United States v. Gene Szalkiewicz, 944 F.2d 653 (9th Cir. 1991). · Go Syfert
United States v. Gene Szalkiewicz, 944 F.2d 653 (9th Cir. 1991). Cases Citing This Book View Copy Cite
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cited 5× by 4 distinct cases, last quoted 2007 · …stored or acquired at different times and places. at p. 653 Topic ↗
33 citation events (21 in the last 25 years) across 11 distinct courts.
Strongest positive: Stanley McGlasten a/k/a Stanley McGlaston a/k/a Catman v. State of Mississippi (miss, 2021-11-04)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) Stanley McGlasten a/k/a Stanley McGlaston a/k/a Catman v. State of Mississippi
Miss. · 2021 · confidence medium
Cir. 1998); United States v. Hutching, 75 F.3d 1453, 1460 (10th Cir. 1996); United States v. Berry, 977 F.2d 915, 920 (5th Cir. 1992); United States v. Szalkiewicz, 944 F.2d 653, 654 (9th Cir. 1991); United States v. Grinkiewicz, 873 F.2d 253, 255 (11th Cir. 1989), abrogated on other grounds by United States v. Clarke, 822 F.3d 1213, 1215 (11th Cir. 2016); United States v. Pelusio, 725 F.2d 161, 169 (2d Cir. 1983)). ¶18.
cited Cited as authority (rule) United States v. Robert Stanard
9th Cir. · 2021 · confidence medium
See Keen, 104 F.3d at 1118 n.11; United States v. Szalkiewicz, 944 F.2d 653, 653 (9th Cir. 1991); United States v. Gann, 732 F.2d 714, 717, 721 (9th Cir. 1984).
discussed Cited as authority (rule) United States v. Noe Lugo
9th Cir. · 2019 · confidence medium
United States v. Szalkiewicz, 944 F.2d 653, 653 (9th Cir. 1991) (per curiam) (“This court has held that only one offense is charged for 2 Relying on United States v. Garcia, 37 F.3d 1359 (9th Cir. 1994), Defendant argues that we should review his instructional error challenge de novo because it relates to Defendant’s sentencing.
discussed Cited as authority (rule) Armstrong Knight v. State of Mississippi
Miss. Ct. App. · 2016 · confidence medium
United States v. Kennedy, 682 F.3d 244, 255 (3d Cir.2012); United States v. Richardson, 439 F.3d 421, 422 (8th Cir.2006); United States v. Buchmeier, 255 F.3d 415, 422 (7th Cir.2001); United States v. Adams, 214 F.3d 724, 728 (6th Cir.2000); United States v. Ver-recchia, 196 F.3d 294, 298 (1st Cir.1999); United States v. Dunford, 148 F.3d 385, 390 (4th Cir.1998); United States v. Cunningham, 145 F.3d 1385, 1398 (D.C.Cir.1998); United States v. Hutching, 75 F.3d 1453, 1460 (10th Cir.1996); United States v. Berry, 977 F.2d 915, 920 (5th Cir.1992); United States v. Szalkiewicz, 944 F.2d 653, 654 …
discussed Cited as authority (rule) United States v. Ankeny
9th Cir. · 2007 · confidence medium
UNITED STATES v. ANKENY 11479 [9] In United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir. 1991) (per curiam), we held that, regardless of the number of firearms involved, there is only one offense of being a felon in possession unless there is a showing that the firearms were “stored or acquired at different times and places.” Further, the separateness of acquisition or possession must be found by a jury (or, presumably, admitted by the defendant).
discussed Cited as authority (rule) United States v. Ankeny (2×)
9th Cir. · 2007 · confidence medium
In United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir.1991) (per curiam), we held that, regardless of the number of firearms involved, there is only one offense of being a felon in possession unless there is a showing that the firearms were "stored or acquired at different times and places." Further, the separateness of acquisition or possession must be found by a jury (or, presumably, admitted by the defendant).
discussed Cited as authority (rule) United States v. Kelly David Ankeny, Sr.
9th Cir. · 2007 · confidence medium
