United States District Court, N.D. Iowa, Eastern Division
LEONARD T. STRAND CHIEF UNITED STATES DISTRICT JUDGE.
matter is before me on a Report and Recommendation (R&R)
in which the Honorable C.J. Williams, Chief United States
Magistrate Judge, recommends that I deny defendant's
motion (Doc. No. 34) to consolidate Counts 1 and 2.
See Doc. No. 38.
December 14, 2016, the grand jury returned an indictment
(Doc. No. 3) against defendant Daniel Louis Jackson (Jackson)
charging him with one count of bank robbery in violation of
18 U.S.C. § 2113(a) (Count 1), one count of armed bank
robbery in violation of 18 U.S.C. §§ 2113(a) and
(d) (Count 2) and one count of using a firearm during a
violent crime in violation of 18 U.S.C. § 924(c)(1)
filed a motion to consolidate Counts 1 and 2, arguing they
are multiplicitous because they are based on the same acts
that occurred at the same time. The only exception is that
Count 2 requires an assault or placing a person's life in
jeopardy by use of a dangerous weapon. The Government filed a
resistance (Doc. No. 35) in which it concedes that Counts 1
and 2 are multiplicitous but argues that the appropriate
remedy is to merge the counts at sentencing if Jackson is
convicted of both counts. Id. Judge Williams
recommends that Jackson's motion (Doc. No. 34) to
consolidate be denied. Neither party has objected to the
R&R. The deadline for such objections has expired.
STANDARD OF REVIEW
district judge must review a magistrate judge's R&R
under the following standards:
Within fourteen days after being served with a copy, any
party may serve and file written objections to such proposed
findings and recommendations as provided by rules of court. A
judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
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.
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
Any party that desires plenary consideration by the Article
III judge of any issue need only ask. Moreover, while the
statute does not require the judge to review an issue de
novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the
request of a party, under a de novo or any other
Thomas v. Arn, 474 U.S. 140, 150 (1985).
neither party objected to the R&R, I have reviewed it for
clear error. As Judge Williams noted in his R&R,
“[t]he rule against multiplicitous prosecutions is
based on the Fifth Amendment's Double Jeopardy Clause,
which ‘protects against multiple punishments for the
same offense.'” United States v. Woolsey,
759 F.3d 905, 907 (8th Cir. 2014) (quoting United States
v. Emly, 747 F.3d 974, 977 (8th Cir. 2014)). “An
indictment is multiplicitous if it charges the same crime in
separate counts.” United States v. Platter,
514 F.3d 782, 785 (8th Cir. 2008) (citing United States
v. Chipps, 410 F.3d 438, 447 (8th Cir. 2005)).
“The primary problem is that the jury can convict on
both counts, resulting in two punishments for the same crime