                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3819
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Southern
                                        * District of Iowa.
Gerald Lee Gammage,                     *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 9, 2009
                                Filed: August 13, 2009 (Revised August 28, 2009)
                                 ___________

Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
                           ___________

ARNOLD, Circuit Judge.

       Gerald Gammage appeals from the sentence of 180 months' imprisonment that
the district court imposed after a jury found him guilty of knowingly possessing a
firearm after having been convicted of a misdemeanor crime of domestic violence, see
18 U.S.C. § 922(g)(9). We reverse and remand for resentencing.

      Mr. Gammage maintains that the district court erred in concluding that he had
been convicted of burglary three times before his instant conviction and was therefore
an armed career criminal subject to an enhanced sentence. See 18 U.S.C. § 924(e). He
points out that at his sentencing hearing the government introduced copies of
commitment orders signed by the circuit clerk of Jones County, Mississippi, that, the
government asserted, indicated that he had twice been convicted of burglary of a
dwelling, but that the only evidence of the third burglary conviction was an indictment
for burglary of a pawn shop.

       For its part, the government contends that while it did not introduce a
commitment order for the third conviction into evidence at the sentencing hearing,
there was in fact such an order (which it has appended to its brief on appeal); and it
maintains that the district court had the order before it at a conference in chambers
before the sentencing hearing and was therefore aware of it. The government thus
requests permission to supplement the record with a copy of this commitment order.
But pursuant to Fed. R. App. P. 10(e), we directed the district court to certify to us
what occurred in the chambers conference before the sentencing hearing, and the
district court has responded that it had no record or recollection of any such
conference and no recollection of any commitment order for the alleged third
conviction. The district court's response further stated that while it routinely met with
counsel before sentencing hearings to determine what issues might arise during the
hearing, "these meetings are not on the record, no substantive discussion is involved,
no argument is offered, and no substantive decisions made." (See Appendix.) We
therefore have no occasion to allow the record to be amended, as there is no reason to
believe that the record on appeal does not adequately reflect what occurred in the
district court.

        The government also points out that Mr. Gammage did not object to the part of
the presentence investigation report that described the facts that underlay his alleged
third conviction, and argues that those facts describe conduct that qualifies as a
generic burglary and thus for the enhancement. See United States v. Reliford, 471
F.3d 913, 916-17 (8th Cir. 2006), cert. denied, 550 U.S. 938 (2007). But the infirmity
in this argument is that while Mr. Gammage did not object to the facts laid out in this
portion of the presentence investigation report, he did object to the fact of conviction
itself, thus putting the government to its proof that there indeed was one. And it is the

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proof that Mr. Gammage was convicted of this third burglary that is missing from the
record. As we have said, the government introduced only an indictment to prove up
this third offense and, as jurors are often told in the very first instruction in a criminal
case, "an indictment is simply an accusation. It is not evidence of anything." Eighth
Circuit Manual of Model Jury Instructions: Criminal § 1.01 (2009 ed.).

       We therefore conclude that the district court erred in determining that
Mr. Gammage was an armed career criminal and we remand the case for resentencing.
Because the government was clearly on notice that it was required to prove up
Mr. Gammage's convictions before he would be subject to the enhancement at issue,
we direct the district court on remand to resentence Mr. Gammage based on the record
already before it. See United States v. Poor Bear, 359 F.3d 1038, 1043-44 (8th Cir.
2004); United States v. Houston, 338 F.3d 876, 882 (8th Cir. 2003); United States v.
Hudson, 129 F.3d 994, 995 (8th Cir. 1997) (per curiam). There were no arcane legal
principles involved in this case, and the district court committed no legal error that
misled the government or deflected it from introducing its evidence. Cf. United States
v. Dunlap, 452 F.3d 747, 749-50 (8th Cir. 2006). Mr. Gammage's counsel, moreover,
not only objected generally to the insufficiency of the government's proof of the third
conviction, he even pointed out specifically that an indictment was not evidence of a
conviction. As the D.C. Circuit succinctly put it in a similar situation, we see "no
reason why [the government] should get a second bite at the apple." United States v.
Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995). We made exactly the same point this
last year in United States v. Otey, 259 Fed. Appx. 901, 902 (Jan. 11, 2008), when we
observed that because "the Government had sufficient notice of [the defendant's]
factual objection ... it should not be afforded a second opportunity to present
additional evidence on this issue."

       Rules can, and certainly do, provide for new trials on the basis of newly-
discovered evidence in some kinds of cases, but not for the government in criminal
cases. And besides, there is no newly-discovered evidence here: The government had

                                            -3-
the evidence but simply did not introduce it. Relief can also be had for certain kinds
of mistakes by defense counsel in criminal cases through post-conviction remedies,
but of course there is no similar remedy open to the government. The law, from
considerations of efficiency and fairness, does not generally favor do-overs, as various
estoppel doctrines like res judicata and double jeopardy attest. We see no apparent
reason to stray from the traditional path in the present circumstances. The
government, moreover, does not invoke any general legal principle that would
authorize us to afford it a second chance to make its case, and given the present
record, and the current state of applicable common-law and statutory arrangements,
we cannot discern one.

      The government's motion to supplement the record and the defendant's motion
to supplement the record are denied.

      Reversed and remanded.
                     ______________________________




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                                           APPENDIX

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
                                  No: 08-3819
                             United States of America,
                                         Appellee
                                         v.
                              Gerald Lee Gammage,
                                           Appellant
______________________________________________________________________________


       Appeal from U.S. District Court for the Southern District of Iowa - Des Moines
                                  (4:07-cr-00093-JEG-1)
______________________________________________________________________________


                                                ORDER
    Pursuant to F.R.A.P. Rule 10(e)(1), the court requests a certification from the district court as
to events occurring in chambers before the sentencing hearing was convened in the instant case.
In particular, the court wishes to be informed whether the district court at any time had before it
and considered a commitment order from the Circuit Court of Jones County, Mississippi,
attesting to the defendant’s conviction of a burglary offense in the circuit court’s January term of
1984. The court also wishes to be informed whether the parties’ attorneys were present at any
in camera proceeding that occurred before defendant’s sentencing hearing, whether the
defendant was present, and what argument, if any, on sentencing matters was heard at that time.
    The court requests that the district court provide a response as expeditiously as possible and
direct it to the court’s clerk, Michael Gans, Esq.

                                                    July 07, 2009




                                                -5-
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth
Circuit.
____________________________________

           /s/ Michael E. Gans A true copy.

ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

________________________________________________
                  /s/ Michael E. Gans




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