United States v. Parker, Jesse J. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2798
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESSE JAMES PARKER, III,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 04 CR 92—Allen Sharp, Judge.
____________
ARGUED JANUARY 12, 2007—DECIDED NOVEMBER 21, 2007
____________
Before POSNER, WOOD, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Jesse James Parker was con-
victed of making a false statement on a federal firearms
form, being a felon in possession of a firearm, and being
an illegal drug user in possession of a firearm. He raises
four challenges to his convictions and sentence: that his
trial violated the Speedy Trial Act, that his firearm
possession convictions are multiplicitous, that he received
ineffective assistance of counsel, and that his term of
supervised release was imposed in violation of United
States v. Booker, 543 U.S. 220 (2005).
We reject all but the multiplicity challenge. We agree
that the two firearm possession convictions—under 18
2 No. 05-2798
U.S.C. § 922(g)(1) and (3)—are multiplicitous, as they
arise from a single incident of firearm possession. Parker
did not raise the multiplicity objection in the district court,
however, so our review is for plain error. Parker was
sentenced to concurrent prison terms on these counts
but was subjected to an additional $100 special assess-
ment for the second firearm possession conviction; we
held in United States v. McCarter, 406 F.3d 460, 464 (7th
Cir. 2005), that this is not a sufficiently serious error to
warrant correction under the plain-error standard. See
also United States v. Baldwin, 414 F.3d 791, 796 (7th Cir.
2005) (following McCarter). We now conclude that this
holding is inconsistent with Supreme Court precedent
and out of step with other circuits that have addressed
the question. We therefore overrule this aspect of
McCarter and Baldwin.1 The case is remanded with
instructions to vacate the sentence on one of the firearm
possession counts and merge the two convictions.
I. Background
Jesse James Parker was prohibited from possessing a
firearm because he was a convicted felon. On January 29,
2004, Parker paid Mamie Army $100 to complete a straw
purchase of an AK-47 assault rifle for him. At Parker’s
direction and with money he supplied, Army went into
a gun shop and bought the rifle, falsifying a federal
firearms sale form by identifying herself as the purchaser.
She then turned the rifle over to Parker. Parker later
1
Because this decision overrules existing Seventh Circuit
precedent, it was circulated to the active members of the
court in accordance with Circuit Rule 40(e); no judge in regular
active service voted to hear the case en banc. The Hon. Joel M.
Flaum and the Hon. Kenneth F. Ripple did not participate in
the consideration of this matter.
No. 05-2798 3
confessed his involvement in this scheme to federal agents,
and also told them that he smoked marijuana regularly
around the time of the straw purchase. Based on these
facts, a jury found Parker guilty of one count of aiding
and abetting a false statement on a federal firearms
form, 18 U.S.C. § 922(a)(6); one count of being a felon in
possession of a firearm, id. § 922(g)(1); and one count of
being an illegal drug user in possession of a firearm, id.
§ 922(g)(3).
A. Pretrial Proceedings
Certain pretrial dates and events are important to our
resolution of Parker’s Speedy Trial Act claim. The three
charges brought against Parker were counts four through
six of an indictment that included five other defendants:
Army, Devin Smith, Frederick Williams, Michael Griffis,
and Kathleen Miller. After being indicted, Parker first
appeared before a magistrate judge in the Northern
District of Indiana on October 20, 2004. At that time, the
government moved to detain Parker, and the court sched-
uled a hearing on that motion for October 25 to give
Parker time to obtain counsel. When that date arrived,
Parker had yet to obtain counsel, so the court resched-
uled the hearing for October 28. On that date, Parker
again appeared alone and requested appointment of
counsel; the court granted the request and rescheduled
the hearing for November 1. The detention motion was
finally heard on November 1, and Parker was detained
after pleading not guilty. That same day, Williams filed
a motion to suppress evidence, which was denied on
November 29. Codefendants Miller and Smith filed
petitions to enter guilty pleas on October 29, as did Griffis
on November 5, Army on November 23, and Williams on
January 13, 2005. Their pleas were accepted on the
following dates: Miller on November 16, Smith and Griffis
4 No. 05-2798
on November 17, Army on December 13, and Williams on
January 14. In sum, the motions and plea petitions of
Parker’s codefendants were pending from October 29
through December 13, 2004, and on January 13 and 14,
2005.
In the meantime, Parker’s trial was scheduled to begin
on January 18. At the final pretrial conference on January
13, the judge informed the parties he would be unavail-
able for about four to six weeks beginning January 17 for
medical reasons. He proposed a new trial date of Feb-
ruary 22, but Parker’s counsel indicated he was unavail-
able. Trial was then scheduled to commence February 24.