Under either standard, we agree with Defendant. 32 In United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir.1991) (per curiam), we held that, regardless of the number of firearms involved, there is only one offense of being a felon in possession unless there is a showing that the firearms were "stored or acquired at different times and places." Further, the separateness of acquisition or possession must be found by a jury (or, presumably, admitted by the defendant).
discussed Cited as authority (rule) United States v. Ankeny
9th Cir. · 2007 · confidence medium
Under either standard, we agree with Defendant. [9] In United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir. 1991) (per curiam), we held that, regardless of the number of firearms involved, there is only one offense of being a felon in possession unless there is a showing that the firearms were “stored or acquired at different times and places.” Further, the separateness of acquisition or possession must be found by a jury (or, presumably, admitted by the defendant).
discussed Cited as authority (rule) United States v. Jefferson
M.D. Ala. · 2004 · confidence medium
While the simultaneous possession of multiple, undifferentiated firearms, all possessed in the same place, cannot be the basis of separate gun convictions, United States v. Blakeney, 753 F.2d 152 (D.C.Cir.1985) (weapons found in the same place at the same time constituted only one offense); United States v. Grinkiewicz, 873 F.2d 253 (11th Cir.1989) (same); United States v. Szalkiewicz, 944 F.2d 653, 654 (9th Cir.1991) (vacating multiple 18 U.S.C.A. § 922 (g) convictions where “the jury made no finding of fact as to separate acquisition or possession .... ”), firearms simultaneously posses…
discussed Cited as authority (rule) United States v. Buchmeier, Shane
7th Cir. · 2001 · confidence medium
See McFarland, 469 F.2d at 1278 ; Oliver, 683 F.2d at 232-33 ; see also United States v. Verrecchia, 196 F.3d 294, 298 (1st Cir. 1999) ("[T]he simultaneous possession by a felon of multiple firearms, that is, possession of multiple firearms in one place at one time, is only one violation of sec. 922(g)(1)."); accord United States v. Pelusio, 725 F.2d 161, 168-69 (2d Cir. 1983) (construing sec. 922(g)(1)’s predecessor sec. 922(h)); United States v. Frankenberry, 696 F.2d 239, 244-45 (3d Cir. 1982) (construing sec. 922(h)); United States v. Dunford, 148 F.3d 385, 390 (4th Cir. 1998); United St…
discussed Cited as authority (rule) United States v. Shane Buchmeier
7th Cir. · 2001 · confidence medium
See McFarland, 469 F.2d at 1278 ; Oliver, 683 F.2d at 232-33 ; see also United States v. Verrecchia, 196 F.3d 294, 298 (1st Cir. 1999) (“[T]he simultaneous possession by a felon of multiple firearms, that is, possession of multiple firearms in one place at one time, is only one violation of § 922(g)(1).”); accord United States v. Pelusio, 725 F.2d 161, 168-69 (2d Cir.1983) (construing § 922(g)(1)’s predecessor § 922(h)); United States v. Frankenberry, 696 F.2d 239, 244-45 (3d Cir.1982) (construing § 922(h)); United States v. Dunford, 148 F.3d 385, 390 (4th Cir.1998); United States v.…
discussed Cited as authority (rule) United States v. Jeffrey Lynn Franklin
9th Cir. · 2000 · confidence medium
The district court vacated the convictions for all but two counts of the indictment because the indictment and jury instructions conflicted with Ninth Circuit law providing that “[o]nly one offense is charged for possession of firearms by a felon, regardless of the number of firearms involved, absent a showing that the firearms were stored or acquired at different times and places.” United States v. Szalkiewicz, 944 F.2d 653, 653 (9th Cir.1991).
discussed Cited as authority (rule) United States v. James Staples
9th Cir. · 1996 · signal: cf. · confidence medium
Cf. United States v. Szalkiewicz, 944 F.2d 653, 654 (9th Cir.1991) (per curiam) (absent specific jury finding of separate acts of unlawful possession of firearms, defendant's multiple convictions had to be vacated); United States v. Ravel, 930 F.2d 721, 724 (9th Cir.) (vacating convictions on multiplicitous counts because "crime of possession of stolen goods cannot be fragmented ... on the basis of ... when the defendant disposes of a portion"), cert. denied, 502 U.S. 911 (1991).
