U.S. v. Singleton, 93-3479

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation16 F.3d 1419
Docket NumberNo. 93-3479,93-3479
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Heath A. SINGLETON and Douglas Joseph Aleman, Defendants-Appellees.
Decision Date10 March 1994

Page 1419

16 F.3d 1419
62 USLW 2585
UNITED STATES of America, Plaintiff-Appellant,
Heath A. SINGLETON and Douglas Joseph Aleman, Defendants-Appellees.
No. 93-3479.
United States Court of Appeals,
Fifth Circuit.
March 10, 1994.

Page 1420

Merv. Hamburg, Dept. of Justice, Washington, DC, Herbert W. Mondros, Asst. U.S. Atty., Robert J. Boitmann, U.S. Atty., New Orleans, LA, for plaintiff-appellant.

Virginia L. Schlueter, Asst. Federal Public Defender, John T. Mulvehill, Federal Public Defender, New Orleans, LA, for Heath A. Singleton.

Robert S. Glass, Glass & Reed, New Orleans, LA, for Douglas Joseph Aleman.

Jim E. Lavine, Zimmermann & Lavine, Houston, TX, for Amici, Tx.Crim. & Nat'l Assoc. Lawyers.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.

WISDOM, Circuit Judge:

The United States appeals the dismissal on double jeopardy grounds of a firearms charge brought against two criminal defendants who were also charged with "carjacking". Although we agree with the district court that the firearms offense is not factually distinct from the carjacking offense, we hold that Congress has clearly indicated its intention to impose cumulative punishments. Therefore, we REVERSE the dismissal and REMAND the case to the district court with

Page 1421

instructions to reinstate the firearms count of the indictment.


This case arose out of the armed carjacking and murder of William Mullers in Hammond, Louisiana on November 15, 1992. The United States gives the following facts, which the defendants/appellees in their brief, for purposes of this appeal, do not contest. On November 15, 1992, defendants Heath Singleton, his brother George Singleton, and Douglas Joseph Aleman, and also Stephanie Durr conspired to steal a car from a supermarket parking lot in Hammond, Louisiana. Aleman was armed with a .38 caliber pistol and Heath Singleton was armed with a .22 caliber pistol. The four conspirators saw William Mullers arrive in his red 1991 Nissan Sentra and selected him as their victim. Aleman hijacked Mullers at gunpoint, ordering him to move over to the passenger side of his vehicle. Aleman drove Mullers's car to Aleman's home. The Singleton brothers and Durr followed. After they reached Aleman's home, Heath Singleton joined Aleman in Mullers's car. The two of them drove Mullers to an automatic teller machine and forced him to withdraw two hundred dollars from his bank account. They then drove to a location west of Hammond. George Singleton and Durr did not follow. When Aleman, Heath Singleton, and their captive reached their destination, Aleman shot Mullers three times in the head, killing him. Heath Singleton shot Mullers once in the back. Aleman and Heath Singleton then drove Mullers's car to Singleton's home, where they met George Singleton and Durr and described what they had just done to Mullers.

On January 8, 1993, Aleman and both Singleton brothers were indicted on federal charges arising out of the events of November 15, 1992. A superseding indictment filed on April 23, 1993 charged the defendants with: (1) conspiracy to commit armed carjacking, 1 (2) the completed carjacking offense, 2 and (3) using and carrying a firearm during and in relation to the commission of a violent crime. 3 Aleman was also charged with a fourth count of attempted escape from custody. 4 George Singleton pleaded guilty to the first and third counts of the indictment and his case was severed.

Appellees Aleman and Heath Singleton moved to require the prosecution to elect between counts (2) and (3) on the grounds that the constitutional principle of double jeopardy barred punishment for both offenses. The district court agreed and ordered the firearms count dismissed. 5 The United States timely appealed the dismissal of that count to this Court. 6 The question whether the Fifth Amendment's double jeopardy clause bars prosecution for both armed carjacking and possession of a firearm in the commission of a violent crime is one of first impression in this Court. 7 We review de novo the district court's legal conclusion that such a dual prosecution is indeed barred.

