United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
MICHAEL D. NELSON UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the Motion to Dismiss (Filing
No. 21). For the following reasons, the undersigned
magistrate judge recommends that Defendant's motion be
denied, without a hearing.
is charged in the Indictment with two counts of assault with
a dangerous weapon in violation of 18 U.S.C. Â§ 113(a)(3).
Both Counts allege that on April 10, 2018, Defendant
assaulted T.F., an Indian female. Count I alleges Defendant
struck T.F. in the eye with a screwdriver and Count II
alleges Defendant kicked and stomped T.F. while wearing
shoes. (Filing No. 1). Defendant has filed the instant motion
to dismiss one of the counts in the Indictment as
multiplicitous as both counts are part of the same assault
and cannot be separated out. (Filing No. 21).
indictment is multiplicitous if it charges the same crime in
separate counts.” United States v. Platter,
514 F.3d 782, 785 (8th Cir. 2008)(citing United States v.
Chipps, 410 F.3d 438, 447 (8th Cir. 2005)). A
multiplicitous indictment is problematic 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.”
Chipps, 410 F.3d at 447 (citing United States v.
Ansaldi, 372 F.3d 118, 124 (2d Cir. 2004)).
“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, as
here, an indictment includes more than one count charging the
same statutory violation, the question is whether Congress
intended the facts underlying each count to constitute a
separate unit of prosecution.” United States v.
Hinkeldey, 626 F.3d 1010, 1013 (8th Cir. 2010)(citing
Chipps, 410 F.3d at 447). “A unit of
prosecution is the aspect of activity that Congress intended
to punish.” Id.
statutory language and legislative history of 18 U.S.C.
§ 113(a)(3) do not clearly establish whether Congress
intended to define assault with a dangerous weapon in terms
of separate acts or based on a course of conduct.”
United States v. Siers, No. CR 11-30131-RAL, 2011 WL
6826805, at *1 (D. S.D. Dec. 28, 2011)(internal quotation
marks omitted). Where Congress has not specified the relevant
unit of prosecution, a court applies the rule of lenity and
resolves the issue in favor of the defendant. See
id. at *2 (citing Chipps, 410 F.3d at 449).
Therefore, the “application of the rule of lenity in
this instance means interpreting assault with a dangerous
weapon to be a course-of-conduct offense, as that limits
Defendant's sentencing exposure.” Id.
(internal brackets and quotation marks omitted)(quoting
Chipps, 410 F.3d at 449).
government alleges that the assaults on April 10, 2018,
against T.F. in Counts I and II occurred at different
locations, at different times, and using different dangerous
weapons. (Filing No. 24). The government contends
that, although the assaults happened close in time on the
same date, there was a sufficient break in time from when
Defendant allegedly assaulted the victim in a home using his
shod feet, to when he assaulted the same victim with a
screwdriver after leaving the home. It is true that
“[c]rimes occurring even minutes apart can qualify [as
separate and distinct criminal episodes] . . . if they
have different victims and are committed in different
locations.” United States v. Humphrey, 759
F.3d 909, 912 (8th Cir. 2014)(emphasis added). However, the
Indictment in this case alleges that both assaults occurred
on the same date against the same victim, and as acknowledged
by the government, allegedly occurred close in time. At this
time the Court does not know all of the facts surrounding the
alleged altercation between Defendant and T.F. Accordingly,
the undersigned cannot determine whether the incident was of
an “uninterrupted nature” such that dismissal or
merger of Counts I or II is justified. See Siers,
2011 WL 6826805, at *1 (applying the rule of lenity to
interpret assault with a dangerous weapon to be a
course-of-conduct offense, and deferring the determination of
whether the incident was of an “uninterrupted
nature” until the conclusion of the government's
case). Therefore, the undersigned magistrate judge recommends
that Defendant's motion to dismiss be denied, without
prejudice to reassertion at the conclusion of the
government's case. See United States v. Worthon,
315 F.3d 980, 983 (8th Cir. 2003)(“Whether an aggregate
of acts constitutes a single course of conduct and therefore
a single offense, or more than one, may not be capable of
ascertainment merely from the bare allegations of an
information and may have to await the trial on the
facts.”)(internal quotation marks omitted). Upon
consideration, IT IS HEREBY RECOMMENDED to
United States District Court Judge Robert F. Rossiter, Jr.,
that Defendant's Motion to Dismiss (Filing No. 21) be
denied, without prejudice.
to NECrimR 59.2, any objection to this Findings and
Recommendation shall be filed with the Clerk of the Court
within fourteen (14) days after being served with a copy of
this Findings and Recommendation. Failure to timely object
may constitute a waiver of any such objection. The brief in
support of any objection shall be filed at the time of filing
such objection. Failure to file a brief in support of any
objection may be deemed an abandonment of the objection.
 Defendant's motion could be denied
on the basis that he failed to simultaneously file a brief
with his motion. See NECrimR 12.3(a)(1)(“The court may
treat a party's failure to simultaneously file a brief as
an abandonment of the motion. . . . A party's failure to
brief an issue raised in a motion may be considered a waiver
of that issue.”). ...