Double Jeopardy Argument Not Waived by Failure to Object to Multiplicitous Convictions and Sentences

In U.S. v. Zalapa, case no. 06-50487 (9th Cir. Dec. 5, 2007), the Ninth Circuit holds that a defendant can raise a double jeopardy challenge to his multiplicitous convictions and sentences on appeal even if he fails to object to them in the district court.

Zapala was charged with two counts — possession of an unregistered machine gun and possession of an unregistered firearm with a barrel less than 16 inches long — under the same statute, 26 U.S.C. § 5861(d). Catch is, those counts were based on possession of the same gun.

Zapala did not object to the indictment, pleaded guilty to all charges without a plea agreement, and did not object to convictions or sentences when they were entered by the district court. Until his appeal, that is, when he claimed the convictions on multiple counts under the same statute for possession of the same gun constituted double jeopardy.

The court finds the convictions and sentences are multiplicitous because under § 5861(d), Congress intended each firearm to be a “unit of prosecution.” In fact, the court has previously found that Congress intended only a single offense per possessed firearm even if it violated all 12 subsections of § 5861.

The court finds that a double jeopardy challenge is not waived by failure to object to convictions and sentences. Under existing Ninth Circuit precedent, a defendant does not waive a double jeopardy challenge by failing to object to mulitplicitous charges in an indictment before pleading guilty. A motion to dismiss the multiplicitous counts prior to sentencing is enough. Further, the Supreme Court has held that a district court has no duty to resolve multiplicitous charges until the jury returns a guilty verdict on them.

The challenge is governed by “plain error” review, under which the court readily reverses because the error is obvious, affects Zapala’s substantial rights, and affects “the fairness, integrity, or public reputation of judicial proceedings.” His substantial rights are affected even though the sentences are concurrent (and thus should not affect his length of imprisonment) because conviction on multiple charges carrries other collateral consequences, including increased monetary liability (a $100 mandatory special assessment on each conviction), possible enhanced sentencing in the future under recidivism statutes, and even consequences “that [the court] cannot foretell at the time of decision.”

The court’s rationale regarding the effect on Zapala’s substantial rights mirrors those in a recent California case. The issue deserves its own blog post, which I’ll get to later.

Expansive Congressional Authorization for Government Appeals in Criminal Cases

In U.S. v. Stanton, case. no. 06-10519 (9th Cir. August 31, 2007), Stanton was convicted by a U. S. Magistrate Judge in a bench trial.  He appealed to the District Court, which reversed his conviction.

The government appealed from the District Court order.  Stanton makes a two-pronged challenge to the government’s right to appeal.

First, he contends that jurisdiction is lacking because the government may appeal only where authorized by Congress and the Criminal Appeals Act, 18 USC §3731, does not explicitly authorize the government to appeal from a district court order reversing a conviction entered by a magistrate and ordering an entry of acquittal.  Right on both counts, says the court, but immaterial.  Section 3731 is expansive, not restrictive, and essentially authorizes appeal by the government so long as it does not violate the Double Jeopardy Clause.  Since reversing the district court here would reinstate Stanton’s conviction without the need for a retrial, the Double Jeopardy Clause is not violated.
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Second, Stanton contends that Section 3731 does not authorize an appeal in his case because it only authorizes appeals from the dismissal of an indictment or information, and he was charged by way of criminal complaint.  Once again, the liberal construction of Section 3731 comes to the government’s rescue.  Section 3731 itself provides that “[t]he provisions of this section shall be liberally construed to effectuate its purposes.”  Since the Supreme Court has identified the section’s purpose as “avoiding the creation of nonconstitutional barriers to appeal,” and Stanton identifies no constitutional reason why Section 3731 should not apply in cases where the defendant is charged by criminal complaint, the distinction does not prevent appeal.