Opinion
CR 2001-30057-03
August 31, 2001
Randolph J. Seiler, US Attorney's Office, Pierre, S.D. Attorney for Plaintiff.
John J. Simpson, Simpson Law Office, Hamill, S.D., Attorney for Defendant.
REPORT AND RECOMMENDATION CONCERNING MOTION TO DISMISS SPECIFIED COUNTS OF THE INDICTMENT
I.
[¶ 1] On June 18, 2001, Lawrence S. Little Thunder, a/k/a Lawrence Little Thunder, a/k/a Michael Spears (Little Thunder), a Co-Defendant, filed a Motion and Supporting Memorandum of Law seeking to dismiss specified counts of the indictment. Docket Nos. 36, 37. Subsequently, Defendant, Tyler James Erickson, a/k/a T. J. Erickson, a/k/a Tyler James Eagle Feather (Erickson) moved and was permitted to join in Little Thunder's Dismissal Motion. Docket No. 58. A hearing was later held on the Motion at which Erickson relied on the oral arguments made by another Co-Defendant, Grover Albert Siers, III. Docket No. 97, at 55-60. Because Erickson's Motion is a dispositive one, this Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 U.S.C. § 636(b)(1), the Court does now make and propose the following report and recommendation for disposition of the Motion.
II.
[¶ 2] Erickson is currently charged with nineteen felony offenses; of these, thirteen are for assault with a dangerous weapon (Counts 1-3, 6-7, 11-15, 18-19, 21), in violation of 18 U.S.C. §§ 1153, 113(a)(3) and 2; three are for assault resulting in serious bodily injury (Counts 4, 16, 22), in violation of 18 U.S.C. §§ 1153, 113(a)(6) and 2; two are for first degree burglary (Counts 5 and 17), in violation of 18 U.S.C. § 1153 and SDCL 22-32-1, and one is for robbery, (Count 20), in violation of 18 U.S.C. §§ 2111 and 2. Erickson has pled not guilty to all nineteen counts of the superceding indictment and is currently detained pending trial. Docket Nos. 15, 24.
[¶ 3] In his Dismissal Motion, Erickson contends that the assault with a dangerous weapon charges are multiplicitous in violation of the Double Jeopardy Clause and should either be dismissed or combined into one count for each alleged victim. Docket No. 36. Plaintiff, United States of America (government) filed a resistance to the Motion, arguing that the assault with a dangerous weapon counts require proof of different facts and are therefore not multiplicitous. Docket No. 83 at 6. Alternatively, the government asserts that in the event any of these counts are found to be multiplicitous, it should be allowed to elect which counts to proceed on. Id.
[¶ 4] After hearing arguments from counsel, the Court took the matter under advisement. Docket Nos. 85, 97 at 60. The Court has carefully reviewed the superceding indictment and considered it in light of the totality of the circumstances present and applicable precedent and concludes that Erickson's Motion should be granted in part and denied in part, as explained in more detail below.
III.
[¶ 5] A multiplicitous indictment is one that charges a single offense in multiple counts. United States v. Webber, 255 F.3d 523, 527 (8th Cir. 2001). "The vice of multiplicity is that it may lead to multiple sentences for the same offense." United States v. Wilkinson, 124 F.3d 971, 975 (8th Cir. 1997) (quoting United States v. Street, 66 F.3d 969, 975 (8th Cir. 1995)), cert. denied, 522 U.S. 1133 (1998).
[¶ 6] "Stating the rule against multiplicity is a relatively simple proposition; discerning the proper judicial test for implementing the rule is, however, more difficult." United States v. Christner, 66 F.3d 922, 927 (8th Cir. 1995). As one scholar has observed:
The yardstick in determining whether there is . . . multiplicity is whether one offense or separate offenses are charged, and . . . this is a difficult and subtle question. The test announced most often in cases is that offenses are separate if each requires proof of an additional fact that the other does not. This seems of little value as a test. The real question is one of legislative intent, to be ascertained from all of the data available.