On February 18, the government filed a motion to allow
a law student to participate in the trial; that motion was
granted on February 22. On February 23, Parker filed a
motion to dismiss under the Speedy Trial Act, claiming
that more than the 70 allowable days had elapsed since
his first appearance. The district court denied Parker’s
motion the same day it was filed, stating that the trial
date “was set in open court with this defense counsel
present” and “[i]f present defense counsel thought there
was a Speedy Trial problem he should not have waited
until the eve of trial to bring it up.” The court made no
findings regarding the number of countable days that
had elapsed while Parker was waiting to be tried.
B. Trial Proceedings
Trial commenced as scheduled on February 24. That
morning, Parker’s counsel provided the government with
an affidavit from codefendant Williams, who was sched-
uled to testify against Parker, purporting to recant his
No. 05-2798 5
prior statements implicating Parker.2 Counsel admitted
the document had been obtained from Williams outside
the presence of Williams’s counsel while Parker and
Williams were incarcerated in the same facility. Parker’s
counsel informed the court that Parker told him during
one of his prison visits that Williams was going to sign
an affidavit. During that visit, a prison employee en-
tered the room where Parker and his counsel were meet-
ing and informed them he was bringing a typed docu-
ment to Williams. The employee returned shortly there-
after with an affidavit signed by Williams. Parker’s
counsel acknowledged that this had occurred more than
a month and half prior to trial; his explanation for not
disclosing it earlier was that he was uncertain whether
Williams would testify.
The district court expressed concern about the manner
in which the affidavit was obtained and the attorney’s
failure to disclose it sooner. The judge barred any men-
tion of the affidavit during opening statements and fur-
ther stated he was inclined to preclude use of the affidavit
for impeachment purposes but would defer ruling until
Williams testified. Trial proceeded, with the court recess-
2
The affidavit stated, in relevant part:
2. That the A.T.F. had said they had interviewed me and
that I had made incriminating statements on behalf of of
[sic] Jesse Parker.
3. I swear under penalty of perjury that the statements
here are true.
a. That Jesse Parker had no interaction in the above
cause.
b. That the statement they said I made implicating
Jesse Parker are [sic] false.
c. That in count 4, 5, and 6, Mr. Parker had no partici-
pation.
6 No. 05-2798
ing during Williams’s cross-examination to make a final
ruling on the affidavit. The court ultimately concluded
the affidavit itself could not be admitted, but Parker’s
counsel could cross-examine on its contents, and the
prosecution could question Williams on the circum-
stances under which the recantation was made. Williams
testified that he recanted to dispel rumors that he had
implicated Parker as “a big time drug dealer . . . buying
all of these guns and putting them on the street and stuff.”
However, he stood by his testimony that Parker had paid
Army to purchase the single AK-47 as charged in the
indictment.
C. Posttrial Proceedings
Parker was sentenced to concurrent 27-month prison
terms and two years of supervised release; he was also
ordered to pay a $100 special assessment for each of the
three offenses. In imposing supervised release, the district
court said that “a term of supervised release is not only
required but also is appropriate in this case.” Parker
filed a timely notice of appeal, but his trial counsel moved
to withdraw under Anders v. California, 386 U.S. 738(1967), because he saw no nonfrivolous basis for appeal.
Parker filed a response seeking new counsel for his
appeal because his trial counsel faced a potential conflict
of interest regarding the matter of Williams’s affidavit. We
agreed and ordered the appointment of new appellate
counsel. United States v. Parker, No. 05-2798 (May 3,
2006). Parker’s counsel now raises the following chal-
lenges on appeal: whether a Speedy Trial Act violation
occurred; whether Parker’s convictions for being both a
felon and drug user in possession of a firearm are
impermissibly multiplicitous; whether Parker’s trial
counsel was ineffective; and whether the district court
erred in imposing a term of supervised release under the
mistaken belief that supervised release was mandatory.
No. 05-2798 7
II. Discussion
A. Speedy Trial Act Violation
The Speedy Trial Act (“the Act”) provides that no more
than 70 days may elapse between a defendant’s initial
appearance in court and the commencement of trial.
18 U.S.C. § 3161(c)(1). The district court made no factual
findings regarding how many countable days elapsed, and
the parties dispute the proper method of calculation. “We
review the district court’s denial of Speedy Trial Act
motions de novo when calculation of time is at issue.”
United States v. Baskin-Bey, 45 F.3d 200, 203 (7th Cir.
1995).
