United States v. Ngombwa

• Decision Date: 02 September 2016
• Docket Number: No. 14-CR-123-LRR,14-CR-123-LRR
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. GERVAIS (KEN) NGOMBWA, Defendant.
• Court: U.S. District Court — Northern District of Iowa

UNITED STATES OF AMERICA, Plaintiff, v. GERVAIS (KEN) NGOMBWA, Defendant.

No. 14-CR-123-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION

September 2, 2016

ORDER

TABLE OF CONTENTS

I. INTRODUCTION ....................................... 1

II. RELEVANT PROCEDURAL HISTORY ........................ 1

III. ANALYSIS ........................................... 2

A. Timeliness and Good Cause ............................ 3

B. Merits .......................................... 5

C. Harmless Error and Remedy .......................... 11

IV. CONCLUSION ....................................... 12

I. INTRODUCTION

The matter before the court is Defendant Gervais (Ken) Ngombwa's "Motion to Merge Counts 1 & 2" ("Motion") (docket no. 189).¹

II. RELEVANT PROCEDURAL HISTORY

On October 30, 2014, a grand jury returned a four-count Indictment (docket no. 2) charging Defendant with (1) unlawfully procuring or attempting to procure naturalization or citizenship, in violation of 18 U.S.C. § 1425(a); (2) procuring or attempting to procure citizenship to which a person is not entitled, in violation of 18 U.S.C. § 1425(b); (3)conspiracy to unlawfully procure or attempt to procure citizenship, in violation of 18 U.S.C. §§ 371 & 1425(a); and (4) making a materially false statement, in violation of 18 U.S.C. § 1001(a)(2). On January 15, 2016, a jury unanimously found Defendant guilty of all four counts alleged in the Indictment. See Jury Verdicts (docket no. 120). Defendant's sentencing hearing is set for September 22, 2016. See July 8, 2016 Order (docket no. 174). On August 11, 2016, Defendant filed the Motion. On August 18, 2016, the government filed a Resistance (docket no. 190). The matter is fully submitted and ready for decision.²

III. ANALYSIS

In the Motion, Defendant argues that Counts 1 and 2 of the Indictment, alleging violations of 18 U.S.C. §§ 1425(a) and 1425(b), constitute the same offense for purposes of the Double Jeopardy Clause of the Fifth Amendment. See Motion at 1. Consistent with this argument, Defendant contends that "[t]he two counts must be merged and consolidated for purposes of sentencing" to prevent a violation of the Double Jeopardy Clause. Id. at 2. The government resists the Motion on grounds that: (1) the Motion is untimely and Defendant cannot show good cause; (2) Counts 1 and 2 do not allege the same offense; and (3) depending on the sentence imposed by the court, any double jeopardy violation may amount to harmless error. See generally Resistance. Defendant argues that, even if the Motion is deemed untimely, there is good cause to consider the Motion because his trial counsel provided ineffective assistance by failing to raise the issue before trial. See Motion at 2.

A. Timeliness and Good Cause

The government initially argues that the Motion should be summarily dismissed as untimely. See Resistance at 3. The government contends that the Motion effectively alleges a defect in the Indictment by claiming that Counts 1 and 2 are multiplicitous, and that a motion alleging such a defect must be raised prior to trial and the court's pretrial deadlines. Id. at 3-4. The government further argues that Defendant cannot show good cause sufficient for the court to consider the untimely Motion. Id. at 4-5; see also id. at 9-15 (addressing Defendant's argument that trial counsel's ineffective assistance amounts to good cause).

Federal Rule of Criminal Procedure 12(b)(3) states the general rule that a defendant wishing to challenge an indictment for "charging the same offense in more than one count (multiplicity)" must do so via pretrial motion. Fed. R. Crim. P. 12(b)(3)(B)(ii). The rule requires that a defendant raise a double jeopardy issue before trial if it "appears on the face of the indictment." United States v. Anderson, 783 F.3d 727, 740 (8th Cir. 2015) (quoting United States v. Weathers, 186 F.3d 948, 953-54 (D.C. Cir. 1999)). Where the court sets a pretrial motion deadline, such deadline establishes the timeliness of a Rule 12 motion. See Fed. R. Crim. P. 12(c); see also United States v. Green, 691 F.3d 960, 963 (8th Cir. 2012). Here, the court set a June 1, 2015 deadline for pretrial motions. See Amended and Substituted Criminal Trial Scheduling Order (docket no. 38) at 2. However, even though a motion is untimely if filed after the pre-trial deadline set by the court, "a court may consider the [motion] if the party shows good cause." Fed. R. Crim. P. 12(c)(3).

