Wednesday, August 30th, 2006

A Rare (but Limited) Double Jeopardy Victory

United States v. Olmeda, Docket No. 05-4331-cr (2d Cir. Aug. 29, 2006) (Cabranes, Sotomayor, Raggi): This is a fact-intensive opinion dismissing on Double Jeopardy grounds an SDNY indictment (for a § 922(g) violation) that followed upon Olmeda’s guilty plea to an earlier North Carolina indictment that also charged a § 922(g) offense. The earlier indictment (to which Olmeda pled guilty without a plea agreement) charged Olmeda with possessing ammunition “in the Eastern District of North Carolina and elsewhere” on or about June 13, 2002. At the time of that indictment, prosecutors in North Carolina were (1) aware that Olmeda simultaneously possessed ammunition in his New York area home (a search warrant was successfully executed in New York after cops found Olmeda with ammo in North Carolina); (2) not aware (and had no basis to believe) that the ammunition found in North Carolina had traveled in any other district; and (3) not aware (and had no reason to believe) that Olmeda possessed ammo anywhere other than New York and North Carolina. Op. 19. On those and other facts, the Circuit concluded that “a reasonable person familiar with the totality of facts and circumstances would construe the initial indictment [in North Carolina], at the time jeopardy attached in the first case, to cover the offense that is charged in the subsequent prosecution.” Op. 16. Thus, the later SDNY prosecution is for the “same offense” and barred by Double Jeopardy Clause.

And in the course of resolving the Double Jeopardy issue, the opinion clarifies that Olmeda could have been charged in two separate indictments for his simultaneous possession of ammunition in North Carolina and New York. Although the basic rule is that “a convicted felon who simultaneously possesses various firearms and rounds of ammunition can generally only be charged with a single violation of § 922(g), [e.g., U.S. v. Pelusio, 725 F.2d 161, 168 (2d Cir. 1983),] multiple charges may well be warranted if the evidence shows that the felon acquired possession of the firearms or ammunition on different occasions, or that he stored them at different sites.” Op.12-13. Thus, Olmeda could have been prosecuted “in each district for a separate possession violation under § 922(g), notwithstanding any temporal overlap in these possessions.” Op.13.

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