United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL CHIEF JUDGE
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).
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.
Defendant's Motion to Compel Election (Doc. 24)
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.
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.
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.
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).
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.
Defendant's Motion in Limine (Doc. 25)
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
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
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.
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 ...