                             UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                            Submitted March 9, 2006*
                              Decided April 4, 2006

                                     Before

                   Hon. DANIEL A. MANION, Circuit Judge

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-3136

UNITED STATES OF AMERICA,                   Appeal from the United States District
         Plaintiff-Appellee,                Court for the Southern District of
                                            Indiana, Indianapolis Division
      v.
                                            No. IP 02-178-CR-01-M/F
STANLEY GILBERT,
         Defendant-Appellant.               Larry J. McKinney,
                                            Chief Judge.

                                   ORDER

       This is Stanley Gilbert’s second appeal to this court. In his first he
challenged his convictions under 18 U.S.C. § 922(g)(1) for possession of a firearm
and ammunition by a felon. We reversed those convictions and remanded for a new
trial because we determined that hearsay evidence had been wrongly admitted at
his trial. United States v. Gilbert, 391 F.3d 882, 888 (7th Cir. 2004). The
government has since obtained a superseding indictment and seeks to retry Gilbert
for possessing the same firearm on a different date. Gilbert moved to dismiss the


      *
        After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-3136                                                                   Page 2

superseding indictment on the grounds, reasserted in this interlocutory appeal, that
a trial on the new indictment would violate the Double Jeopardy Clause of the Fifth
Amendment and the “law of the case” doctrine.

        On November 20, 2002, police in Indianapolis, Indiana, responded to a report
that several shots had been fired. At the scene, police spoke with Rodney Myles,
the brother of an ex-boyfriend of Gilbert’s daughter. Myles testified at trial that
Gilbert came to his house well after midnight to talk to his brother but drove away
firing into the air when Myles said his brother was sleeping. Six days later, on
November 26, police officers and federal agents executed a warrant to search the
home of Gilbert’s wife, Sherese, who had maintained her own residence since the
couple separated in August 2002. They found Gilbert standing in the doorway to
the master bedroom unclothed. They also discovered a loaded pistol, registered to
Sherese, in the master bedroom in a pouch between the dresser and a wall. A key
located in a pink and white box containing hair clips on Sherese’s dresser unlocked
a closet where the box for the pistol and more ammunition were stored. Police
spoke with Sherese at the time of the search and tape-recorded part of their
conversation in which she stated that only she and Gilbert knew about and had
access to the gun and ammunition. She also said that the gun had been missing
from its pouch on November 20 after a visit by Gilbert and that it reappeared only
after he visited again. Additionally, forensic testing performed on shell casings
recovered from the scene of the shooting determined that those shells were fired
from the pistol recovered at Sherese’s house.

       The government initially obtained an indictment charging Gilbert with
possessing the firearm and ammunition “on or about November 26,” the date that
police searched Sherese’s house. When the case went to trial, Sherese invoked
marital privilege and refused to testify. Her silence prompted the government to
seek to admit her tape-recorded statements connecting Gilbert to the gun. The
district court admitted the statements, and a jury found Gilbert guilty.

       In his first appeal Gilbert argued, and the government conceded, that in light
of Crawford v. Washington, 541 U.S. 36 (2004), the admission of Sherese’s
statements without an opportunity for Gilbert to cross-examine her violated his
rights under the Confrontation Clause. We agreed. Gilbert, 391 F.3d at 886.
Because the government maintained that the error was harmless, we went on to
analyze whether it could be said, beyond a reasonable doubt, that the admission of
Sherese’s statements did not contribute to the guilty verdicts. Id. at 884; see
Chapman v. Cal., 386 U.S. 18, 24 (1967) (holding that constitutional errors are
harmless only where they are harmless beyond reasonable doubt); United States v.
Jones, 359 F.3d 921, 924 (7th Cir. 2004) (applying rule from Chapman). In our
analysis we noted that the indictment charged Gilbert with possessing the gun on
November 26, the date that Sherese’s home was searched, rather than the date of
No. 05-3136                                                                   Page 3

the shooting, November 20. Gilbert, 391 F.3d at 886. And we observed that the
most damaging evidence to show that Gilbert possessed the gun on that date was
Sherese’s statements. Id. Without those statements, the only evidence tending to
show that Gilbert possessed the pistol and ammunition on November 26 was his
presence in the home where the items were found, Myles’s testimony that Gilbert
shot a gun six days earlier, and ballistics evidence linking the shell casings found
outside Myles’s home to the pistol recovered at Sherese’s residence. Id. at 886-87.
Because mere presence in a room where contraband is found cannot by itself
establish constructive possession, e.g., United States v. Thomas, 321 F.3d 627, 636
(7th Cir. 2003), Myles’s testimony and the ballistics evidence was critical. Gilbert,
391 F.3d at 886-87. We emphasized that Myles’s testimony, if believed, “would
indicate that Gilbert at least in the recent past had been in possession of the
firearm and ammunition found in the residence,” but we also acknowledged that we
could not say beyond a reasonable doubt that the jury must have credited Myles or
that it would have convicted on that basis. Id. Thus, the error was not harmless.
Id. at 887.

