U.S. v. Pleasant

• Decision Date: 18 December 2000
• Docket Number: No. Crim. 3:00CR71.,Crim. 3:00CR71.
• Citation: 125 F.Supp.2d 173
• Parties: UNITED STATES of America v. Jeffrey A. PLEASANT.
• Court: U.S. District Court — Eastern District of Virginia

125 F.Supp.2d 173

UNITED STATES of America v. Jeffrey A. PLEASANT.

No. Crim. 3:00CR71.

United States District Court, E.D. Virginia, Richmond Division.

December 18, 2000.

David Lassiter, Special Assistant United States Attorney, United States Attorney's Office, Richmond, VA, for United States.

Charles M. Allen, Jr., Goodman, West & Filetti, Glen Allen, VA, for Pleasant.

MEMORANDUM OPINION

PAYNE, District Judge.

This matter is ripe for decision on the issue whether the Indictment is, in part, duplicitous. For the reasons set forth below, it is. This Memorandum Opinion records the decision made on November 7, 2000.

STATEMENT OF FACTS

On February 25, 2000, the grand jury indicted Jeffrey Pleasant on five counts, each of which arose out of alleged armed robberies. Counts One and Three charged separate incidents, both occurring on January 24, 2000, of interfering with commerce by violence, specifically armed robbery. In relevant part, Counts Two and Four of the Indictment each allege that Pleasant "during, in relation to, and in furtherance of a crime of violence, did knowingly and unlawfully carry and possess a firearm." Count Five charged possession of a firearm by a felon.¹

Concerned that the text of Counts Two and Four charged two different offenses, or perhaps none at all, and after consulting with counsel in open court, the court required the United States to show cause why those counts should not be dismissed. The show cause hearing was held on October 11, 2000, but was continued to November 7, 2000 to allow the parties to brief the issue more fully. The United States asserted that the counts were not duplicitous. Pleasant sought dismissal on the grounds of duplicity and multiplicity.

The duplicity issue presented here turns on the meaning of the statute allegedly violated by Pleasant, 18 U.S.C. § 924(c)(1)(A). It provides in relevant part:

... any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime ... be sentenced to a term of imprisonment of not less than 5 years....

18 U.S.C. § 924(c)(1) (West 2000). The statutory text proscribes and punishes two kinds of conduct: (1) using or carrying a firearm during and in relation to a crime of violence or drug trafficking crime; and (2) possessing a firearm in furtherance of any such crime. The Indictment against Pleasant, however, alleges that the proscribed activity consists of an amalgam of conduct taken from different segments of the statute. In particular, Counts Two and Four, which are identical, allege:

THE GRAND JURY FURTHER CHARGES that on or about January 24, 2000, in the Eastern District of Virginia and within the jurisdiction of this Court, Jeffrey A. Pleasants [sic], during, in relation to, and in furtherance of a crime of violence, did knowingly and unlawfully carry and possess a firearm, to wit: a Colt .357 caliber revolver, serial number KS4107A. (In violation of Title 18 United States Code, Section 924(c)).

(emphasis added).

DISCUSSION

For the reasons set forth below, Counts Two and Four are defective because they are duplicitous, and because they fail to charge the necessary elements of either crime proscribed by the statute. Accordingly, Counts Two and Four of the Indictment are dismissed.

I. Duplicity

Duplicity is "the joining in a single count of two or more distinct and separate offenses." United States v. Hawkes, 753 F.2d 355, 357 (4th Cir.1985) (citing 1 Wright, Federal Practice and Procedure § 142 (2d ed.1982)). "The risk behind a duplicitous charge is that a jury may convict the defendant without unanimous agreement on a particular offense." United States v. Moore, 184 F.3d 790, 793 (8th Cir.1999), cert. denied 528 U.S. 1161, 120 S.Ct. 1174, 145 L.Ed.2d 1083 (2000). Duplicity can result in "improper notice of the charges against [the defendant], prejudice in the shaping of evidentiary rulings, in sentencing, in limiting review on appeal, in exposure to double jeopardy, and ... the danger that a conviction will result from a less than unanimous verdict as to each separate offense." United States v Armstrong, 974 F.Supp. 528, 539 (E.D.Va. 1997) (quoting United States v. Duncan, 850 F.2d 1104, 1108 n. 8 (6th Cir.1988)). A count is not duplicitous, however, merely because it alleges alternative means of completing a single offense. See Fed. R.Crim.P. Rule 7(c); Armstrong, 974 F.Supp. at 539. Where an indictment or information contains a duplicitous count, the proper remedy is to dismiss the count or to require the United States to elect which offense it desires to pursue. See United States v. Hall, No. 3:95CR-01, 11 (E.D.N.C. Dec. 6, 1995).

