U.S. v. Platter, 06-CR-2012-LRR.
| Decision Date | 12 June 2006 |
| Docket Number | No. 06-CR-2012-LRR.,06-CR-2012-LRR. |
| Citation | 435 F.Supp.2d 913 |
| Parties | UNITED STATES of America, Plaintiff, v. Kent Raymond PLATTER, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Jonathan B. Hammond, Klinger, Robinson & Ford, LLP, Cedar Rapids, IA, for Defendant.
Peter E. Deegan, Jr., U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
TABLE OF CONTENTS
I. INTRODUCTION AND PROCEDURAL HISTORY ........................................914
II. LEGAL ANALYSIS .............................................................915
A. United States v. Richardson ............................................915
B. Multiplicity ...........................................................915
C. Election ...............................................................915
D. Persuasive Authority ...................................................916
E. Minimizing the Risk of Prejudice .......................................917
III. CONCLUSION .................................................................919
The matter before the court is Defendant Kent Raymond Platter's Motion to Dismiss Alternate Counts ("Motion") (docket no. 47).
On February 14, 2006, Defendant was charged in two counts of an indictment. Count 3 charges Defendant with being a felon in possession of two firearms on or about December 22, 2005, in violation of 18 U.S.C. § 922(g)(1). Count 4 charges Defendant with being a drug user in possession of the same firearms on or about the same date, in violation of 18 U.S.C. § 922(g)(3).1 On June 7, 2006, the government filed a trial brief and noted that the parties had entered into stipulations in which they agree that Defendant is a felon and that the firearms alleged in the indictment traveled across state lines prior to their presence in Iowa.
On June 9, 2006, Defendant filed the instant Motion. In the instant Motion, Defendant argues that, due to United States v. Richardson, 439 F.3d 421 (8th Cir.2006), the court should force the government to elect one theory of prosecution in the case and dismiss one of the two counts. On the same date, the government filed a Resistance. In the Resistance, the government responds that, although Richardson provides that Defendant may not be punished twice for violating 18 U.S.C. § 922(g) by having two disqualifying statuses, Richardson does not prohibit the government from proceeding to trial on two different theories under Section 922(g). The government relies upon Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), and several non-binding appellate cases, and argues that it is permissible for the government to submit alternate counts to the jury.
On June 12, 2006, the court held a hearing on the Motion. Assistant United States Attorney Peter E. Deegan, Jr., represented the government. Defendant was personally present and represented by Attorney Jonathan B. Hammond.
On March 2, 2006, the Eighth Circuit Court of Appeals issued an en banc opinion in United States v. Richardson, 439 F.3d 421 (8th Cir.2006). The defendant in Richardson was convicted of violations of both subsections 922(g)(1) and 922(g)(3). Id. at 422. The Richardson court held the following:
Congress intended the "allowable unit of prosecution" to be an incident of possession regardless of whether a defendant satisfied more than one § 922(g) classification, possessed more than one firearm, or possessed a firearm and ammunition. Id. (). It remanded the defendant's case to the district court and instructed the district court "to vacate the sentence, merge the counts of conviction into one count, and resentence the defendant based on a single conviction under 18 U.S.C. § 922(g)." Id.
Richardson teaches that charging violations of more than one subsection of Section 922(g) results in a multiplicitous indictment. Elsewhere, the Eighth Circuit Court of Appeals has explained multiplicity in indictments as follows: "Multiplicity is the charging of a single offense in several counts...." United States v. Street, 66 F.3d 969, 975 (8th Cir.1995) (quotations and citations omitted); see also United States v. Chipps, 410 F.3d 438, 447 (8th Cir.2005) (). The Eighth Circuit Court of Appeals has warned that "[t]he vice of multiplicity is that it may lead to multiple sentences for the same offense." Street, 66 F.3d at 975 (quotations and citations omitted); see also Chipps, 410 F.3d at 447 () (citations omitted).
