United States v. Goodine

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-4320

DONALD RAY GOODINE,

Defendant-Appellant.



Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

Frank W. Bullock, Jr., District Judge.

(CR-03-472)

Argued: December 3, 2004

Decided: March 15, 2005

Before LUTTIG, TRAXLER, and KING, Circuit Judges.

Affirmed and remanded by published opinion. Judge King wrote the

opinion, in which Judge Luttig joined. Judge Traxler wrote a separate

opinion concurring in part and concurring in the judgment.

COUNSEL

ARGUED: Eugene E. Lester, III, SHARPLESS & STAVOLA, P.A.,

Greensboro, North Carolina, for Appellant. Robert Albert Jamison

Lang, Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

ON BRIEF: Anna Mills Wagoner, United States Attorney, Greens-

boro, North Carolina.

2 UNITED STATES v. GOODINE

OPINION

KING, Circuit Judge:

Donald Ray Goodine was tried in April 2004 in Greensboro, North

Carolina, on a two-count federal indictment, resulting in a hung jury

on one charge and an acquittal on the other. Goodine has appealed the

district court’s post-trial ruling that he could be retried on the charge

on which the jury hung (and on which a mistrial was declared) with-

out contravening the Double Jeopardy Clause of the Constitution. As

explained below, we conclude that the indictment against Goodine

was not multiplicitous, and that there is no constitutional impediment

to his second trial. We therefore affirm and remand.

I.

Goodine was indicted by the grand jury in the Middle District of

North Carolina on December 16, 2003, for two offenses. First, he was

charged with being a felon in possession of a firearm, a .32 caliber

pistol, in contravention of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (the

"Gun Count").1 Second, he was charged with being a felon in posses-

sion of ammunition, a single .32 caliber bullet, in violation of those

same statutory provisions (the "Bullet Count").2

Goodine was tried on April 12 and 13, 2004. The prosecution pre-

sented hotly contested evidence that, just before midnight on August

1

Section 922(g)(1) of Title 18 renders it unlawful for any person "who

has been convicted in any court of, a crime punishable by imprisonment

for a term exceeding one year" to "possess in or affecting commerce, any

firearm or ammunition which has been shipped or transported in inter-

state . . . commerce." Section 924(a)(2) is the penalty provision for

§ 922(g), and provides that whoever knowingly violates § 922(g)(1) shall

be fined or imprisoned, or both.

2

More specifically, Count One of the indictment charged that Goodine

"knowingly did possess in commerce and affecting commerce a firearm,

that is, a Davis Industries .32 caliber pistol, model D-32, serial number

337193." Count Two alleged that Goodine "knowingly did possess in

commerce and affecting commerce ammunition, that is, WW S&W .32

caliber ammunition."

UNITED STATES v. GOODINE 3

11, 2003, Goodine and his girlfriend, Tammy Miller, became

involved in an argument, which escalated into a violent confrontation,

in his second-floor apartment in a rooming house in Winston-Salem.

Prosecution witness Wanda Brown, another rooming house resident

who described herself as a friend of Miller,3 testified that late on

August 11, she was drinking beer with Miller in the kitchen Goodine

shared with other residents of his apartment ("Apartment C") when,

around 11:00 p.m., Goodine returned home and appeared to be angry.

Brown then returned to the living room of her own apartment, which

was also on the second floor and near Goodine’s bedroom.

Julius Petree, describing himself as a resident of Apartment C

whose bedroom was next to Goodine’s, also testified for the prosecu-

tion.4 According to Petree, he saw Miller and Goodine "throwing

stuff, hitting each other," during the argument, which apparently then

continued in Goodine’s bedroom. Petree testified that, along with his

girlfriend and her friend, he went into his own bedroom and closed

the door. In Petree’s version of events, Goodine then knocked on

Petree’s bedroom door, telling him to "bring your butt out here," and

yelling, "you think you bad" and to stop "getting in my business."

When Petree opened the bedroom door, Goodine pointed a pistol in

his face. Petree slammed the door, and he and the two women then

laid down on the floor, fearful that Goodine might shoot through the

door. Once Goodine was back inside his own room, Petree heard Mil-

3

From the record, it appears that the rooming house consisted of sev-

eral apartments, spread out over at least two floors. There were two

apartments on Goodine’s second floor. Multiple persons resided in each

apartment, which had locked private bedrooms and shared common

areas, including a bathroom and kitchen.

