                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3773
                                   ___________

United States of America,               *
                                        *
            Plaintiff - Appellant,      *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Darrell D. Walker,                      *
                                        *
            Defendant - Appellee.       *
                                   ___________

                             Submitted: May 11, 2004
                                 Filed: August 24, 2004
                                  ___________

Before MORRIS SHEPPARD ARNOLD, McMILLIAN, and MELLOY, Circuit
      Judges.
                         ___________

MELLOY, Circuit Judge.

       This is an interlocutory appeal by the Government from a district court order
finding that a felon’s simultaneous possession of a firearm and ammunition for that
firearm comprised only one offense such that prosecution could not proceed under
two counts. Because United States v. Peterson, 867 F.2d 1110 (8th Cir. 1989),
controls, and because a panel of this court held in Peterson that the simultaneous
possession of a firearm and ammunition comprised two separate offenses under 18
U.S.C. § 922(g)(1), we reverse. The Government may prosecute under the separate
counts and need not elect, prior to trial, whether to proceed only under the firearm or
ammunition count. In so holding, we recognize arguably conflicting panel opinions,
the absence of an en banc ruling on this issue, and the fact that we stand alone as the
only federal circuit to treat the simultaneous possession of a firearm and ammunition
for that firearm as separate offenses.

                                           I.

        On January 14, 2002, officers arrested Walker, a felon, for carrying a concealed
weapon. On June 12, 2002, a federal grand jury indicted him as a felon in possession
of a firearm. On October 29, 2002, FBI agents executed a federal arrest warrant for
Walker. The agents observed a home where they believed Walker was located.
Agents saw a man who matched Walker’s description exit the home and leave in a
minivan. Other agents pulled over the minivan. Walker exited the minivan,
approached the agents and offered a false name. After agents accurately identified
Walker, they conducted a pat-down search and discovered in his right front pants
pocket a magazine loaded with three live .45-caliber rounds. In addition, they found
a holster clipped to the back of his waistband. A subsequent search of the minivan
revealed a Colt .45-caliber semi-automatic pistol with a loaded magazine under the
driver’s seat. The magazine in the pistol was identical to the magazine in Walker’s
pocket.

      In a superceding indictment, a federal grand jury charged Walker with three
separate counts for possession of firearms and ammunition by a felon in violation of
18 U.S.C. § 922(g)(1) and (e)(1). Count I related to the original indictment and the
concealed firearm Walker possessed on January 14, 2002. Count Two related to the
Colt pistol agents found in the minivan on October 29, 2002. Count Three related to
the magazine of ammunition Walker carried in his pocket on October 29, 2002.



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      Walker filed a motion to dismiss Count Three as multiplicitous. A magistrate
judge held an evidentiary hearing, at which an officer testified that two magazines are
normally included with a firearm when it is issued. The magistrate judge
recommended that the Government be required to elect between Counts Two and
Three. The district court adopted the magistrate judge’s findings of fact and law and
ordered the Government to elect between Counts Two and Three. The Government
appeals.

                                          II.

       We review de novo the district court’s finding that Counts Two and Three are
multiplicitous and the district court’s order that the Government elect between those
counts. United States v. Keeney, 241 F.3d 1040, 1042-43 (8th Cir. 2001); United
States v. Christner, 66 F.3d 922, 927 (8th Cir. 1995).

       The Government concedes that, absent evidence Walker acquired the firearm
and ammunition at different times, or possessed or stored them in different places or
at different times, all circuits other than the Eighth Circuit would find that Walker
committed only one, not two, offenses. See United States v. Verrecchia, 196 F.3d
294, 297 (1st Cir. 1999); United States v. Dunford, 148 F.3d 385, 388-90 (4th Cir.
1998); United States v. Cunningham, 145 F.3d 1385, 1398-99 (D.C. Cir. 1998);
United States v. Keen, 104 F.3d 1111, 1118-20 (9th Cir. 1996); United States v. Hall,
77 F.3d 398, 402 (11th Cir. 1996); United States v. Berry, 977 F.2d 915, 919 (5th Cir.
1992); United States v. Throneburg, 921 F.2d 654, 657 (6th Cir. 1990); United States
v. Pelusio, 725 F.2d 161, 168-69 (2d Cir. 1983); United States v. Valentine, 706 F.2d
282, 292-94 (10th Cir. 1983); United States v. Frankenberry, 696 F.2d 239, 244-45
(3d Cir. 1982); United States v. Oliver, 683 F.2d 224, 232-33 (7th Cir. 1982). These
other circuits, in general, apply the “unit of prosecution” test from Bell v. United
States, 349 U.S. 81 (1955). The unit of prosecution test looks at congressional intent



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and asks “[w]hat Congress has made the allowable unit of prosecution under a statute
which does not explicitly give the answer.” Id. at 81.

