United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendant's Motion
to Dismiss Count 4 of the Superseding Indictment and
Objection to the Government's Jury Instructions as to
Count 4 [Doc. 65], filed July 25, 2019. Having reviewed and
considered the parties' briefs, the relevant law, and
being otherwise fully informed, for the reasons stated below,
Defendant's motion is GRANTED.
27, 2019, a Superseding Indictment was returned against
Defendant with five counts. Doc. 53. Count 4 charged the
Defendant with, “during and in relation to a drug
trafficking crime for which the defendant may be prosecuted
in a court of the United States… knowingly using and
carrying a firearm and, in furtherance of such crime,
possessing said firearm” in violation of 18 U.S.C.
§ 924(c). Id.
25, 2019, Defendant filed the subject motion arguing that
“the language of [Count 4 of the superseding
indictment] alleges two distinct and separate offenses under
18 U.S.C. § 924(c), thereby resulting in duplicity and
as such said count must be dismissed.” Doc. 65 at 1-2.
The Defendant therefore requests that the Court
“dismiss count 4 of the superseding indictment.”
Id. at 4.
August 5, 2019, the government filed a Response to the
Defendant's motion. The government argues that the
indictment is not duplicitous, but requests that the Court
not reach a decision on that issue as the government is
proceeding to trial on one theory only: possession of a
firearm in furtherance of a drug trafficking crime. Doc. 91
at 7. The government therefore moves to strike the language
“knowingly used and carried a firearm” from the
indictment and replace it with “knowingly possessed a
firearm in furtherance of such crime.” Id. at
Defendant did not file a Reply to the Government's
is defined as the joinder of two or more distinct and
separate offenses in the same count of an indictment.
United States v. Miller, 891 F.3d 1220, 1229 (10th
Cir. 2018). Multiple charges in one count present a danger
that the jury could convict a defendant without reaching a
unanimous agreement on precisely which charge is the basis
for the conviction. United States v. Schneider, 594
F.3d 1219, 1228 (10th Cir. 2010).
Court holds that 18 U.S.C. § 924(c) criminalizes two
separate offenses, and therefore an indictment that lists
both offenses in the same count is duplicitous. Section
924(c) provides that “any person who, during and in
relation to any crime of violence or drug trafficking crime
... 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”
shall be subject to certain minimum sentences. 18 U.S.C.
§ 924(c)(1)(A). In United States v. Combs, 369
F.3d 925, (6th Cir. 2004), the Sixth Circuit held that 18
U.S.C. § 924(c) criminalizes two separate offenses. The
Eighth Circuit has likewise held that 18 U.S.C. § 924(c)
creates two separate crimes. See United States v.
Gamboa, 439 F.3d 796, 810 (8th Cir. 2006) (holding that
there was no Double Jeopardy violation where a defendant was
convicted under two separate counts for violations of 18
U.S.C. § 924(c), one count for violating the “used
and carried” clause and one for violating the
“possessed” clause, since each count required an
element not required by the other). However, In United
States v. Arreola, 467 F.3d 1153 (9th Cir. 2006), the
Ninth Circuit rejected the logic in Combs and ruled
instead that 924(c) defines only one offense, not two. The
Tenth Circuit has not yet ruled on the issue.
Combs, the Sixth Circuit held that 18 U.S.C.§
924 (c) criminalizes two separate offenses: (1) using or
carrying a firearm during and in relation to a drug
trafficking crime, and (2) possessing a firearm in
furtherance of a drug trafficking crime. Combs at
931-33. The Sixth Circuit reasoned that because the two
prongs of the statute are separated by the disjunctive
“or, ” and because the statutory language
structures the prohibited acts into distinct dependent
clauses with different modifiers, the second prohibited act
is distinct from the first. Id. at 931. The
Combs court also considers the legislative history
of 18 USC § 924 (c), noting that Congress enacted the
current version of the statute in 1998, in response to the
Supreme Court's holding in Bailey v. United
States, 516 U.S. 137 (1995). Bailey held that
in an earlier version of the statute, which prohibited only
“using or carrying a firearm during and in relation
to” drug trafficking, 18 U.S.C. § 924(c)(1)
(1994), the word “use” must mean more than mere
possession. Combs at 932. It was in response to the
Bailey holding that Congress added
“possession” as a prohibited act, and required a
higher standard of participation (“in furtherance
of”) in order to charge a defendant with that act, thus
creating two separate and distinct offenses with different
standards of proof. Combs at 932-33.
in United States v. Arreola, the Ninth Circuit held
that § 924(c) defines only one offense, not two. 467
F.3d 1153 (9th Cir. 2006). With regard to the use of the
disjunctive “or” in the statute, the
Arreola court reasoned that while it is clear that
the statute prohibits two distinct acts, it is not clear that
each act is a separate offense, since Congress chose to place
the “uses or carries” and “possesses”
provisions in the same sentence, rather than creating
sub-parts. Id. at 1157. The court further noted that
the punishment does not vary according to whether the
defendant violated the “uses or carries” or
“possesses” clause. Id. The
Arreola court rejected the Combs analysis
of the legislative history, concluding that although the
legislative history does “suggest that Congress
intended to differentiate a defendant who
‘possesses' a firearm in ‘furtherance of'
a crime from one who ‘uses or carries' a firearm
‘during and relation to' a crime, it is far from
clear that Congress intended to create separate offenses,
” and noting that Congress chose not to adopt the House
bill, which explicitly proscribed separate offenses.
Id. at 1159. The Arreola court further
reasoned that the two types of conduct that § 924(c)
proscribes are difficult to distinguish conceptually.
Id. at 1160. Finally, it reasoned that it would seem
absurd to permit multiple punishment of a defendant who
violates both the “uses or carries” clause and
the “possesses” clause. Id. The
Arreola court therefore held that the statute
defines only one offense. Id. at 1161.
Tenth Circuit has not explicitly ruled on the issue of
duplicity, but has treated § 924 (c) as creating two
separate criminal offenses. In United States v.
Avery, 295 ...