United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
F. MOORER UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b)(1) this case was referred to the
undersigned United States Magistrate Judge for review and
submission of a report with recommended findings of fact and
conclusions of law. The defendant, Stacy Lemarcus Coleman
(“Coleman” or “Defendant”) was
charged in an indictment returned on March 14, 2018. The
Indictment charges Coleman with one count of possession of a
firearm and ammunition by a convicted felon in violation of
18 U.S.C. § 922(g)(1). See Doc. 1. Pending
before this Court is the Defendant's Motion to
Dismiss and Statement of Authorities (Doc. 19) and the
Response of the United States to Defendant's Motion
to Dismiss (Doc. 19) which is (Doc. 24). The Court held
an evidentiary hearing on August 14, 2018. Based on the
evidence presented to the Court, arguments of the parties,
and for the reasons set forth herein, the Magistrate Judge
recommends that the Defendant's Motion to Dismiss and
Statement of Authorities (Doc. 19) be
parties agree that the facts of the case are essentially not
in dispute. On January 16, 2008, Coleman was convicted of
Robbery First Degree, in the Circuit Court of Montgomery,
Alabama. Robbery First Degree is a felony under the laws of
the State of Alabama and a predicate felony for purposes of
18 U.S.C. § 922(g)(1). On November 9, 2016, Coleman was
taken into custody on for speeding and somehow found to be in
possession of a pistol. Coleman was charged with possession
of a pistol by a person forbidden to possess a firearm.
Ala. Code § 13A-11-72(a). The Alabama statute
forbids any person convicted of Robbery First Degree or other
felonies from possessing a pistol. On August 22, 2017,
Coleman pled guilty to the charge and thereafter received a
20 year sentence with the conditions that Coleman serve five
years in the Department of Corrections to be followed by
three years of probation. On November 9, 2016, the Grand Jury
for the Middle District of Alabama returned an indictment
against Coleman for being a felon in possession of a firearm.
The United States concedes the facts underlying the arrest of
Coleman on November 9, 2016 are the basis for the case at
moves to dismiss the Indictment on grounds that the dual
sovereigns doctrine violates the Double Jeopardy Clause.
Coleman concedes that as the law presently stands his
argument fails under binding precedent. Abbate v. United
States, 359 U.S. 187, 189-196 (1959); Bartkus v.
Illinois, 359 U.S. 121, 138 (1959), United States v.
Lanza, 260 U.S.. 377, 382, (1922); United States v.
Bidwell, 393 F.3d 1206, 1209 (11th Cir.
2004); United States v. Hayes, 589 F.2d 811, 817-818
(5th Cir. 1979). Defense cites Gamble v.
United States, 2018 WL 3148287, (June 28, 2018) a case
the United States Supreme Court has taken on writ of
certiorari, as authority that the Court is set to reverse the
dual sovereign doctrine. While Defense may be correct that
the Supreme Court may reverse, modify or leave intact the
dual sovereign doctrine, the dual sovereign doctrine remains
in effect unless and until the Supreme Court chooses to act.
Without further action by the Supreme Court, the dual
sovereigns doctrine stands and allows the prosecution of
Coleman without offending the Double Jeopardy Clause.
it is the RECOMMENDATION of the Magistrate
Judge that the Defendant's Motion to Dismiss and
Statement of Authorities (Doc. 19) be
DENIED. It is further
ORDERED that the parties file any objections
to this Recommendation on or before August 29,
2018. Any objections filed must specifically
identify the findings in the Magistrate Judge's
Recommendation to which the party is objecting. Frivolous,
conclusive or general objections will not be considered by
the District Court. The parties are advised that this
Recommendation is not a final order of the court and,
therefore, it is not appealable.
to file written objections to the proposed findings and
recommendations in the Magistrate Judge's report shall
bar the party from a de novo determination by the
District Court of issues covered in the report and shall bar
the party from attacking on appeal factual findings in the
report accepted or adopted by the District Court except upon
grounds of plain error or manifest injustice. Nettles v.
Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein
v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.
1982); see also Bonner v. City of Prichard, 661 F.2d
1206 (11th Cir. 1981, ...