United States v. Kelly

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2008 Decided January 13, 2009

No. 07-3032

UNITED STATES OF AMERICA,

APPELLEE

v.

EDWARD KENNETH KELLY, JR.,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 06cr00153-01)

Raymond J. Rigat, appointed by the court, argued the cause

for the appellant.

SuzAnne C. Nyland, Assistant United States Attorney,

argued the cause for the appellee. Jeffrey A. Taylor, United

States Attorney, and Roy W. McLeese III and Mary B. McCord,

Assistant United States Attorneys, were on brief.

Before: GINSBURG, HENDERSON and ROGERS, Circuit

Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge ROGERS.

2

KAREN LECRAFT HENDERSON, Circuit Judge: Edward

Kenneth Kelly, Jr. (Kelly) appeals his conviction on one count

of unlawfully possessing with intent to distribute cocaine in

violation of 21 U.S.C. § 841(a), (b)(1)(C) and one count of

using, carrying and possessing a firearm during a drug

trafficking crime in violation of 18 U.S.C. § 924(c). Kelly

claims that his guilty plea was not voluntary, knowing,

intelligent or adequately supported by the record; his plea to the

section 924(c) violation in particular violated the Double

Jeopardy Clause of the United States Constitution; and he

received ineffective assistance of counsel regarding the

section 924(c) plea. For the reasons set forth below, we affirm

the judgment of the district court.

I.

In June 2004, pursuant to court order the FBI began

intercepting and recording Kelly’s telephone conversations. The

wiretap concluded on August 28, 2004 and, on September 1,

2004, the FBI applied for, and obtained, warrants to search

Kelly’s vehicle and his girlfriend’s apartment located at 1526

Potomac Ave., S.E., Washington, D.C. The warrants were

executed on September 2, 2004 at 6:37 a.m. Upon searching the

apartment, the FBI discovered in the living room a backpack

containing two plastic bags that held 497.1 grams of cocaine

hydrochloride and, approximately twenty feet from the backpack

and under a mattress, a loaded Glock 9-millimeter handgun.

FBI agents also retrieved approximately $46,500 from inside the

apartment.

On June 1, 2006, a federal grand jury indicted Kelly on (1)

one count of unlawfully possessing with intent to distribute

(PWID) cocaine, in violation of 21 U.S.C. § 841(a), (b)(1)(c);1

1

21 U.S.C. § 841(a) makes it “unlawful for any person knowingly

or intentionally . . . to manufacture, distribute, or dispense, or possess

3

(2) one count of unlawful possession of a firearm and

ammunition by a person convicted of a crime punishable by

imprisonment for a term exceeding one year, in violation of 18

U.S.C. § 922(g)(1); and (3) one count of using, carrying and

possessing a firearm during a drug trafficking offense, in

violation of 18 U.S.C. § 924(c).2 Indictment at 1-2, United

States v. Kelly, Cr. No. 06-153 (D.D.C. June 1, 2006) (D.C.

Indictment).

The district court held plea hearings on October 31, 2006

and November 2, 2006. At the November 2nd hearing, Kelly

entered into a plea agreement in which he agreed to plead guilty

to the first and third counts in exchange for the dismissal of the

second count and the government’s withdrawal of a notice of a

prior felony drug conviction. Plea Agreement at 1-2, United

States v. Kelly, Cr. No. 06-153 (D.D.C. Nov. 2, 2006). Kelly

also agreed to the above-mentioned facts, accepting them as

“fair[] and accurate[].” Id. at 2; see also Statement of Offense

at 3, United States v. Kelly, Cr. No. 06-153 (D.D.C. Nov. 2,

2006).

During the earlier October 31st plea hearing, Kelly verified

that he had fully read and discussed the plea agreement with

defense counsel. Transcript of Guilty Plea at 20, United States

with intent to manufacture, distribute, or dispense, a controlled

substance.” 21 U.S.C. § 841(b)(1)(C) provides that “[i]n the case of

a [schedule I or II controlled substance], . . . [a] person [violating

§ 841(a)] shall be sentenced to a term of imprisonment of not more

than 20 years.”

2

18 U.S.C. § 924(c) provides that “any person who, during and in

relation to any . . . drug trafficking crime . . . uses or carries a firearm,

or who, in furtherance of any such crime, possesses a firearm, shall,

in addition to the punishment provided for such . . . drug trafficking

crime” be sentenced to an additional and consecutive term of

imprisonment.

