UNITED STATES of America, Plaintiff-Appellee, v. Donald Ray GOODINE, Defendant-Appellant, 400 F.3d 202

Affirmed and remanded by published opinion. Judge KING wrote the opinion, in which Judge LUTTIG joined. Judge TRAXLER wrote a separate opinion concurring in part and concurring in the judgment. OPINION KING, Circuit Judge. Donald Ray Goodine was tried in April 2004 in Greensboro, North Carolina, on a two-count federal indictment, resulting in a hung jury on one charge and an acquittal on the other.

Goodine has appealed the district court’s post-trial ruling that he could be retried on the charge on which the jury hung (and on which a mistrial was declared) without contravening the Double Jeopardy Clause of the Constitution. As explained below, we conclude that the indictment against Goodine was not multi-plicitous, and that there is no constitutional impediment to his second trial. We therefore affirm and remand. I. Goodine was indicted by the grand jury in the Middle District of North Carolina on December 16, 2003, for two offenses.

First, he was charged with being a felon in possession of a firearm, a .32 caliber pistol, in contravention of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (the “Gun Count”). Second, he was charged with being a felon in possession of ammunition, a single .32 caliber bullet, in violation of those same statutory provisions (the “Bullet Count”). Goodine was tried on April 12 and 13, 2004.

The prosecution presented hotly contested evidence that, just before midnight on August 11, 2003, Goodine and his girlfriend, Tammy Miller, became involved in an argument, which escalated into a violent confrontation, in his second-floor apartment in a rooming house in Winston-Salem. Prosecution witness Wanda Brown, another rooming house resident who described herself as a friend of Miller, testified that late on August 11, she was drinking beer with Miller in the kitchen Goodine shared with other residents of his apartment (“Apartment C”) when, around 11:00 p.m., Goodine returned home and appeared to be angry.

Brown then returned to the living room of her own apartment, which was also on the second floor and near Goodine’s bedroom. Julius Petree, describing himself as á resident of Apartment C whose bedroom was next to Goodine’s, also testified for the prosecution. According to Petree, he saw Miller and Goodine “throwing stuff, hitting each other,” during the argument, which apparently then continued in Goodine’s bedroom. Petree testified that, along with his girlfriend and her friend, he went into his own bedroom and closed the door.

In Petree’s version of events, Goodine then knocked on Petree’s bedroom door, telling him to “bring your butt out here,” and yelling, “you think you bad” and to stop “getting in my business.” When Petree opened the bedroom door, Goodine pointed a pistol in his face. Petree slammed the door, and he and the two women then laid down on the floor, fearful that Goodine might shoot through the door. Once Goo-dine was back inside his own room, Petree heard Miller shouting: “Point the gun at me . Shoot me with it if you want to shoot somebody.” A few minutes later, Petree heard a gunshot.

Brown also heard the arguing and the gunshot, and called the police. She testified that after she heard the gunshot, she saw Goodine leave the rooming house with a pistol and go downstairs and outside. Brown, who was already outside the rooming house, then witnessed Goodine “bend over as if he was going to place the gun in a [nearby] station wagon.” Instead, however, Goodine stopped and returned upstairs with the pistol in his hand — according to Brown, possibly because he knew she was watching.

Brown appears to have followed him upstairs, where, watching through a glass storm door, she saw him place the firearm in a trash can. The first Winston-Salem police officer to arrive on the scene of the events, Officer Mendez, saw Petree (who was apparently downstairs) at the back stairs of the rooming house. Mendez questioned Petree about the gunshot incident, and Petree gave him permission to enter the rooming house. Mendez then went upstairs with Officer Miller, who had just arrived. Mendez testified that, once upstairs, he saw Goodine at the kitchen sink washing his hands.

He frisked Goodine for weapons, found none, and gained consent to search the area. Officer Miller then discovered a Davis Industries .32 caliber pistol, containing one fired ammunition casing, in the trash can next to the kitchen sink where Goodine had been standing. Winston-Salem Police Officer Oliver then arrived on the scene, and he placed Goodine under arrest. By all accounts, Goodine was cooperative with the officers while Miller, his girlfriend, was uncooperative. Oliver then searched Goodine twice, first at the rooming house when he was arrested, and later at,-the Forsyth County Detention Center (“the.