4

Goodine testified that he had never seen Petree before the trial, and

denied that Petree lived next to him in the rooming house. Goodine said

that he worked two jobs, rarely saw his neighbors, and knew only that

"two girls" lived in the room next door, and a man named Richard Burns

also shared the apartment. Petree testified that he was Goodine’s neigh-

bor, and that he was in the rooming house with his girlfriend and her

friend at the time of the shooting. Petree, with the help of Brown, who

assisted in the rooming house operations, procured papers purporting to

establish him as a resident of the rooming house on the date in question.

Those papers were presented as evidence during Petree’s re-direct exam-

ination.

4 UNITED STATES v. GOODINE

ler shouting: "Point the gun at me . . . . Shoot me with it if you want

to shoot somebody." A few minutes later, Petree heard a gunshot.

Brown also heard the arguing and the gunshot, and called the

police. She testified that after she heard the gunshot, she saw Goodine

leave the rooming house with a pistol and go downstairs and outside.

Brown, who was already outside the rooming house, then witnessed

Goodine "bend over as if he was going to place the gun in a [nearby]

station wagon." Instead, however, Goodine stopped and returned

upstairs with the pistol in his hand — according to Brown, possibly

because he knew she was watching. Brown appears to have followed

him upstairs, where, watching through a glass storm door, she saw

him place the firearm in a trash can.

The first Winston-Salem police officer to arrive on the scene of the

events, Officer Mendez, saw Petree (who was apparently downstairs)

at the back stairs of the rooming house. Mendez questioned Petree

about the gunshot incident, and Petree gave him permission to enter

the rooming house. Mendez then went upstairs with Officer Miller,

who had just arrived. Mendez testified that, once upstairs, he saw

Goodine at the kitchen sink washing his hands. He frisked Goodine

for weapons, found none, and gained consent to search the area. Offi-

cer Miller then discovered a Davis Industries .32 caliber pistol, con-

taining one fired ammunition casing, in the trash can next to the

kitchen sink where Goodine had been standing.

Winston-Salem Police Officer Oliver then arrived on the scene, and

he placed Goodine under arrest. By all accounts, Goodine was coop-

erative with the officers while Miller, his girlfriend, was uncoopera-

tive. Oliver then searched Goodine twice, first at the rooming house

when he was arrested, and later at the Forsyth County Detention Cen-

ter ("the Jail") after transporting him there. The Jail search uncovered

an unfired .32 caliber bullet, which "was no thicker than perhaps a

wad of chewing gum," in the change pocket of Goodine’s blue jean

shorts.

At trial, Goodine testified extensively in his own defense. He

insisted that the prosecution’s evidence was entirely false — that he

had attempted to end his relationship with Miller, and that, knowing

he could not lawfully possess a firearm, she and her friends had retali-

UNITED STATES v. GOODINE 5

ated by fabricating the entire incident underlying his prosecution. He

denied possessing or shooting the pistol, maintained that there had

been no argument with Miller and no gunshot, stated that he had no

knowledge of the bullet found in his pants pocket, and asserted that

Miller had herself laid them out for him to wear. He portrayed his

relationship with Miller as on-again, off-again, and he asserted that

their recurring breakups were caused by her relapses into drug abuse.

He contended that Miller had a history of reacting violently to roman-

tic breakups. Specifically, he testified that after his previous attempts

to end their relationship, she had stabbed him in 2000 and hit him

with a glass ashtray in 2001. He then introduced medical records to

support these allegations, which were not disputed by the prosecution.5

On April 13, 2004, the court submitted the case to the jury. After

several hours of deliberations, the jury advised the court that it was

unable to reach a verdict on one charge, but that it had agreed to a

verdict on the other charge. The prosecution moved for a mistrial, to

which Goodine objected. The defense then requested the court to

instead accept a partial jury verdict, and the prosecution agreed. The

district court acceded to the defense request, and the jury soon

returned into court with an acquittal of Goodine on the Bullet Count.

