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
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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 newlydiscovered 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
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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
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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