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. 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.
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
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.
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.
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
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 ...