Opinion
CRIMINAL ACTION NO. 01-282, SECTION "R".
June 2, 2003.
ORDER AND REASONS
Before the Court is the motion of defendant, Johnny Davis, to dismiss multiplicative convictions under 18 U.S.C. § 924(c). Davis was found guilty of three counts of murder in violation of § 924(j). Defendant characterizes these counts as multiple convictions under § 924(c), and he asserts that because the three murders all occurred through the use of a firearm during and in relation to the same predicate drug trafficking conspiracy, he can only be convicted on a single count of § 924(c). In light of United States v. Curtis, 324 F.3d 504 (7th Cir. 2003) and related Fifth Circuit precedent, the Court denies defendant's motion.
I. BACKGROUND
In Count One of a 15-count superseding indictment, the government charged Davis and two co-conspirators with participating in a drug trafficking conspiracy to possess with the intent to distribute heroin in violation of 21 U.S.C. § 846. (Rec. Doc. 177.) In four separate counts the government further charged that Davis carried and used a firearm during and in relation to this drug trafficking conspiracy on four separate occasions in violation of 18 U.S.C. § 924(c), and on each occasion committed a murder of a different victim, in violation of 18 U.S.C. § 924(j). These four counts involved the murder of Rodney Woods on February 15, 2001 (Count Four); the murder of Samuel Collins on February 27, 2001 (Count Six); the murder of Walter Naylor on February 28, 2001 (Count Eight); and, the murder of Leonard Morgan on March 13, 2001 (Count Ten). On May 14, 2003, the jury found Davis guilty of, among other things, Count One (a violation of 21 U.S.C. § 846), and Counts Six, Eight and Ten (three separate violations of 18 U.S.C. § 924(j)). After the jury returned its verdict, defendant filed this motion to dismiss multiplicative convictions under 18 U.S.C. § 924(c). The thrust of defendant's argument is that 18 U.S.C. § 924(j) enhances the sentence for a violation of 18 U.S.C. § 924(c), and that it is multiplicative and in violation of the Double Jeopardy Clause of the United States Constitution to charge a defendant for multiple violations of 924(c) all predicated on the same drug trafficking crime, here, the drug trafficking conspiracy charged in Count One.
II. DISCUSSION
The Double Jeopardy Clause of the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. This clause prevents the government from charging a single offense in multiple counts of an indictment (multiplicity of indictment) and, relatedly, from seeking multiple sentences for the same offense (multiplicity in sentencing). Though styled as a motion to dismiss multiplicative convictions, the Court will construe defendant's motion as a challenge to multiplicity in sentencing. "`The chief danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense.'" United States v. Reedy, 304 F.3d 358, 363 (5th Cir. 2002) (quoting United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir. 1985)). When overlapping statutory provisions create the risk of multiplicity, "`the test for determining whether the same act or transaction constitutes two offenses or only one is whether conviction under each statutory provision requires proof of an additional fact which the other does not.'" Id. (quoting United States v. Nguyen, 28 F.3d 477, 482 (5th Cir. 1994). This test is derived from the Supreme Court's landmark decision in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182 (1932). More recently, the Supreme Court added that a determination of multiplicity "cannot be resolved without determining what punishments the Legislative Branch authorized." Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436 (1980).
Defendant forfeited any challenge to the multiplicity of the indictment by failing to raise the issue before trial. Reedy, 304 F.3d at 364. An argument based on multiplicity of sentencing, however, is not forfeited. Such an argument can be raised for the first time after trial and can even be raised for the first time on appeal. Id.; United States v. Stovall, 825 F.2d 817, 821 (5th Cir. 1987).