The court eventually declared a mistrial on the Gun Count, because

the jury was yet unable to agree to a verdict on that charge. In the

courtroom proceedings surrounding these events, the court observed

that, if the prosecution sought to retry Goodine on the Gun Count, the

case presented a difficult double jeopardy issue. It directed the prose-

cutor to advise the court within a reasonable time whether a second

trial would be pursued. The court then remanded Goodine to custody

pending further proceedings.

On April 19, 2004, Goodine moved to dismiss the Gun Count on

double jeopardy grounds, and the prosecution objected. The district

court denied Goodine’s motion on April 23, 2004, and scheduled the

Gun Count for retrial. On April 30, 2004, Goodine filed a Notice of

Interlocutory Appeal in the district court. On May 7, 2004, the court

5

Miller was subpoenaed by the government but did not appear for trial

at the scheduled time. The court reserved additional time for her testi-

mony the following morning, but Miller again failed to appear, and the

court decided that the trial would proceed without her testimony.

6 UNITED STATES v. GOODINE

conducted a status conference and orally opined that an appeal by

Goodine on the double jeopardy issue was neither frivolous nor inter-

locutory.

II.

We possess jurisdiction over Goodine’s appeal under the "collateral

order doctrine." He contends that the district court’s refusal to dismiss

the Gun Count contravened his rights under the Double Jeopardy

Clause of the Fifth Amendment. That ruling constitutes a "final deci-

sion" under 28 U.S.C. § 1291, rather than an interlocutory order, and

it falls squarely within the "collateral order" exception to the finality

rule enunciated in Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541, 546 (1949). See Abney v. United States, 431 U.S. 651, 662

(1977) (holding that denial of motion to dismiss on double jeopardy

grounds is final order under § 1291); United States v. Ruhbayan, 325

F.3d 197, 201 & n.2 (4th Cir. 2003) (same). We review de novo

whether a defendant will be subjected to double jeopardy by his

retrial on a criminal charge. United States v. Holbrook, 368 F.3d 415,

424 (4th Cir. 2004).

III.

The Double Jeopardy Clause of the Fifth Amendment provides that

no person shall "be subject for the same offense to be twice put in

jeopardy of life or limb." U.S. Const. amend. V. As we observed in

United States v. Ragins, there are two components to this constitu-

tional guarantee: "[t]he first provides protections against the imposi-

tion of cumulative punishments for the same offense in a single

criminal trial; the second against being subjected to successive prose-

cutions for the same offense, without regard to the actual imposition

of punishment." 840 F.2d 1184, 1187 (4th Cir. 1988) (internal quota-

tion marks omitted). Importantly, it is well-settled that the Double

Jeopardy Clause does not preclude a retrial of a criminal charge that

has resulted in a hung jury. Richardson v. United States, 468 U.S.

317, 323 (1984). As a result, the hung jury on the Gun Count against

Goodine does not, in and of itself, bar his retrial on that charge.

Goodine maintains, however, that his acquittal by the jury on the

Bullet Count bars his retrial on the Gun Count. He contends, relying

UNITED STATES v. GOODINE 7

on our decision in United States v. Dunford, 148 F.3d 385 (4th Cir.

1998), that the indictment against him was multiplicitous,6 that the

Bullet Count and the Gun Count were in reality the same "offense,"

and that his acquittal on either charge would serve necessarily as his

acquittal on both. In the alternative, he contends that his acquittal on

the Bullet Count resolved in his favor a critical factual issue underly-

ing the Gun Count, such that the doctrine of criminal collateral estop-

pel precludes his retrial on that charge. We assess these alternative

contentions in turn.

A.

Goodine first contends that, in these circumstances, illegal firearm

possession and illegal ammunition possession were actually two fac-

tual predicates for a single criminal offense, which the indictment

defectively split into two charges. He therefore asserts that his retrial

on the Gun Count would place him twice in jeopardy for the same

offense, in violation of the Double Jeopardy Clause of the Fifth

Amendment. His starting assumption is that the indictment against

him is "multiplicitous," meaning that a single offense was charged in

multiple — here, two — counts. See United States v. Burns, 990 F.2d

1426, 1438 (4th Cir. 1993) (describing multiplicitous indictment). As

we have observed, the "signal danger" of a multiplicitous indictment

is that a defendant might thereby receive multiple punishments for the

same crime. Id.; see also United States v. Colton, 231 F.3d 890, 910

(4th Cir. 2000).7

6

Various courts, including this one, have spelled multiplicity in its

adjective form as "multiplicious" and "multiplicitous." "Multiplicitous"

is apparently the preferred spelling of the term, and "multiplicious" may

be considered obsolete. Bryan A. Garner, A Modern Dictionary of Legal

Usage 576-77 (2d ed. 1995).

