U.S. v. Harwell, 05-40123-01-SAC.

• Decision Date: 31 March 2006
• Docket Number: No. 05-40123-01-SAC.,05-40123-01-SAC.
• Parties: UNITED STATES of America, Plaintiff, v. Richard Preston HARWELL, Defendant.
• Court: U.S. District Court — District of Kansas

426 F.Supp.2d 1189

UNITED STATES of America, Plaintiff, v. Richard Preston HARWELL, Defendant.

No. 05-40123-01-SAC.

United States District Court, D. Kansas.

March 31, 2006.

Jason R. Coody, Office of United States Attorney, Topeka, KS, for Plaintiff.

Melody J. Evans, Office of Federal Public Defender, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

The case comes before the court on the defendant's following pretrial motions: motion to dismiss multiplicitous indictment or, alternatively, to require the government to elect counts (Dk.14), motion to disclose expert testimony (Dk.17), motion for notice of evidence (Dk.19), and sealed motion to suppress evidence found in the search of the residence at 214 Iowa Avenue, Salina, Kansas, on April 15, 2005, (Dk.20). The government filed a consolidated response to the defendant's first three pretrial motions and only referred to the defendant's sealed motion to suppress saying the issues were largely factual and reserving its argument for the hearing.¹ (Dk.34). The defendant also has filed additional authority in support of his motion to suppress. (Dk.37). At the hearing, the parties agreed to submit on the briefs all pending matters except for the defendant's motion to suppress. The parties then presented the testimony of two officers with the Salina Police Department, Investigator James Feldman and Investigator Janell Zimmerman, and presented other evidence and oral argument in support of their positions. Having reviewed all matters submitted and having researched the relevant law, the court is ready to rule on the motion.

INDICTMENT

The defendant Richard Preston Harwell is charged in a five-count indictment with weapon violations. Count one charges the defendant with being a felon in possession of a shotgun on April 15, 2005, in violation of 18 U.S.C. § 922(g)(1). In the alternative to count one, count two charges the defendant with being an unlawful user and addict to a controlled substance in possession of the same shotgun on April 15, 2005, in violation of 18 U.S.C. § 922(g)(3). Count three charges the defendant with possessing the same shotgun which was not registered in violation of 26 U.S.C. § 5861(d). Count four charges the defendant with being a felon in possession of an explosive on April 15, 2005, in violation of 18 U.S.C. § 842(i)(1). In the alternative to count four, count five charges the defendant with being an unlawful user and addict to a controlled substance in possession of the same explosive on April 15, 2005, in violation of 18 U.S.C. § 842(i)(3).

MOTION TO DISMISS MULTIPLICITOUS INDICTMENT OR, ALTERNATIVELY, TO REQUIRE THE GOVERNMENT TO ELECT COUNTS (Dk.14).

Observing that the first three counts allege three separate theories of criminal prohibition for the defendant's possession of the same firearm on the same date and that the last two counts allege two different theories for prohibition for the defendant's possession of the same explosive on the same date, the defendant argues these multiplicitous counts must be dismissed or the government must be required to elect now which counts to proceed with and dismiss the others.

Multiplicity occurs when an indictment has multiple counts covering the same criminal behavior. United States v. Johnson, 130 F.3d 1420, 1424 (10th Cir.1997), cert. denied, 525 U.S. 829, 119 S.Ct. 78, 142 L.Ed.2d 61 (1998). Multiplicitous counts "are improper because they allow multiple punishments for a single criminal offense." United States v. McIntosh, 124 F.3d 1330, 1336 (10th Cir.1997) (citation omitted). They also "`may improperly suggest to the jury that the defendant has committed more than one crime.'" United States v. Johnson, 130 F.3d at 1424 (quoting United States v. Morehead, 959 F.2d 1489, 1505 (10th Cir.1992)). The possibility of multiple punishments for the same offense "raises double jeopardy implications." Id, Courts look to Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in addressing the double jeopardy issue: "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Id. at 304, 52 S.Ct. 180 (citation omitted); see also Texas v. Cobb, 532 U.S. 162, 163, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). The rule in Blockburger assumes that "Congress ordinarily does not intend to punish the same offense under two different statutes." Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Consequently, if two statutory provisions define the same offense, courts are to construe the statutes as not authorizing cumulative sentences "in the absence of a clear indication of contrary legislative intent." Id.

