IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. xxxxxxxxxxxxx
)
xxxxxxxxxxxxxxxxxxx, )
)
Defendant. )
_________________________)
MOTION TO COMPEL ELECTION BETWEEN
MULTIPLICITOUS FIREARM
AND AMMUNITION COUNTS
Defendant xxxxxxxxxxxxx, through undersigned counsel, respectfully moves the Court for an Order compelling the prosecution to elect before trial among the multiplicitous firearm and ammunition counts in the indictment.
The grounds for this Motion are more fully set forth in the attached Memorandum.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
__________________________
L. Barrett Boss
Assistant Federal Public Defenders
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA CIRCUIT UNITED STATES OF AMERICA )
v. ) CR. NO. xxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxx)
MEMORANDUM IN SUPPORT OF MOTION TO COMPEL
ELECTION AMONG MULTIPLICITOUS FIREARM
AND AMMUNITION COUNTS
In two separate counts of the indictment, the prosecution has charged the defendant with being a felon-in-possession of a firearm or ammunition in violation of 18 U.S.C. 922(g). As set forth below, these counts are multiplicitous. The Court should exercise its discretion to enter an Order compelling the prosecution to elect among these multiplicitous 922(g) counts before trial.
BACKGROUND
The charges against Mr. xxxxxxxx arise from the seizure of a loaded weapon which the police claim that they found at Mr. xxxxxxxx's residence. Count one charges possession of the handgun, and count two charges possession of the ammunition, both in violation of 18 U.S.C. 922(g)(1).
ARGUMENT
I. LEGAL PRINCIPLES.
Under the Federal Rules of Criminal Procedure, it is improper to try a defendant on multiple counts charging the same offense. Rule 7(c)(1) permits the government to "allege[] in a single count that the . . . defendant committed [an offense] by one or more specified means." As the Advisory Committee Note explains, this provision "is intended to eliminate the use of multiple counts for the purpose of alleging the commission of the offense by different means or in different ways." 4 F.R.D. 405, 412 (1945) (emphasis supplied); see, e.g., United States v. Allied Chemical Corp., 420 F.Supp. 122, 123-24 (E.D. Va. 1976).
An indictment charging the same offense in more than one count is "multiplicitous" and thereby defective. United States v. Harris, 959 F.2d 246, 250 (D.C. Cir.) (per curiam), cert. denied, 113 S. Ct. 362 (1992); see United States v. Swaim, 757 F.2d 1530, 1536 (5th Cir.), cert. denied, 474 U.S. 825 (1985). If a defendant raises a timely multiplicity objection pursuant to Fed. R. Crim. P. 12(b)(2), the proper remedy is to require the government to elect between the multiplicitous counts. See, e.g., United States v. Bradsby, 628 F.2d 901, 905 (5th Cir. 1980); United States v. Martorana, 629 F.Supp. 509, 511 (D. Me. 1986); United States v. Lopez, 585 F.Supp. 1391, 1392-93 (D.P.R. 1984). (1)
To avoid unfair prejudice to the defendant, the government must elect between multiplicitous counts before trial. This is so because multiplicitous charges "improperly prejudice a jury by suggesting that a defendant has committed not one but several crimes." United States v. Reed, 639 F.2d 896, 904 (2d Cir. 1981); see United States v. Lopez, 585 F. Supp. at 1392. (2) Multiplicitous counts also afford the government an unfair advantage by increasing the likelihood that the jury will convict on at least one count, if only as the result of a compromise verdict.
The test for determining whether two counts of an indictment are multiplicitous is "whether each [count] requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932); see United States v. Harris, 959 F.2d at 251 n.3 (quoting Blockburger). Under some circumstances, however, Blockburger does not always control the statutory construction issue because Congress did not intend to permit multiple convictions for the offenses at issue. In United States v. Munoz-Romo, 989 F.2d 757 (5th Cir. 1993), for example, the Fifth Circuit considered a case in which a defendant was convicted of multiple 922(g) offenses because he was both a convicted felon (in violation of 922(g)(1)) and an illegal alien (in violation of 922(g)(5)) when he possessed firearms. The Fifth Circuit reasoned that
this is not a case like Blockburger,
where Congress criminalized different actions, in different statutes, at different times.
Rather, Congress created 922 and its structure in one enactment, the Omnibus Crime
Control and Safe Streets Act of 1968. Since 1968, Congress has made changes in 922(g)'s
list of dangerous offenders, but has not changed the section's structure. Congress, by
rooting all the offenses in a single legislative enactment and including all the offenses
in subsections of the same statute, sign