IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA, )

)

Plaintiff, )

v. ) Criminal No. xxxxxxxxxxxx(CKK)

)

xxxxxxxxxxxxxx, )

)

Defendant. )

________________________________)



DEFENDANT'S MOTION TO STRIKE LANGUAGE FROM INDICTMENT

AND INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES

Defendant Michael C. xxxxxx, through undersigned counsel, respectfully moves the Court to strike certain language from the indictment in this case as surplusage. The language that Mr. xxxxxx seek to have stricken relates to the allegation that Mr. xxxxxx possessed ammunition.

BACKGROUND

Mr. xxxxxx is charged in a one-count indictment dated April 28, 1998 with possessing a .380 caliber firearm and .380 caliber ammunition in violation of 18 U.S.C. 922(g)(1). The charge against Mr. xxxxxx arises from the execution of a search warrant at an apartment which the government alleges was Mr. xxxxxx's residence. The loaded gun was supposedly found in a closet hidden underneath some towels. According to the discovery provided and the testimony of a police officer at the preliminary hearing, five bullets were recovered inside the gun. (1)

DISCUSSION

Under Fed. R. Crim. P. 7(d), this Court may "strike surplusage from the indictment[;]" see United States v. Rezaq, 134 F.3d 1121, 1134 (D.C. Cir. 1998). While such a motion is not granted in the ordinary case, id., and is not generally favored in this Circuit, see United States v. Jordan, 626 F.2d 928, 930-31 n.1 (D.C. Cir. 1980), this Court has broad discretion to grant such a motion. Rezaq, 134 F.3d at 1134; Jordan, 626 F.2d at 930-31 n.1. Indeed, this Court should do so if the surplusage is not relevant to the charge, inflammatory, and prejudicial. Rezaq, 134 F.3d at 1134.

Here, the allegations are that Mr. xxxxxx possessed the gun and, apparently, five .380 caliber shells inside the gun. If the government had indicted the ammunition and firearm in separate counts, Mr. xxxxxx submits that an election would have been required because the counts would have been multiplicitous. See United States v. Phillips, 962 F. Supp. 200, 201-02 (D.D.C. 1997) (Friedman, J.) (citing United States v. Kinlaw, Cr. No. 96-478 (D.D.C., February 24, 1997) (Hogan, J.)) (both concerning loaded guns); United States v. Rosenbarger, 536 F.2d 715, 721 (6th Cir. 1976) (counts multiplicitous absent showing that gun and ammunition were "stored or acquired at different times or places"); United States v. Keen, 104 F.3d 1111, 1118-20 (9th Cir. 1996) (firearm and ammunition found in same room could not be charged separately).

The indictment of Mr. xxxxxx for possessing ammunition is simply an effort by the government to circumvent the multiplicity problem. By indicting the ammunition and the firearm in the same count, the government is avoiding a motion for election while maintaining the prejudicial effect, in the eyes of the jury, of an otherwise multiplicitous charge that Mr. xxxxxx possessed ammunition. Mr. xxxxxx submits that the charged ammunition, as an evidentiary matter, is not probative of whether he possessed the gun. Even if the Court were to deem otherwise, however, the language concerning ammunition should be stricken, and the government should be required to confront the ammunition issue under the Federal Rules of Evidence, as it has done in numerous prior cases involving multiple-count indictments charging separate firearm and ammunition violations.

CONCLUSION

For the reasons stated above, defendant Michael xxxxxx respectfully requests that the Court strike from the indictment, as surplusage, the language concerning possession of ammunition.

Respectfully submitted,



A.J. KRAMER

FEDERAL PUBLIC DEFENDER

L. Barrett Boss

Assistant Federal Public Defender

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



UNITED STATES OF AMERICA, )

)

Plaintiff, )

v. ) Criminal No. xx-149-01 (CKK)

)

MICHAEL C. xxxxxx, )

)

Defendant. )

________________________________)



O R D E R

Upon consideration of Defendant Michael xxxxxx's Motion To Strike Language From the Indictment As Surplusage, the Memorandum in Support thereof, the government's Response thereto, and the entire record in this matter, it is this ________ day of _____, 1998, hereby

ORDERED that defendant xxxxxx' motion is granted; and it is further

ORDERED that the language in the indictment stating "and did unlawfully and knowingly receive and possess ammunition, that is, .380 caliber ammunition," shall be stricken from the indictment.

IT IS SO ORDERED.



___________________________________

The Honorable Colleen Kollar-Kotelly

United States District Judge

Copies to:



L. Barrett Boss

Assistant Federal Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004



Sima Sarrafan, Esq.

Assistant United States Attorney

555 Fourth Street, N.W.

Washington, D.C. 20001

CERTIFICATE OF SERVICE

I hereby certify that on this 21st day of May, 1998, I caused a true and accurate copy of the foregoing Motion, Memorandum and Order to be served upon Sima Sarrafan, Assistant United States Attorney, by hand delivery to a drop-box at the United States District Courthouse, 3rd Street and ConstitutiqX\ӆG74W,y%\3gDVN+5oԲ~%aQOʗr36imiȦ.@Q܀e=L'y5c#MgD3gCuoF}Ce|"8jǝ<\<G׋dZ(-2q?E5BQu9RW6׊3<خ0GՀ.AQurRA=d?0ӺMʂ1Ox˫.V7%