UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA, :

:

Plaintiff, :

v. : CRIMINAL NO.: xx-288(GK)

:

xxxxxxxxxxxxx, :

:

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 government to elect before trial among the multiplicitous firearm and ammunition counts in the indictment.

The grounds for this Motion are as follows:

xxxxxxxxxxxx has been charged, in two separate counts of the indictment, with being a felon-in-possession of a firearm and 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. xxxxx arise from the seizure on August 1, 1998, of a loaded weapon that police allege was thrown to the ground while Mr. xxxxx was being pursued by a police officer. Count one charges possession of the revolver, 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, signalled that it did not intend multiple punishments for the possession of a single weapon. Id. at 759 (citations omitted); see also United States v. Winchester, 916 F.2d 601 (11th Cir. 1990). The Fifth Circuit in Munoz-Romo ordered that, on remand, the trial court vacate his second 922(g) conviction on each of two firearms.

With these principles in mind, many courts have addressed the appropriate "unit of prosecution" under 922(g). Under both 922(g) and a predecessor statute-- 1202(a)--courts have ruled that

only one offense is charged . . . regardless of the number of firearms involved, absent a showing that the firearms were stored or acquired at different times or places.

United States v. Rosenbarger, 536 F.2d 715, 721 (6th Cir. 1976) ( 1202(a); vacating two of three convictions), cert. denied, 431 U.S. 965 (1977); see United States v. Tellez, 11 F.3d 530, 533-34 (5th Cir. 1993) ( 922(g)), cert. denied, 114 S. Ct. 1630 (1994); United States v. Grinkiewicz, 873 F.2d 253, 255 (11th Cir. 1989) ( 922(g)).(3) This is because 922(g)(1) focuses on the felon status of the offender possessing the weapons, rather than on the type or number of weapons or ammunition that the offender possesses.

Recently, at least two judges in this Court, Judge Hogan and Judge Friedman have addressed this specific issue and held that under Section 922(g)(1), multiple punishments could not be imposed on convicted felons for possessing a gun and for possessing ammunition. See United States v. Phillips, 962 F. Supp. 200, 201-02 (D.D.C. 1997) (Friedman, J.) (citing Judge Hogan's opinion in United States v. Kinlaw, Cr. No. 96478 (D.D.C. Feb. 24, 1997)); see also United States v. Keen, 96 F.3d 425, 432-33 (9th Cir. 1996).

II. APPLICATION OF LEGAL PRINCIPLES.

The indictment against Mr. xxxxx is "multiplicitous" and thereby defective. See United States v. Harris, 959 F.2d at 250. He is charged with being a felon-in-possession of a firearm and a felon-in-possession of ammunition in two separate counts. Unless the firearm and ammunition were stored or acquired at different times or places, however, Mr. xxxxx cannot suffer multiple convictions under 922(g). See, e.g., Keen, 96 F.3d at 432-33; Phillips, 962 F. Supp. at 201 (a loaded firearm constitutes a single violation of 922(g)(1)). There is no allegation, and will be no evidence, that with regard to the loaded firearm that Mr. xxxxx is charged with possessing after a felony conviction, that the ammunition was stored or acquired at a different time or place than the gun within which the ammunition was found. The proper remedy is to require the prosecution to elect among these two counts for trial. See Phillips, 962 F. Supp. at 201-02

CONCLUSION

For the foregoing reasons, and any others which may appear to the Court, Mr. xxxxx requests that the Court enter an Order requiring the prosecution to elect which of the two multiplicitous 922(g) counts it will elect to proceed upon at trial.

Respectfully submitted,



A.J. KRAMER

FEDERAL PUBLIC DEFENDER





________________________________

Valencia Rainey

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



CERTIFICATE OF SERVICE



This is to certify that, on this ____ day of September, 1998, a copy of the foregoing Motion to Compel Election Between Multiplicitous Firearm and Ammunition Counts, has been served upon Amy J. Conway, Assistant United States Attorney, the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001, by leaving a copy at the United States District Courthouse drop box for the Office of the United States Attorney.







Valencia R. Rainey















UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA, :

:

Plaintiff, :

v. : CRIMINAL NO.: xx-288(GK)

:

JOHN xxxxx, :

:

Defendant. :

________________________________:



O R D E R



Upon consideration of Defendant John xxxxx's Motion to Compel Election Among Multiplicitous Firearm Counts, it is this ________ day of _____________, 1998, hereby

ORDERED, that defendant xxxxx's Motion is granted; and it is further

ORDERED, that the prosecution shall elect among the two multiplicitous 922(g) counts pending against Mr. xxxxx (Counts 1 and 2); and it is further

ORDERED, that the prosecution shall file forthwith with the Court and serve on defense counsel a notice identifying which of the 922(g) counts against Mr. xxxxx it elects to proceed upon at trial.



______________________________

GLADYS KESSLER

UNITED STATES DISTRICT JUDGE

Copies to:



Valencia Rainey

Assistant Federal Public Defender

625 Indiana Avenue, N.W. Suite 550

Washington, D.C. 20004





Amy J. Conway

Assistant United States Attorney

555 4th Street, N.W.

Washington, D.C. 20001

1. In United States v. Harris, the D.C. Circuit ruled that a multiplicity objection is waived if not raised pretrial. See 959 F.2d at 250-51. The Court also noted that "the absence of objection constitutes a waiver of the double jeopardy defense." Id. at 251 n.2.

2. In United States v. Drew, 331 F.2d 85 (D.C. Cir. 1964), the D.C. Circuit considered whether two offenses--a robbery on July 27 and an attempted robbery on August 13--were properly joined in a single indictment. See id. at 92. The indictment charged two separate offenses and so was not multiplicitous. Nevertheless, the joinder of offenses in Drew gave rise to some of the same dangers as the multiplicitous charges against Mr. Benjamin. Both the improper joinder in Drew and the multiplicitous charges against Mr. Benjamin arouse in the jury "a latent feeling of hostility engendered by the charging of several crimes as distinct from only one." Id.

3. See also Ball v. United States, 470 U.S. 856, 862-65 (1985) (allowing simultaneous prosecutions but not simultaneous convictions for receiving firearm in violation of 922(h) and possessing firearm in violation of  1202(a)); United States v. Jones, 841 F.2d 1022, 1025 (10th Cir. 1988) ( 1202(a) and  922(h)); United States v. Blakeney, 753 F.2d 152, 153 (D.C. Cir. 1985) (defendant was convicted of three 1202 offenses for three weapons discovered when police executed search warrant; government agreed that two of three convictions must be vacated on remand); United States v. Pelusio, 725 F.2d 161, 168-69 (2d Cir. 1983) ( 922(h)); United States v. Valentine, 706 F.2d 282, 293-94 (10th Cir. 1983) ( 922(h) and 1202(a)); United States v. Frankenberry, 696 F.2d 239, 244-46 (3d Cir. 1982) ( 922(h)), cert. denied, 463 U.S. 1210 (1983); United States v. Kinsley, 518 F.2d 665, 670 (8th Cir. 1975) ( 1202(a)); United States v. Calhoun, 510 F.2d 861, 869 (7th Cir.) ( 922(a)), cert. denied, 421 U.S. 950 (1975); McFarland v. Pickett, 469 F.2d 1277, 1279 (7th Cir. 1972) (per curiam) ( 922(j)).