Opinion
Case No. 00-40091-01-RDR.
February 22, 2001.
MEMORANDUM AND ORDER
This matter is presently before the court upon two pretrial motions filed by the defendant. The defendant filed a motion to dismiss or to elect because of duplicitous charging and a motion to dismiss for destruction of evidence. The defendant recently filed a supplemental memorandum in support of his motion to dismiss or to elect because of duplicitous charging. The court held a hearing on these motions and ruled at that time. The purpose of this memorandum and order is to memorialize the court's rulings.
The defendant was originally charged in a one-count indictment as follows:
On or about the 26th day of October, 2000, in the District of Kansas within the special maritime and territorial jurisdiction of the United States, namely Fort Riley Military Reservation, the defendant, DAVID ALLEN SHERWIN, did knowingly and forcibly and by means of a dangerous weapon, to-wit: a motor vehicle, assault, resist, oppose, impede, intimidate, and interfere with Kenneth Lanaux III and Joshua Beamer, Military Policemen, while they were engaged in, or on account of their official duties, in violation of Title 18, United States Code, sections 111(a)(1), 111(b) and 1114.
On February 14, 2001, a superseding three-count indictment was filed. Counts 1 and 2 of that indictment are as follows:
Counts 1 and 2 charge violations of 18 U.S.C. § 111. Count 3 charges a violation of 18 U.S.C. § 1361. The defendant's motion to dismiss or elect based on duplicitous charges is directed at the counts charging violations of § 111. Accordingly, the court shall provide only the allegations of those counts in this order. The allegations of Count 3 are not at issue.
COUNT 1
On or about the 26th day of October, 2000, in the District of Kansas within the special maritime and territorial jurisdiction of the United States, namely Fort Riley Military Reservation, the defendant, DAVID ALLEN SHERWIN, did knowingly and forcibly and by means of a dangerous weapon, to-wit: a motor vehicle, assault, resist, oppose, impede, intimidate, and interfere with Kenneth Lanaux III and Joshua Beamer, Military Policemen, while they were engaged in, or on account of their official duties, by refusing to stop his vehicle in response to their emergency flashing lights and ramming the patrol vehicle occupied by said military policemen with his vehicle, in violation of Title 18, United States Code, sections 111(a)(1), 111(b) and 1114.
COUNT 2
On or about the 26th day of October, 2000, in the District of Kansas, the defendant, DAVID ALLEN SHERWIN, did knowingly and forcibly assault, resist, oppose, impede, intimidate, and interfere with Timothy D. Wilson, a Military Policemen(sic), while he was engaged in, or on account of his official duties by slamming a car door into his legs and threatening to kill him, in violation of Title 18, United States Code, sections 111(a)(1), and 1114.
In his first motion to dismiss, the defendant argues that the charges against him based upon 18 U.S.C. § 111 should be dismissed based on duplicity. In the alternative, he contends that the government should be required to elect which crime it plans to prove at trial. He contends that the charges are duplicitous because each charges several offenses in a single count, i.e., the defendant is charged with assaulting, resisting, opposing, impeding, intimidating and interfering with the military policemen.
The defendant is charged in Counts 1 and 2 with a violation of 18 U.S.C. § 111 which reads as follows:
(a) In general. — Whoever —
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties . . . shall, where the acts in violation of this section constitute only a simple assault be fined under this title or imprisoned not more than one year, or both, and in all other cases be fined under this title or imprisoned not more than three years, or both.
(b) Enhanced penalty. — Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than ten years, or both.
A duplicitous indictment charges the defendant with two or more separate offenses in the same count. United States v. Trammell, 133 F.3d 1343, 1354 (10th Cir. 1998). "The dangers of duplicity are three-fold: (1) a jury may convict a defendant without unanimously agreeing on the same offense; (2) a defendant may be prejudiced in a subsequent double jeopardy defense; and (3) a court may have difficulty determining the admissibility of evidence." United States v. Wiles, 102 F.3d 1043, 1061 (10th Cir. 1998).
While the Tenth Circuit has not directly addressed the issue raised, other circuits have. In United States v. Street, 66 F.3d 969 (8th Cir. 1995), the Eighth Circuit rejected the argument made by the defendant. The court stated:
Section 111(a)(1) defines a single crime, not multiple offenses. The offense is intimidating or threatening by specified acts federal officials engaged in the performance of official duties. The statute lists all of the acts of violation in one sentence, and imposes a single penalty for all of them, "a construction which indicates that Congress did not mean to create more than one offense." United States v. Mal, 942 F.2d 682, 688 (9th Cir. 1991).