7

When we have had occasion to address multiplicitous indictment

issues in other contexts, they have invariably related to scenarios where

the defendant has been convicted of one or more counts that are actually

a single offense charged multiple times. See, e.g., United States v.

Shorter, 328 F.3d 167, 173 (4th Cir. 2003) (addressing multiple firearm

possession convictions); United States v. Bennafield, 287 F.3d 320, 323-

24 (4th Cir. 2002) (addressing multiple controlled substance convic-

tions); Colton, 231 F.3d at 910 (addressing "integrally related" fraud

8 UNITED STATES v. GOODINE

In assessing whether Goodine’s retrial is barred by the prohibition

against double jeopardy, we must first decide whether the indictment

against Goodine was indeed multiplicitous — in other words, whether

the Gun Count and the Bullet Count each charged the "same offense."

Inquiries concerning whether two charges are actually the "same

offense" normally involve the inverse of the situation here — that is,

they involve an indictment which has charged multiple statutory

offenses premised on the same conduct, and require us to look to

whether each charged offense requires proof of some fact that the

other does not require. See Blockburger v. United States, 284 U.S.

299, 304 (1932). In such a situation, the Supreme Court has held that

a defendant may be prosecuted a second time for a different statutory

offense even if that offense involves proof of the "same conduct"

presented in the first trial; though, if the defendant was acquitted in

the first trial, collateral estoppel may apply against the government.

See United States v. Dixon, 509 U.S. 688, 711-12 (1993). Similarly,

the Court has "consistently rejected" the notion that all crimes arising

out of the "same transaction" must be prosecuted in a single proceed-

ing. Id. at 709 n.14; United States v. Williams, 155 F.3d 418, 420-21

(4th Cir. 1988).

In contrast, the situation here — whether Goodine can be repro-

secuted for the same statutory violation based on different (albeit

somewhat related) conduct — is simple in the abstract. It is well-

settled that a defendant may be charged and prosecuted for the same

statutory offense multiple times when each prosecution is based on

discreet acts that each constitute a crime. For instance, in Ashe v.

Swenson, 397 U.S. 436 (1970), the Supreme Court addressed the situ-

offenses); Dunford, 148 F.3d at 390 (addressing multiple firearm posses-

sion convictions). In each of these situations, we remedied the multiplic-

ity concerns by directing that the defendant be sentenced on only one of

the multiple convictions. See Shorter, 328 F.3d at 173 (affirming merger

of convictions); Bennafield, 287 F.3d at 325 (vacating excess convic-

tion); Colton, 231 F.3d at 911 (vacating excess convictions); Dunford,

148 F.3d at 390 (vacating excess convictions). The circumstances relat-

ing to Goodine’s case, where the government seeks to retry Goodine

after his partial acquittal on what he contends to be a multiplicitous

indictment, present a different issue.

UNITED STATES v. GOODINE 9

ation of a defendant who had robbed multiple victims in a single inci-

dent. After a jury returned an acquittal on a charge as to one victim,

the prosecution sought to retry the defendant for the same crime, but

as committed against another victim of the same robbery. Id. at 439-

40. The Supreme Court treated the acts against different victims as

separate crimes, but held that the doctrine of collateral estoppel

applied to the second prosecution. Id. at 444-46 (determining that first

jury had necessarily decided that defendant was not culprit). See also

United States v. Walsh, 194 F.3d 37, 46 (2d Cir. 1999) (determining

that indictment alleging same criminal offense based on two different

instances of same act, occurring in "different, but overlapping time

frames" was not multiplicitous); United States v. Swaim, 757 F.2d

1530, 1536-37 (5th Cir. 1985) (concluding that counts of indictment

charging violation of same statute based on "different evidence" were

not multiplicitous).