1A C. Wright, Federal Practice and Procedure § 142, at 17, 20 (1999). This observation is aptly supported by cases decided by the United States Supreme Court and this Circuit. See e.g. Ladner v. United States, 358 U.S. 169, 173-78 (1958); Bell v. United States, 349 U.S. 81, 82-84 (1955); Christner, 66 F.3d 927-30; United States v. Bennett, 44 F.3d 1364, 1373 (8th Cir.), cert. denied, 515 U.S. 1123 (1995); United States v. Barnhart, 979 F.2d 647, 651 (8th Cir. 1992).
[¶ 7] Two distinct tests have emerged in determining whether Congress intended to allow for cumulative punishments of statutory violations: (1) The " Blockburger" test and (2) the "unit of prosecution" test. See e.g. Whalen v. United States, 445 U.S. 684, 691-92 (1980) (employing the 's Blockburger" test in determining whether multiple punishments are allowed when the defendant violates two statutes); Ladner, 358 U.S. at 177 (employing the "unit of prosecution" test in determining whether multiple punishments are proper when the defendant commits two violations of the same statute.) While both tests focus on congressional intent, there is a clear rule governing which test is to be used when reviewing multiplicity/double jeopardy claims.
A.
[¶ 8] When there is ambiguity as to whether a violation of two different statutory provisions constitutes separate offenses allowing for multiple punishments, courts apply the rule of statutory construction set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932). See Whalen, 445 U.S. at 691-92. The Supreme Court in Blockburger observed that "[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 an additional fact which the other does not." Blockburger, 284 U.S. at 304 (emphasis added); see also, Rutledge v. United States, 517 U.S. 292, 297 (1996); Missouri v. Hunter, 459 U.S. 359, 366-67 (1983). The " Blockburger" test embodies the presumption that Congress "ordinarily does not intend to punish the same offense under two different statutes." Whalen, 445 U.S. at 691-92. This test is used only where a defendant is charged with violating two separate statutory provisions. See United States v. Christner, 66 F.3d at 927-28 n. 7.
B.
[¶ 9] Where a defendant is charged with two violations of the same statute courts determine what act Congress intended as the "unit of prosecution" under the statute in question. See Sanabria v. United States, 437 U.S. 54, 70, n. 24 (1978); see also, United States v. Weathers, 186 F.3d 948, 952 (D.C. Cir. 1999), cert. denied, 529 U.S. 1005 (2000); United States v. Esch, 832 F.2d 531, 541 (10th Cir. 1987), cert. denied, 485 U.S. 908 (1988).
[¶ 10] The relevant inquiry is whether the conduct in question was intended to give rise to more than one offense under the same statutory provision. See United States v. McLaughlin, 164 F.3d 1, 14 (D.C. Cir. 1998), cert. denied, 526 U.S. 1079 (1999); see also, United States v. Rimell, 21 F.3d 281, 287 (8th Cir.), cert. denied, 513 U.S. 976 (1994). The issue remains one of congressional intent, and courts look to the language of the statute and legislative history for guidance. See Ladner, 358 U.S. at 178; Rimell, 21 F.3d at 287. If the intent of Congress is ambiguous, rather than applying the principles annunciated in Blockburger, courts resort to the rule of lenity wherein doubt will be resolved against turning a single transaction into "multiple offenses . . . ." McLaughlin, 164 F.3d at 14-15 (quoting Bell, 349 U.S. at 84 (clarifying that "[i]n" — unit of prosecution's cases, although the ultimate question remains one of legislative intent, the " Blockburger" test is not used); see also, Esch, 832 F.2d at 540 (recognizing that the " Blockburger" test only applies when the defendant is charged and convicted under two separate statutory provisions). This rule dovetails out of the notion that any doubt as to legislative intent should be resolved in favor of the defendant, and thus against multiplicitous prosecution and punishment. See Ladner, 358 US at 177-78; Bell, 349 U.S. at 83; United States v. Universal C.I.T. Credit Corp, 344 U.S. 218, 221-22 (1952).
C.
[¶ 11] Here, Erickson is charged with multiple violations of the same statute, namely § 113(a)(3); therefore, the " Blockburger" test is inapplicable and the "unit of prosecution" test must be used in determining whether the assailed counts of the superceding indictment are multiplicitous and subject to dismissal under the Double Jeopardy Clause.
[¶ 12] In attempting to glean the relevant "unit of prosecution" of the assault with a dangerous weapon counts, the Court first looks to the plain language of the assault statute itself. At the time Erickson was indicted, § 113(a)(3) provided in pertinent part that whoever assaults another "with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse," "shall be punished . . . by a fine . . . or imprisonment for not more than ten years, or both."