4

v. Kelly, Cr. No. 06-153 (D.D.C. Oct. 31, 2006) (Tr.). In

explaining the government’s burden of proof, the district court

specified that, as to count one, the government would have to

prove beyond a reasonable doubt that Kelly “possessed

cocaine[,] . . . that [he] did so with the intent to distribute it, and

. . . that [he] knew that the substance that [he] possessed was a

controlled substance, namely cocaine.” Id. at 33. As to count

three, the district court explained that the government would

have to prove that Kelly “committed the crime of unlawful

possession with intent to distribute cocaine” and that he

“knowingly used or carried a firearm during and in relation to

the commission of that crime or [he] knowingly possessed a

firearm in furtherance” thereof. Id. at 33-34. Kelly agreed with

the government’s factual proffer except that he denied telling the

FBI that “[t]here was a loaded gun in the bedroom.” Id. at 37-

38. Kelly explained to the district court that the cocaine in the

backpack was not his but instead belonged to someone else who

had swapped vehicles with Kelly the day before and left the

cocaine in a backpack in Kelly’s vehicle. Id. at 39, 61-62.

Kelly thought there was money in the backpack but, after

receiving a telephone call from the person stating that he needed

to get the package from the vehicle, Kelly “thought it was drugs

and it was.” Id. at 48, 61-62. Kelly further explained that he

transferred the backpack to the apartment because his car had

been broken into earlier. Id. at 63-64, 93. He also stated that he

kept the gun in the apartment in order to protect himself, his

girlfriend “and whatever was in there.” Id. at 63.

At the November 2nd hearing, Kelly clarified that he had

first become aware of the drugs in the backpack when he parked

his car in the driveway of his girlfriend’s residence. Id. at 87-

88. He explained that he knew who the drugs belonged to and

believed that the owner was in fact going to sell the drugs. Id.

at 88-89. When asked whether he took the drugs into the

apartment to protect them, Kelly responded that he “didn’t give

it that much thought . . . [but] fe[lt] like it’s probably a better

5

chance that the bag would be safe [sic] in the house than in the

truck.” Id. at 92-93. He also agreed that “if somebody broke

[into the apartment] and [he] saw them trying to take some of

[his] property, [he] wouldn’t hesitate to think about using the

gun to keep them from stealing [his] property.” Id. at 96. The

district court then observed that, although “this is one of the

most razor-thin proffers [it had] ever taken[, it] think[s] given

the facts that have come out . . . we may be able to go forward.”

Id. at 98. As the plea hearing continued, Kelly alerted the judge

to the fact that he had been charged with another section 924(c)

violation in Maryland and that he believed it was the same

section 924(c) violation as the one to which he was then

pleading guilty. Id. at 104-05.3 The district court nonetheless

reasoned that because “the facts that occurred on September 2,

2004, that are the subject of this charge could well have been

multiple crimes” – so that the predicate crime for each

section 924(c) count was different – “there may not be a double

jeopardy problem.”4 Id. at 117. Kelly’s counsel agreed. Id. at

118 (“Right, and even though it’s the same gun, it’s a different

3

Kelly had been charged earlier in Maryland on three counts of a

21-count indictment. The counts included: (1) conspiracy to distribute

and possess with intent to distribute cocaine and cocaine base between

November 2000 and December 2004 in the District of Maryland, the

District of Columbia and elsewhere, in violation of 21 U.S.C. § 841;

(2) using a communication facility in furtherance of a narcotics

conspiracy, in violation of 21 U.S.C. § 843(b); and (3) using and

possessing a firearm in furtherance of conspiracy to distribute and

possess with intent to distribute cocaine and cocaine base on

September 2, 2004 in the District of Maryland, in violation of 18

U.S.C. § 924(c). Fourth Superseding Indictment at 1-2, 15, 19, United

States v. Briscoe, No. AW-04-0559 (D. Md. Jan. 25, 2006) (Md.

Indictment).

4

The Double Jeopardy Clause bars any person “subject for the

same offence to be twice put in jeopardy of life or limb.”

