4th U.S. Circuit Court of Appeals rules double jeopardy doesn't bar

Daily Record, The (Baltimore), Mar 24, 2005 by Peter Geier

The Double Jeopardy Clause does not bar a felon's retrial for allegedly possessing a hand gun after a jury hung on that count but acquitted him of possessing a bullet, the 4th U.S. Circuit Court of Appeals has held.

The appellate panel rejected the contention of convicted bank robber Donald Ray Goodine of Winston-Salem, N.C., that he could not be charged separately for the .32 caliber pistol police recovered in a nearby trashcan and an unfired .32 caliber bullet they later found in his pants pocket.

In this situation, critical aspects of the gun and bullet counts are different, Judge Robert B. King wrote for the court, distinguishing an earlier decision in which it held that a defendant could be liable only for a single offense where he was charged separately with possessing six firearms and ammunition recovered at the same time.

Since the gun and the bullet were found separately, it cannot be said that the two temporally distinct possessions actually constituted the 'same offense,' King wrote. There is thus no double jeopardy problem with a retrial of Goodine on the gun count.

Judge William B. Traxler, concurring, said that although he found the indictment to be multiplicitous, the jury's inability to reach a verdict on the gun count that resulted in a mistrial did not terminate the original jeopardy.

To prevent the government from retrying Goodine on the gun count because of the government's non-prejudicial indictment error would be to give Goodine relief from a non-existent double jeopardy violation, Traxler wrote.

Robert A.J. Lang, an assistant U.S. Attorney for the Middle District of North Carolina, who prosecuted the case and argued the appeal, said the felon-in-possession statute - 18 U.S.C. Section 922(g) -is being charged more and more frequently throughout the 4th Circuit.

It's just when you've think you've seen it all, Lang said, that a new fact pattern or scenario occurs - such as in this case, with a gun found near the defendant and a bullet later discovered in the change pocket of his jeans while he was in police custody.

The jury at Goodine's first trial was not persuaded that he knowingly possessed the bullet, according to the 4th Circuit's opinion.

Eugene E. Lester III of Greensboro, N.C., who represents Goodine, declined to comment on the matter without first speaking with his client.

The opinion speaks for itself, Lester said, adding that he and his client obviously don't agree with the court's decision.

The 4th Circuit remanded the case for retrial at the federal court in Durham.

WHAT THE COURT HELD

Case:

U.S. v. Donald Ray Goodine, US4th No. 04-4320. Published. Opinion by King, J.; concur. by Traxler, J. Filed Mar. 15, 2005.

Issue:

Did the U.S. District Court err in allowing retrial of a felon on charges of possessing a firearm after a jury hung on that count but acquitted him of being a felon-in-possession of ammunition, where the gun was recovered before the defendant's arrest and the bullet was recovered at the police station after the arrest?

Holding:

No, affirmed. There is no Double Jeopardy bar because the two temporally distinct possessions cannot be said to constitute the same offense.

Counsel:

Eugene E. Lester III for appellant; Asst. U.S. Atty. Robert Albert Jamison Lang for appellee.