The difficulty here, however, comes from the application of our

ruling in Dunford to this case. In Dunford, we concluded that the

defendant’s simultaneous possession of six firearms and ammunition

was in actuality a single "offense," and thus could result in only one

§ 922(g) conviction and sentence. 148 F.3d at 390. Because Dunford

had been indicted, convicted, and sentenced separately for possession

of each of the six firearms, plus the ammunition, as seven separate

§ 922(g)(1) violations, we vacated his several sentences and

remanded for the imposition of a single sentence. Id. According to

Goodine, Dunford requires that the Gun Count and the Bullet Count

be deemed a single offense, and it compels the conclusion that the

indictment against Goodine is multiplicitous. The prosecution con-

cedes that Dunford may apply, but it contends that Dunford only bars

multiple convictions for § 922(g) offenses, not a retrial where an

acquittal has eliminated the danger of multiple punishments.

We, however, decline to extend Dunford to the facts of this case.

The key to the Dunford decision was the fact that the multiple fire-

arms involved in that prosecution were "seized at the same time." 148

F.3d at 390. In Dunford, we applied our decision in United States v.

Mullins, 698 F.2d 686 (4th Cir. 1983), and concluded that, under the

predecessor statute to § 922(g) (18 U.S.C. § 1202(a)), a defendant’s

possession of multiple firearms at different times constituted separate

offenses, but noted the "general rule" that a felon who "acquires two

10 UNITED STATES v. GOODINE

or more firearms in one transaction and stores and possesses them

together . . . commits only one offense." Dunford, 148 F.3d at 390

(quoting Mullins, 698 F.2d at 687).

Unlike the situation addressed in Dunford, the pistol and the bullet

underlying this indictment were seized at different times and in differ-

ent locations — the gun being seized in Goodine’s kitchen trash can,

and the bullet being seized later at the Jail.8 The evidence supporting

the two incidents is likewise different. The prosecution sought to

prove the Gun Count by direct evidence — two separate witnesses

had seen Goodine use and possess the pistol and had heard it fired —

while the only evidence supporting his knowing possession of the bul-

let was circumstantial, and his own testimony maintaining that Miller

had placed it in his pocket was uncontradicted. The district court rec-

ognized this distinction at trial when the double jeopardy issue arose.

It astutely advised the parties that, ordinarily, when the question of

double jeopardy is raised, "you’ve got a situation where the facts are

identical," but in Goodine’s case, "we both know that the facts are

somewhat different, he could be convicted of one or both, or acquitted

of one or both," such that "this [case] may be different."

In this situation, critical aspects of the Gun and Bullet Counts are

different: a successful § 922(g) prosecution on the Gun Count

requires proof that Goodine knowingly possessed the pistol, while his

successful prosecution on the Bullet Count would require proof that

he knowingly possessed the bullet found in his pants pocket at the Jail

(a contention the jury has rejected). In these circumstances, it cannot

be said that the two temporally distinct possessions actually consti-

tuted the "same offense." As a result, we decline to extend Dunford

to these circumstances, where the government seeks to retry Goodine

on a § 922(g) offense after his acquittal on a factually distinct charge

under that same statute. There is thus no double jeopardy problem

with a retrial of Goodine on the Gun Count.

8

Though the allegation of Count Two was arguably broader than a ref-

erence to the bullet seized at the Jail, see supra note 2, the prosecution

at trial relied solely on Goodine’s alleged possession of that bullet in its

effort to prove that Count. The prosecution did not — significantly for

double jeopardy purposes — rely on unfired ammunition contained in the

pistol.

UNITED STATES v. GOODINE 11

B.

