United States District Court, N.D. Iowa, Cedar Rapids Division
MEMORANDUM OPINION AND ORDER REGARDING SUBMISSION OF ALTERNATIVES FOR 18 U.S.C. § 922(g) OFFENSE
MARK W. BENNETT, District Judge.
In a Third Superseding Indictment (docket no. 66), defendant Matthew Robbins is charged with two firearms offenses. Count 1 charges Robbins with possession of a stolen firearm and ammunition, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). Count 2 charges Robbins with being a drug user and felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and (g)(3) and 924(a)(2). Prior to a jury trial, set to begin April 20, 2015, Robbins stipulated that he has one or more prior felony convictions and that the firearm and ammunition charged in Count 2 were transported across state lines, if he did, indeed, possess any of them. Thus, the disputed elements of the § 922(g) offense are whether, at the relevant time, Robbins was a drug user, as well as a felon, and whether he knowingly possessed the firearm or ammunition alleged in Count 2. See 18 U.S.C. § 922(g)(1) and (g)(3); 8th Cir. Criminal Model No. 6.18.922A.
In an e-mail, dated April 8, 2014, I advised the parties that, because Robbins had stipulated that he is a felon, I believed that it was totally unnecessary to instruct on a second way in which he could be convicted on the § 922(g) charge, that is, as a drug user in possession of a firearm. I also stated that I doubted that I would actually instruct on the "drug user" alternative, unless the prosecution could convince me that it was error not to do so. The prosecution responded that Robbins was charged, and should be tried, on the charges brought by the grand jury, and that it is improper to require the prosecution to elect one theory of prosecution, citing, inter alia, United States v. Platter, 514 F.3d 782 (8th Cir. 2008). In annotations to a revised set of draft jury instructions, I stated that, were I writing on a clean slate, I would hold that, where the defendant has stipulated that he is a felon, evidence of drug use is substantially prejudicial to the jury's determination of whether or not the defendant in fact possessed the firearm or ammunition in question, not just to whether or not he was a felon. Compare Platter, 514 F.3d at 788. Nevertheless, I found that the evidence of drug use in this case is not likely to be substantially more extensive or more prejudicial than the evidence of drug use in Platter and that this is not one of the "exceptional cases" in which it is appropriate to require the prosecution to choose one of the alternative statuses charged in this offense. Id. at 787. I now enter this written opinion to explain why I believe that Platter, which I felt constrained to follow, was wrongly decided.
In Platter, the defendant, like Robbins, was charged with being both a felon and a drug user in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and (g)(3). 514 F.3d at 784. As the court explained,
[The defendant] stipulated that he was a convicted felon at the time he allegedly possessed a firearm illegally. At trial, the Government was allowed to prosecute [the defendant] under the theory that he was a felon in possession of a firearm, and alternatively, that he was a drug user in possession of a firearm. The jury found [the defendant] guilty of violating § 922(g) under both theories of criminal liability....
Platter, 514 F.3d at 785. As the court also explained,
[T]he district court recognized that charging [the defendant] with two violations of § 922(g) for one act of possession improperly exposed [him] to multiplicitous counts. Consistent with [ United States v.] Richardson, [439 F.3d 421 (8th Cir. 2006) ( en banc ), ] the district court merged the count charging [the defendant] with being a felon in possession with the count charging [him] with being a drug user in possession. [The defendant] was then convicted and punished for a single violation of § 922(g), even though the jury found [him] guilty under both theories of criminal liability. The district court's actions are consistent with Richardson, and, as a result of the district court's corrective action, [the defendant] was in no way exposed to or convicted of multiplicitous counts.
Platter, 514 F.3d at 786. On appeal, the defendant "focus[ed] his challenge on the district court's remedy for the multiplicitous indictment, " arguing that the district court should have "compell[ed] the Government to elect one theory of prosecution under § 922(g), and prevent[ed] the Government from introducing evidence under both theories." Id. He argued that "the district court's failure to do so resulted in the introduction of prejudicial, and otherwise inadmissible evidence, which denied him a fair trial." Id.
The prosecution is correct that, in Platter, the Eighth Circuit Court of Appeals upheld the district court's refusals to require the government "to elect one theory of prosecution, " largely because of the government's "broad discretion in carrying out criminal prosecutions" and because of "[Federal Rule of Criminal Procedure] 7(c)(1)'s express approval of the government's prosecution of one offense using alternative theories of liability." 514 F.3d at 797. What the prosecution neglected to point out, here, is that the court in Platter also observed,
In Brennan [v. United States, 240 F.2d 253 (8th Cir.), cert. denied, 353 U.S. 931 (1957), ] this court recognized that the district court has discretion to require the government to elect between multiple counts of an indictment. 240 F.2d at 261 ("[T]he motion [to require the government to elect between counts I and II of the indictment] was addressed to the sound judicial discretion of the court...."); see also United States v. Webber, 255 F.3d 523, 527 (8th Cir.2001) ("[I]n a rare case [the] risk [of a prejudicial compromise verdict] might justify requiring the government to elect among or consolidate counts at trial...."); United States v. Johnson, 130 F.3d 1420, 1426 (10th Cir.1997) ("A decision of whether to require the prosecution to elect between multiplicitous counts before trial is within the discretion of the trial court."), cert. denied, 525 U.S. 829, 119 S.Ct. 78, 142 L.Ed.2d 61 (1998).
Platter, 514 F.3d at 786. Thus, Platter does not stand for the proposition that the district court cannot require the prosecution to elect between alternative theories of liability on a single charge in order to avoid multiplicitous convictions or prejudicial evidence.
On the other hand, the court in Platter read Richardson as implicitly determining that "the Government's intention to present evidence that a defendant is both a felon and a drug user in possession of a firearm does not, standing alone, require the Government to elect one theory of illegal possession under the statute." Id. at 787. The court then established a "test" or "standard" for determining whether or not the district court should force the prosecution to elect one alternative theory of liability, as follows:
[W]hether the district court abused its discretion by declining to require election must be reviewed on a case-by-case basis. Here, [the defendant] makes no showing that the circumstances of this case are exceptional in comparison to other cases in which federal courts have permitted prosecution for one count under two theories under similar circumstances. Moreover, [the defendant] directs us to no similar case in which this court has held that ...