6

drug trafficking offense.”). Kelly then advised the court that he

was ready to plead guilty to counts one and three of the

indictment and that he did so “voluntarily and of his own free

will.” Id. at 126-27. The district court accepted Kelly’s guilty

plea, id. at 127, and subsequently sentenced him to 50 months’

imprisonment on count one and 60 months’ imprisonment on

count three, to run consecutively, followed by 36 months of

supervised release on count one and 48 months on count three,

to run concurrently. Kelly filed his notice of appeal on March

7, 2007.

II.

A. Double Jeopardy

Kelly argues that his guilty plea on the section 924(c) count

should be vacated because he had previously been charged with,

and acquitted of, a section 924(c) violation in Maryland

involving the same handgun and, therefore, the district court

plainly erred in not recognizing that the Double Jeopardy Clause

barred the second section 924(c) charge. Kelly also contends

that his section 924(c) conviction should be vacated (or at least

remanded for an evidentiary hearing) because his trial counsel

was ineffective in not raising a double jeopardy defense and,

thus, violated Kelly’s Sixth Amendment right to counsel. We

apply plain error review to the double jeopardy issue because

Kelly “allow[ed] [the] alleged error to pass without objection”

below. In re Sealed Case, 283 F.3d 349, 352 (D.C. Cir. 2002);

see also United States v. Olano, 507 U.S. 725, 732 (1993)

(under plain error standard, appellant must establish that (1)

there was an “error,” (2) it was “plain,” (3) it “affect[ed]

substantial rights” and (4) it “seriously affect[ed] the fairness,

integrity or public reputation of judicial proceedings”) (internal

citations and quotation marks omitted). To establish ineffective

assistance of counsel, “a criminal defendant must show . . . that

his lawyer made errors ‘so serious that counsel was not

functioning as the ‘counsel’ guaranteed . . . by the Sixth

7

Amendment,’ and that . . . there is a ‘reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” United States v.

Rashad, 331 F.3d 908, 909 (D.C. Cir. 2003) (internal citations

omitted).

As a starting point, we note that “when the judgment of

conviction upon a guilty plea has become final and the offender

seeks to reopen the proceeding, the inquiry is ordinarily

confined to whether the underlying plea was both counseled and

voluntary. If the answer is in the affirmative then the conviction

and the plea . . . foreclose the collateral attack . . . [unless] on the

face of the record the court had no power to enter the conviction

or impose the sentence.” United States v. Broce, 488 U.S. 563,

569 (1989). It is clear from the face of the record that the

district court was authorized to accept Kelly’s guilty plea to the

section 924(c) charge. The section 924(c) charge included in the

Maryland indictment alleged that “[o]n or about September 2,

2004, in the District of Maryland,” Kelly possessed/used a

firearm in furtherance of a drug trafficking crime, namely,

“conspiracy to distribute and possess with intent to distribute

[cocaine and cocaine base].” Md. Indictment at 19 (emphases

added). The section 924(c) charge sub judice, on the other hand,

alleged that “[o]n or about September 2, 2004, within the

District of Columbia,” Kelly possessed/used a firearm in

furtherance of a drug trafficking crime, namely, “possession

with intent to distribute cocaine.” D.C. Indictment at 1-2

(emphases added). Thus, the predicate crimes supporting the

section 924(c) charges are not the same.

In United States v. Felix, 503 U.S. 378 (1992), the United

States Supreme Court held that double jeopardy did not bar the

subsequent prosecution of the defendant on a conspiracy charge

where “two of th[e] nine overt acts [supporting the conspiracy

charge] were based on conduct that had been the subject of the

earlier . . . prosecution” on a substantive crime (attempting to

8

manufacture methamphetamine). 503 U.S. at 382, 388-91. In

so concluding, the Court noted the long-standing “rule that a

substantive crime and a conspiracy to commit that crime are not

the ‘same offence’ for double jeopardy purposes.” Id. at 389.

Accordingly, it held that “the conspiracy charge against [the

defendant] was an offense distinct from any crime for which he

had been previously prosecuted, and the Double Jeopardy

Clause did not bar his prosecution on that charge.” Id. at 391-

92.