       On remand, the government sought and obtained a superseding indictment
charging Gilbert with possessing the same firearm (though not the ammunition) but
this time changed the date of the alleged possession to November 20, 2000. Gilbert
moved to dismiss the superseding indictment and attached to his motion a copy of
an unfiled motion he maintains was given to the government during plea
negotiations that occurred after we remanded. That unfiled motion sought to
dismiss the original indictment on the ground that the government lacked sufficient
evidence to prove that Gilbert possessed the gun or ammunition on November 26.
The government, apparently under the mistaken belief that Gilbert’s proposed
motion had already been filed with the district court, submitted a response arguing
that the sufficiency issue was prematurely raised. But it was after filing the
response that the government obtained the superseding indictment, a fact that
Gilbert takes as confirmation of his position concerning the original indictment.
And as to the superseding indictment, Gilbert argued that trying him on the charge
of possessing the gun on November 20 would violate the Double Jeopardy Clause
because a defendant cannot be retried if his conviction has been reversed on appeal
for insufficient evidence. See Burks v. United States, 437 U.S. 1, 10-11 (1978);
United States v. Rogers, 387 F.3d 925, 935 (7th Cir. 2004). Gilbert argued that our
reversal “strongly suggests” that no rational jury could convict him of possession on
November 26 without his wife’s excluded statements, and that our opinion,
combined with the government’s “abandoning the charge” relating to that date,
“constitutes the functional equivalent of a reversal for insufficient evidence.” The
district court surmised that we reversed only because Sherese’s statements were
wrongly admitted and the error was harmful. Thus, the district court held that
since Gilbert obtained reversal only due to the improper admission, rather than the
insufficiency, of evidence, he would not be subject to double jeopardy by retrial.
No. 05-3136                                                                     Page 4

       Gilbert renews on appeal his contention that a trial on the charge in the
superseding indictment would subject him to double jeopardy. Although Gilbert
appeals from an interlocutory order, we have jurisdiction to hear his appeal on the
double jeopardy issue because the denial of the motion to dismiss on that ground is
immediately appealable. See Abney v. United States, 431 U.S. 651, 662 (1977);
United States v. Furlett, 974 F.2d 839, 842 (7th Cir. 1992). After reviewing the
issue de novo, as we must, see United States v. Ray, 238 F.3d 828, 835 (7th Cir.
2001), we think it clear that our prior decision reversed Gilbert’s conviction for the
introduction of inadmissible evidence, not because the evidence was insufficient.
Even Gilbert recognizes this; instead of going so far as to assert that we reversed for
insufficient evidence, he concedes that our decision concerned an evidentiary error
and says only that we “strongly suggested” that there was insufficient evidence.
What we held was that a jury could have gone either way on the evidence remaining
after the exclusion of Sherese’s statements; we never hinted that as a matter of law
the evidence could not support a conviction. That is why we remanded for a new
trial. In fact, we even noted that the jury could have found that Gilbert
constructively possessed the gun if it credited Myles’s testimony and the ballistics
evidence in combination with Gilbert’s presence at his wife’s home. Gilbert, 391
F.3d at 887. Accordingly, the Double Jeopardy Clause does not bar retrying Gilbert.
See Lockhart v. Nelson, 488 U.S. 33, 40-42 (1988) (holding that Double Jeopardy
Clause permits retrial of defendant where his conviction was reversed for evidence
erroneously admitted against him); Rogers, 387 F.3d at 935 (same). We need not
address, therefore, Gilbert’s assertion that the government charged the same
offense in its superseding indictment when it simply switched the date Gilbert
allegedly possessed the gun from November 26 to November 20, but we note the
irony in Gilbert’s argument that the indictments charge the same offense given his
insistence in his first appeal that the November 26 and 20 incidents were separate.

       That leaves Gilbert’s argument that a trial on the superseding indictment
would violate the “law of the case” doctrine. His attempt to repackage his argument
in terms of the law of the case is unpersuasive. Gilbert cites no authority for the
proposition that the law of the case bars the government from obtaining a
superseding indictment on remand. Instead, the law of the case doctrine constrains
a district court on remand to adhere to this court’s rulings on appeal. See United
States v. White, 406 F.3d 827, 831 (7th Cir. 2005). In Gilbert’s original appeal, this
court concluded that it was error to admit Sherese’s statements against Gilbert.
Thus, the law of the case doctrine would prevent the district court from admitting
Sherese’s statements at Gilbert’s new trial. Because his trial has not yet occurred,
any true law of the case argument is premature. Accordingly, it is unnecessary to
consider the various jurisdictional grounds that Gilbert suggests would allow us to
entertain his law of the case argument.
No. 05-3136                                                               Page 5

      We therefore AFFIRM the denial of Gilbert’s motion to dismiss the
superseding indictment.