Defendant asks the court to force the government to elect to proceed on one of the two counts of the indictment due to the multiplicity. The government has considerable discretion in fashioning the counts of an indictment. Ball v. United States, 470 U.S. 856, 859, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); United States v. Batchelder, 442 U.S. 114, 124, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). "[T]he fundamental principle underlying the practice of requiring the prosecution to choose between offenses or counts is the prevention of prejudice and embarrassment to the accused...." Finnegan v. United States, 204 F.2d 105, 110 (8th Cir.1953). Although "[m]ultipliciousness is not per se grounds for election since it does not necessarily place the defendant in jeopardy of multiple offenses," Wangrow v. United States, 399 F.2d 106, 112 (8th Cir.1968), the court has discretion to require election, Brennan v. United States, 240 F.2d 253, 261 (8th Cir. 1957). See Pierce v. United States, 160 U.S. 355, 356, 16 S.Ct. 321, 40 L.Ed. 454 (1896) (); see also United States v. Johnson, 130 F.3d 1420, 1426 (10th Cir.1997) (); United States v. Throneburg, 921 F.2d 654, 657 (6th Cir.1990) () (quotation and citation omitted).
The law in the Eighth Circuit is clear that, even if Defendant is convicted on Counts 3 and 4, he may only be sentenced on one of the counts. Richardson, 439 F.3d at 422. In other words, it is clear that Defendant may not be punished separately for violations of subsections 922(g)(1) and 922(g)(3). The Eighth Circuit Court of Appeals has not, however, had the opportunity to examine whether it is appropriate to allow the government to seek convictions for violations of two different subsections of Section 922(g) by presenting two theories to a jury. Therefore, the court examines several non-binding cases.
In United States v. Johnson, 130 F.3d 1420 (10th Cir.1997), the Tenth Circuit Court of Appeals held that firearm convictions under subsections 922(g)(1) and 922(g)(3) were multiplicitous, but that the government was not required to elect between the two counts before trial. Id. at 1426. In other words, the government could present both counts to a jury. The Tenth Circuit Court of Appeals determined that it was within the district court's discretion whether to require the government to elect between multiplicitous Section 922(g) counts before trial. Id.
The First Circuit Court of Appeals has made an explicit statement permitting the government to proceed to trial on separate counts alleging violations of subsections 922(g)(1) and 922(g)(3). In United States v. Shea, 211 F.3d 658 (1st Cir.2000), the First Circuit Court of Appeals stated, without explanation: Id. at 673. The court went on to instruct that double jeopardy precluded the imposition of two sentences for convictions under subsections 922(g)(1) and 922(g)(3). Id.; see also United States v. Dunford, 148 F.3d 385, 390 n. 1 (4th Cir. 1998) ().
At least two district courts have refused to compel the government to make pretrial elections between subsections 922(g)(1) and 922(g)(3). In United States v. Harwell, 426 F.Supp.2d 1189 (D.Kan. 2006), the district court denied the defendant's motion to dismiss and declined to require the government to elect between the alternate counts. Id. at 1191-92. The district court discussed the risk of prejudice to the defendant as follows:
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.
Id. In another recent district court case, the district court did not require election and stated that charges under subsections 922(g)(1) and 922(g)(3) were neither...
To continue reading
Request your trial
-
U.S.A v. King
...on multiplicitous indictment where prejudice of multiple counts would be cured by instructions); see also United States v. Platter, 435 F.Supp.2d 913, 918 (N.D.Iowa 2006)).) If Defendant is convicted of multiplicitous counts, the Court will vacate one of the multiplicitous counts for which ......
-
U.S. v. Platter
...counts three and four to be merged and presented to the jury as alternative theories for one charged offense. United States v. Platter, 435 F.Supp.2d 913, 919 (N.D.Iowa 2006). After a new jury was empaneled, Kent was tried by the new jury. Kent stipulated that he was a convicted felon at th......