United States v. Fr'neil Hickson , 708 F. App'x 78 ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 17-1388
__________
UNITED STATES OF AMERICA
v.
FR'NEIL HICKSON
a/k/a Philly
Fr'neil Hickson
Appellant
__________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 1-16-cr-00279-001)
District Judge: Honorable Robert B. Kugler
Submitted Under Third Circuit L.A.R. 34.1(a)
October 24, 2017
BEFORE: GREENAWAY, JR, NYGAARD,
and FISHER, Circuit Judges
(Filed: January 8, 2018)
__________
OPINION*
__________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
NYGAARD, Circuit Judge.
Fr’Neil Hickson brings this interlocutory appeal because he is convinced that the
District Court in New Jersey is violating the double-jeopardy clause by denying his
motion to dismiss charges of unlicensed dealing of firearms, conspiracy to deal said
firearms, and unlawful possession of a firearm by a convicted felon. The basis for his
claim is that he already has been prosecuted in the Northern District of Georgia of being a
felon in possession of firearms, which he links to this case. We will affirm.
Hickson relies on the principle, generally attributed to Braverman v. United States,
317 U.S. 49 (1942), that “the double jeopardy clause prohibits [the government] from
splitting one conspiracy into several prosecutions.” United States v. Becker, 892 F.2d
265, 268 (3d Cir. 1989). He contends that the government has already prosecuted him in
Georgia for a piece of the conspiracy that it now alleges in the indictment against him in
the New Jersey District Court. Therefore, he asserts, the Georgia prosecution precludes
the government’s prosecution for any of the crimes alleged in New Jersey.
To ascertain double jeopardy, we apply the well-established standard of
determining “whether each provision requires proof of a fact which the other does not.”
United States v. Xavier, 2 F.3d 1281, 1290 (3d Cir. 1993) (quoting Blockburger v.
United States, 284 U.S. 299, 304 (1932)).1 On January 7, 2016, Hickson pleaded guilty
1
Hickson contends that whether double jeopardy was violated in a conspiracy case
depends on a totality of the circumstances test to determine if charges of conspiracy
raised in different indictments significantly overlap. United States v. Liotard, 817 F.2d
1074 (3d Cir. 1987). However, the Georgia indictment charged Hickson with a
2
(in the Northern District of Georgia) to being a felon in possession of firearms in
violation of 18 U.S.C. § 922(g)(1). He was sentenced on March 24, 2016. To convict
Hickson of this crime, the government had to prove: “(1) that [Hickson] had previously
been convicted of a crime punishable by imprisonment for a term exceeding one year; (2)
that [Hickson] knowingly possessed a firearm; and (3) that the firearm had passed in
interstate commerce.” United States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000).
A federal grand jury in the District of New Jersey returned an indictment on June
15, 2016, that charged Hickson with three crimes. Count One of the indictment,
unlicensed dealing in firearms, requires the government to prove that Hickson was: (1) an
unlicensed firearm dealer, manufacturer or importer; (2) who, in the course of the
unlicensed business, was dealing, shipping, transporting or receiving firearms, and; (3)
the firearms had passed in interstate commerce. 18 U.S.C. § 922(a)(1)(A). His
prosecution in Georgia is distinct from Count One of the indictment because that charge
did not require proof of any licensure. 18 U.S.C. § 922(g)(1). Moreover, Count One of
the indictment in New Jersey does not require evidence that Hickson is a felon, which
was necessary for his Georgia prosecution.
Count Two of the indictment charges Hickson with conspiracy to deal in firearms
without a license, requiring evidence of Hickson: (1) conspiring with one or more other
persons to commit any offense or defraud the United States; (2) and one or more persons
doing “any act to effect the object of the conspiracy.” 18 U.S.C. § 371. Count Two
standalone violation of 18 U.S.C. § 922(g)(1), not a conspiracy, making Liotard
inapplicable.
3
requires evidence of an agreement with another person to carry out the crime; something
that was not necessary for his Georgia prosecution. Applying Blockburger, we can safely
conclude that Count One and Count Two charge crimes that are distinct from the crime to
which Hickson pleaded guilty in Georgia, and they do not run afoul of double jeopardy.
Since Count Three arises from the same criminal statute for which he was
prosecuted in Georgia (felon in possession charge, pursuant to Section 922(g)(1)),
Hickson highlights factual connections between the Georgia prosecution and the
conspiracy charged in New Jersey as evidence of double jeopardy. He notes that the
woman who sold the firearms to him in Georgia, Sylvia Jackson, was a confidential
informant working with the same Bureau of Alcohol, Tobacco, and Firearms (ATF)
officers who were running the investigation of the alleged firearm conspiracy in New
Jersey. These officers were behind the firearm transaction that resulted in Hickson’s
Georgia prosecution. Hickson also highlights that Sylvia Jackson is married to Joshua
Jackson. This is important, Hickson says, because Joshua Jackson is charged as
Hickson’s co-conspirator, and is alleged to have been the source for all of the guns
involved in the gun-trafficking conspiracy. All of this, from Hickson’s view, is evidence
that the transaction between himself and Sylvia Jackson was merely part of the larger
alleged conspiracy that the government is now attempting to prosecute in New Jersey.
The problem, however, is that Hickson’s purchase of the twelve firearms in Sandy
Springs, Georgia on April 29, 2014, was a separate “incident of possession” that can—for
purposes of Section 922(g)(1)—stand apart from the act of illegal possession alleged in
the indictment. United States v. Tann, 577 F.3d 533, 537 (3d Cir. 2009). The record
4
plainly shows that these were distinct acts of possession on different dates, involving
different guns, in different jurisdictions.2 These differences fatally undermine Hickson’s
assertion of double jeopardy as to Count Three of the indictment.3
For all of these reasons, we will affirm the order of the District Court.
2
The conspiracy indictment alleges Hickson possessed and distributed firearms in New
Jersey through April 2013. No one disputes that Hickson was arrested in Georgia on
April 29, 2014 for possessing guns distinct from those referenced in the indictment.
3
Hickson also complains that the government used its discretion to prosecute the offense
in Georgia to leverage a plea by Hickson to the conspiracy charge. However, such a
negotiation tactic is well within the government’s discretion and does not legitimize his
assertion of double jeopardy.
5