Goodine’s second contention is that the doctrine of criminal collat-

eral estoppel bars his retrial on the Gun Count. First of all, we recog-

nize that, in assessing such a contention, the concept of collateral

estoppel is a constitutionally based doctrine falling within the scope

of the Double Jeopardy Clause. See Ashe, 397 U.S. at 445-46. It pre-

cludes an ultimate factual issue that was necessarily decided in a

defendant’s favor in an earlier criminal proceeding from being re-

litigated against the same defendant. Id. at 443-44. In our decision in

United States v. Fiel, Judge Ervin carefully identified and explained

the relevant factors for a proper analysis of a criminal collateral estop-

pel claim (the "Fiel test"):

(1) whether the issue in question is identical to the issue

adjudicated in a prior proceeding;

(2) whether the issue was actually determined in the prior

adjudication;

(3) whether the issue was necessarily decided in that pro-

ceeding;

(4) whether the resulting judgment settling the issue was

final and valid; and

(5) whether the parties had a full and fair opportunity to liti-

gate the issue in the prior proceeding.

35 F.3d 997, 1006 (4th Cir. 1994).

In order for his retrial on the Gun Count to be barred under the Fiel

test, each of these factors must have been resolved earlier in Goo-

dine’s favor. United States v. Ruhbayan, 325 F.3d 197, 202 (4th Cir.

2003). Unfortunately for Goodine, his collateral estoppel claim does

not survive our application of Fiel. First, under prong one of Fiel, the

items possessed — ammunition and a firearm — are different, creat-

ing non-identical issues in the prior and successive prosecutions.

Under prongs two and three, whether Goodine possessed the firearm

12 UNITED STATES v. GOODINE

was not actually or necessarily determined by the jury in its acquittal

on the Bullet Count: the prosecution of the Bullet Count relied on dis-

tinctly different evidence from that supporting the Gun Count, and

Goodine maintained both that he lacked knowledge of the ammuni-

tion and that the ammunition was not proven to have travelled in

interstate commerce. In those circumstances, a rational jury could

have acquitted Goodine on the Bullet Count by resolving factual

issues entirely unrelated to the charge contained in the Gun Count.

The retrial of Goodine on the Gun Count is thus not barred by the

doctrine of collateral estoppel, and his contention on this point is also

rejected.

IV.

Pursuant to the foregoing, the ruling of the district court is affirmed

and this case is remanded for such other and further proceedings as

may be appropriate.

AFFIRMED AND REMANDED

TRAXLER, Circuit Judge, concurring in part and concurring in the

judgment:

I fully concur in the result reached by the majority in this case, and

I concur in the majority’s analysis except with regard to the multiplic-

ity issue addressed in Section III. I write separately to explain how I

would approach that issue.

In United States v. Dunford, 148 F.3d 385 (4th Cir. 1998), we held

that the simultaneous possession of multiple firearms generally

amounts to a single § 922(g) offense. See id. at 390. However, if there

is evidence of what amounts to separate, independent acts of

possession—for example, evidence that the guns were obtained in

separate transactions—multiple § 922(g) counts may be pursued even

if the guns were seized at the same time in the same location.

The general rule is that when a convicted felon acquires

two or more firearms in one transaction and stores and pos-

sesses them together, he commits only one offense under

UNITED STATES v. GOODINE 13

§ 1202(a)(1) [a predecessor of § 922(g)]. If no more appears

than that the defendant was in possession of the several fire-

arms at the same place and moment before their seizure, it

is impermissible for a fact-finder to speculate that they may

have been acquired in separate transactions or separately

stored or treated. If it can be shown, however, that the seized

weapons were acquired at different times and places, multi-

ple prosecutions and consecutive sentences are permissible

notwithstanding seizure at the same time and place.

United States v. Mullins, 698 F.2d 686, 687 (4th Cir. 1983) (citations

omitted); see also Dunford, 148 F.3d at 390.

In my view, the facts of this case are insufficient to bring this case

within the separate-possession exception recognized in Dunford and

Mullins. While the bullet in Goodine’s pocket was discovered at the

jail, that was only because the police missed the bullet when they

searched Goodine at the rooming house. Had a proper search been

done, the gun and the bullet would have been seized at the same time,

in the same place. Under these circumstances, Goodine’s possession

of the bullet was no more temporally or spatially distinct from his

possession of the gun at the rooming house than were the "posses-

sions" at issue in Dunford, where the defendant’s possession of vari-

ous groups of guns and ammunition found, among other places, in

two separate bedrooms belonging to his children was determined to

constitute a single offense. I believe that Goodine’s possession of the

gun and the bullet thus must be viewed as constituting a single

offense under Dunford. Accordingly, the indictment charging the sin-

gle offense in two counts was multiplicitous.

