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United States v. Hayes

United States District Court, N.D. Iowa, Western Division

May 11, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BRANDON LEE HAYES, Defendant.

          ORDER

          Leonard T. Strand, Chief Judge.

         This 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).

         I. BACKGROUND

         A. Relevant Procedural History

         This 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.

         B. Relevant Facts

         The 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.[1]

         C. The R&R

         In his 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 criminal act.

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.

         Judge 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.

         II. APPLICABLE STANDARDS

         A 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.

         Any 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 ...


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