November 3, 1992
MEMORANDUM
TO: All Federal Prosecutors
FROM:Robert S. Mueller, III
Assistant Attorney General
SUBJECT: Prosecutions Under 18 U.S.C. § 922(g)
With the increase in firearms prosecutions resulting from the
implementation of Project Triggerlock, federal prosecutors have been faced
with
a variety of legal issues relating to federal firearms law. An issue that
has
arisen in prosecutions under 18 U.S.C. § 922(g) involves the propriety
of
charging and convicting a defendant under more than one subsection of the
statute. The issue is whether a defendant who falls under more than one
class of
persons disqualified from possessing firearms can be charged, convicted, and
sentenced for more than one count of unlawful possession of a single
firearm.
Title 18, United States Code, Section 922(g) makes it unlawful for
certain classes of individuals to ship, transport, possess or receive any
firearm
or ammunition with the required interstate commerce nexus. Those prohibited
classes of persons are: convicted felons (§ 922(g)(1)); fugitives from
justice (§ 922(g)(2)); unlawful users or addicts of controlled
substances
(§ 922(g)(3)); mental defectives (§ 922(g)(4)); illegal
aliens
(§
922(g)(5)); dishonorably discharged servicemen (§ 922(g)(6)); and
persons who
have renounced their U.S. citizenship (§ 922(g)(7)). The penalty
provision
for a violation of § 922(g) appears at 18 U.S.C. § 924(a)(2),
which
provides that a person who "knowingly" violates § 922(g) "shall be
fined
as
provided in this title, imprisoned not more than 10 years, or both."
In most prosecutions under 18 U.S.C. § 922(g), the defendant is
a
previously convicted felon who is in possession of a firearm. However, a
number
of cases involve weapons possession by a defendant who simultaneously
maintains
more than one disqualifying status under § 922 (g). For example, there
have
been cases in which the defendant is both a convicted felon and a fugitive
from
justice, or a convicted felon and an illegal alien. In these cases, federal
prosecutors have raised questions concerning how to charge the defendant and
whether such a defendant can be convicted and sentenced under two or more
separate subdivisions of § 922(g) for a single instance of possessing
a
firearm.
It is appropriate to charge a defendant who has multiple
disqualifying
factors with a separate count of unlawful weapons possession under §
922(g)
for each disqualifying status. For instance, a defendant in possession of a
firearm who is both a previously convicted felon and a fugitive from justice
should be charged in one count with a violation of 18 U.S.C.
§ 922(g)(1)
and
in a separate count with a violation of 18 U.S.C. § 922(g)(2). In
addition,
it is appropriate to present evidence to the factfinder regarding each
disqualifying status and to seek a verdict on each separate count.
See
Ball v. United States, 470 U.S. 856 (1985); United
States
v. Throneburg, 921 F.2d 654, 656-57 (6th Cir. 1990).
- An important strategic reason to charge separate § 922(g)
violations for different status categories is to help assure a conviction
even
if there is a failure of proof on one of the status categories. It is not
unusual in § 922(g) prosecutions for the defendant to challenge his
inclusion
in a particular status category. See, e.g., United
States
v. Dahms, 938 F.2d 131 (9th Cir. 1991) (successfully challenging
status
of convicted felon based upon state restoration of civil rights).
- However, because § 922(g) was designed to prohibit the
possession
of firearms by individuals Congress deemed dangerous, and not to punish such
persons solely for having a certain status under the law, it is the
Department's
position that a defendant should not be punished separately under two or
more
separate subdivisions of § 922(g) for a single instance of unlawful
weapons
possession. Federal prosecutors should not seek consecutive or concurrent
sentences in this situation. Rather, the United States should urge the
court to
"merge" or "combine" the multiple § 922(g) convictions based on
different
statuses into one conviction for sentencing purposes. See United
States v. Throneburg, 921 F.2d at 657 (merging separate
convictions
under § 922(g)(1) for possession of firearm and ammunition for
sentencing
purposes); United States v. Osorio Estrada, 751 F.2d 128, 135
(2d
Cir. 1984), cert. denied, 474 U.S. 830 (1985) ("combining" separate
convictions under 21 U.S.C. §§ 848 and 846); United States
v.
Fuentes, 729 F. Supp. 487, 492-93 (E.D. Va. 1989), aff'd
in
part and remanded, 917 F.2d 1302 (4th Cir. 1990),
cert.
denied, 111 S. Ct. 1397 (1991) ("merging" separate convictions under 21
U.S.C. §§ 848 and 846).
- The Solicitor General recently urged the Supreme Court to grant a
certiorari petition in a Fifth Circuit case in which a defendant was
sentenced
to concurrent terms of imprisonment for convictions under §§
922(g)(1)
and 922(g)(5). Noting that Congress did not intend to authorize multiple
punishments under the various subdivisions of § 922(g), the Solicitor
General
requested the Court to remand the case for the court of appeals to vacate
the
redundant sentences imposed under the statute. See Brief for the
United
States at 7-8 in Munoz-Romo v. United States, No. 91-1593
(June
1992).
The "merger" or "combining" of the convictions under separate
subdivisions of § 922(g) achieves several salutary effects. First, it
protects the Government's interest in safeguarding the validity of each
conviction on appeal, should the defendant challenge his inclusion in one of
the
disqualifying statuses charged in the indictment. See United
States v. Aiello, 771 F.2d 621, 634 (2d Cir. 1985) (procedure
provides
for reactivation of combined or merged conviction if appellate court
reverses
single conviction for which defendant was sentenced). Second, it assures
that
the defendant is not punished inappropriately solely for having a certain
status
under the law. See id. at 633-34 (procedure eliminates risk of
adverse collateral consequences flowing from multiple convictions);
United
States v. Winchester, 916 F.2d 601, 605-08 (11th Cir. 1990)
(ruling
that it is inappropriate to sentence a defendant with two disqualifying
statuses
to consecutive terms of imprisonment for a single instance of unlawful
weapons
possession).
Please assure that cases under 18 U.S.C. § 922(g) that are
prosecuted in your district follow the guidance described in this
memorandum.
If you have any questions concerning this guidance, please contact the
Terrorism
and Violent Crime Section of the Criminal Division, at (202) 514-0849.
[cited in USAM 9-63.514] |