holding that multiple felon-in-possession charges were permissible when firearms were found in defendant’s bedroom closet and car because they were “stored separately”
How later courts described this case
- holding that multiple felon-in-possession charges were permissible when firearms were found in defendant’s bedroom closet and car because they were “stored separately”
- holding that multiple charges were permissible when firearms were found in defendant’s bedroom closet and car because they were “stored separately”
- concluding that firearms were stored separately when one was recovered from defendant’s vehicle and other was found in residence
- articulating the test for staleness as “whether there is sufficient basis to believe . . . that the items to be seized are still 3 23-3096 on the premises”
Written by the judges who cited it.
The opinion
FLETCHER, Circuit Judge,
Concurring:
I concur in the result reached by the majority and I subscribe fully to the majority view that Gann’s testimony provided sufficient proof that the arms and ammunition were received separately. Two separate acts of receipt may be charged in separate counts. See United States v. Bullock, 615 F.2d 1082 (5th Cir.1980). I would uphold the convictions on counts 2 and 3 and counts 4 and 5 solely on that basis.
*726 I write separately because I cannot agree with the majority’s alternate basis for sustaining the convictions on those counts— i.e., that a single possession of arms and ammunition may be charged as two separate offenses under 18 U.S.C. §§ 922 and 1202.
The issue is whether one charge requires proof of a fact that the other does not. See Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932). The majority points to three differences between section 922 and section 1202 which meet the Blockburger test. Two of these are that section 922 requires proof that the arms travelled in interstate commerce while section 1202 does not, and the two statutes define “felony” differently. In United States v. Conn, 716 F.2d 550, 552 (9th Cir.1983) we held that the defendant could not be convicted under both section 922 and section 1202 for receipt and possession of the same weapons. Thus, we implicitly held that these two differences are not sufficient to meet the Blockburger test.
The remaining difference between the two counts, on which the majority relies to distinguish Conn , is that the section 922 charge requires proof of possession of ammunition while the section 1202 charge requires proof of possession of arms. I think that United States v. Oliver, 683 F.2d 224, 232 (7th Cir.1982) was correct in holding that “for purposes of § 922(h), firearms and ammunition are interchangeable ...” Under section 922, possession of a gun with ammunition is treated just like possession of two guns — only one count can be charged. If, as Oliver holds, Congress did not intend to make possession of ammunition a separate offense from simultaneous possession of a gun when it enacted section 922, I see no basis for concluding that the government may treat the same conduct as two offenses simply by charging the possession of the gun under another statute which, under Conn , is not significantly different. United States v. Batchelder, 442 U.S. 114 , 99 S.Ct. 2198 , 60 L.Ed.2d 755 (1979), and United States v. Wiga, 662 F.2d 1325 (9th Cir.1981), cited by the majority for the proposition that “there is no ambiguity between § 1202 and § 922 that requires the application of the rule of lenity,” are simply irrelevant to this issue. These cases were concerned with whether a person convicted under one of the statutes could be sentenced to a greater term than was provided in the other. The courts concluded that the statutes were not ambiguous as to whether Congress intended one to limit the sentence that could be imposed under the other. They did not consider any possible ambiguity as to whether a person could be convicted under both for a single act of possession. Wiga and Batchelder only tell us that if the government must elect between counts 2 and 3, they are not required to elect the section 1202 charge, which carries the lesser penalty.
We need not reach the multiplicity issue in this case. The majority, nonetheless, does so and, in my view, decides it wrongly.