In enacting § 111, Congress intended broadly to prohibit harm or threats thereof to certain federal officials as well as interference with their law enforcement activities. See United States v. Feola, 420 U.S. 671, 678-84, 95 S.Ct. 1255, 1260-64, 43 L.Ed.2d 541 (1975). "In order to protect the law enforcement function itself, the statute must be read as prohibiting any acts or threats of bodily harm that might reasonably deter a federal official from the performance of his or her duties." United States v. Walker, 835 F.2d 983, 987 (2nd Cir. 1987). Congress created the single crime of harming or threatening a federal official, and specified six ways by which the crime could be committed. The indictment was not duplicitous.66 F.3d at 974-75. See also Bennett v. United States, 285 F.2d 567, 571-72 (5th Cir. 1960), cert. denied, 366 U.S. 911 (1961). But see United States v. Johnson, 462 F.2d 423, 428-29 (1972), cert. denied, 410 U.S. 937 (1973).
The court agrees with the Eighth Circuit that § 111(a)(1) merely enumerates several ways of committing the same offense. We believe that the Tenth Circuit would reach the same conclusion. See United States v. Austin, 933 F.2d 833, 843 (10th Cir. 1991) ( 18 U.S.C. § 111 may be charged with all six ways of committing an offense in conjunctive and then jury should be instructed in the disjunctive). Accordingly, the court does not find that Counts 1 and 2 are duplicitous.
In his second motion to dismiss, the defendant contends that the indictment should be dismissed because the government has destroyed potentially exculpatory evidence. In the alternative, the defendant requests that the government be sanctioned with prohibitions of proof related to the destruction of the evidence.
This motion arises from the fact that the military police vehicle that was involved in the incident that led to the charges in this case has been repaired. The defendant contends that the repair of the vehicle precludes him from conducting tests on the vehicle. At oral argument, the defendant withdrew any allegation of bad faith by the government in the repair of the vehicle.
In United States v. Parker, 72 F.3d 1444, 1451 (10th Cir. 1995), the Tenth Circuit set forth the standards for consideration of a motion to dismiss based upon destruction of evidence as follows:
Under the Due Process clause of the Fourteenth Amendment, the Supreme Court has developed "`what might loosely be called the area of constitutionally guaranteed access to evidence.'" California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982)). The Court has specified that, to the extent the Constitution imposes a duty upon the government to preserve evidence, "that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense" — i.e., evidence that is constitutionally material. Id. at 488-89, 104 S.Ct. at 2533-34. To be constitutionally material, evidence must: (1) "possess an exculpatory value that was apparent [to the police] before the evidence was destroyed," and (2) "be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489, 104 S.Ct. at 2534. The mere possibility that lost or destroyed evidence could have exculpated a defendant is not sufficient to satisfy Trombetta's requirement that the exculpatory value be "apparent" to the police before destruction. Arizona v. Youngblood, 488 U.S. 51, 56 n. *, 109 S.Ct. 333, 336 n. *, 102 L.Ed.2d 281 (1988). Additionally, "if the exculpatory value of the evidence is indeterminate and all that can be confirmed is that the evidence was `potentially useful' for the defense, then a defendant must show that the government acted in bad faith in destroying the evidence." [United States v.] Bohl, 25 F.3d [904] at 910 [(10th Cir. 1994)] (citing Youngblood, 488 U.S. at 58, 109 S.Ct. at 337). "[M]ere negligence on the government's part in failing to preserve such evidence is inadequate for a showing of bad faith." Id. at 912.
The defendant has failed to show that the evidence possessed an exculpatory value that was apparent to law enforcement prior to destruction. The court is at a loss as to how the vehicle could provide exculpatory evidence, and the defendant has not offered a rational explanation for this contention.
Thus, if the evidence is only "potentially useful" for the defense, then the defendant must also show that the government acted in bad faith. With the withdrawal of the allegation of bad faith, the court finds no basis to sustain this motion. Accordingly, the court shall deny the motion.
IT IS THEREFORE ORDERED that defendant's motion to dismiss or to elect because of duplicitous charging (Doc. # 27) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion to dismiss for destruction of evidence (Doc. # 29) be hereby denied.
IT IS SO ORDERED.