Jail”) after transporting him there. The Jail search uncovered an unfired .32 caliber bullet, which “was no thicker than perhaps a wad of chewing gum,” in the change pocket of Goodine’s blue jean shorts. At trial, Goodine testified extensively in his own defense. He insisted that the prosecution’s evidence was entirely false— that he had attempted to end his relationship with Miller, and that, knowing he could not lawfully possess a firearm, she and her friends had retaliated by fabricating thé entire incident underlying his prosecution.

He denied possessing or shooting the pistol, maintained that there had been no argument with Miller and no gunshot, stated that he had no knowledge of the bullet found in his pants .pocket, and asserted that. Miller had herself laid them out for him to wear. He portrayed his relationship with Miller as on-again, off-again, and he asserted that their recurring breakups were caused by her relapses into drug abuse. He contended that Miller had a history of reacting violently to romantic breakups.

Specifically, he testified that after his previous attempts to end their relationship, she had stabbed him in 2000 and hit him with a glass ashtray in 2001. He then introduced medical records to support these allegations, which were not disputed by the prosecution. On April 13, 2004, the court submitted the case to the jury. After several hours of deliberations, the jury advised the court that it was unable to reach a verdict on one charge, but that it had agreed to a verdict on the other charge. The prosecution moved for a mistrial, to 'which Goodine objected.

The defense then requested the court to instead accept a partial jury verdict, and the prosecution agreed. The district court acceded to the defense request, and the jury soon returned into court with an acquittal of Goodine' bn the Bullet Count. The court eventually declared a mistrial on the Gun Count, because the jury was yet unable to agree to a verdict on that charge. In the courtroom proceedings surrounding these events, the court observed that, if the .prosecution sought to retry Goodine on the Gun Count, the case presented a difficult double jeopardy issue.

It-directed the prosecutor to advise the court within a reasonable time whether a second trial would be pursued. The court then remanded Goodine to custody pending further proceedings. On April 19, 2004, Goodine moved to dismiss the Gun Count on double jeopardy grounds, and the prosecution objected. The district court denied Goodine’s motion on April 23, 2004, and scheduled the Gun Count for retrial. On April 30, 2004, Goo-dine filed a Notice of Interlocutory Appeal in the district court.

On May 7, 2004, the court conducted a status conference and orally opined that an appeal by Goodine on the double jeopardy issue was neither frivolous nor interlocutory. II. We possess jurisdiction over Goodine’s appeal under the “collateral order doctrine.” He contends that the district court’s refusal to dismiss the Gun Count contravened his rights under the Double Jeopardy Clause of the Fifth Amendment. That ruling constitutes a “final decision” under 28 U.S.C. § 1291, rather than an interlocutory order, and it falls squarely within the “collateral order” exception to the finality rule enunciated in Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (holding that denial of motion to dismiss on double jeopardy grounds is final order under § 1291); United States v. Ruhbayan, 325 F.3d 197, 201 & n. 2 (4th Cir.2003) (same). We review de novo whether a defendant will be subjected to double jeopardy by his retrial on a criminal charge. United States v. Holbrook, 368 F.3d 415, 424 (4th Cir.2004). III.

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.” U.S. Const. amend. V. As we observed in United States v.

Ragins, there are two components to this constitutional guarantee: “[t]he first provides protections against the imposition of cumulative punishments for the same offense in a single criminal trial; the second against being subjected to successive prosecutions for the same offense, without regard to the actual imposition of punishment.” 840 F.2d 1184, 1187 (4th Cir.1988) (internal quotation marks omitted). Importantly, it is well-settled that the Double Jeopardy Clause does not preclude a retrial of a criminal charge that has resulted in a hung jury. Richardson v.

United States, 468 U.S. 317, 323, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). As a result, the hung jury on the Gun Count against Goodine does not, in and of itself, bar his retrial on that charge. Goodine maintains, however, that his acquittal by the -jury on the Bullet Count bars his retrial on the Gun Count. He contends, relying on our decision in United States v. Dunford, 148 F.3d 385 (4th Cir.1998), that the indictment against him was multiplicitous, that the Bullet Count and the Gun Count were in reality the same “offense,” and that his acquittal on either charge would serve necessarily as his acquittal on both.