Although a total of 126 days elapsed between Parker’s
first appearance in court and the commencement of his
trial, not all of this time counts toward the Act’s 70-day
limitation. The parties agree that the delay attributable
to pleas by Parker’s codefendants is excluded. See 18
U.S.C. § 3161(h)(7) (excluding “[a] reasonable period of
delay when the defendant is joined for trial with a
codefendant as to whom the time for trial has not run
and no motion for severance has been granted”); United
States v. Dennis, 737 F.2d 617, 620 (7th Cir. 1984) (“It is
well established . . . that the excludable delay of one
defendant may be ascribed to all codefendants in the
same case, absent severance.”). The parties also agree
that the time lost due to the judge’s medical absence is
not excludable because the judge did not follow the proce-
dures necessary to stop the Speedy Trial clock. See 18
U.S.C. § 3161(h)(8) (requiring court to make findings on
the record to exclude a delay resulting from court’s own
motion); cf. Zedner v. United States, 126 S. Ct. 1976, 1990
(2006) (“[W]hen a district court makes no findings on the
record in support of a[ ] § 3161(h)(8) continuance, harm-
less-error review is not appropriate.”). The undisputed
exclusions thus total 46 days, which brings the uncon-
tested elapsed time to 80 countable days.
8 No. 05-2798
Where Parker and the government part ways is on the
question of when the Speedy Trial Act clock began to run.
Parker maintains the clock started on October 20—the
date of his first appearance in court—and includes the
11 days that elapsed between this appearance and his
arraignment on November 1. The government contends
the clock did not begin to run until Parker’s arraignment.
Parker has the better of this argument. The Act states that
the clock runs from “the filing date (and making public) of
the information or indictment, or from the date the
defendant has appeared before a judicial officer of the
court in which such charge is pending, whichever date
last occurs.” 18 U.S.C. § 3161(c)(1). A straightforward
application of this language means that the clock began
to run on October 20, the first “date [Parker] appeared
before a judicial officer” of the charging court.
The government seeks to override this language by
pointing to the many cases in which we have stated that
the Speedy Trial Act clock commences at arraignment.
See, e.g., United States v. Larson, 417 F.3d 741, 744 (7th
Cir. 2005) (“The Act provides that no more than 70 days
may elapse between arraignment and the commencement
of trial.”); United States v. Garrett, 45 F.3d 1135, 1138 (7th
Cir. 1995) (“Where more than one defendant is charged
in an indictment, the Speedy Trial clock begins running
on the date of the last co-defendant’s arraignment.”);
Baskin-Bey, 45 F.3d at 203 (“The Speedy Trial Act provides
that no more than seventy days may elapse between
arraignment and the start of trial.”). However, none of
these cases concerns a defendant who appeared before a
judicial officer prior to arraignment, as Parker did. As
such, they do not address the distinction between arraign-
ment and any earlier initial appearance in court for
purposes of the Speedy Trial clock. Rather, these cases
illustrate nothing more than the habit of using “arraign-
ment” as shorthand for “appearance before a judicial
No. 05-2798 9
officer.” On the disputed issue of when the Speedy Trial
clock commenced in this case, we agree with Parker that
it was triggered by his October 20 initial appearance before
the magistrate judge.
But the analysis does not end there. Section
3161(h)(1)(F) of the Act excludes “delay resulting from any
pretrial motion, from the filing of the motion through
the conclusion of the hearing on, or other prompt dis-
position of, such motion.”3 The government moved for
Parker’s detention on October 20, and the hearing on that
motion did not take place until November 1. Because
this pretrial motion was pending throughout the time
that elapsed between Parker’s initial appearance and
his arraignment, the 11 days do not count toward his
Speedy Trial clock. See United States v. Wright, 990 F.2d
147, 149 (4th Cir. 1993) (excluding time during which
government’s temporary detention motion was pending).
Excluding these 11 days, a maximum of 69 days elapsed
prior to Parker’s trial; there was no violation of the
Speedy Trial Act.4
B. Multiplicity Claim
Parker next argues his two firearm possession con-
victions—one under § 922(g)(1) for being a felon in posses-
3
Although neither party briefed the applicability of 18 U.S.C.
§ 3161(h)(1)(F) to the 11 days in question, “[a]s with all statutes,
we must interpret the Speedy Trial Act to give effect to the
entire statute.” United States v. Morgan, 384 F.3d 439, 443 (7th
Cir. 2004).
4
The parties also dispute whether to exclude the five days
during which the government’s motion to allow a law student
to participate was pending. We need not address the dispute;
including those days leaves the total at 69 days.
