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United States v. Gibbons

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

September 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARC GIBBONS, Defendant.

          ORDER

          Leonard T. Strand, Chief Judge.

         This matter is before me on a Report and Recommendation (R&R) (Doc. No. 33) in which the Honorable Kelly K.E. Mahoney, United States Magistrate Judge for the Northern District of Iowa, recommends that I deny defendant's motion (Doc. No. 18) to dismiss a portion of Count 1 of the indictment. Defendant filed a timely objection (Doc. No. 36) to the R&R and plaintiff (the Government) filed a response (Doc. No. 39).

         I. BACKGROUND

         A. Relevant Facts

         On June 22, 2017, a grand jury returned an indictment (Doc. No. 2) charging defendant Marc Gibbons with one count of illegally possessing a single firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). Defendant is charged with possessing a Rock Island Armory GI Standard FS 1911, .45 ACP, S/N RIA1237045 on or about March 10, 2017. The Government alleges he was prohibited from possessing the weapon for two reasons: he was an unlawful user of a controlled substance in violation of 18 U.S.C. § 922(g)(3) and he had been convicted of one or more crimes punishable by a term of imprisonment exceeding one year in violation of 18 U.S.C. § 922(g)(1). Defendant filed a pretrial motion to dismiss (Doc. No. 18) pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B) asking that I dismiss a portion of Count 1 of the indictment, specifically the portion citing §922(g)(1).

         B. The R&R

         In his motion to dismiss a portion of Count 1, defendant argues that the indictment is multiplicitous and prejudicial because he is charged with two violations of Section 922(g) for a single act of possession. Doc. No. 24 at 1; Doc. No. 27 at 1. He also argues that the indictment violates the Double Jeopardy Clause. Doc. No. 18 at 1-2. In its response, the Government argues that the indictment is proper and does not violate the Double Jeopardy Clause because, if convicted for the offense, defendant would receive only a single felony conviction. Doc. No. 22 at 3. The Government further argued that the indictment is not multiplicitous or prejudicial because it lists separate alleged violations of Section 922(g) as alternatives to the one violation incident. Id.

         Judge Mahoney addressed both the multiplicity argument and the issue of duplicity. Doc. No. 33. She concluded that the indictment is not multiplicitous because it alleges a single instance of possession of a single firearm on a single day. Id. at 4. The indictment charges only one violation of Section 922(g) but alleges multiple grounds for meeting one of the elements for that violation. Id. She also concluded that the indictment is not duplicitous because it only alleges a single violation of a single statute, and any concern about jury unanimity on the element of prohibited possession can be addressed with a limiting jury instruction. Id. at 5.

         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 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 filed:

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 ...

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