Before addressing defendant's argument, a brief review of the statutory framework and the structure of the indictment is in order. Title 18 U.S.C. § 924 is entitled "Penalties," and § 924(c)(1)(A) provides:
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime . . . 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 —
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years. . . .18 U.S.C. § 924(c)(1)(A). In addition, 18 U.S.C. § 924(j) provides:
A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall — (1) if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment for any term of years or for life. . . .18 U.S.C. § 924(j). Because a § 924(j) violation is predicated on a violation of § 924(c), courts have held that § 924(j) does not set forth a discrete crime. Rather, § 924(j) is "fairly interpreted as an additional aggravating punishment for the scheme already set out in § 924(c)." United States v. Allen, 247 F.3d 741, 769 (8th Cir. 2001); see also United States v. Battle, 289 F.3d 661, 667 (10th Cir. 2002).
Finally, 18 U.S.C. § 924(o) provides:
A person who conspires to commit an offense under section (c) shall be imprisoned for not more than 20 years, fined under this title, or both; and if the firearm is a machinegun or destructive device, or is equipped with a firearm silencer or muffler, shall be imprisoned for any term of years or life.
19 U.S.C. § 924(o).
The government structured the indictment in this case by, first, charging Davis with conspiring to possess with the intent to distribute heroin, in violation of 21 U.S.C. § 846 (Count One). The jury found the defendant guilty of this charge. The government also charged Davis with conspiring, during and in relation to a drug trafficking crime, to use and carry firearms, and to possess firearms in furtherance of the drug trafficking crime charged in Count One, in violation of 18 U.S.C. § 924(o) (Count Three). The jury found the defendant guilty of this charge. The government also charged the defendant with four separate counts of carrying and using a firearm during and in relation to the drug trafficking crime charged in Count One during the course of which he caused the death of a person through the use of a firearm, which killing is a murder, all in violation of 18 U.S.C. § 924(j) (Counts Four, Six, Eight and Ten). The § 924(c) violation serving as the predicate for each of these four § 924(j) counts involves the same underlying drug trafficking crime, namely, the conspiracy to possess with the intent to distribute heroin charged in Count One. All four murder counts, as charged, involved the use of the same gun, namely, a Glock .40 caliber semi-automatic pistol bearing serial number AAD0979. All four murder counts involved different uses of that gun to kill different victims on different days. The jury found Davis guilty of three of the four murders (Counts Six, Eight and Ten). In light of the case law interpreting § 924(j) as an enhancement of a violation of § 924(c), defendant characterizes these three convictions as multiple convictions of § 924(c) all based on the same predicate drug trafficking crime.
Defendant does not argue that the conviction under § 924(o) is multiplicative of the convictions under § 924(c), despite that it, too, is based on the same underlying drug trafficking crime charged in Count One.
The question presented is whether it violates the Double Jeopardy Clause to predicate multiple violations of 18 U.S.C. § 924(j) on the same underlying drug trafficking crime, even if the murders involve different uses of a firearm to kill different victims on different days. In a well-reasoned opinion by Judge Diane Wood (sitting with Judge Evans and Judge Posner), the Seventh Circuit rejected this very argument. See United States v. Curtis, 324 F.3d 504 (7th Cir. 2003). Like this case, the Curtis case involved multiple murders committed during and in relation to a long-running drug trafficking conspiracy. The two defendants in Curtis were charged with and found guilty of a conspiracy to possess with the intent to distribute crack cocaine in violation of 21 U.S.C. § 846. The government also charged both defendants with two counts of the use of a firearm to commit murder in furtherance of a drug conspiracy in violation of 18 U.S.C. § 924(c) and (j). As in this case, the two murders in Curtis were both predicated on the same underlying drug trafficking crime. The Curtis court expressly held that using a single drug trafficking offense to support two separate § 924(j) convictions does not violate the Double Jeopardy Clause. Curtis, 324 F.3d at 507. Citing Blockburger, the Curtis court noted that one conviction is not multiplicitous of another conviction if it must require proof of an element that the other does not. In Curtis, each § 924(j) conviction required proof of a different element: one count required the government to prove that the defendant murdered Victim X, the second count required the government to prove that the defendant murdered Victim Y. Curtis, 324 F.3d at 508. The Curtis court further supported its conclusion with an inquiry into Congressional intent. That court noted that Congress may have generally intended § 924(j) to be an enhancement provision for a violation of § 924(c), but that Congress also intended that each murder should be punished separately. To conclude otherwise would mean that all but the first killing committed in the course of a long-running drug trafficking conspiracy would not be covered by the statute. "We will not presume that Congress intended such an outcome without far more explicit statutory language." Curtis, 324 F.3d at 509.
