United States District Court, D. South Dakota, Central Division
OPINION AND ORDER ON DEFENDANT'S MOTION TO DISMISS CERTAIN COUNTS OF THE SUPERSEDING INDICTMENT
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Defendant Michael Lee Long, Jr. ("Long") moves to dismiss five of the seven counts of the Superseding Indictment. Doc. 37. Specifically, Long moves to dismiss Counts II, III, VI, and VII based on multiplicity under the Fifth Amendment's Double Jeopardy Clause, and Count IV because the predicate offense is an uncounseled tribal court conviction. Doc. 37; Doc. 38 at 2-9. The Government opposes the motion. Doc. 39. For the reasons stated below, judgment is deferred on whether Counts II, III, VI, and VII are multiplicitous and whether the predicate offense to Count IV can be used under 18 U.S.C. § 921(A)(33)(B), otherwise the motion is denied.
On November 14, 2015, Long was arrested on a two-count Indictment, charging him with Assault with a Dangerous Weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3) and Using a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A). Doc. 1. Included in the Indictment was a forfeiture provision, requesting forfeiture of a "Glock Model 27, 40 caliber pistol." Doc. 1 at 2. The Indictment alleged that Long assaulted "Cynthia Jones" with a dangerous weapon, namely, the pistol, and that Long knowingly brandished, discharged, carried, and used the pistol during commission of that offense. Doc. 1.
The allegations surrounding the Indictment are that on May 17, 2015, near Rosebud, South Dakota, Cynthia Jones-Bear Robe drove to the Paul Mart Convenience Store ("Paul Mart") and was accompanied by her daughter, K.J. and her daughter's boyfriend, Robert Kills in Water. Doc. 39 at 1. Jones Bear-Robe went inside the convenience store while K.J. and Kills in Water remained in the vehicle. Doc. 39 at 1. K.J. observed Long and his wife enter Paul Mart after Jones Bear-Robe. Doc. 39 at 1. While in the store, Long allegedly made intimidating remarks to Jones Bear-Robe. Doc. 39 at 1. Jones Bear-Rob left the store, got into the vehicle, and called law enforcement. Doc. 39 at 1. Long also left the store, returning to his own vehicle. Doc. 39 at 1. Jones Bear-Robe then got out of her vehicle and walked toward Long's vehicle reportedly to retrieve Long's license plate number. Doc. 39 at 1. Long then got out of his vehicle and followed Jones Bear-Robe as she walked to her vehicle and got into the passenger seat. Doc. 39 at 1. According to the Government, Long "approached the vehicle, opened the door, and pointed a handgun at [Jones Bear-Robe]. He then pointed the handgun inside the vehicle and said he was going to kill everyone. At that point [K.J.] put the vehicle in reverse and backed up, knocking over [Long]. [Long] got up on one knee and fired at the vehicle, striking the radiator." Doc. 39 at 2. According to Long, only a single shot was fired. Doc. 38 at 1.
On March 15, 2016, the Government filed a Superseding Indictment which added five counts: two counts of Assault with a Dangerous Weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3), two counts of Using a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A), and a single count of Prohibited Person in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(9), 924(a)(2), and 924(d). Doc. 33. The additional assault counts named K.J. and Robert Kills in Water as alleged victims, which in turn are the bases for separate counts of the use of a firearm during a crime of violence. Doc. 33. The single count of Prohibited Person in Possession of a Firearm is based on an alleged previous misdemeanor conviction of Long for domestic violence in Rosebud Sioux Tribal Court. Doc. 33; Doc. 39 at 2. The Government submits that Long "was advised of his constitutional and statutory rights and plead guilty to Domestic Abuse" in the Rosebud Sioux Tribal Court and that "the Rosebud Sioux Tribe Constitution includes the right to be represented by counsel." Doc. 39 at 4. Long asserts, however, that he "was not represented by counsel, and [that] he did not waive his right to counsel" in the domestic abuse case.
Counts II and III of the Superseding Indictment charge Long with allegedly assaulting K.J. and Robert Kills in Water with a dangerous weapon. Doc. 33. Counts VI and VII of the Superseding Indictment charge Long with allegedly brandishing, discharging, carrying, and using a fireman during and in relation to a crime of violence, namely the assaults alleged in Counts II and III. Long moves to dismiss Counts II, III, VI, and VII of the Superseding Indictment for multiplicity. Doc. 38 at 2. Long argues that he has a constitutional right to this relief under the Double Jeopardy Clause of the Fifth Amendment and that the multiple counts for a single fired shot exposes him to "impermissible cumulative punishment for the same alleged course of conduct and will prejudice the jury by suggesting [that Long] has committed several separate crimes." Doc. 38 at 2-3. Long maintains that "it is inconceivable that a single bullet shot at the bottom of the grill of a car could have been intended to directly injure all three of its occupants." Doc. 38 at 3.
