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United States v. Edwards

United States District Court, N.D. Oklahoma

July 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RAYTJUAN LAQUAI EDWARDS, Defendant.

          OPINION AND ORDER

          JOHN E. DOWDELL CHIEF JUDGE

         I. Background

         The defendant, Raytjuan Laquai Edwards, is charged in a three-count Second Superseding Indictment (Doc. 31). Count One charges that, from October 16, 2018 to November 27, 2018, having been previously convicted of felonies, the defendant possessed a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Count Two charges that, on November 27, 2018, in violation of 18 U.S.C. §§ 922(g)(8) and 924(a)(2), the defendant possessed a firearm and ammunition while subject to a Tulsa County protective order prohibiting use or threatened use of physical force against his girlfriend (Brianna Vaughn) and her child. Count Three charges that, on April 28, 2019, the defendant knowingly used corrupt persuasion and misleading conduct toward Ms. Vaughn and attempted to do so, by encouraging her not to come to court and that he did so with the intent of preventing her testimony in an official proceeding, in violation of 18 U.S.C. § 1512(b)(1).

         The defendant has filed four motions which are now before the Court (Doc. 24, 25, 26, 29), and the government has filed responses (Doc. 37, 38, 39, 40). The Court heard arguments on the motions on July 3, 2019.

         II. The Motions

         A. Defendant's Motion to Compel Election (Doc. 24)

         The defendant argues that Counts 1 and 2 are multiplicitous because both counts are premised upon the same alleged conduct: possession of the same firearm and ammunition. In response, the government argues that the counts are not multiplicitous because they involve different dates and violations of different provisions of § 922(g): Count 1 charges unlawful possession of a firearm and ammunition from October 16 to November 27 after felony convictions; and Count 2 charges that the defendant unlawfully possessed the weapon and ammunition on November 27, 2018 after a protective order was entered on November 5, 2018. In the alternative, the government argues that, if the counts are multiplicitous, the Court should exercise its discretion to submit evidence on both counts to the jury. If the jury convicts the defendant on both counts, the Court can require the dismissal of one count and sentence on the other.

         “Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior.” United States v. Johnson, 130 F.3d 1420, 1424 (10th Cir. 1997) (citing United States v. Morehead, 959 F.2d 1489, 1505 (10th Cir. 1992)). “While multiplicity is not fatal to an indictment, . . . it poses the threat of multiple sentences for the same offense and may improperly suggest to the jury that the defendant has committed more than one crime.” Id. (quoting Morehead, 959 F.2d at 1505). “The threat of multiple sentences for the same offense raises double jeopardy concerns.” Id.

         Under similar circumstances as presented here, courts have determined that multiple indictment counts for possession of the same firearm are multiplicitous. See, e.g., Id. at 1426 (determining two counts were multiplicitous where one charged under § 922(g)(1) and the other charged under § 922(g)(3) for possession of the same firearm). One unpublished Tenth Circuit decision appears to be on point here. In United States v. Hooks, 33 Fed.Appx. 371 (10th Cir. 2002) (unpublished), the defendant was arrested after his girlfriend called the police. She had previously obtained a protective order against the defendant. The defendant possessed a firearm when arrested, and the government charged him with one count of violating § 922(g)(1) and one count of violating § 922(g)(8), with both counts based upon the defendant's possession of the same firearm. The defendant was convicted and sentenced on both counts. The Tenth Circuit determined that the convictions and sentences on both counts violated double jeopardy. 33 Fed.Appx. at *1-2. In arriving at that conclusion, the court cited Johnson for the proposition that the court had “previously held that an individual's double jeopardy rights are violated when he is convicted of multiple violations of § 922(g) where only one firearm is involved.” Id. at 1.

         Based on the above, Counts One and Two in this case are multiplicitous and convictions and sentences on both counts would implicate double jeopardy. However, “[a] decision of whether to require the prosecution to elect between multiplicitous counts before trial is within the discretion of the trial court.” Johnson, 130 F.3d at 1426. Where there is a possibility that a jury may find a defendant guilty on one count but not on another count, a district court does not abuse its discretion in denying a defendant's pretrial request to require the government to elect to proceed on only one count. Id.; see also United States v. Harwell, 426 F.Supp.2d 1189, 1192 (D. Kan. 2006) (declining to require the government to elect between two counts prior to trial); United States v. Williams, No. 10-CR-76-CVE, 2010 WL 3219994, *1-2 (N.D. Okla. Aug. 12, 2010) (unpublished) (declining to require the government to elect between counts charging two separate violations - one under § 922(g)(1) and another under § 922(g)(9) for possession of the same firearm).

         Accordingly, the defendant's Motion to Compel Election (Doc. 24) is denied. Trial may proceed on both of the firearm counts. As the government alternatively argues, the Court may require the dismissal of one of the counts after trial if the defendant is found guilty on both firearm counts, such that the defendant will not suffer two convictions or sentences on multiplicitous counts.

         B. Defendant's Motion in Limine (Doc. 25)

         The defendant moves for a pretrial order excluding evidence of “allegations of domestic assault and battery, kidnapping, and lying to the police” and “[p]hotographs of illegal drugs and references in text messages to drugs, drug sales, or drug usage.” (Doc. 25 at 1). The defendant argues that admission of such evidence would violate his rights because the jury should not hear about any criminal conduct other than that charged in the indictment.

         The government responds that it does not intend to introduce evidence of drug sales or drug dealing. Accordingly, the defendant's motion in limine on that point is considered moot.[1]

         The government argues that evidence that the defendant assaulted Ms. Vaughn and threatened her with a firearm is relevant to proving the defendant knowingly possessed the firearm. According to the government, evidence that Ms. Vaughn thereafter obtained a protective order for herself and her son is directly relevant to Count Two, which charges that the defendant possessed a firearm after the entry of the protective order. The government further argues that all of the foregoing evidence relating to the alleged assault, kidnapping, and threatening with a weapon are relevant evidence to establish Count Three, which charges that the defendant attempted to corruptly persuade Ms. Vaughn from testifying against the defendant in an official proceeding. The government also contends that the evidence is admissible under Fed.R.Evid. 404(b)(2), as evidence that proves the defendant's knowledge and absence of mistake.

         To establish Count One, the government must prove that (1) the defendant knowingly possessed a firearm or ammunition, (2) he was convicted of a felony before he possessed the firearm, (3) he knew that he had been convicted of a felony, and (4) before the defendant possessed the firearm or ammunition, it had moved in interstate commerce. See 18 U.S.C. § 922(g)(1); see also generally Rehaif v. United States, ___ S.Ct. ___, 2019 WL 2552487, *7 (June 21, 2019) (“in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both ...


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