10 No. 05-2798
sion and one under § 922(g)(3) for being an illegal drug
user in possession—are impermissibly multiplicitous
because they arise from a single incident of firearm
possession involving the same gun. This objection was
not raised at trial or at sentencing, so our review is lim-
ited to plain error.5
Our circuit has not addressed the question of whether
a single incident of firearm possession may support
multiple convictions under § 922(g) when the defendant
is included in more than one class of persons the statute
disqualifies from possessing firearms. We have concluded
that a single incident of possession of a firearm and
ammunition cannot support multiple convictions under
§ 922(h). See United States v. Oliver, 683 F.2d 224, 233
(7th Cir. 1982) (the language of § 922(h) contains “no
indication that Congress intended firearms and ammuni-
tion to be treated as separate violations”); see also United
States v. Guice, 238 F. App’x 167 (7th Cir. 2007) (two
§ 922(g)(1) convictions for guns found in passenger com-
partment and trunk of defendant’s car are multiplicitous;
no evidence suggested defendant acquired the guns at
separate times).
Those circuits that have addressed the question are
in unanimous agreement that § 922(g) cannot support
multiple convictions based on a single firearm possession
because the allowable unit of prosecution is the incident
5
In his reply brief, Parker argues our review must be de novo
because a multiplicity claim cannot be waived. Parker has
confused waiver—the intentional relinquishment of a right—with
forfeiture—the failure to make a timely assertion of a right.
See United States v. Summers, 265 F.3d 532, 537 (7th Cir. 2001).
It is the well-established law of this circuit that forfeiture of
a multiplicity claim will result in plain-error review. See United
States v. McCarter, 406 F.3d 460, 464 (7th Cir. 2005).
No. 05-2798 11
of possession, not the defendant’s membership in a class
(or classes) of persons disqualified from possession. See
United States v. Richardson, 439 F.3d 421, 422 (8th Cir.
2006) (en banc) (“Congress intended the ‘allowable unit
of prosecution’ to be an incident of possession regardless
of whether a defendant satisfied more than one § 922(g)
classification, possessed more than one firearm, or pos-
sessed a firearm and ammunition.”); accord United States
v. Shea, 211 F.3d 658, 673 (1st Cir. 2000); United States v.
Dunford, 148 F.3d 385, 389 (4th Cir. 1998); United States
v. Johnson, 130 F.3d 1420, 1426 (10th Cir. 1997); United
States v. Munoz-Romo, 989 F.2d 757, 759-60 (5th Cir.
1993); United States v. Winchester, 916 F.2d 601, 607-08
(11th Cir. 1990). The government concedes this reading
of § 922(g) is correct, and we agree. Although the gov-
ernment is free to pursue multiple theories of violation at
trial, see Ball v. United States, 470 U.S. 856, 860 n.7
(1985), only one conviction may result under § 922(g) for
a single incident of possession, even though the defendant
may belong to more than one disqualified class.
The government nonetheless maintains Parker’s
multiplicitous punishment for the two § 922(g) convictions
may stand because he received only a concurrent sentence
and an additional $100 special assessment. We held in
McCarter that imposition of a multiplicitous concurrent
sentence and $100 special assessment “is not a serious
enough error to be described as a miscarriage of justice
and thus constitute plain error.” 406 F.3d at 464 (“There
might be some consequence down the road of having a
second conviction on one’s record, but this is specula-
tive . . . . ”); see also Baldwin, 414 F.3d at 796 (following
McCarter).
Parker argues that our precedent is both inconsistent
with Supreme Court precedent and out of step with our
sister circuits. He is correct. The Supreme Court has
12 No. 05-2798
rejected the argument that a concurrent sentence with
only a $50 assessment is too insignificant a consequence
to warrant vacating a multiplicitous conviction. See
Rutledge v. United States, 517 U.S. 292, 302 (1996) (“[T]he
collateral consequences of a second conviction make it as
presumptively impermissible to impose as it would be to
impose any other unauthorized cumulative sentence.”);
accord Shea, 211 F.3d at 673 (applying plain-error stan-
dard to require remittance of $50 assessment for
multiplicitous § 922(g) conviction); Dunford, 148 F.3d
at 390.