The Tenth Circuit in United States v. Johnson has held that the charge for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and the charge for being an unlawful user of controlled substances in possession of a firearm in violation of 18 U.S.C. § 922(g)(3) are "multiplicitous counts" and that a defendant "can only be convicted and punished for one of the § 922(g) counts." 130 F.3d at 1426. In charging counts one and two and counts four and five in the alternative, the government recognizes that the counts are multiplicitous but contends that it is appropriate to present the jury with the alternative counts based on separate and distinct statuses for the firearm possession being unlawful.²

The government retains considerable discretion in fashioning the counts of an indictment. United States v. Batchelder, 442 U.S. 114, 124, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (citations omitted). It is also within the trial court's discretion "to require the prosecution to elect between multiplicitous counts before trial." United States v. Johnson, 130 F.3d at 1426 (citations omitted). The court in Johnson observed presenting multiplicitous counts to a jury could create the false impression about the level of the defendant's criminal activity. Id. "`Once such a message is conveyed to the jury, the risk increases that the jury will be diverted from a careful analysis of the conduct at issue,' and will reach a compromise verdict or assume the defendant is guilty on at least some of the charges." Id. (quoting United States v. Clarridge, 811 F.Supp. 697, 702 (D.D.C.1992)). The risk of false impressions here does not appear to be great or unfairly prejudicial to the defendant, as the entire case involves simply the defendant's alleged possession of two weapons on a single day, and the indictment plainly identifies which counts are brought as alternative disqualifying statuses. Just as in Johnson, there is the possibility the jury may acquit the defendant Harwell of one count and convict on the alternative count. The court will not require the government to elect between the alternative counts. The defendant's motion is denied.

MOTION TO DISCLOSE EXPERT TESTIMONY AND MOTION FOR NOTICE OF EVIDENCE (Dks. 17 and 19).

The government agrees to provide the requested information no later than fourteen days prior to trial. In light of the government's representation, the court denies the defendant's motions as moot.

MOTION TO SUPPRESS

The defendant seeks to suppress evidence seized during the execution of a search warrant on the residence at 214 Iowa Avenue, Salina, Kansas, on April 15, 2005. The defendant argues that the search warrant is constitutionally defective and that it was executed in an unconstitutional manner. The defendant contends: (1) the affidavit fails to provide probable cause for issuance of the search warrant; (2) as the affiant, the executing officer is not entitled to the good faith exception in Leon; (3) the warrant was overbroad; and (4) the warrant was executed in violation of the knock and announce rule.

Standing

The defendant has shown he has the required standing to object to the search of the dwelling at 214 Iowa. To the officers executing the search warrant, the defendant identified as his property certain bags of clothing stored in the bedroom where he was found when officers entered the dwelling. Based on the amount of clothing and its location in the room, the court infers that the defendant considered the room either to be his residence or at least a place he could spend the night. The defendant has carried his burden of showing a subjective expectation of privacy in the house which society would recognize as reasonable. See Minnesota v. Carter, 525 U.S. 83, 89, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (The Supreme Court has recognized that "a person may have a legitimate expectation of privacy in the house of someone else.").

Probable Cause Affidavit Facts

The search warrant affidavit was signed on April 15, 2004, by Lane Mangels, an investigator with City of Salina Police Department who was working with the I-135/1-70 Drug Task Force. Investigator Mangels avers that he "believes there is evidence of the crime of possession of marijuana at 214 Iowa Avenue, Salina, Saline County, Kansas." Under the heading of probable cause information, Mangels lays out the following in support of his belief. The rental agreement for the residence owned by Bostater Realty shows Jeffrey Powell as the renter with Miranda Goldsmith and Joe Douglas listed as other occupants. An employee with Bostater Realty identified the renter Jeffrey Powell from a photo lineup. The City of Salina's records show the water services provided to this residence since March 30, 2005, are in the name of Jason Castillo. On April 14, 2005, two employees for Bostater Realty contacted an officer assigned to the drug task force with a report of possible drug activity at this residence. The employees told the officer that they went to the residence on April 13, 2005, around 4:00 p.m. to perform the biannual maintenance...