Appeal from the Superior Court of the District of Columbia; Hon. Ricardo M. Urbina, Trial Judge
Rogers, Chief Judge. Terry and Schwelb, Associate Judges.
The opinion of the court was delivered by: Rogers
Appellant James L. Wilson appeals the denial of his motion to dismiss Count III of an indictment charging him with possession of a prohibited weapon, D.C. Code § 22-3214 (a) (1989), on the grounds that it violates the Double Jeopardy and Due Process Clauses of the Fifth Amendment in view of an implicit plea agreement not to prosecute. We find no merit to appellant's Double Jeopardy claim in view of the trial Judge's findings that the offense charged in Count III was a different offense from that to which appellant had previously pled guilty. We further hold that we lack jurisdiction to consider appellant's plea agreement contention as an interlocutory collateral order.
On February 15, 1989, appellant pleaded guilty to assault with intent to rob and possession of a dangerous weapon (sawed-off shotgun) in connection with an alleged robbery on October 23, 1988. He was sentenced to consecutive terms of forty months to ten years for assault and twenty months to five years for possession. Thereafter, on May 9, 1989, appellant was indicted for first degree murder while armed, D.C. Code §§ 22-2401, -3202 (1989), and possession of a prohibited weapon (sawed-off shotgun), id. § 22-3214 (a) (1989), on September 6, 1988. Appellant filed a pretrial motion to dismiss Count III of the indictment on the ground that it violated the Double Jeopardy clause, since the same weapon had been involved in the charges to which he had entered a plea and the government had implicitly promised at the time of his plea that it would not prosecute him further for possession of the sawed-off shotgun.
In support of his motion to dismiss, appellant maintained that on February 15, 1989, the prosecutor had proffered, in connection with the government's effort to introduce evidence of appellant's prior possession, that the government would present evidence of Lloyd Breece, who would testify that prior to September 6, 1988, he had sold the weapon to appellant, and the prosecutor had conceded that the same weapon was involved in Count III of the indictment. The government filed an opposition, not disputing appellant's claims regarding its proffer and concession, but arguing, citing Bruce v. United States, 471 A.2d 1005, 1007 (D.C. 1984), that it could prove that there were several discrete periods of time between September 6, 1988, and October 23, 1988, when appellant had relinquished possession of the gun, and therefore his possession was not continuous between the two offense dates. In his reply, appellant agreed that the trial Judge should focus on whether appellant was in continuous possession, actual or constructive, between those two dates. Following a hearing, the trial Judge found that possession had not been continuous because appellant had relinquished possession to a third party for an extended period of time, and ruled that two separate possessory offenses were therefore properly charged. The Judge also found no evidence of a promise by the government not to prosecute appellant further for possession of the sawed-off shotgun on September 6, 1988, if he pleaded guilty to its possession on October 23, 1988.
Appellant noted an appeal from the denial of his motion to dismiss, and now contends that his guilty plea to the October 23, 1988, weapons offense bars, on double jeopardy grounds, his prosecution for possession of the same weapon on September 6, 1988. He also contends that his plea agreement with the United States Attorney "implicitly" included the promise that no additional weapons charges would be brought. Finally, he maintains that the trial Judge erred in finding, on the basis of speculative evidence, that he was not in actual and constructive possession of the gun between the two offense dates. The government responds that appellant's Double Jeopardy claim is meritless and that the court lacks jurisdiction to hear appellant's pendent claim regarding violation of his plea agreement on interlocutory appeal.
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Thus, it protects a person against being prosecuted a second time for an offense of which he has previously been convicted, and thereby prevents a court from exceeding its legislative authority by imposing multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). The test most frequently employed for determining when two separately charged offenses are actually the same offense was first enunciated in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). In Blockburger, the Supreme Court held that if one transaction violates two statutory provisions, two offenses will be found to have been committed if each requires proof of a fact which the other does not. Id. at 304; see Brown, supra, 432 U.S. at 165. Even where this test is met, however, no multiple prosecutions will be allowed "where the second prosecution requires the relitigation of factual issues already resolved by the first." Id. at 166-67 n.6. As the Supreme Court has recently stated:
The Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.
Grady v. Corbin, 110 S. Ct. 2084, 2093, 109 L. Ed. 2d 548 (1990).
Determining whether a course of conduct involves one or several offenses turns on legislative intent. Id. at 2091; Brown, supra, 432 U.S. at 165 & 169 n.8; accord, Parker v. United States, 476 A.2d 173, 176 & 177 n.2 (D.C. 1984); Bruce, supra, 471 A.2d at 1007. Thus, while the prosecutor may not arbitrarily create separate offenses by dividing a continuous course of conduct into separate units of space and time and charging a different offense for each, Brown, supra, 432 U.S. at 169, it is clear that the legislature may authorize such treatment by declaring, for example, that a new offense accrues with each day a prohibited weapon or a stolen car is unlawfully possessed. See Brown, supra, 432 U.S. at 169 n.8; Parker, supra, 476 A.2d at 177 n.2.
The court held in Bruce, supra, that continuous possession of a pistol for eight hours over a two-day period was a single offense under D.C. Code § 22-3204 (1981). The court viewed the offense of carrying a weapon under D.C. Code § 22-3204 as continuous, suggesting that a new offense does not occur until the defendant either relinquishes possession of the weapon or returns to a place where he may lawfully possess it, and subsequently reasserts possession. 471 A.2d at 1007. The court rejected the government's contrary view, that the offense was not continuous, out of a concern that, in the absence of clear legislative intent, such a view could allow the imposition of widely varying punishments for similar offenses. Id.
The only difference between Bruce and the instant case is that Bruce involved a weapons offense in which a weapon could be lawfully possessed in an individual's "dwelling house or place of business or on other land possessed by him." D.C. Code § 22-3204. Thus, returning to a place where possession was lawful acted as a break in the continuity of possession in the same way that relinquishing a weapon would interrupt that continuity in the case of a weapon that could not under any circumstances be lawfully possessed. The logic of the analysis in Bruce therefore applies with equal force to D.C. Code § 22-3214 (a), which makes possession of a prohibited weapon (sawed-off shotgun) unlawful wherever it occurs. Contrary to appellant's contention, we do not view the decision in Bruce as turning on the language of the particular statute at issue in that case; the statutory exception for possession of a gun in one's home has been narrowly construed, see Logan v. United States, 402 A.2d 822 (D.C. 1979); Worthy v. United States, 420 A.2d 1216, 1218 (D.C. 1980) (ordinarily, purpose of possession is irrelevant); Brown v. United States, 66 A.2d 491, 493 (D.C. 1949) (statute barring the carrying of a pistol must be strictly construed), and the statute makes no reference to breaks in the continuity of possession. *fn1 In cases where possession at any ...