08-2512 & 08-2443 U.S. v. Ellis

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Criminal Procedure
Double jeopardy

Where a defendant never relinquished constructive possession of a firearm, it violated double jeopardy to convict him of two counts of being a felon in possession of a firearm.

“[I]t is undisputed that Ellis relinquished actual possession of the second gun after he acquired it from the straw purchaser in June 2005; the important question for double-jeopardy purposes is whether he relinquished constructive possession as well. As we have noted, the government has not discussed this question at all; it has not addressed, that is, whether the evidence establishes that Ellis intended either to relinquish or maintain control over the gun while OG had it. As far as we can tell, to the extent the evidence points in one direction or another, it appears to suggest that Ellis intended to maintain dominion and control over the gun. He knew exactly where it was kept and was able to get it back from OG in very short order and deprive him permanently of it.”

“In any event, we are hard-pressed to credit the opposite view of the evidence when the government has neither made nor supported an argument in favor of it. In the face of this silence, we conclude that double jeopardy precludes punishing Ellis twice under § 922(g)(9)- first in the Illinois case and then in the Indiana case-based on his possession of the same gun. His motion to dismiss Count 9 should have been granted.”
Affirmed in part, and Reversed in part.

08-2512 & 08-2443 U.S. v. Ellis

Appeals from the United States District Court for the Northern District of Illinois, Andersen, J., Sykes, J.

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