United States District Court, N.D. Iowa, Western Division
Leonard T. Strand, Chief Judge.
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).
Relevant Procedural History
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.
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.
motion to dismiss Count 1, Hayes argued:
The Defendant was charged in Count I with Possession of a
Firearm by a Felon, under §922(g)(1). In Count III, he
was charged with Possession of a Firearm by a Prohibited
Person under §922(g)(9). Under the holding of United
States v. Richardson, 439 F.3d 421 (8th Cir. 2006) the
charges are multiplicitous. Accordingly, Congress intended
the “allowable unit of prosecution” to be an
instant of possession regardless of whether a defendant
satisfied more than one (1) §922(g) classification.
Accordingly, there was one (1) firearm in this case, no
ammunition, and the Indictment in this case violates the Rule
Against Multiplicity. In the alternative, Defendant prays for
a new trial. The jury's verdict is a violation of the
rule against multiple convictions based upon the same
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.
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.
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 ofBessemer
City, 470 U.S. 564, 573-74 (1985) (quoting Unite ...