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Only 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. Judge Michael J. Melloy and Senior Judge Gerald W. 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. In the current 8th Circuit case, the government argued that multiple convictions are permitted for a single act of possession. But prosecutors have taken the opposite tack in other courts, including the U.S. Supreme Court, according to Melloy and Heaney. Call for reconsideration The appeal stems from the case of Earnest J. Richardson, who was found with a single firearm and convicted of felon in possession of a firearm and drug addict in possession of a firearm-both subcategories of 18 U.S.C. 922(g). Minneapolis police followed Richardson as he left a suspicious group of men and headed to a friend’s porch in 2002. Officers asked to talk to Richardson, but he fled. Police caught him and later found his wallet containing crack cocaine and a firearm tossed aside near the porch. The unanimous panel reluctantly upheld his conviction based on 8th Circuit precedent, but the two judges wrote a separate concurrence calling for reconsideration. “We do not believe a defendant such as Mr. Richardson, who satisfies more than one defendant characteristic subsection of section 922(g), should be subjected to multiple convictions for the possession of a single firearm,” wrote Melloy and Heaney in the unsigned concurrence. They point out that 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).

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