That the indictment was multiplicitous, however, does not in this

case carry with it any Double Jeopardy implications. The Double

Jeopardy Clause "protects defendants against second prosecutions for

the same offense after either an acquittal or a conviction and against

multiple punishments for the same offense." United States v. Bowe,

309 F.3d 234, 238 (4th Cir. 2002).

Because Goodine has not been convicted of anything, the prohibi-

tion against a second prosecution after a conviction is obviously inap-

plicable. The prohibition against multiple punishments for a single

14 UNITED STATES v. GOODINE

offense, of course, would be implicated if separate sentences were

imposed on each count of a multiplicitous indictment. In such cases,

the Double Jeopardy problem would be cured by vacating all convic-

tions save one and imposing a single sentence. See, e.g., United States

v. Leftenant, 341 F.3d 338, 347-48 (4th Cir. 2003), cert. denied, 540

U.S. 1166 (2004); Dunford, 148 F.3d at 390. But because no sen-

tence, much less multiple sentences, has been imposed on Goodine,

the Double Jeopardy concerns of Dunford are not implicated in this

case.

Thus, the only Double Jeopardy interest arguably at issue in this

case is the protection against successive prosecutions after acquittal.

For the protections of the Double Jeopardy Clause to be triggered,

however, there must first be "some event, such as an acquittal, which

terminates the original jeopardy." Richardson v. United States, 468

U.S. 317, 325 (1984). It is beyond dispute that the declaration of a

mistrial because of the jury’s inability to reach a verdict on the Gun

Count did not terminate the original jeopardy. See id. at 326. And in

my view, the "acquittal" on the Bullet Count likewise did not termi-

nate the original jeopardy.

Although there can be but one § 922(g) offense in this case, that

single offense could be established by proof that Goodine knowingly

possessed either the gun or the bullet. If the government, as it should

have done, had alleged in a single count that Goodine unlawfully pos-

sessed the gun and the bullet, a conviction could have been sustained

on either ground. See United States v. Harvard, 103 F.3d 412, 420

(5th Cir. 1997) ("Where a statute specifies several alternative ways in

which an offense can be committed, the indictment may allege the

several ways in the conjunctive, and a conviction thereon will stand

if proof of one or more of the means of commission is sufficient."

(internal quotation marks omitted)). The jury’s rejection of the bullet

allegation would not have precluded a re-trial on the allegation that

Goodine knowingly possessed the gun. See United States v. Rivera,

77 F.3d 1348, 1351-52 (11th Cir. 1996) (per curiam) (where defen-

dant was charged in a single-count indictment with possessing a fire-

arm on two separate dates, jury’s determination that defendant did not

possess the firearm on one of the dates alleged did not preclude re-

trial after jury was unable to reach a verdict as to defendant’s posses-

sion of the firearm on the second date alleged: "When the jury dead-

UNITED STATES v. GOODINE 15

locked as to the August 12, 1994, date, and the district court declared

a mistrial, jeopardy did not fully terminate. Therefore, the Double

Jeopardy Clause does not bar a second prosecution as to the alleged

August 12, 1994, possession.").

The government’s error in charging the offense in separate counts

should not change this analysis. The jury’s determination that Goo-

dine did not knowingly possess the bullet did not amount to a com-

plete acquittal of the offense, but instead was simply a determination

that Goodine did not commit the offense in one of the two possible

means. Since there has been no complete acquittal on the § 922(g)

charge, jeopardy has not fully terminated. The government, therefore,

is not precluded from re-trying Goodine on the Gun Count, because

the indictment error has not prejudiced Goodine in any way. Goodine

was not and cannot be subjected to multiple sentences, and there is

no more of a multiple-prosecution problem in this case than in any

case involving re-trial after a hung jury. To prevent the government

from re-trying Goodine on the Gun Count because of the govern-

ment’s non-prejudicial indictment error would be to give Goodine

relief from a non-existent Double Jeopardy violation.

Although my analysis of this issue differs from that of the majority,

the result is the same. Accordingly, I concur in the result reached by

the majority in Section III of the opinion, and I fully concur in the

remainder of the opinion.