Although Rutledge did not specifically mention the
standard of review, the procedural posture of the defen-
dant’s multiplicity challenge makes the Court’s holding
the equivalent of plain-error review. The Court noted in
Rutledge that the only consequence of the multiplicitous
conviction in that case was a concurrent sentence and an
extra $50 special assessment, and the defendant “did not
challenge the assessment below.” Rutledge, 517 U.S. at
302. The Court went on to hold, despite the forfeiture,
that the extra special assessment was “as much a collat-
eral consequence of the [multiplicitous conviction] as the
consequences recognized by Ball would be. As a result, the
conviction amounts to cumulative punishment not autho-
rized by Congress.” Id. at 302-03. The Court’s cross-
reference to Ball is significant; there, the Court held
that a multiplicitous conviction must be vacated regard-
less of whether an increased sentence or extra assess-
ment was imposed, based on the stigma, impeachment
potential, and effect on future sentencing or parole eligi-
bility, which the Court characterized as “potential adverse
collateral consequences that may not be ignored.” See
Ball, 470 U.S. at 864-65.
Based on Ball, the Rutledge Court concluded that one of
the multiplicitous convictions must be vacated, despite
No. 05-2798 13
the lack of a multiplicity objection at sentencing, and
even though it carried only a concurrent sentence and
extra special assessment. Rutledge, 517 U.S. at 307.
Because the plain-error analysis in McCarter and Baldwin
is in conflict with the Supreme Court’s conclusions in
Rutledge and Ball, we now overrule that aspect of these
cases.
C. Ineffective Assistance of Counsel
Parker next argues his trial counsel was ineffective for
multiple reasons, the most significant of which concerns
the circumstances surrounding the Williams affidavit. To
prevail on an ineffective assistance of counsel claim, “a
defendant must prove that his attorney’s performance
fell below an objective standard of reasonableness and
that he was prejudiced as a result.” United States v. Birk,
453 F.3d 893, 898 (7th Cir. 2006). “[W]here an ineffec-
tive assistance claim may be resolved based on lack of
sufficient prejudice, ‘that course should be followed.’ ” Id.
at 898-99 (quoting Strickland v. Washington, 466 U.S. 668,
697 (1984)).
Although the district court understandably had serious
misgivings about the conduct of Parker’s counsel in
obtaining the affidavit and failing to disclose it until the
day of trial, this conduct did not prejudice Parker.
Parker’s complaint is that Williams’s affidavit was not
admitted into evidence. True, but his counsel was permit-
ted to cross-examine on its contents, and Williams testi-
fied about his reasons for retreating from at least some of
his prior statements to law enforcement. Because the
exculpatory material contained in the affidavit was
admitted through Williams’s cross-examination, Parker
was not prejudiced by the exclusion of the affidavit itself.
Parker also claims prejudice as a result of several
additional errors, namely: (1) counsel’s failure to impeach
14 No. 05-2798
a codefendant based on her plea bargain; (2) the delay
in bringing the Speedy Trial Act motion; and (3) the
failure to raise a multiplicity argument regarding his
indictment on two § 922(g) counts. As to the first of these
grounds, the record reflects that Parker’s counsel con-
ducted a full cross-examination of the codefendant in
question, and the terms of her plea bargain were specifi-
cally discussed in direct examination. As to the second, we
have held that there was no Speedy Trial Act violation, so
Parker’s argument about counsel’s eleventh-hour mo-
tion is meritless. There is no need to address counsel’s
failure to object to Parker’s indictment on two § 922(g)
counts. A defendant may be prosecuted on multiple
§ 922(g) charges, cf. Ball, 470 U.S. at 860 n.7; only multi-
ple convictions and punishment are prohibited, and we
are ordering direct relief on that aspect of the multi-
plicity claim.
D. Supervised Release
Finally, Parker challenges the district court’s imposi-
tion of two years of supervisory release. At sentencing, the
parties disputed whether United States v. Booker, 543 U.S.
220 (2005), rendered the supervised release provisions
of the Sentencing Guidelines advisory. The district court
concluded Booker did not, and thus determined supervised
release to be mandatory under U.S.S.G. § 5D1.2(a)(2).
We have since held that Booker is applicable in this
context; supervised release is discretionary absent a
separate statutory provision making it mandatory. See
Larson, 417 F.3d at 748. Because no such provision exists
regarding Parker’s offenses, see 18 U.S.C. § 924, the
court erred in concluding that imposition of supervised
release was mandatory.
“When an error relates to the validity of a defendant’s
sentence, it is harmless . . . if it did not affect the district
No. 05-2798 15
court’s choice of sentence.” See United States v. Schlifer,
403 F.3d 849, 854 (7th Cir. 2005). Recognizing that the
question of Booker’s application to supervised release was
in flux, the district court explicitly stated that “supervised
release is not only required but also is appropriate.”
Accordingly, the district court’s error was harmless.
For the foregoing reasons, we REMAND this case to the
district court with instructions to VACATE the sentence
on one of the § 922(g) convictions and merge the two
§ 922(g) counts of conviction into one. In all other re-
spects, the judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-21-07