Like the Curtis court, the Court finds defendants' argument implausible and concludes that separate murders in violation of § 924(j) may be charged individually, even if they are based on the same underlying drug trafficking crime. As previously mentioned, the test to be applied to allegedly multiplicitous counts is "whether each provision requires proof of an additional fact which the other does not." United States v. Martinez-Espinosa, 299 F.3d 414, 417 (5th Cir. 2002); see also United States v. Phipps, 319 F.3d 177, 184 (5th Cir. 2003). Here, each of the three convictions under § 924(j) required the government to prove an additional fact: Count Six required the government to prove that Davis murdered Samuel Collins; Count Eight, Walter Naylor; Count 10, Leonard Morgan. The Blockburger test, then, reveals that the counts as charged do not violate the Double Jeopardy Clause. Further, the Court agrees with the Curtis court that the statutory framework indicates Congressional intent to punish multiple murders separately, even if they occur through the use of a firearm in furtherance of the same underlying drug trafficking crime. Although § 924(j) references § 924(c), it is not a subsection of § 924(c). Moreover, the statutory structure and language must be twisted to yield the unlikely conclusion that a participant in a major drug trafficking conspiracy is subject to the same penalty for committing one murder in relation to the conspiracy as a participant who commits 100 murders.
Fifth Circuit jurisprudence lends some support to, and does not foreclose, today's result. In United States v. Phipps, 319 F.3d 177, 184 (5th Cir. 2003), the Fifth Circuit makes clear that § 924(c) creates an offense that is distinct from the underlying felony, here the drug trafficking conspiracy. Phipps, 319 F.3d at 185-88. The question presented in that case was whether a defendant can be charged with two § 924(c) violations for a single use of a gun to commit two different predicate acts. In reaching its decision that he could not, the Phipps court analyzed the "unit of prosecution" under § 924(c). The Court concluded that the unit of prosecution is neither the predicate offense, nor the use, carriage or possession of a firearm. Id. at 185. Rather, the unit of prosecution under § 924(c) is "the use, carriage, or possession of a firearm during and in relation to a predicate offense, with slightly more emphasis on the use, carriage or possession of a firearm." Id. The Phipps court held that the statute allows for as many counts as there are uses of the firearm. Id. at 186. The implication of Phipps is that it is possible to support two separate § 924(c) convictions on the same predicate drug trafficking crime so long as the use, carriage or possession of a firearm in one count is sufficiently distinct from the one in the additional count.
Other Fifth Circuit opinions (that pre-date Phipps) restrict the implication of the holding in Phipps, but they do not restrict its application to multiple § 924(j) violations. See, e.g., United States v. Baptiste, 309 F.3d 274, 278-79 (5th Cir. 2002); United States v. Privette, 947 F.2d 1259 (5th Cir. 1991). These opinions declare that the rule in the Fifth Circuit is that multiple firearms offenses under § 924(c) cannot give rise to multiple convictions under § 924(c), unless each firearms charge is sufficiently linked to a separate drug trafficking offense. Defendant relies heavily on these cases. Notably, however, none of these cases involved violations of § 924(j). At most, Baptiste and Privette imply that it may violate Double Jeopardy to charge a defendant with two counts of § 924(c) for the use of Firearm X on Day 1 and the use of Firearm Y on Day 2 when both firearms are used in furtherance of the same predicate drug trafficking crime. Those cases do not, however, preclude a finding that using firearms to cause the murders of different individuals on different days in furtherance of the same drug trafficking crime can give rise to multiple violations of § 924(j). Therefore, in light of Phipps, the Seventh Circuit's holding in Curtis, and the fact that each count under § 924(j) required the government to prove an additional fact, the Court denies defendant's motion.
III. CONCLUSION
For the foregoing reasons, the Court denies defendant's motion.