Marcus Jones v. United States ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2282
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Marcus DeAngelo Jones, *
*
Appellant. *
___________
Submitted: October 29, 2004
Filed: April 12, 2005
___________
Before WOLLMAN, MORRIS SHEPPARD ARNOLD, BENTON, Circuit Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Marcus Jones was convicted of one count of making false statements in the
acquisition of a firearm and two counts of being a felon in possession of a firearm.
The district court sentenced Mr. Jones to 327 months on each of the felon-in-
possession charges and 60 months on the charge of making false statements, with the
sentences to run concurrently, and his conviction was upheld on appeal, United States
v. Jones, 266 F.3d 804, 809 (8th Cir. 2001). After the district court denied his motion
to vacate his sentence under 28 U.S.C. § 2255, we granted him a certificate of
appealability to address the question of whether his trial attorney provided ineffective
assistance by failing to challenge the indictment as multiplicitous. We now conclude
that Mr. Jones received ineffective assistance of counsel.
An ineffective-assistance-of-counsel claim involves two components,
deficiency in counsel's performance and prejudice to the defendant. A successful
petitioner must show both that "counsel's representation fell below an objective
standard of reasonableness," and that there is a reasonable probability that, but for
this deficiency in performance, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
We ask first whether the conduct of Mr. DeAngelo's lawyer fell below an
objective standard of reasonableness when he failed to challenge the indictment as
multiplicitous. An indictment is multiplicitous when it charges a single offense in
multiple counts; such an indictment is improper because it can lead to the imposition
of multiple punishments for the same crime, violating the double jeopardy clause of
the fifth amendment. See United States v. Ansaldi, 372 F.3d 118, 124 (2d Cir.
2004), cert. denied, 125 S. Ct. 364 & 430 (2004); see United States v. Christner,
66 F.3d 922, 927 (8th Cir. 1995).
In this case, Mr. Jones was charged with one count of possessing a firearm in
August and another count of possessing the same firearm in October. Because we
believe that Congress intended the crime of possession to refer to a course of conduct
rather than individual acts of dominion, we conclude that the continuous possession
of the same firearm constitutes a single offense. See United States v. Jones, 533 F.2d
1387, 1390-92 (6th Cir. 1976), cert. denied, 431 U.S. 964 (1977); see also United
States v. Horodner, 923 F.2d 191, 193-94 (9th Cir. 1993). If, as Mr. Jones asserts,
his possession of the gun was uninterrupted, then he would have committed only one
offense, and the indictment charging him with two counts of possession would be
multiplicitous.
-2-
The government, however, argues that it proved that Mr. Jones's possession of
the firearm was not continuous and that the jury therefore properly convicted him of
two counts of possession. A felon may be charged and convicted on two counts of
possessing the same firearm if he first possesses a weapon, he is aware that his
possession is interrupted, and "he thereafter reacquires possession of the weapon
himself." United States v. Conley, 291 F.3d 464, 470-71 (7th Cir. 2002). The
government argues that the record will support a finding beyond a reasonable doubt
that Mr. Jones knowingly lost and then regained possession of the firearm while he
was stopped for a traffic violation in August of 1999. But the record, giving the
verdict the benefit of all reasonable inferences, shows that during the traffic stop
Mr. Jones informed a police officer that he kept a gun in the car. It further shows that
the officer took the gun and handed it to another officer, and the second officer then
reviewed the purchase papers for the gun, checked its status in the computer, and
returned the weapon to Mr. Jones when the computer check revealed that it was not
stolen. Jones, 266 F.3d at 809.
We do not believe that Mr. Jones's possession of the gun was interrupted
during this exchange. The possession of firearms may be actual or constructive.
"Constructive possession exists when a person has ownership, dominion, or control
over the contraband." United States v. Miscellaneous Firearms & Ammunition,
945 F.2d 239, 240 (8th Cir. 1991) (per curiam). Mr. Jones did not give his gun to the
police officer; the officer took it for the limited purpose of checking its ownership.
While this may have caused Mr. Jones to lose actual possession of the weapon, it did
not affect his constructive possession over it, because he never relinquished his
ownership, dominion, or control. Because Mr. Jones's constructive possession of the
gun was continuous and uninterrupted, it constituted a single offense, and the
indictment charging him with two counts of possession was therefore multiplicitous.
We believe that a reasonably competent lawyer would be expected to know this; we
therefore conclude that counsel's representation fell below the standard that the sixth
-3-
amendment requires when he failed to move at the end of the government's case that
one count of possession be stricken from the indictment.
Although it is true that the additional conviction that Mr. Jones received as a
result of his lawyer's performance did not increase the length of his sentence because
his sentences ran concurrently, prejudice can result from the conviction itself. The
additional conviction could increase future sentences or be used to impeach the
defendant's credibility if he testifies at a future proceeding. Ball v. United States,
470 U.S. 856, 864-65 (1985). At the very least, moreover, the $100 statutory special
assessment that Mr. Jones received for his second conviction is a collateral
consequence of his conviction that constitutes actual prejudice. Rutledge v. United
States, 517 U.S. 292, 301-03 (1996); Christner, 66 F.3d at 927.
For the reasons indicated, we remand this case with orders to vacate one of
Mr. Jones's felon-in-possession convictions and refund any associated special
assessment fees that may have been paid. The motions to expand the certificate of
appealability are denied as moot. Mr. Jones's motion to supplement, amend, and
remand is denied. Mr. Jones may seek further relief in the district court if he wishes.
______________________________
-4-