Saturday, December 10, 2005

But why does the US Justice Department have to be consistent? After withdrawing 2 prior opinions the Eighth circuit court of appeals upholds convictions for defendant's simultaneously being a felon and adrug addiction in possession of a single handgun; 2 judges giving backhanded concurrences note that eighth circuit court of appeals is the only circuit in the country not to follow the "unit of prosecution theory" when considering the federal criminal firearms lawsUnited States v Richardson superseding the Courts August opinion. Judges Ask 8th Circuit to Reconsider Its Gun Stance Multiple convictions are permitted for a single act of possession Law.comOnly the 8th U.S. Circuit Court of Appeals permits multiple convictions for a single act of illegal firearms possession, but now two appellate judges have called for the full court to reconsider its position as an outlier among the circuits. Judges Melloy and Heaney, who both sit on the 8th Circuit, also took the government to task for arguing conflicting positions from circuit to circuit on this issue.
" 8th Circuit case law relies on a 1932 case, Blockburger v. U.S., 284 U.S. 299, for the "same elements" test to permit multiple convictions, while other circuits apply a "unit of prosecution" test from Bell v. U.S., 349 U.S. 81 (1955). As for the conflicting government positions, the judges quote the U.S. solicitor general's Supreme Court brief in a 1991 5th Circuit case. It states that the structure and language of the statute, Section 922(g), show "Congress's clear intent not to impose cumulative punishments when the same incident violates two subdivisions of subsection (g)." That was in the case of a man convicted of both felon in possession of a gun and illegal alien in possession, based on a single incident. The solicitor general in that case confessed error and successfully asked the Supreme Court to remand. U.S. v. Munoz-Romo, 947 F.2d 170 (1991)."
In the August opinion, once corrected, the 8th Circuit panel intended to impose only one punishment on the defendant for possessing thefirearm while having 2 separate prohibited qualities. Judge Gruender dissented in that opinion, noting the more recent 8th circuit precedent to allow 2 charged. the November opinion does just that and the Heaney and Melloy this time give reluctant concurrences to the case with 2 crimes from one incident of possessing a firearm.

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