Applying the Court’s analysis in Felix, we believe that

double jeopardy plainly does not bar Kelly’s prosecution on the

section 924(c) count before us on review. Even if the same gun

supported both charges, the predicate offense required for each

charge to stand—conspiracy in Maryland and PWID cocaine

here—are different “for double jeopardy purposes.” Felix, 503

U.S. at 389; see also United States v. Phipps, 319 F.3d 177, 184

(5th Cir. 2003) (explaining application of same-elements test of

Blockburger v. United States, 284 U.S. 299 (1932), to multiple

section 924(c)(1) charges).5 Kelly’s constitutional claim

5

Kelly’s reliance on United States v. Finley, 245 F.3d 199 (2d Cir.

2001), and United States v. Wilson, 160 F.3d 732 (D.C. Cir. 1998), in

support of his argument that this prosecution on the section 924(c)

charge violates double jeopardy is misplaced. Finley and Wilson did

not apply the Double Jeopardy Clause but rather the rule of lenity,

holding that the Congress did not intend section 924(c) to authorize

multiple charges given the facts of each case. In Finley, the Second

Circuit reversed a second section 924(c) conviction because the

predicate offenses for both section 924(c) charges “were simultaneous

or nearly so” and therefore “consisted of virtually the same conduct

with the same criminal motivation.” Finley, 245 F.3d at 207. There,

the first section 924(c) charge was based on the defendant’s

possession of a firearm in furtherance of cocaine distribution; the

second section 924(c) charge was based on his possession of the same

firearm in furtherance of his possession with intent to distribute the

9

therefore fails, as does his claim under Fed. R. Crim. P. 11 that

the district court should have advised him he was pleading guilty

to a charge the government could not bring.

Kelly’s claim of ineffective assistance of counsel also fails.

Kelly believes his counsel’s ineffectiveness is apparent from the

record and, therefore, we need not remand for an evidentiary

hearing, which is our normal practice on direct appeal. See

United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997).

Although we agree with Kelly that a remand for an evidentiary

hearing is not necessary, we believe Kelly’s claim of ineffective

assistance fails at the first step of the Strickland test: his

counsel’s conduct “was within the range of competence

demanded of attorneys in criminal cases.” Hill v. Lockhart, 474

U.S. 52, 56 (1985) (internal quotation marks omitted); see

Strickland v. Washington, 466 U.S. 668, 687-89 (1984). The

Strickland analysis examines the information available to

same cocaine plus additional cocaine discovered “minutes after”

Finley sold the drugs to an officer. Id. at 207. Assuming Finley is

persuasive, the case is inapposite. Here, the Maryland indictment

makes clear that the conspiracy charge was predicated on more than

Kelly’s PWID in the District on September 2, 2004: it charged Kelly

with knowingly and intentionally using a cell phone on June 11, 2004

in order to further the conspiracy. Md. Indictment at 15. Therefore,

the conspiracy charged in Maryland and the PWID in the District were

not “simultaneous or nearly so.” Finley, 245 F.3d at 207. In Wilson,

this Court vacated one section 924(c) conviction because the

defendant used the firearm only once and was charged with two

section 924(c) violations—one with the predicate offense of first

degree murder and the other with the predicate offense of killing a

witness with the intent to prevent him from testifying. Wilson, 160

F.3d at 748-50. Wilson is inapposite because the defendant in that

case was charged with only one predicate act: discharging a firearm.

By contrast, Kelly both conspired to possess and possessed drugs, two

acts involving distinct conduct. See Felix, 503 U.S. at 389-90

(“agreement to do [an] act is distinct from the act itself”).

10

Kelly’s counsel when he recommended a plea and asks whether

his counsel’s decision prejudiced the proceedings that followed.

Even assuming that the same firearm was involved in both

section 924(c) charges and that the District PWID was an overt

act included in the Maryland conspiracy charge, there is

nevertheless no constitutional bar to the section 924(c) charge

we are reviewing. The substantive offense of PWID is not a

lesser-included offense of the conspiracy to commit that offense,

as Felix makes clear. See 503 U.S. at 389. No additional fact-

finding would change that rule of law and, thus, we need not

remand Kelly’s claim. It plainly fails inasmuch as his counsel

was not obliged to raise a meritless defense.

B. Rule 11

Kelly makes three additional arguments under Fed. R. Crim.

