammunition seized in North Carolina anywhere other than in the charging district. Further, we conclude (2) that the government has failed to carry its resulting burden to demonstrate by a preponderance of the evidence that a reasonable observer would construe the North Carolina indictment, at the time jeopardy attached, not to reference both the New York and North Carolina June 2002 ammunition possessions. Accordingly, in light of Olmeda's guilty plea to the North Carolina indictment, we hold that the Southern District indictment charging him with the June 2002 New York ammunition possession is barred by double jeopardy. We reverse the contrary ruling of the district court and remand the case with directions to dismiss the Southern District indictment.

I. Factual Background

A. The June 2002 Ammunition Seizures in North Carolina and New York

On June 13, 2002, agents of the Federal Bureau of Investigation ("FBI") arrested Antonio Olmeda, a convicted felon,¹ at a bus station in Fayetteville, North Carolina, in possession of a bag containing 200 rounds of ammunition for a .38 caliber rifle, 60 rounds of ammunition for a .308 caliber rifle, and 68 rounds of ammunition for a .45 caliber handgun.² Having reason to believe that Olmeda resided in the New York City area, the North Carolina FBI agents contacted their New York counterparts who, on June 19, 2002, executed a search warrant at Olmeda's Manhattan apartment and seized from the bedroom 88 rounds of ammunition for several different types of firearms.³ Because Olmeda had been in custody in North Carolina from June 13 through June 19, 2002,⁴ it was reasonable to infer that the ammunition seized from the Manhattan apartment had been at that site throughout that time.

B. The North Carolina Indictment and Guilty Plea

Approximately one month later, on July 16, 2002, a federal grand jury in the Eastern District of North Carolina charged Olmeda in a one-count indictment with unlawful possession of an unspecified quantity of ammunition in that district "and elsewhere." Specifically, the North Carolina indictment stated:

On or about June 13, 2002, within the Eastern District of North Carolina and elsewhere, the defendant, ANTONIO OLMEDA, having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, did possess in and affecting commerce ammunition which had been shipped and transported in interstate and foreign commerce;

All in violation of the provisions of Title 18, United States Code, Section 922(g).

North Carolina Indictment at 1.

On December 3, 2002, Olmeda pleaded guilty, without any plea agreement, to the North Carolina charge. He did not personally allocute to any particular conduct supporting his plea. Rather, after Olmeda generally acknowledged his guilt, the prosecution noted that, if the case were to proceed to trial, it would prove that, on June 13, 2002, when Olmeda was stopped and questioned by federal agents at a Fayetteville bus station, he admitted that the bag he was carrying contained ammunition, a fact confirmed by a subsequent search of the bag and seizure of the ammunition. The prosecution made no mention of the ammunition seized from Olmeda's New York apartment on June 19, 2002.

Nor was the New York seizure referenced at Olmeda's April 17, 2003 sentencing. Instead, the government emphasized the seriousness of Olmeda's prior New York felony conviction — which apparently involved possession of a flame thrower, 18 pipe bombs, black powder, 11 rounds of ammunition, a machine gun, and a sawed-off shotgun⁵ — and his suspicious inquiries in North Carolina about security procedures at Fort Bragg, in urging the court to impose a sentence at the high end of Olmeda's Sentencing Guidelines range. In seeking leniency, Olmeda attempted to portray himself simply as "an avid gunsmith and sportsman," interested in legitimately collecting and distributing army surplus materials. Sentencing Tr. 4. Acknowledging that he had made similar ammunition purchases "a couple other times," Olmeda nevertheless insisted that he never intended to harm persons or property with the weaponry he acquired. Id. at 4, 18.

With little discussion, the district court sentenced Olmeda to eighteen months' imprisonment, the high end of his Sentencing Guidelines range, and three years' supervised release.⁶ Given credit for time already spent in pre-sentence custody, Olmeda completed serving his prison term in early October 2003.

C. The Southern District Indictment and Olmeda's Motion to Dismiss

Some ten months after Olmeda's release from prison, on August 10, 2004, a federal grand jury sitting in the Southern District of New York returned a one-count indictment charging him with unlawful possession of the ammunition seized from his Manhattan apartment on June 19, 2002. That indictment stated:

On or about June 19, 2002, in the Southern District of New York, ANTONIO OLMEDA, the defendant, after having been convicted in a court of a crime punishable by imprisonment for a term exceeding one year, to wit, a November 2, 1995 conviction for criminal possession of a weapon in the first degree, a Class B felony, in the New York State Supreme Court, Bronx County, unlawfully, willfully, and knowingly did possess in and affecting commerce, ammunition, to wit, approximately 88 rounds of various types of ammunition, that were produced with cartridge cases that had previously been shipped and transported in interstate commerce.

(Title 18, United States Code, Section 922(g)(1).)

Southern District Indictment at 1.

On February 17, 2005, Olmeda moved for the dismissal of this indictment, arguing that (1) double jeopardy precluded the government from prosecuting him in the Southern District of New York for conduct that was subsumed in the earlier North Carolina indictment, and (2) the two-year delay between the New York seizure of ammunition and the Southern District indictment deprived him of due process. See U.S. Const., amend V. After conducting a hearing on the issue of undue delay, the district court rejected both of Olmeda's constitutional claims as without merit. With particular reference to the double jeopardy challenge, the district court noted the "`general rule . . . that one offense is charged under the terms of [the unlawful possession statute] regardless of the number of firearms involved, absent a showing that the firearms were stored or acquired at different times and places.'" United States v. Olmeda, No. 04 CR 858, 2005 WL 1241899, at *3 (S.D.N.Y. May 24, 2005) (quoting United States v. Wiga, 662 F.2d 1325, 1336 (9th Cir.1981) (internal quotation marks omitted)). Applying this rule, the district court held that double jeopardy did not bar Olmeda's prosecution on the Southern District indictment because "it seems clear that the ammunition referred to in [that indictment] must have been acquired at least on [a] different date[]" than the ammunition seized from Olmeda's person in North Carolina. Id. at *4.

Olmeda filed an interlocutory appeal of the district court's ruling to this court.

II. Discussion

A. Jurisdiction and the Standard of Review

In general, we lack jurisdiction to review rulings made in criminal cases until a final judgment has been entered. See 28 U.S.C. § 1291; United States v. MacDonald, 435 U.S. 850, 853, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978). The "collateral order...