Page 1422


A. Sections 2119 and 924(c) Fail the Blockburger Test

The Fifth Amendment's double jeopardy clause protects a criminal defendant against, inter alia, "multiple punishments for the same offense". 8 We apply the Blockburger v. United States 9 test to determine whether two different statutes punish the same offense. Blockburger requires us to compare the two statutes at issue and ask "whether each provision requires proof of an additional fact which the other does not". 10 If either statute contains no element not also found in the other statute, the statutes "fail" the Blockburger test and the defendant may not be punished under both of them "in the absence of a clear indication of contrary legislative intent". 11 The two statutory offenses need not be identical to constitute the same offense for double jeopardy purposes. 12 The Blockburger inquiry focuses on the statutory elements of the offenses, 13 not on their application to the facts of the specific case before the court. 14 Thus, the question is not whether this violation of Sec. 2119 also constituted a violation of Sec. 924(c), but whether all violations of the former constitute violations of the latter.

The second count of the indictment against Aleman and Heath Singleton charged them with carjacking in violation of 18 U.S.C. Sec. 2119. Section 2119 provides that:

Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall--

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.

We read Sec. 2119 to require proof of four elements to convict: the defendant, (1) while possessing a firearm, (2) took from the person or presence of another (3) by force and violence or intimidation (4) a motor vehicle which had moved in interstate or foreign commerce. 15

The third count of the indictment charged Aleman and Heath Singleton with using or carrying a firearm during a crime of violence in violation of 18 U.S.C. Sec. 924(c). In pertinent part, Sec. 924(c) provides:

(1) Whoever, during and in relation to any crime of violence ... uses or carries a firearm shall, in addition to the punishment provided for such crime ... be sentenced to imprisonment for five years....

. . . . .

(3) For purposes of this subsection the term "crime of violence" means an offense that is a felony and--

(A) has as an element the use, attempted use, or threatened use of physical

Page 1423

force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The relevant portions of Sec. 924(c) require proof of only two elements: the defendant (1) used or carried a firearm (2) during and in relation to a crime of violence. 16

We agree with the district court that Sec. 924(c) does not require the government to prove any fact beyond those required under Sec. 2119. Every defendant who violates Sec. 2119 necessarily violates Sec. 924(c). For double jeopardy purposes, the crimes are not distinct. We shall consider the two elements of Sec. 924(c) in turn and explain why they will always be satisfied when a defendant violates Sec. 2119.

1. "Using or Carrying" A Firearm

Carjacking is a crime only when the defendant has a gun. Section 2119 requires that a defendant "possess[ ]" the firearm, while Sec. 924(c) requires that the defendant "use[ ] or carr[y]" it. Given the breadth that the Supreme Court has given to the "use or carry" requirement of Sec. 924(c), 17 however, any defendant who "possesses" a firearm within the meaning of Sec. 2119 18 necessarily "uses or carries" it. Accordingly, anyone who satisfies the first element of Sec. 2119 also satisfies the first element of Sec. 924(c).

There is nothing manufactured or suspect about the legislative histories of Secs. 2119 and 924(c) supporting our conclusion. In neither statute did Congress attempt to demarcate a boundary between the terms "possess" and "use or carry". Indeed, in the legislative histories of both statutes the terms are occasionally used interchangeably. For instance, the Senate committee report on the 1984 amendments to Sec. 924(c) refers to "the firearm's use or possession". 19 Senators DeConcini and Pressler both described the carjacking statute as punishing those who "use" firearms in carjacking. 20

2. "During and in relation to" a "crime of violence"

Carjacking is always and without exception a "crime of violence" as that term is defined in 18 U.S.C. Sec. 924(c)(3). At oral argument the government hypothesized that taking a car by threats or intimidation while coincidentally possessing a firearm would violate Sec. 2119, but not Sec. 924(c) because no violence was used. We reject that hypothesis.

Page 1424

No actual violence need occur for a crime to be a "crime of violence" under Sec. 924(c)(3); it is enough that there is a "substantial risk" of physical force being used against another's "person or property". Armed carjacking always presents a substantial risk of force being used against a victim reluctant to surrender his or her vehicle. Even those who comply with the carjacker's demands are at substantial risk, as demonstrated by the fate of William Mullers in this case.

We are left, then, with the...

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