P. 11.6 First, he argues that the factual proffer was insufficient

to support his conviction on PWID cocaine. Second, he makes

the same argument regarding the factual proffer supporting his

conviction under section 924(c). Third, he claims that he did not

understand that he had to intend to distribute the cocaine in

order to be guilty of PWID and therefore did not understand the

nature of the charge. Again, we review these arguments for

plain error because he failed to make them in district court. In

re Sealed Case, 283 F.3d at 352.

Kelly’s first argument fails because there was “sufficient

evidence from which a reasonable jury could conclude” that

Kelly committed, or at least aided and abetted the commission

of, the offense of PWID cocaine. United States v. Abreu, 964

6

Fed. R. Crim. P. 11 requires, inter alia, that the sentencing court

determine that (1) there is a “factual basis for a plea,” (2) the

defendant understands “the nature of each charge to which the

defendant is pleading” and (3) “that the plea is voluntary and did not

result from force, threats or promises (other than promises in a plea

agreement).”

11

F.2d 16, 19 (D.C. Cir. 1992). To prove a violation of

section 841(a), the government must show beyond a reasonable

doubt that the defendant (1) “knowingly or intentionally” (2)

possessed a controlled substance (3) with intent to distribute it.

21 U.S.C. § 841(a).7 To aid and abet, however, “‘all that is

necessary is to show some affirmative participation which at

least encourages the principal offender to commit the offense,

with all its elements, as proscribed by the statute.’” United

States v. Monroe, 990 F.2d 1370, 1374 (D.C. Cir. 1993) (quoting

United States v. Garrett, 720 F.2d 705, 713-14 (D.C. Cir.

1983)). Moreover, “[w]hoever . . . aids, abets . . . induces or

procures [an offense’s] commission, is punishable as a

principal.” 18 U.S.C. § 2(a). Even though Kelly was not

indicted as an aider or abettor, we have explained that “an

indictment need not specifically include an aiding and abetting

charge because, ‘whether specified or not,’ the federal statute

creating liability for aiding and abetting . . . ‘is considered

embodied in full in every federal indictment.’” United States v.

Lam Kwong-Wah, 924 F.2d 298, 302 (D.C. Cir. 1991) (quoting

United States v. Michaels, 796 F.2d 1112, 1118 (9th Cir. 1986))

(emphasis in Michaels). Thus, as long as the proffer allows the

district court to conclude that a reasonable jury could find that

Kelly aided and abetted the PWID cocaine, it suffices.

The proffer manifests that Kelly meant to aid the owner’s

possession of the cocaine by protecting it from loss. He stated

that he kept a firearm in the apartment to protect himself and his

property, see Tr. at 95 (“Yeah. I mean—yeah, if it came to it,

yes. I’m mean, I’m in the house, I ain’t going to let you come

in there and take nothing, not while I’m in there.”), and that he

intended to return the drugs to their owner, see id. at 93. He

further explained that he put the backpack in the apartment

because his car had previously been broken into. Id. at 63-64,

7

See supra note 1.

12

93. When asked whether he transferred the drugs to the

apartment to protect them, Kelly responded that he “didn’t give

it that much thought . . . [but] fe[lt] like it’s probably a better

chance that the bag would be safe [sic] in the house than in the

truck.” Id. at 92-93. This is sufficient to show that Kelly

intended to aid the owner’s possession of the cocaine.

Moreover, based upon the amount of cocaine involved (497.1

grams) as well as Kelly’s admission that he believed the owner

was going to sell the cocaine, id. at 89, a reasonable jury could

also find that he intended to aid the owner’s distribution of

cocaine. See United States v. Gaulteau, 4 F.3d 1003, 1003 (D.C.

Cir. 1993) (“intent to distribute may be inferred from possession

of . . . a quantity of drugs larger than needed for personal use”)

(internal citations and quotation marks omitted).

Kelly next argues that the proffer was insufficient to support

his guilty plea on count three—the section 924(c) count. In

order to support a conviction under 18 U.S.C. § 924(c), the

government must show beyond a reasonable doubt that (1)

“during and in relation to” a “drug trafficking crime,” (2) the

defendant “use[d] or carrie[d] a firearm, or . . . in furtherance of

. . . such crime, possesse[d] a firearm.” 18 U.S.C.

§ 924(c)(1)(A). PWID cocaine, charged in count one, is a “drug

trafficking crime” under the statute. See id. § 924(c)(2).

Moreover, it is undisputed that the firearm belonged to Kelly.

