LEONARD T. STRAND, Chief District Judge.
This matter is before me on a Report and Recommendation (R&R) (Doc. No. 324) in which the Honorable C.J. Williams, Chief United States Magistrate Judge, recommends that I deny defendant's motion to dismiss Count 1 of the indictment (Doc. No. 315). Defendant filed a timely objection to the R&R (Doc. No. 333), the Government filed a response (Doc. No. 337) and defendant filed a reply (Doc. No. 343).
A. Relevant Procedural History
This case has a long, complex procedural history. However, little of that history is relevant to the pending motion. In short, on November 18, 2014, the grand jury returned an indictment (Doc. No. 2) charging defendant Brandon Lee Hayes with three counts related to the possession of a firearm. On June 30, 2016, a jury convicted Hayes of all three counts. Doc. No. 297. Hayes then filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, which I denied. Doc. No. 306. He subsequently filed the present motion to dismiss (Doc. No. 315) asking that I vacate one of his convictions and/or grant a new trial.
B. Relevant Facts
The only facts relevant to the present motion are: (1) Hayes was convicted of both Counts 1 and 3 of the Indictment, which charged him with possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) and possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(9), and (2) both convictions arose from the same incident of possessing a single firearm.
C. The R&R
In his motion to dismiss Count 1, Hayes argued:
Doc. No. 315 at 1. In its response, the Government agreed that Richardson establishes the applicable legal standard and that the "charges in Counts 1 and 3 are alternative violations of 18 U.S.C. § 922(g) (prohibited possession of a firearm) which, for purposes of sentencing, are multiplicitous." Doc. No. 318 at 2. However, the Government disagreed that the proper remedy is either a new trial or the dismissal of Count 1. Rather, the Government argued that "at sentencing, Counts 1 and 3 should operationally merge so that defendant is sentenced for only one act of unlawful possession of a firearm (as an armed career criminal)." Id.
Judge Williams agreed with the Government. He concluded that "the Court should merge counts one and three for sentencing purposes and impose a single sentence for the single violation of Section 922(g). That will avoid the principal danger of multiplicity." Doc. No. 324 at 5. Judge Williams also found that new trial is not appropriate because defendant has failed to show prejudice as a result of being charged separately. Id. at 7.
II. APPLICABLE STANDARDS
A district judge must review a magistrate judge's R&R under the following standards:
28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b). Thus, when a party objects to any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed under at least a "clearly erroneous" standard. See, e.g., Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that when no objections are filed "[the district court judge] would only have to review the findings of the magistrate judge for clear error"). As the Supreme Court has explained, "[a] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under a more-exacting standard even if no objections are filed:
Thomas v. Arn, 474 U.S. 140, 150 (1985).
A. The Objection
In his objection, Hayes argues that a post-trial "merger" of Counts 1 and 3 is not allowed by Eighth Circuit precedent:
Doc. No. 333 at 1. The Government contends that such merging is allowed:
Doc. No. 337 at 1. In reply, Hayes states:
Doc. No. 343 at 1.
At the outset, it is clear that this case should not have proceeded to trial on both Count 1 and Count 3. Convictions on multiple counts for the same conduct arising from the same incident violate the Double Jeopardy Clause of the constitution. United States v. Bennett, 44 F.3d 1364, 1368 (8th Cir.1995). The Eighth Circuit has unambiguously directed the Government regarding the proper procedure in prosecuting this type of case:
United States v. Roy, 408 F.3d 484, 492 n. 4 (8th Cir. 2005). A year later the Eighth Circuit stated that:
United States v. Richardson, 439 F.3d 421, 422 (8th Cir. 2006). Thus, there is no question that this indictment, which charged separate counts under 18 U.S.C. § 922(g) arising from the same incident of possession, presented a multiplicity problem that violated the Double Jeopardy Clause. The Government erred by not following the procedure set forth in Roy. The Government should have listed the separate, alleged § 922(g) violations as alternatives under one count. However, now that the case has been tried and the jury has returned guilty verdicts on both Count 1 and Count 3, I must consider the appropriate remedy.
As set out above, Judge Williams found that a post-trial merger of the counts is appropriate and recommended that I issue only one sentence on the merged counts. Judge Williams specifically found that vacating or dismissing one conviction is not appropriate. In support of that conclusion, he cited the cases previously discussed along with United States v. Haas, 599 F.Supp.2d 1061, 1064 (N.D. Iowa 2008), United States v. Platter, 514 F.3d 782, 787 (8th Cir. 2008) and United States v. Gambo, 439 F.3d 796, 808 (8th Cir. 2006). None of those cases reach the conclusion suggested in the R&R.
In Richardson, after remand, the Minnesota district court vacated one of Richardson's convictions. See United States v. Richardson, CR03-0074-DWF, Doc. No. 97 at 1 (D. Minn. 2006) ("Count Two [is] vacated on the motion of the United States per Eighth Circuit Ruling."). In Roy, the Eighth Circuit stated:
Roy, 408 F.3d 484, 492 (8th Cir. 2005) (internal citations omitted).
Haas, another case that went to trial before this court on multiplicitous counts, Judge Reade ruled on a similar post-trial motion, stating: "The court shall order that the other count be dismissed upon final affirmance of Defendant's conviction. The court shall vacate Section VII.B.3 of the Order (docket no. 95), in which the court held that judgment could enter on both counts." Haas, 599 F. Supp. 2d at 1074, aff'd, 623 F.3d 1214 (8th Cir. 2010).
In Platter, also before this court, Judge Reade recognized that multiple counts under § 922(g) were multiplicitous and ordered that the two counts be merged prior to trial and presented to the jury as alternate theories. U.S. v. Platter, CR06-2012, Doc. No. 51 at 9. Accordingly, that case is not analogous to this situation.
Gamboa, 439 F.3d at 808 (emphasis added). While the Eighth Circuit used the word "merge" it expressly stated that the conviction on one of the multiplicitous counts should be vacated. In short, none of these cases suggest that I can merge two convictions for sentencing without vacating one of them. To the contrary, they instruct that one of the convictions must be vacated. Accordingly, I cannot accept this aspect of Judge Williams' R&R.
I do agree with Judge Williams that a new trial is not warranted. "A multiplicitous indictment requires remand for a new trial only if the multiplicity prejudices the defendant." United States v. Emly, 747 F.3d 974, 980 (8th Cir. 2014) (citation omitted). This is because "instructions that direct the jury to consider each charge separately ensure that the jury's verdict on the valid counts will not be influenced by the multiplicitous counts." Id. In this case the jury was instructed:
Doc. No. 281-1 at 2 (emphasis in original). Accordingly, the presence of separate counts was not in and of itself prejudicial under Eighth Circuit law. There was no inconsistency in the verdicts, as all were guilty. As Judge Williams noted, and as I previously found (Doc. No. 306), there was substantial evidence to support the jury's verdicts. Finally, no sentencing prejudice will occur because I agree that one conviction must be dismissed. Accordingly, a new trial is not warranted.
Based on my de novo review of R&R (Doc. No. 324), defendant's objection (Doc. No. 333) is
3. This case will proceed to sentencing with regard to Counts 2 and 3.