IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. xx- 50-01 (TFH)

)

xxxxxxxxxxxxxxxxx, )

)

Defendant. )

_________________________ )

MOTION TO COMPEL ELECTION BETWEEN

MULTIPLICITOUS FIREARM AND AMMUNITION COUNTS

Defendant xxxxxxxxx, through 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 and in support states:

1. In two separate counts of the indictment, Mr. xxxxxxx is charged with being a felon in possession of a firearm (Count One), and ammunition (Count Two), both in violation of 18 U.S.C. § 922(g)(1).

2. The charges result from the seizure of a handgun from beneath the passenger's seat of a car in which Mr. xxxxxxx was allegedly riding.

3. As set forth below, these counts are multiplicitous.

WHEREFORE, Mr. xxxxxxx respectfully moves the Court to enter an Order compelling the prosecution to elect among these multiplicitous § 922(g) counts before trial.

MEMORANDUM OF LAW

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, signaled 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, in United States v. Keen, F.3d , 1996 WL 76489, 7 (9^th Cir., Jan. 2, 1997) (copy attached as Exhibit "A"), the Ninth Circuit 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. The court held that multiple punishments are only permitted where Congress has demonstrated a "clear indication of intent to authorize" such cumulative punishments, and Section 922(g) does not reflect that congressional intent. Id. While the court recognized that Section 922(g) has at least two purposes, preventing felons from possessing firearms and ammunition, these dual purposes are, "without more, insufficient to justify twin punishments." Id. Accordingly, the court noted, on remand, "the government may only seek to convict and sentence [the defendant] for one violation of Section 922(g)(1). Id.

The Keen court cited to an opinion by the Fifth Circuit Court of Appeals which reached an identical conclusion. In United States v. Berry, 977 F.2d 915 (5th Cir. 1992), the court held that "[t]he evil Congress sought to suppress by section 922 was the arming of felons; the section is based on the status of the offender and not the number of guns possessed. For the same reasons, we cannot conclude that Congress intended the simultaneous possession of ammunition to stand as a distinct unit of prosecution." Id. at 919.

In Mr. xxxxxxx's case, the indictment charges him 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, Mr. xxxxxxx cannot suffer multiple convictions under § 922(g). See, e.g., Keen, 1996 WL 764689, 7; Rosenbarger, 536 F.2d at 721; Tellez, 11 F.3d at 533-34; United States v. Grinkiewicz, 873 F.2d at 255. Absent a showing by the government that the firearm that it seized was stored or acquired at different times or places from the ammunition, the proper manner in which to proceed is to require the prosecution to elect among these two counts for trial. See Keen, 1996 WL 764689, 7; Bradsby, 628 F.2d at 905; Martorana, 629 F. Supp. at 511; Lopez, 585 F. Supp. at 1392-93.

CONCLUSION

For the foregoing reasons, and any others which may appear to the Court, Mr. xxxxxxx respectfully moves the Court to enter an Order requiring the prosecution to elect which of the two multiplicitous § 922(g) counts, and notify the Court and the defense, forthwith, of the count it elects to proceed upon at trial.

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

CERTIFICATE OF SERVICE

I hereby certify that on a true and correct copy of the foregoing was served by hand (drop box) upon Mark Gellar, Assistant United States Attorney, at 555 - 4th St., N.W. Washington, D.C. 20001 this 28th day of February, 1997.

L. Barrett Boss

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. xx- 50-01 (TFH)

)

DARNELL xxxxxxx, )

)

Defendant. )

_________________________ )

O R D E R

Upon consideration of Defendant's Motion to Compel Election Among Multiplicitous Firearm Counts, the government's response thereto, and the entire record in this matter, it is hereby,

ORDERED that the motion is GRANTED. The prosecution shall elect among the two multiplicitous § 922(g) counts pending against the defendant (Counts One and Two); 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 it elects to proceed upon at trial.

DONE AND ORDERED this day of , 1997.

THE HONORABLE THOMAS F. HOGAN UNITED STATES DISTRICT JUDGE

Copies to:

Mark Gellar

Assistant United States Attorney

555 4th St., N.W.

Washington D.C., 20001

L. Barrett Boss

Assistant Federal Public Defender

625 Indiana Ave. Suite 550

Washington D.C., 20004

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 in this case. Both the improper joinder in Drew and the multiplicitous charges in the indictment in this case 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)).