Regarding the nexus between the gun possession and the drug

trafficking crime, we have identified a multi-factor test,

including “the type of drug activity conducted; accessibility of

the firearm; type of firearm; whether the firearm is stolen;

whether the possession of the firearm is legal or illegal; whether

the firearm is loaded; the proximity of the firearm to the drugs

or drug profits; and the time and circumstances under which the

firearm is found.” United States v. Wahl, 290 F.3d 370, 376

(D.C. Cir. 2002) (citing United States v. Ceballos-Torres, 218

F.3d 409, 414-15 (5th Cir. 2000)). Relying on these factors, we

concluded that there was sufficient evidence to sustain the

13

defendant’s section 924(c) conviction where “[t]he firearm was

on the top shelf of the entertainment center, in front of which

[the defendant] was standing when the police entered[; t]he gun

was loaded . . . [and] found in close proximity to 5.6 grams of

cocaine base and a small amount of cash[;] the gun was

recovered shortly after a drug transaction had taken place[; and

the defendant] possessed the gun illegally.” Id. at 376-77.

Similarly here, “the FBI found the 497.1 grams of cocaine

hydrochloride within 20 feet of appellant’s illegally possessed,

loaded, Glock 9-mm. gun, which was under the mattress in the

bedroom when the FBI arrived . . . [and] agents also found

$46,500 in cash [in the apartment].” Br. of Appellee at 28.

These facts closely parallel those in Wahl and would allow a

reasonable jury to find Kelly guilty of violating section 924(c).

Finally, Kelly argues that his plea was not knowing and

voluntary because “[h]e was not aware of the necessary element

that he needed to ‘intend’ to distribute the cocaine in order for

him to be guilty of [possession with intent to distribute] and that

‘intent to distribute’ means a heightened level of scienter.” Br.

of Appellant at 20-21.8 A plea “cannot be truly voluntary unless

the defendant possesses an understanding of the law in relation

to the facts.” McCarthy v. United States, 394 U.S. 459, 466

(1969). The court must “have a colloquy with the defendant that

would lead a reasonable person to believe that the defendant

understood the nature of the charge.” United States v. Dewalt,

92 F.3d 1209, 1212 (D.C. Cir. 1996) (internal quotation marks

and citations omitted). “[A] defendant’s ignorance of the mens

rea element of the offense with which he is charged renders his

guilty plea involuntary as a matter of constitutional law.” Id. at

1211. Here Kelly’s colloquy with the court manifests that Kelly

8

Although we have found the proffers as to both counts sufficient

to support them, Kelly’s voluntariness challenge calls for a different

inquiry.

14

understood the nature of the charge. He was advised by the

court that to prove the PWID count, the government would have

to show that he possessed cocaine and that he “did so with the

intent to distribute it.” Tr. at 33. Furthermore, as the

government highlights, Kelly was “actively participating”

during the discussion regarding the requisite intent to distribute

the cocaine. Br. of Appellee at 24; Tr. at 45-65. Finally, the

submission Kelly filed before the plea hearing explicitly recited

all of the elements of PWID, including the intent to distribute,

and noted in particular that “an intent to distribute the narcotics

personally is unnecessary as long as distribution by someone is

the end purpose of the possession.” Kelly’s Submission in

Connection with Plea Hearing at 1-2, United States v. Kelly, Cr.

No. 06-153 (D.D.C. Nov. 1, 2006) (emphasis in original). The

colloquy—together with Kelly’s pre-hearing filing—plainly

would lead a reasonable jury to believe that Kelly understood

the nature of the PWID charge. Because we hold that the

district court did not plainly err, we need not decide whether, as

the government argues, Kelly invited the errors of which he

complains. See Br. of Appellee at 22-23.

For the foregoing reasons, we affirm the judgment of the

district court.

So ordered.

ROGERS, Circuit Judge, concurring in the judgment: The

Double Jeopardy Clause bars any person “subject for the same

offence to be twice put in jeopardy of life or limb.” U.S. Const.

amend. V. It provides three protections, against (1) prosecution

for the same offense after acquittal; (2) a second prosecution for

the same offense after conviction; and (3) multiple punishments

for the same offense. North Carolina v. Pearce, 395 U.S. 711,

717 (1969). This case concerns the interaction of the first of

those protections with 18 U.S.C. § 924(c), which imposes an

additional term of imprisonment for “any person who, during

and in relation to any . . . drug trafficking crime . . . uses or

carries a firearm, or who in furtherance of any such crime,

possesses a firearm.”