The point of embarkation for a duplicity analysis is the text of the statute at issue. See Richardson v. United States, 526 U.S. 813, 818, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999); Bailey v. United States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Examination of the statutory text includes an assessment of the words in the statute and the placement and purpose of those words in the overall statutory scheme, because "[t]he meaning of statutory language, plain or not, depends on context." Id. (internal quotations omitted).

The words of the statute are rather simple and straightforward. They proscribe two different kinds of conduct.

First, they state that "any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm ... shall" receive a certain penalty in addition to the one imposed for the crime of violence or the drug trafficking crime. This part of the statute proscribes carrying or using a firearm at a certain time ("during") and in a certain role ("in relation to") in respect to other criminal conduct (drug trafficking crimes or crimes of violence).

Second, the words state that "any person who ... in furtherance of any such crime, possesses a firearm" shall receive the same penalty. This part of the statute thus prohibits possession, a concept far different than carrying or use, in a certain role, ("in furtherance of"), in respect to certain other activity (drug trafficking or crimes of violence).

Given their plain meaning, the words of § 924(c) delineate two quite different, albeit related, proscriptions. In so doing, the statute defines two different crimes. Nor does the context of § 924(c)(1)(A) counsel a reading at variance with the plain statutory text.

Thusly examined, the statutory text, assessed in context, articulates two different kinds of offenses that, in this Indictment, are charged in a single count in both Count Two and Count Four. Those two counts, therefore, are duplicitous.

II. The Alternative Means Argument

The United States seeks to avoid dismissal, or the alternative remedy of election, by arguing that § 924(c)(1)(A) does not proscribe two separate crimes, but, instead, identifies two alternative means of committing the same offense. According to this argument, § 924(c)(1)(A) proscribes but one broad form of conduct: "employment of firearms in relation to crimes of violence and drug trafficking crimes. Congress identified various means through which the offense could occur." (Government's Reply Brief, p. 3).

Finding no real direction in the decisions of this circuit respecting how to structure the examination of the statute as an alternative means enactment, it has been necessary to turn to decisions from other jurisdictions for assistance in determining whether § 924(c)(1) sets out alternative means of committing a single offense or separate offenses that must be charged separately. That survey of the law in other circuits teaches that the relevant considerations are: (1) the text of the statute; (2) the legislative history; (3) the proof necessary to support each offense or means; and (4) the nature of the proscribed conduct.²

As illustrated by many of those decisions, the issue which must be confronted here is presented most often, not in determining the issue of duplicity of an indictment, but in ascertaining whether a statute creates separate offenses such that a jury must unanimously agree upon the facts of each offense. That analysis parallels the duplicity inquiry. See Correa-Ventura, 6 F.3d at 1081 ("[jury] unanimity is closely related to the issue of duplicity.... The jury should not be permitted to evaluate separate and distinct offenses about which they may disagree in rendering a patchwork guilty verdict," though the analysis is not identical because the duplicity inquiry should occur pre trial).³ Hence, decisions on that closely related issue significantly inform the duplicity issue presented here.

1. The Statutory Text

As explained above, the plain language of § 924(c)(1)(A), viewed in the context of the federal statutory scheme proscribing conduct related to firearms, points rather clearly to the conclusion that the statute does not merely identify alternative means for committing a single offense. Yet, the United States has eschewed a plain language examination of § 924(c)(1)(A), relying instead on a structural approach which it claims is necessitated by United States v. Hawkes, 753 F.2d 355, 357 (4th Cir. 1985).

To begin, Hawkes does not place a heavy emphasis on structure; but, to the extent that it focuses on structure, Hawkes is correctly cited by the United States for the proposition that the fact that the statute articulates the proscribed actions in the disjunctive does not dictate the conclusion that the legislature intended to create separate crimes. See Hawkes, 753 F.2d at 357-58 (holding that it was...