Because Defendant filed the Motion after the court's June 1, 2015 deadline, and likewise after his trial and conviction, the Motion is untimely if the alleged double jeopardy issue appeared on the face of the Indictment. See Anderson, 783 F.3d at 740. Defendant's argument in the Motion relies on his reading of the Indictment, the underlying statutory provisions and the court's jury instructions. See Brief in Support of Motion(docket no. 189-1) at 1-5. The contents of the Indictment clearly appear on "the face" of the Indictment. So too do the relevant statutory provisions appear on the face of the Indictment. See Indictment at 1, 27, 29. Further, Defendant's argument with respect to the jury instructions concerns only the marshaling instructions for Counts 1 and 2. See Brief in Support of Motion at 2-3. The marshaling instructions largely track the language of §§ 1425(a) and 1425(b), tailored to the instant case, which involved the making of false statements. See Final Jury Instructions (docket no. 118) at 13-14. In sum, the court concludes that the issue raised in the Motion appeared on the face of the Indictment. See United States v. Schropp, ___ F.3d ___, ___, 2016 WL 3947813, at *4 (8th Cir. July 22, 2016) (finding that the basis for a double jeopardy challenge appeared on the face of an indictment where the indictment clearly charged the defendant with the challenged offenses). Accordingly, because the issue was not raised before the pretrial motions deadline, the Motion is untimely.

Despite the Motion being untimely, the court may consider it if Defendant shows good cause. Defendant argues that good cause exists because his trial counsel provided ineffective assistance by failing to raise the issue before trial. Brief in Support of Motion at 6. However, the court need not decide the effectiveness of trial counsel on this matter because good cause exists on other grounds.³ Throughout the entirety of the approximately fifteen months between the filing of the Indictment and Defendant's convictions at trial, Defendant was represented by trial counsel. Defendant retained present counsel only after he was convicted. See Notice of Attorney Appearance (docket no. 125). Present counsel was tasked with familiarizing himself with the complexities of the case, with which he had no prior involvement during the fifteen months that preceded his appearance. The court is mindful of the fact that, because present counsel did not appear until after Defendant'sconvictions, he had no opportunity to raise the issue in the Motion before the court's pretrial deadline. Further, upon his appearance in the case, present counsel reasonably prioritized the filing of a Motion for New Trial (docket no. 131), which was extensively litigated. Present counsel has continued to actively represent Defendant in the months since the resolution of the Motion for New Trial. Additionally, although the Motion was filed on August 11, 2016, the parties anticipated Defendant's filing of the Motion as early as June 22, 2016. See June 22, 2016 Minute Entry (docket no. 169) (hearing wherein the parties discussed proposed deadlines for various motions anticipated by the parties, including the instant Motion). Based on the unique procedural posture and complexities of this case, as well as the meritorious constitutional claim raised in the Motion, discussed below, the court finds good cause for considering the Motion, despite its untimeliness. See United States v. Trancheff, 633 F.3d 696, 697 (8th Cir. 2011) (stating that "the district court has discretion to excuse" the implicit waiver of an issue that was not timely raised). Accordingly, the court will proceed to address the Motion on the merits.

B. Merits

In the Motion, "Defendant moves to merge Counts 1 and 2 at time of sentencing, as failure to do so will result in multiple punishments for the same criminal offense, in violation of the [D]ouble [J]eopardy [C]lause." Brief in Support of Motion at 3. To support his claim that Counts 1 and 2 state the same offense, Defendant employs the test created in Blockburger v. United States, 284 U.S. 299 (1932), and contends that both counts do not require proof of any fact that the other does not. See id. at 4-5. The government argues that each count includes a distinct element. Resistance at 7-9.

"An indictment is multiplicitous if it charges the same crime in two counts." United States v. Chipps, 410 F.3d 438, 447 (8th Cir. 2005). "The rule against multiplicitous prosecutions is based on the Fifth Amendment's Double Jeopardy Clause . . . ." United States v. Emly, 747 F.3d 974, 977 (8th Cir. 2014) (quoting United States v. Hinkeldey, 626F.3d 1010, 1013 (8th Cir. 2010)). The Double Jeopardy Clause "does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Anderson, 783 F.3d at 739 (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)). Therefore, "determining whether multiple punishments for the same offense violate the Double Jeopardy Clause is a matter of ascertaining legislative intent." Id. Where legislative intent is not apparent, courts must rely on the test articulated in Blockburger. Id. Under Blockburger, "[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 a fact which the other does not.'" United States v. Grimes, 702 F.3d 460, 467 (8th Cir....