Appellant relies on Brown v. Ohio, 432 U.S. 161 (1977),

and United States v. Rosenberg, 888 F.2d 1406 (D.C. Cir. 1989),

for the proposition that the Double Jeopardy Clause serves a

constitutional policy that “protects the accused from repeated

litigation of facts underlying a prior acquittal, and from the

prosecutor’s desire to secure additional punishment where the

government is dissatisfied with the result of the first trial,”

Rosenberg, 888 F.2d at 1409 (construing Brown, 432 U.S. at

165-66). Specifically, appellant contends that his possession of

the same gun at the same location on the same date provided the

basis for the § 924(c) charges in both the Maryland and D.C.

indictments, and that the D.C. charge therefore was barred under

the Double Jeopardy Clause. The federal indictment returned in

Maryland charged appellant with conspiracy to distribute and

possess with intent to distribute (“PWID conspiracy”) cocaine

and cocaine base between November 2000 and December 2004

in Maryland, the District of Columbia, and elsewhere, in

violation of 21 U.S.C. § 846, use of a communications facility

in connection therewith in violation of 21 U.S.C. § 843(b), and

using, carrying, and possessing a firearm with respect to that

conspiracy, in violation of 18 U.S.C. § 924(c) on September 2,

2004 in Maryland. The federal indictment returned in the

2

District of Columbia charged appellant with a violation of § 841

for possession with intent to distribute (“PWID”) of cocaine on

September 2, 2004 in D.C., and a violation of § 924(c) for

possession, use, and carrying of a firearm with respect to the

PWID. Appellant was acquitted on all charges in Maryland

after a jury trial. See Judgement of Acquittal, Edward Kenneth

Kelly, United States v. Briscoe, No. 04-0559 (D. Md. May, 12,

2006). Although the Assistant U.S. Attorney in D.C. was

unfamiliar with the Maryland charges, the record indicated that

the Maryland conspiracy encompassed the same time period as

the D.C. charges. Further, appellant claims that the gun at issue

was seized by the FBI at appellant’s home in the District of

Columbia on September 2, 2004. Thus, the question arose at the

plea hearing whether, having lost its case against appellant in

Maryland, the United States was pursuing appellant once again

in the District of Columbia for the same gun offense of which he

had been acquitted in Maryland.

The district court, sua sponte, raised the double jeopardy

issue and continued the plea hearing to allow government and

defense counsel to examine the issue. After a brief recess, the

district court was unable to resolve whether the gun seized from

appellant’s home in the District of Columbia by the FBI was the

same gun underlying the § 924(c) Maryland charge but

concluded that the D.C. § 924(c) charge was not barred by the

Double Jeopardy Clause because there were different predicate

offenses charged in the Maryland and D.C. indictments, namely

the § 846 PWID conspiracy as distinct from the § 841 PWID.

This court, relying on United States v. Felix, 503 U.S. 378

(1992), affirms. Op. at 8. Although I agree that double jeopardy

does not bar appellant’s § 924(c) prosecution, Felix, alone, does

not decide the question.

Felix was decided when the Supreme Court employed a

different definition of “same offence” in the Double Jeopardy

3

Clause for successive prosecutions than for multiple

punishments in the same prosecution. In Grady v. Corbin, 495

U.S. 508, 521 (1990), the Supreme Court applied a same-

conduct test for successive prosecutions, reasoning that the

same-elements (or Blockburger1) test, which had been

developed in the context of multiple punishments imposed in a

single prosecution, was insufficient to account for the

constitutional concerns raised by successive prosecutions. 495

U.S. at 518. Under Grady, “any subsequent prosecution in

which the government, to establish an essential element of an

offense charged in that prosecution, will prove conduct that

constitutes an offense for which the defendant has already been

prosecuted” was barred. Id. at 521 (citations omitted). Felix

simply carved out an exception to Grady for conspiracy

offenses, see Felix, 503 U.S. 390-91, and reaffirmed the rule that

“a substantive crime and a conspiracy to commit that crime are

not the ‘same offence’ for double jeopardy purposes,” id. at 389

(citations omitted).