In the alternative, he contends that his acquittal on the Bullet Count resolved in his favor a critical factual issue underlying the Gun Count, such that the doctrine of criminal collateral es-toppel precludes his retrial on that charge. We assess these alternative contentions in turn. A. Goodine first contends. that, in these circumstances, illegal firearm possession and illegal ammunition possession were actually two factual predicates for a single criminal offense, which the indictment defectively split into two charges.

He therefore asserts that his retrial on the Gun Count would place him twice in jeopardy for the same offense, in violation of the Double Jeopardy Clause of the Fifth Amendment. His starting assumption is that the indictment against him is “multiplicitous,” meaning that a single offense was charged in multiple — here, two— counts. See United States v. Burns, 990 F.2d 1426, 1438 (4th Cir.1993) (describing multiplicitous indictment). As we have observed, the “signal danger” of a multiplici-tous indictment is that a defendant might thereby receive multiple punishments for the same crime.

Id.; see also United States v. Colton, 231 F.3d 890, 910 (4th Cir.2000).

In assessing whether Goodine’s retrial is barred by the prohibition against double jeopardy, we must first decide whether the indictment against Goodine was indeed multiplicitous — in other words, whether the Gun Count and the Bullet Count each charged the “same offense.” Inquiries concerning whether two charges are actually the “same offense” normally involve the inverse of the situation here — that is, they involve an indictment which has charged multiple statutory offenses premised on the same conduct, and require us to look to whether each charged offense requires proof of some fact that the other does not require.

See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In such a situation, the Supreme Court has held that a defendant may be prosecuted a second time for a different statutory offense even if that offense involves proof of the “same conduct” presented in the first trial; though, if the defendant was acquitted in the first trial, collateral estoppel may apply against the government. See United States v. Dixon, 509 U.S. 688, 711-12, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).

Similarly, the Court has “consistently rejected” the notion that all crimes arising out of the “same transaction” must be prosecuted in a single proceeding. Id. at 709 n. 14, 113 S.Ct. 2849; United States v. Williams, 155 F.3d 418, 420-21 (4th Cir.1998). In contrast, the situation here' — whether Goodine can be reprosecuted for the same statutory violation based on different (albeit somewhat related) conduct — is simple in the abstract.

It is well-settled that a defendant may be charged and prosecuted for the same statutory offense multiple times when each prosecution is based on discreet acts that each constitute a crime. For instance, in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court addressed the situation of a defendant who had robbed multiple victims in a single incident. After a jury returned an acquittal on a charge as to one victim, the prosecution sought to retry the defendant for the same crime, but as committed against another victim of the same robbery. Id. at 439-40, 90 S.Ct. 1189.

The Supreme Court treated the acts against different victims as separate crimes, but held that the doctrine of collateral estoppel applied to the second prosecution. Id. at 444-46, 90 S.Ct. 1189 (determining that first jury had necessarily decided that defendant was not culprit). See also United States v. Walsh, 194 F.3d 37, 46 (2d Cir.1999) (determining that indictment alleging same criminal offense based on two different instances of same act, occurring in “different, but overlapping time frames” was not multiplicitous); United States v.

Swaim, 757 F.2d 1530, 1536-37 (5th Cir.1985) (concluding that counts of indictment charging violation of same statute based on “different evidence” were not multiplicitous). The difficulty here, however, comes from the application of our ruling in Dunford to this case. In Dunford, we concluded that the defendant’s simultaneous possession of six firearms and ammunition was in actuality a single “offense,” and thus could result in only one § 922(

g) conviction and sentence. 148 F.3d at 390. Because Dunford had been indicted, convicted, and sentenced separately for possession of each of the six firearms, plus the ammunition, as seven separate § 922(g)(1) violations, we vacated his several sentences and remanded for the. imposition of a single sentence. Id. According to Goodine, Dunford requires that the Gun Count and the Bullet Count be deemed a single offense, and it compels the conclusion that the indictment against Goodine is multiplicitous. The prosecution concedes that Dunford may apply, but it contends that Dunford only bars multiple convictions for § 922(

g) offenses, not a retrial where an acquittal has eliminated the danger of multiple punishments. We, however, decline to extend Dunford to the facts of this case. The key to the Dunford decision was the fact that the multiple firearms involved in that prosecution were “seized at the same time.” 148 F.3d at 390. In Dunford, we applied our decision in United States v.