discussed Cited as authority (rule) United States v. Sherrill Gary Brinkley
4th Cir. · 1995 · confidence medium
United States v. Tellez, 11 F.3d 530, 534 (5th Cir.1993), cert. denied, 62 U.S.L.W. 3705 (U.S.1994); United States v. Berry, 977 F.2d 915, 920 (5th Cir.1992) (citing Ball v. United States, 470 U.S. 856, 865 (1985)); United States v. Szalkiewicz, 944 F.2d 653, 654 (9th Cir.1991); see also United States v. Mullins, 698 F.2d 686, 688 (4th Cir.) (construing 18 U.S.C.
cited Cited as authority (rule) United States v. Ralph Baze
6th Cir. · 1994 · confidence medium
United States v. Szalkiewicz, 944 F.2d 653, 654 (9th Cir.1991).
cited Cited "see" State v. Gutierrez
Ariz. Ct. App. · 2016 · signal: see · confidence high
See United States v. Szalkiewicz, 944 F.2d 653 (9th Cir. 1991); United States v. Valentine, 706 F.2d 282 (10th Cir. 1983).
cited Cited "see" United States v. Juan Perez
9th Cir. · 2016 · signal: see · confidence high
See United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir. 1991) (per curiam); see also United States v. Ankeny, 502 F.3d 829, 838 (9th Cir. 2007).
discussed Cited "see" United States v. McDowell
9th Cir. · 2006 · signal: see · confidence high
See United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir.1991) (per curiam); United States v. Wiga, 662 F.2d 1325, 1336 (9th Cir.1981). 2 The second conviction affects substantial rights because it has collateral consequences, including an increased sentence under a recidivist statute for a future offense.
discussed Cited "see" United States v. Clark, Andre P.
D.C. Cir. · 1999 · signal: accord · confidence high
Accord United States v. Szalkiewicz, 944 F.2d 653, 654 (9th Cir.1991); United States v. Valentine, 706 F.2d 282, 294 (10th Cir.1983); United States v. Frankenberry, 696 F.2d 239, 244 (3d Cir.1982); United States v. Powers, 572 F.2d 146, 150 (8th Cir.1978). 6 .
discussed Cited "see" United States v. Harold Cunningham and Percy Barron
D.C. Cir. · 1998 · signal: see · confidence high
See United States v. Szalkiewicz, 944 F.2d 653, 654 (9th Cir.1991) (citing United States v. Valentine, 706 F.2d 282, 294 (10th Cir.1983) and United States v. Frankenberry, 696 F.2d 239, 245 (3d Cir.1982)).
discussed Cited "see" United States v. Cunningham, Harold
D.C. Cir. · 1998 · signal: see · confidence high
See United States v. Szalkiewicz, 944 F.2d 653, 654 (9th Cir. 1991) (citing United States v. Valentine, 706 F.2d 282, 294 (10th Cir. 1983) and United States v. Frankenberry, 696 F.2d 239, 245 (3d Cir. 1982)).
discussed Cited "see" United States v. Orlando Tom (2×)
9th Cir. · 1992 · signal: see · confidence high
See United States v. Szalkiewicz, 944 F.2d 653, 654 (9th Cir.1991) (per curiam) (overturning multiplicitious convictions "because the jury made no finding of fact as to separate acquisition or possession," despite uncontroverted evidence showing separate delivery of the two firearms); United States v. Vaughn, 797 F.2d 1485, 1493 (9th Cir.1986) ("each mailing in furtherance of [a mail fraud] scheme constitutes a separate violation" of the mail fraud statute); United States v. Wiga, 662 F.2d 1325, 1336-37 (9th Cir.1981) (simultaneous possession of firearms acquired at different times and places …
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Gene SZALKIEWICZ, Defendant-Appellant
90-10524.
Court of Appeals for the Ninth Circuit.
Sep 23, 1991.
944 F.2d 653
91 Cal. Daily Op. Serv. 7584
1991 U.S. App. LEXIS 22119
1991 WL 183867
James L.P. Logan, Jr., Wisdom, Logan & McNulty, Phoenix, Ariz., for defendant-appellant., W. Allen Stooks, Asst. U.S. Atty., Dept, of Justice, Phoenix, Ariz., for plaintiff-ap-pellee.
Schroeder, Farris, Dumbauld.
Cited by 26 opinions  |  Published
PER CURIAM:

Appellant Gene Szalkiewicz appeals his convictions for four counts of possession of a firearm by a convicted felon, pursuant to 18 U.S.C. § 922(g)(1). Szalkiewicz claims he was improperly convicted of multiple counts of 18 U.S.C. § 922(g)(1) based on his possession of multiple weapons on the same date. We agree and reverse.

On October 26, 1989, federal agents seized five machine guns, five silencers and nine pistols and revolvers from the appellant’s apartment in Phoenix, Arizona. Szalkiewicz, a convicted felon, admitted to possession of the weapons. The indictment charged Szalkiewicz with numerous firearms violations. Counts XII and XV through XVIII of the indictment, at issue here, alleged possession of several firearms by Szalkiewicz on or about October 26, 1989, in violation of 18 U.S.C. § 922(g)(1). Szalkiewicz was convicted by a jury of all counts, and was sentenced to 24 months in prison and ordered to pay a fine and costs.

This court has held that only one offense is charged for possession of firearms by a felon, regardless of the number of firearms involved, absent a showing that the firearms were stored or acquired at different times and places. United States v. Wiga, 662 F.2d 1325, 1336 (9th Cir.1981), cert. denied, 456 U.S. 918, 102 S.Ct. 1775, 72 L.Ed.2d 178 (1982). Szalkiewicz filed a motion to arrest judgment after his sentencing. Szalkiewicz claimed that counts XII and XV through XVIII were multiplicitous because they alleged possession of several firearms on the same date. The government contended that because the record contained evidence that Szalkiewicz had acquired the weapons separately, the multiple counts could stand. The district court denied Szalkiewicz’s motion to arrest judgment and he now appeals.

[*654] In Wiga, we affirmed the defendant’s multiple convictions for possession of firearms by a convicted felon pursuant to 18 U.S.C.App. § 1202(a)(1). We did so not only because the evidence demonstrated that the weapons were purchased at different times and different places, but also because the indictment alleged “the separate and distinct acts of acquisition” and because the separate and distinct acquisitions were presented to the jury. Id. at 1336-37.

Other circuits have held that the jury must be instructed to find separate acquisition or possession for multiple convictions to stand. See, e.g., United States v. Valentine, 706 F.2d 282, 294 (10th Cir.1983) (overturning multiplicitous convictions where jury did not find separate possession or acquisition, despite uncontroverted evidence indicating weapons were delivered separately); United States v. Frankenberry, 696 F.2d 239, 245 (3d Cir.1982) (vacating sentence based on multiplicitous convictions where indictment charged possession of weapons on or about same date, where evidence did not establish separate possession or acquisition, and where no jury finding regarding non-simultaneous possession), ce rt. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1392 (1983). We agree with the Tenth Circuit’s statement in United States v. Valentine:

The problem with the Government’s theory is that, although there was uncon-troverted evidence of separate delivery of the two guns, the jury did not find and was not asked to find that there had been, indeed, two separate acts. Under the cases relied upon by the Government, separate receipt is a necessary element for multiple convictions under both section 922 and section 1202. It is therefore axiomatic that the defendant has a right to a jury finding on this essential issue.

Valentine, 706 F.2d at 294.

Because the jury made no finding of fact as to separate acquisition or possession, Szalkiewicz’s multiple convictions under 18 U.S.C. § 922(g)(1) cannot stand. We therefore vacate appellant’s convictions on counts XV, XVI, XVII and XVIII of the indictment.

The district court’s denial of Szalkiew-icz’s motion to arrest judgment with respect to Counts XV, XVI, XVII and XVIII is REVERSED, and the matter is REMANDED FOR RESENTENCING.