       In Bell, the Court examined the question of multiplicitous claims under the
Mann Act, 18 U.S.C. § 2421, which prohibits the interstate transportation of “any girl
or woman” for the purpose of prostitution. The defendant in Bell was charged with
the simultaneous transportation of two women. “The Court [noted] that when
Congress chooses to allow multiple prosecutions for a single transaction it has no
difficulty expressing its will [and] found the statute to be ambiguous on the allowable
unit of prosecution.” Verrecchia, 196 F.3d at 297-98 (interpreting Bell for
application to the felon-in-possession statute). The Court further stated that there is
a “presupposition of our law to resolve doubts in the enforcement of a penal code
against the imposition of a harsher punishment,” and held that the defendant’s
simultaneous transportation of two women was only one violation of the Mann Act.
Bell, 349 U.S. at 83. Subsequently, most circuits followed Bell in two important
respects, namely, the analysis of congressional intent to identify an ambiguity and the
application of a rule of lenity. See listing above.

       In fact, in United States v. Kinsley, 518 F.2d 665, 666-70 (8th Cir. 1975), a
panel of our court applied Bell to an earlier felon-in-possession statute and concluded
that the simultaneous possession of four firearms comprised only one offense. The
district court in Kinsley identified the issue as a close question but ultimately
concluded that Congress intended to effectuate the purpose of minimizing danger to
society by making each firearm a separate unit of prosecution. Id. at 666. We
reversed. We found the earlier felon-in-possession statute to be ambiguous and,
citing Bell, applied the rule of lenity to hold that the defendants’ simultaneous
possession of four firearms comprised only one offense. Id.

      Again, in United States v. Powers, 572 F.2d 146, 150 (8th Cir. 1978), a panel
of our court addressed a firearms statute. There, we found the receipt of firearms

                                         -4-
indistinguishable from the possession of firearms and, further, found the unit of
prosecution to be ambiguous under 18 U.S.C. § 922(h)(1). Powers 572 F.2d at 150.
Ultimately, we applied the rule of lenity as in Bell and found that the receipt of three
firearms on a single occasion comprised only one offense. Id.

       In Peterson, a panel of our court first addressed the issue of multiplicity under
18 U.S.C. § 922(g)(1) in the context of firearms and ammunition rather than under a
different statute or in the context of multiple firearms. We applied the “same
elements” test of Blockburger v. United States, 284 U.S. 299, 304 (1932), which held
that charged counts are not multiplicitous if each count requires proof of an element
that the other count does not require. Peterson, 867 F.2d at 1115. In Peterson,
officers seized a handgun and ammunition during the execution of a first search
warrant. Id. at 1112. Later, during the execution of a subsequent search warrant,
officers seized “several holsters and other weapons paraphernalia.” Id. The
Government charged the defendant with three counts under 18 U.S.C. § 922(g)(1).
We rejected the defendant’s multiplicity arguments and stated:

      The test for duplicative charges is whether each charge requires proof
      of an element that the other does not. Each of the firearm counts filed
      against [the defendant] required an element of proof unique to the other
      charges. Proof was required to show that [the defendant], as a convicted
      felon, unlawfully possessed ammunition during the days of each search,
      since each day was a separate offense. Similarly, the possession of a
      firearm by a convicted felon was a separate offense requiring additional
      proof.

Id. at 1115 (internal citations omitted) (second emphasis added).

      This language, though brief, makes clear that the possession of a firearm and
ammunition are separate offenses under § 922(g)(1). Walker argues that
Peterson does not control on the present facts because temporal factors not at issue


                                          -5-
in the present case justified our holding in Peterson. We disagree. Temporal issues
were relevant in Peterson, and the seizure of ammunition on two separate occasions
supported multiple ammunition charges. Id. (“Proof was required to show that [the
defendant], as a convicted felon, unlawfully possessed ammunition during the days
of each search, since each day was a separate offense.”) However, during the first
search, the officers in Peterson seized a gun and ammunition simultaneously.
Accordingly, we cannot conclude that the Peterson court based its distinction between
the gun charge and the ammunition charges on issues related to timing. Id.
(“Similarly, the possession of a firearm by a convicted felon was a separate offense
requiring additional proof.”).

       Walker also argues that Peterson does not control because Kinsley and Powers
decided the issue presently before the court and because Peterson violated the rule
that only the en banc court, and not subsequent panels, may overrule earlier panel
opinions. Kinsley and Powers, however, did not involve 18 U.S.C. § 922(g)(1), nor
did they address the specific issue of firearms counts coupled with ammunition
counts. Rather, they merely dealt with the issue of how to charge the one-time illegal
possession or receipt of multiple firearms. Peterson, unlike the other cited cases,
directly controls on the issue of firearms and ammunition under 18 U.S.C. §
922(g)(1). Although the result in Peterson differs from the position established in
other circuits, we are bound to follow Peterson unless and until our court, sitting en
banc, abolishes the distinction that now exists between permissible counts for
multiple firearms (single offenses under a Bell analysis as per Kinsley and Powers)
and firearms in combination with ammunition (multiple offenses under a Blockburger
analysis as per Peterson).

      The judgment of the district court is reversed.
                     ______________________________




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