Mullins, 698 F.2d 686 (4th Cir.1983), and concluded that, under the predecessor statute to § 922(g) (18 U.S.C. § 1202(a)), a defendant’s possession of multiple firearms at different times constituted separate offenses, but noted the “general rule” that a felon who “acquires two or more firearms in one transaction and stores and possesses them together ... commits only one offense.” Dunford, 148 F.3d at 390 (quoting Mullins, 698 F.2d at 687).

Unlike the situation addressed in Dun-ford, the pistol and the bullet underlying this indictment were seized at different times and in different locations — the gun being seized in Goodine’s kitchen trash can, and the bullet being seized later at the Jail. The evidence supporting the two incidents is likewise different.

The prosecution sought to prove the Gun Count by direct evidence — two separate witnesses had seen Goodine use and possess the pistol and had heard it fired — while the only evidence supporting his knowing possession of the bullet was circumstantial, and his own testimony maintaining that Miller had placed it in his pocket was uncontradicted. The district court recognized this distinction at trial when the double jeopardy issue arose.

It astutely advised the parties that, ordinarily, when the question of double jeopardy is raised, “you’ve got a situation where the facts are identical,” but in Goodine’s case, “we both know that the facts are somewhat different, he could be convicted of one or both, or acquitted of one or both,” such that “this [case] may be different.” In this situation, critical aspects of the Gun and Bullet Counts are different: a successful § 922(

g) prosecution on the Gun Count requires proof that Goodine knowingly possessed the pistol, while his successful prosecution on the Bullet Count would require proof that he knowingly possessed the bullet found in his pants pocket at the Jail (a contention the jury has rejected). In these circumstances, it cannot be said that the two temporally distinct possessions actually constituted the “same offense.” As a result, we decline to extend Dunford to these circumstances, where the government seeks to retry Goodine on a § 922(

g) offense after his acquittal on a factually distinct charge under that same statute. There is thus no double jeopardy problem with a retrial of Goodine on the Gun Count. B. Goodine’s second contention is that the doctrine of criminal collateral estoppel bars his retrial on the Gun Count. First of all, we recognize that, in assessing such a contention, the concept of collateral estoppel is a constitutionally based doctrine falling within the scope of the Double Jeopardy Clause. See Ashe, 397 U.S. at 445-46, 90 S.Ct. 1189.

It precludes an ultimate factual issue that was necessarily decided in a defendant’s favor in an earlier criminal proceeding from being relitigated against the same defendant. Id. at 443-44, 90 S.Ct. 1189. In our decision in United States v.

Fiel, Judge Ervin carefully identified and explained the relevant factors for a proper analysis of a criminal collateral estoppel claim (the “Fiel test”): (1) whether the issue in question is identical to the issue adjudicated in a prior proceeding; (2) whether the issue was actually determined in the prior adjudication; (3) whether the issue was necessarily decided in that proceeding; (4) whether the resulting judgment settling the issue was final and valid; and (5) whether the parties had a full and fair opportunity to litigate the issue in the prior proceeding. 35 F.3d 997, 1006 (4th Cir.1994).

In order for his retrial on the Gun Count to be barred under the Fiel test, each of these factors must have been resolved earlier in Goodine’s favor. United States v. Ruhbayan, 325 F.3d 197, 202 (4th Cir.2003). Unfortunately for Goodine, his collateral estoppel claim does not survive our application of Fiel. First, under prong one of Fiel, the items possessed — ammunition and a firearm — are different, creating nonidentical issues in the prior and successive prosecutions.