[¶ 13] The language of the statute does not, in the Court's view, clearly evince an intent on the part of Congress as to the appropriate "unit of prosecution." On the one hand, the statute refers to assaults committed with "a dangerous weapon". Because the statute makes it a crime to assault someone with "a dangerous weapon", it can be argued that the "unit of prosecution" for the offense should be based on each dangerous weapon employed in an assault. On the other hand, it can be likewise argued that Congress did not intend to create a separate offense for each dangerous weapon that was used to assault a victim during a melee. Indeed, it is hard to fathom that in enacting § 113(a)(3), Congress intended to permit a person, for example, who punches and kicks another in rapid succession with rings and shoes on, to be prosecuted and punished for each blow he strikes. Instead, the more plausible interpretation, in this context, is that Congress meant to proscribe a continuous course of conduct, as opposed to distinct and separate acts.
[¶ 14] The legislative history of the statute sheds little, if any light on the issue. The history does not reveal whether Congress's s aim was to define § 113(a)(3) in terms of "separate acts" or based on a "course of conduct". The Court has been unable to find any writings which unequivocally indicate whether this statute was intended to criminalize individual acts or the course of action which they constitute.
[¶ 15] In the present case, the Court is quite skeptical as to whether Congress intended for Erickson to be prosecuted and punished for each type of weapon he may have used in his alleged assaults of John Menard (Counts 1-3), James Clairmont (Counts 6-7), Jeffrey Fielder (Counts 11-12), Tyler Antoine (Counts 13-14), and Duane Rouillard (Counts 18-19). Absent a clear expression from Congress as to its intention to allow multiple offenses, based on each dangerous weapon that is used, a single violation will be presumed. Ladner, 358 U.S. at 177-78; Bell, 349 U.S. at 83-84; McLaughlin, 164 F.3d at 15. Because Congress did not articulate its intentions clearly and without ambiguity, any doubt must be resolved in favor of lenity and against making one transaction into two or three separate offenses. Id. To do otherwise and subject a defendant to the potential of multiple convictions and a more harsh punishment than he would otherwise receive would run afoul with the Double Jeopardy Clause.
[¶ 16] To be sure, the government certainly can prosecute Erickson for assaulting each of the alleged victims with a dangerous weapon. The government, however, cannot charge each assault separately, based on the type of weapon utilized. By charging Erickson the way it has done (by weapon), the government has "stacked the deck" against him. This is precisely what the rule against multiplicity was designed to prohibit. More importantly, such a practice, if allowed, would prejudice Erickson because it would suggest to the jury that he committed more than one offense and because it would result in multiple punishments being imposed for the same crime. See United States v. Sue, 586 F.2d 70, 71 (8th Cir. 1978).
[¶ 17] Counts 1-3 (Menard), 6-7 (Clairmont), 11-12 (Fielder), 13-14 (Antoine), and 18-19 (Rouillard), are multiplicitous. Even so, this defect does not require dismissal of the indictment, especially where, as here, the defect can be addressed and remedied prior to trial. See Sue, 586 F.2d at 71; see generally, 1A Wright, § 145, n. 10. The Court believes that the interests of justice demand, in this instance, that the government be required to consolidate the various assault with a dangerous weapon counts into a single count for each alleged victim. See United States v. Wiehl, 904 F. Supp. 81, 91 (N.D.N.Y. 1995) (collecting case); see also, 1A Wright.
IV.
[¶ 18] Based on the foregoing, and in accordance with § 636(b)(1), the Court concludes that the superceding indictment is in part multiplicitous and that the assault with a dangerous weapon counts of the same should be consolidated into a single count for each alleged victim. Accordingly, it is hereby
[¶ 19] RECOMMENDED that Erickson's Motion to Dismiss Specified Counts of the Indictment, Docket Nos. 36, 58, be granted in part and denied in part as discussed herein.
NOTICE
Failure to file written objections to the within and foregoing Report and Recommendation for disposition within ten (10) days from the date of service shall bar an aggrieved party from attacking such Report and Recommendation before the assigned United States District Judge. See 28 U.S.C. § 636(b)(1).