US v. Dudley, 91-40017-01.

• Decision Date: 02 December 1991
• Docket Number: No. 91-40017-01.,91-40017-01.
• Citation: 779 F. Supp. 1581
• Court: U.S. District Court — District of Kansas
• Parties: UNITED STATES of America, Plaintiff, v. Larry L. DUDLEY, Defendant.

779 F. Supp. 1581

UNITED STATES of America, Plaintiff, v. Larry L. DUDLEY, Defendant.

No. 91-40017-01.

United States District Court, D. Kansas.

December 2, 1991.

Lee Thompson, U.S. Atty., Gregory G. Hough, Asst. U.S. Atty., for plaintiff.

Marilyn M. Trubey, Asst. Federal Public Defender, Topeka, Kan., for defendant.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendant Larry L. Dudley's motion to dismiss Counts Three through Six of the twelve count indictment. On June 3, 1991, the court held this motion in abeyance pending a ruling on the defendant's mental competency. On November 18, 1991, the court ruled the defendant is competent to stand trial. The court is now prepared to rule on the defendant's motion to dismiss certain counts of the indictment.

Counts One, Three, and Five of the indictment charge the defendant, on three separate days,

in connection with his acquisition of a firearm, to-wit: a RG, RG-14, .22 caliber revolver, serial number Z100399, from Capitol City Pawn Shop, Inc., Topeka, Kansas, a licensed dealer, knowingly made a false and fictitious written statement to Capitol City Pawn Shop, Inc., Topeka, Kansas, which statement was likely to deceive Capitol City Pawn Shop, Inc., Topeka, Kansas, as to a fact material to the lawfulness of such sale or acquisition of said firearm to the defendant under Chapter 44 of Title 18, in that the defendant represented he had not been convicted in a court of a crime punishable by imprisonment for a term exceeding one year....

The defendant contends he made identical false statements in writing to identical questions, which should be charged as one, not three separate criminal acts. The false statements, however, were allegedly made on three separate occasions to retrieve the pawned weapon yet another time. The defendant "republished" the false statement each time he submitted the forms to retrieve the gun. United States v. Jordan, 890 F.2d 247 (10th Cir.1989). Thus, Counts One, Three, and Five of the indictment are not multiplicitous and will not be dismissed.

Defendant also contends the crimes charged in Counts Two, Four, and Six are multiplicitous because they charge him with the same conduct. These counts charge the defendant, on three separate occasions,

having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess in and affecting commerce a firearm, to-wit: a RG, RG-14, .22 caliber revolver, serial

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