Under prongs two and three, whether Goodine possessed the firearm was not actually or necessarily determined by the jury in its acquittal on the Bullet Count: the prosecution of the Bullet Count relied on distinctly different evidence from that supporting the Gun Count, and Goodine maintained both that he lacked knowledge of the ammunition and that the ammunition was not proven to have travelled in interstate commerce. In those circumstances, a rational jury could have acquitted Goodine on the Bullet Count by resolving factual issues entirely unrelated to the charge contained in the Gun Count.

The retrial of Goodine on the Gun Count is thus not barred by the doctrine of collateral estoppel, and his contention on this point is also rejected. IV. Pursuant to the foregoing, the ruling of the district court is affirmed and this case is remanded for such other and further proceedings as may be appropriate. AFFIRMED AND REMANDED .

Section 922(g)(1) of Title 18 renders it unlawful for any person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to "possess in or affecting commerce, any firearm or ammunition which has been shipped or transported in interstate ... commerce.”

Section 924(a)(2) is the penalty provision for § 922(g), and provides that whoever knowingly violates § 922(g)(1) shall be fined or imprisoned, or both. . More specifically, Count One of the indictment charged that Goodine "knowingly did possess in commerce and affecting commerce a firearm, that is, a Davis Industries .32 caliber pistol, model D-32, serial number 337193.” Count Two alleged that Goodine "knowingly did possess in commerce and affecting commerce ammunition, that is, WW S & W .32 caliber ammunition.” .

From the record, it appears that the rooming house consisted of several apartments, spread out over at least two floors. There were two apartments on Goodine's second floor. Multiple persons resided in each apartment, which had locked private bedrooms and shared common areas, including a bathroom and kitchen. .Goodine testified that he had never seen Petree before the trial, and denied that Petree lived next to him in the rooming house.

Goo-dine said that he worked two jobs, rarely saw his neighbors, and knew only that "two girls” lived in the room next door, and a man named Richard Burns also shared the apartment. Petree testified that he was Goodine's neighbor, and that he was in the rooming house with his girlfriend and her friend at the time of the shooting. Petree, with the help of Brown, who assisted in the rooming house operations, procured .papers purporting to establish him as a resident of the rooming house on the date in question. Those papers were presented as evidence during Petree’s re-direct examination. .

Miller was subpoenaed by the government but did not appear for trial at the scheduled time. The court reserved additional time for her testimony the following morning, but Miller again failed to appear, and the court decided that the trial would proceed without her testimony. . Various courts, including this one, have spelled multiplicity in its adjective form as "multiplicious” and "multiplicitous.” "Mul-tiplicitous” is apparently the preferred spelling of the term, and "multiplicious” may be considered obsolete. Bryan A. Garner, A Modem Dictionary of Legal Usage 576-77 (2d ed.1995). .

When we have had occasion to address mul-tiplicitous indictment issues in other contexts, they have invariably related to scenarios where the defendant has been convicted of one or more counts that are actually a single offense charged multiple times. See, e.g., United States v. Shorter, 328 F.3d 167, 173 (4th Cir.2003) (addressing, multiple firearm possession convictions); United States v.

Bennafield, 287 F.3d 320, 323-24 (4th Cir.2002) (addressing -multiple controlled substance convictions); Colton, 231 F.3d at 910 (addressing "integrally related” fraud offenses); Dunford, 148 F.3d at 390 (addressing multiple firearm possession convictions). In each of these situations, we remedied the multiplicity concerns by directing that the defendant be sentenced on only one of the multiple convictions.

See Shorter, 328 F.3d at 173 (affirming merger of convictions); Bennafield, 287 F.3d at 325 (vacating excess conviction); Colton, 231 F.3d at 911 (vacating excess convictions); Dunford, 148 F.3d at 390 (vacating excess convictions). The circumstances relating to Goodine's case, where the government seeks to retry Goodine after his partial acquittal on what he contends to be a multiplicitous indictment, present a different issue. .

Though the allegation of Count Two was arguably broader than a reference to the bullet seized at the Jail, see supra note 2, the prosecution at trial relied solely on Goodine's alleged possession of that bullet in its effort to prove that Count. The prosecution did not— significantly for double jeopardy purposes— rely on unfired ammunition contained in the pistol.