OpenJurist

873 F2d 253 United States v. Grinkiewicz

873 F.2d 253

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert GRINKIEWICZ, Defendant-Appellant.

No. 87-6056.

United States Court of Appeals,
Eleventh Circuit.

May 17, 1989.

Michael Tarre, Coral Gables, Fla., and Robin Greene, Greene & Greene, Miami, Fla., for defendant-appellant.

Linda Collins Hertz, AUSA, U.S. Atty., Sonia Escobio O'Donnell, and William Jung, Asst. U.S. Attys., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, Chief Judge, and VANCE, Circuit Judge, and KAUFMAN*, Senior District Judge.

PER CURIAM:

1

Defendant Robert A. Grinkiewicz appeals his conviction and sentence on eight counts of violating 18 U.S.C.A. Sec. 922(g)(1), which prohibits the possession of a firearm by one who has been previously convicted of a felony, and two counts of possessing and selling an unregistered short-barrelled shotgun, prohibited by 26 U.S.C.A. Secs. 5861(d), 5861(e). The prior conviction alleged in this case was a January 7, 1980 guilty plea to a marijuana conspiracy charge for which the state court judge ordered that adjudication of guilt be withheld pursuant to Florida Statutes Sec. 948.01(3).

2

Defendant argues that: (1) the withholding of adjudication in the state court means he was not a "convicted" felon under the federal firearms statute; (2) hearsay testimony was inadequate to prove the prior conviction; (3) the court improperly prohibited the defendant from presenting evidence his counsel had promised in opening argument; (4) the prosecutor made improper statements in closing argument; and (5) the court improperly denied a continuance.

3

We affirm as to all challenges to his convictions. We remand the case for resentencing, however, because the possession of several different firearms housed in the same building is but one violation.

4

Whether under Florida law a person is considered a convicted felon when there has been a withholding of adjudication of guilt has been settled in this Circuit by United States v. Orellanes, 809 F.2d 1526 (11th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988). Contrary to defendant's argument, that holding cannot be regarded as dictum and this panel is bound by the explicit holding there. Id. at 1528.

5

As to the inadequacy of the evidence used to prove this prior conviction, we hold there was sufficient evidence at trial for a reasonable jury to conclude that he had pleaded guilty to the prior state court offense. An agent testified to the facts surrounding his earlier arrest and on cross-examination it was revealed that Grinkiewicz admitted the prior proceeding upon his arrest in this case.

6

Grinkiewicz was not deprived of a fair trial when he could not present to the jury his defense that a withheld adjudication did not amount to a "conviction." This defense involved a pure legal question, not a factual issue which the jury must decide.

7

Comments from the prosecutor during closing that a short-barrelled shotgun was "dangerous" and that Grinkiewicz associated with a felon did not render his trial unfair.

8

Finally, it is clear from the record that Grinkiewicz had an aggressive defense and that he did not suffer because the trial court denied a continuance and the trial occurred some 34 days after his indictment.

9

Grinkiewicz must be resentenced, however. Counts III through VIII charge him with six violations of the statute stemming from the seizure of six weapons at Grinkiewicz' place of business on July 9. The "simultaneous possession of several weapons constitutes only one offense under Section [922(g) ]." United States v. Smith, 591 F.2d 1105 (5th Cir.1979).

10

The defendant failed to object to these multiplicitous counts in the indictment prior to trial as required by Fed.R.Crim.P. 12(b)(2), however, so he is barred from challenging his convictions now. United States v. Mastrangelo, 733 F.2d 793, 800 (11th Cir.1984). He may, nonetheless, challenge his separate sentences for these convictions. Id. at 800; United States v. Davis, 799 F.2d 1490, 1494 (11th Cir.1986).

11

The Government concedes that at least five of the weapons were simultaneously possessed, so that the defendant was improperly given separate sentences on those convictions. It argues, however, that one of the firearms was "stored in a different location" in the building and that this supports a separate conviction and sentence. See United States v. Hodges, 628 F.2d 350, 352 (5th Cir.1980) ("Consecutive sentencing is lawful in those cases in which the Government establishes that the defendant received the firearms at different times or stored them in different locations."). This lone firearm was seized from behind a counter in Grinkiewicz' auto parts store. The other weapons were seized at the same time from the defendant's personal office, which was separated from the counter by a wall and a distance of about 20 feet. Although the courts have not addressed the precise issue of whether multiple weapons are separately possessed when seized from different, although closely proximate, areas in the same building at the same time, the most logical extension of present case law compels the conclusion that they are not. See United States v. Smith, 591 F.2d 1105 (5th Cir.1979) (jury properly instructed that only one offense charged where four weapons were seized from three different rooms in the defendant's home); United States v. Marino, 682 F.2d 449 (3d Cir.1982) (simultaneous possession of pistol seized from bedroom nightstand and two rifles discovered in nearby closet during same search constituted single offense). Accordingly, the sentences as to Counts III through VIII are vacated and the case is remanded for resentencing.

12

AFFIRMED in part, VACATED and REMANDED in part.

*

Honorable Frank A. Kaufman, Senior U.S. District Judge for the District of Maryland, sitting by designation