In appellant’s case, the question is not whether the § 841

PWID charge was barred in light of the prior § 846 PWID

conspiracy charge but whether double jeopardy barred the

United States from charging appellant with violating § 924(c)

twice based on his possession of the same gun on the same day

in furtherance of overlapping drug offenses. Under Grady, a

remand would be appropriate so that the district court could

determine whether the gun-related conduct was the same in the

Maryland and D.C. charges. See United States v. Olano, 507

U.S. 725, 732 (1993); United States v. Broce, 488 U.S. 563, 569

(1989); United States v. Saro, 24 F.3d 283, 286-87 (D.C. Cir.

1994); Op. at 6. Grady was overruled, however, by United

States v. Dixon, 509 U.S. 688, 711-12 (1993), which held that

“same offence” in the Double Jeopardy Clause could not mean

1

Blockburger v. United States, 284 U.S. 299, 304 (1932).

4

two different things, and adopted the same-elements test

described in Blockburger for both successive prosecutions and

punishments, id. at 704. That test “inquires whether each

offense contains an element not contained in the other; if not

they are the ‘same offence’ and double jeopardy bars additional

punishment and successive prosecution.” Id. at 696.

Applying the same-elements test requires construction of

United States v. Wilson, 160 F.3d 732 (D.C. Cir. 1998), and

United States v. Finley, 245 F.3d 199 (2d Cir. 2001), on which

appellant relies. In Wilson, this court held that two § 924(c)

violations could not be charged even where the defendant had

committed two predicate offenses, so long as there was only one

“use” of the firearm. 160 F.3d at 749. In that case, although the

predicate offenses did not merge, they could support only one

conviction under § 924(c) because they were distinguished only

by different mens rea rather than different conduct. Id. After

Wilson, Congress broadened § 924(c) to punish possession in

furtherance of a predicate offense, in addition to use and

carrying. 105 Pub. L. 386, 112 Stat. 3469, (Nov. 13, 1998); see

also United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir. 2002);

Wilson, 160 F.3d at 748-49. In Finley, the Second Circuit

applied Wilson to the revised § 924(c), and held that “where a

defendant is charged with the continuous constructive

possession of a firearm in furtherance of a sale of part of a

quantity of narcotics, coupled with continued possession of the

remainder immediately following a sale,” only one § 924(c)

charge can be supported even though multiple predicate offenses

have been committed. 245 F.3d at 208. The court emphasized

that the “predicate offenses were simultaneous or nearly so.” Id.

at 207.

Together, Wilson and Finley instruct that under the

possession prong of the statute, multiple § 924(c) charges may

not be based on nearly simultaneous predicate offenses, and that

5

under the use prong, the United States may charge only as many

§ 924(c) violations as there are uses. See Finley, 245 F.3d at

208 n.7. While Wilson and Finley do not hold that double

jeopardy bars Congress from authorizing multiple § 924(c)

charges based on the same, or nearly the same, conduct, Op. at

8 n.5, they do construe the statute to authorize only one § 924(c)

charge in certain circumstances, even if the defendant has

committed more than one predicate offense. In such cases,

whether Congress could authorize separate charges is besides

the point; a second charge would be for the “same offence”

under the Double Jeopardy Clause.

Because the two § 924(c) charges allege appellant’s

possession of the firearm in furtherance of two predicate

offenses that are separate in time, place, and scope, Op. at 8 n.5,

I concur in the judgment that appellant’s claims under the

Double Jeopardy Clause, Federal Rule of Criminal Procedure

11, and for ineffective assistance of counsel each fail. Op. at 8-

9. However, because the government prosecuted appellant on

the second § 924(c) charge after he was acquitted of the first §

924(c) charge, it is worth noting that appellant does not raise a

collateral estoppel claim under Ashe v. Swenson, 397 U.S. 436

(1970). To do so appellant would have needed to show that an

issue of fact, relevant to the D.C. charges, was finally

determined in the Maryland case, see Ashe, 397 U.S. at 443-44;

see also Dixon, 509 U.S. at 710 n.15, and appellant does not

maintain that the Maryland jury necessarily grounded its not-

guilty PWID conspiracy verdict on a finding that appellant did

not possess drugs with intent to distribute them in the District of

Columbia, see Ashe, 397 U.S. at 444.