IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. xx-094-01 (PLF)
)
xxxxxxxxxxxxxxxxxxxxxx, )
)
Defendant. )
_________________________ )
DEFENDANT'S MOTION TO DISMISS COUNT 1
FOR DUPLICITY, OR IN THE ALTERNATIVE
TO REQUIRE THE GOVERNMENT TO ELECT BETWEEN MULTIPLE
CHARGES CONTAINED IN THE SAME COUNT
Defendant xxxxxxxxxxx, by and through undersigned counsel, hereby moves to dismiss Count 1 because that count alleges more than one crime and, therefore, is defective on grounds of duplicity. The basis for this Motion is more fully set forth in the accompanying 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
UNITED STATES )
)
v. ) Criminal No. xx-094-01 (PLF)
)
xxxxxxxx x xxxxxxxxxx, )
)
Defendant. )
_________________________ )
MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION
TO DISMISS COUNT 1 FOR DUPLICITY,
OR IN THE ALTERNATIVE
TO REQUIRE THE GOVERNMENT TO ELECT BETWEEN MULTIPLE
CHARGES CONTAINED IN THE SAME COUNT
Rule 8(a) of the Federal Rules of Criminal Procedure provides that "[t]wo or more offenses may be charged in the same indictment or information in a separate count for each offense[.]" The "separate count for each offense" language of Rule 8(a) requires (1) that each count of an indictment contain only one offense, and (2) that a single offense be charged only once in an indictment. See generally 1 C. Wright, Federal Practice and Procedure: Criminal §141 (2d. ed. 1982). The first of these requirements guards against "duplicity." See, e.g., United States v. Hawkes, 753 F.2d 355, 357 (4th Cir. 1985); United States v. Ramos, 666 F.2d 469, 473 (11th Cir. 1982); United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976) ("Duplicity is the joining in a single count of two or more distinct and separate offenses."). The prohibition on duplicity "reflect[s] fundamental due process rights of defendants[.]" UCO Oil, 546 F.2d at 835.
The courts have recognized at least four ways in which a duplicitous count prejudices a defendant. First, it fails to provide the defendant with adequate notice of the pending charges. See United States v. Kimberlin, 781 F.2d 1247, 1250 (7th Cir. 1985). Second, a duplicitous count can produce a record inadequate to allow a defendant to plead former jeopardy to a subsequent prosecution for the same offense. United States v. Starks, 515 F.2d 112, 116 (3d. Cir. 1975); Kimberlin, 781 F.2d at 1250. Third, a duplicitous count may prejudice the defendant with respect to evidentiary rulings during the trial, since evidence admissible on one offense might be inadmissible on the other. Starks, 515 F.2d at 116-117. Finally, a duplicitous indictment may lead to conviction based on a non-unanimous verdict as to one charge or the other. Starks, 515 F.2d at 117; Kimberlin, 781 F.2d at 1250. The appropriate remedy for a duplicitous count is either dismissal of that count or requiring the government to elect between the two charges contained in that one count. Starks, 515 F.2d at 117. (1)
In this case, Count One is duplicitous. It charges unlawful possession of a firearm and unlawful possession of ammunition, pursuant to 18 U.S.C. § 922(g) within a single count. While possession of a firearm and possession of ammunition (where the charge arises from a loaded gun) are charges which can not subject a defendant to multiple punishments, see United States v. Haven Phillips, 962 F. Supp. 200, 201 (D.D.C. 1997), this does not change the fact that possession of ammunition and possession of a firearm are violations of Section 922(g) which must be charged separately. The government is free to charge Mr. Aikens with unlawful possession of the firearm in count one, or unlawful possession of ammunition, but not both.
CONCLUSION
Accordingly, Count 1 should be dismissed because it is duplicitous. In the alternative, the government should be required to elect from between the multiple charges contained in that count.
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 )
)
v. ) Criminal No. xx-094-01 (PLF)
)
xxxxxxxxx xxxxxxxxxxxxx, )
)
Defendant. )
_________________________ )
O R D E R
Upon consideration of Defendant xxxxxxx Motion to Dismiss Count One For Duplicity, Or In The Alternative To Require The Government To Elect, 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 Aikens Motion is granted; and it is further
ORDERED, that Count One is dismissed.
THE HONORABLE PAUL L. FRIEDMAN
UNITED STATES DISTRICT JUDGE
Copies to:
L. Barrett Boss
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
AUSA G. Bradley Weinsheimer
555 - 4th Street, N.W.
Washington, D.C. 20001
CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of April, 1998, the foregoing Motion, and the Memorandum in Support, were served by hand (drop box), upon:
G. Bradley Weinsheimer
Assistant U.S. Attorney
555 - 4th Street, N.W.
Washington, D.C. 20001
__________________________
L. Barrett Boss
Assistant Federal Public Defender
1. Dividing each duplicitous count into two charges is not a proper remedy for the government's duplicitous charge, see Starks, 515 F.2d at 117, because that would constitute an impermissible amendment of the indictment. See Stirone v. United States, 361 U.S. 212, 217-19 (1960) (amendment of indictment violates Fifth Amendment Grand Jury Clause). The duplicitous counts must be dismissed or the government must elect between the two charges contained therein.