"An indictment is multiplicitous if it charges the same crime in two counts." United States v. Siers, No. CR 11-30131-RAL, 2011 WL 6826805, at *1 (D.S.D. Dec. 28, 2011) (quoting United States v. Sandstrom, 594 F.3d 634, 651 (8th Cir.2010)). "A multiplicitous indictment is impermissible because the jury can convict the defendant on both counts, subjecting the defendant to two punishments for the same crime in violation of the double jeopardy clause of the fifth amendment." Id. (quoting Sandstrom, 594 F.3d at 651). "Demonstrating that an indictment violates the double jeopardy clause requires the defendant to show that the two offenses charged are in law and fact the same offense." United States v. Two Elk. 536 F.3d 890, 898 (8th Cir.2008) (internal quotation omitted). Where a defendant is charged with multiple violations of the same statute, "the question is whether Congress intended the facts underlying each count to constitute a separate unit of prosecution." United States v. Hinkeldev, 626 F.3d 1010, 1013 (8th Cir.2010) (internal quotation omitted). There is no double jeopardy violation if each offense requires proof of an element not required by the other. United States v. Carpenter, 422 F.3d 738, 747 (8th Cir. 2005); see also Blockburger v. United States, 284 U.S. 299, 304 (1932) ("[T]he test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."). Additionally, there is no double jeopardy violation where a statute specifically authorizes cumulative punishment under two statutes. United States v. Mills, 835 F.2d 1262, 1264 (8th Cir. 1987) (per curiam).
Counts II and III of the Superseding Indictment are not multiplicitous to one another or to Count I and do not violate the Double Jeopardy Clause of the Fifth Amendment because each offense requires proof of an element not required by the others, namely that Long allegedly assaulted Cynthia Jones-Bear Robe in Count I, K.J. in Count II, and Robert Kills in Water in Count III. United States v. Hoover, 543 F.3d 448, 456 (8th Cir. 2008) (finding no double jeopardy violation where separate counts required government to prove that defendant killed two separate victims); see also Carpenter, 422 F.3d at 747. Contrary to Long's assertions, the addition of Counts II and III in the Superseding Indictment will not prejudice the jury by suggesting that Long committed several separate offenses.
However, the additional use of firearm during a crime of violence counts, Counts VI and VII, present a different and more challenging question. Section 924(c)(1)(A) punishes "any person who, during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A); see also United States v. Gregg, 376 F.Supp.2d 949, 951-52 (D.S.D. 2005) ("The essential elements of the crime of using a firearm in a crime of violence in violation of 18 U.S.C. § 924(c) are that 'the defendant committed a felony and that he used a firearm during the commission of that felony, as well as the essential facts underlying the charge.'" (quoting Mills. 835 F.2d at 1264)). The United States Court of Appeals for the Eighth Circuit has held that § 924(c) clearly authorizes cumulative punishment, because § 924(c)(1)(A) provides that the punishment for use of a firearm during a crime of violence "shall be imposed "in addition to the punishment provided for such crime of violence." Mills, 835 F.2d at 1264.
The question in this case is whether simultaneous and multiple violations of the same federal statute can support multiple § 924(c) charges. The Government tersely argues that the § 924(c) counts are not multiplicitous because each count references back to the assault counts which contain three different victims. Doc. 39 at 3. The Government does not cite any cases in support of that theory. Long, however, anticipating that the Government's response, cited to and distinguished the United States Court of Appeals for the Eighth Circuit case of United States v. Sandstrom, 594 F.3d 634 (8th Cir. 2010). Sandstrom held that separate predicate offenses that occur simultaneously and with the single use of a firearm can support two § 924(c) convictions. Id. at 658-59. The facts presented in that case involved the death of one victim which gave rise to two underlying offenses: shooting a victim because of his race and killing a victim to prevent him from reporting a crime to law enforcement. Id. at 656-57.
In Sandstrom, the Eighth Circuit undertook an examination of precedent relating to multiple § 924(c)(1) charges. The Eighth Circuit noted that in United States v. Freisinger, 937 F.2d 383, 389 (8th Cir. 1991), overruled on other grounds by United States v. Bentlev, 561 F.3d 803 (8th Cir. 2009), the Court had "acknowledged in dicta the potential permissibility of multiple convictions for the single use of a firearm based on multiple predicate offenses." Sandstrom, 594 F.3d at 658. Freisinger discussed a Tenth Circuit decision, United States v. Chalan, 812 F.2d 1302 (10th Cir. 1987), which found that only one § 924(c) conviction could be maintained because the multiple underlying offenses-felony murder and ...