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UNITED STATES v. BOWYER

November 19, 1997

UNITED STATES OF AMERICA
v.
MARKELL BOWYER, HEICHOR J. KPODI, Defendants.



The opinion of the court was delivered by: SPORKIN

 This matter comes before the Court on Defendant Bowyer's motions: (1) to compel election between multiplicitous firearm and ammunition counts; (2) to suppress tangible evidence; and (3) to prevent government from offering evidence of Defendant's prior felony conviction. Defendant Kpodi has moved to adopt and conform Defendant Bowyer's motions as they relate to him.

 I. FACTUAL BACKGROUND

 On July 17, 1997 at about 12:40 a.m., Officer Brett Parson of the Metropolitan Police Department was on patrol in his police car responding to a tip regarding rampant drug activity on the 4200 block of Second Street, N.W. While on patrol and in uniform, Officer Parson observed a person on a bicycle talking to the driver of a brown car stopped in the 4200 block of Second Street, N.W. Based on numerous previous encounters, Officer Parson recognized the person on the bicycle as Defendant Markell Bowyer. Mr. Bowyer got off the bike and entered an apartment building at 4211 Second Street, N.W. Officer Parson drove past the building to make it appear as though he were leaving the area and parked his car out of view. Officer Parson then exited the car to seek a better position to observe. Mr. Bowyer walked out of the building and walked into the mouth of a nearby alley. In the alley, Defendant Bowyer handed an object to Defendant Kpodi. As soon as Mr. Kpodi received the object from Mr. Bowyer, Mr. Kpodi turned around, squatted down, and placed the object into weeds growing around steps to the building. Officer Parson then went back to his car and pulled up near the Defendants. When Officer Parson exited his car, Mr. Kpodi began to approach him and Mr. Bowyer turned around and began to walk away. Officer Parson shouted to Mr. Bowyer: "Markell, don't you walk away from me! Markell, come here!" Mr. Bowyer continued to walk away. Officer Parson grabbed Mr. Kpodi and placed him on the front of the police car. Officer Parson called for assistance, and other officers arrived to help search for Mr. Bowyer. Officer Parson examined the spot where Defendant Kpodi placed the object and found that it was a fully loaded Bryco semi-automatic 9mm pistol. After the gun was recovered, Mr. Kpodi was placed under arrest. Subsequently, Mr. Bowyer was located lying on the ground in some prickly shrubs at the corner of the next building. As the police officers were attempting to get Mr. Bowyer out of the bushes, one of them asked Mr. Bowyer why he was in the bushes. Mr. Bowyer responded that he was "just chillin.'" After the officers removed Mr. Bowyer from the bushes and Officer Parson identified him, Mr. Bowyer was arrested and placed into a police transport.

 While Mr. Bowyer was in the transport, Officer Parson was talking to another officer. Mr. Bowyer, in an attempt to get Officer Parson's attention, shouted: "Hey Parson, they were just shooting at me on Rock Creek Church Road." Then, after seeing the officers outside with the gun, Mr. Bowyer said: "You're not going to put this one on me. Shit, man. I can't be going through this." All these statements were made before Mr. Bowyer was read his Miranda rights.

 Defendant Bowyer was indicted for unlawful possession of a firearm by a convicted felon and unlawful possession of ammunition by a convicted felon, both in violation of 18 U.S.C. § 922(g)(1). The indictment charged Defendant Kpodi with carrying a pistol without a license, in violation with 22 D.C. Code § 3204(a).

 II. ANALYSIS AND DISCUSSION

 A. Firearm and Ammunition Counts

 Defendant Bowyer is charged with both unlawful possession of a firearm by a convicted felon and unlawful possession of ammunition by a convicted felon. Defendant Bowyer argues that these two counts are multiplicitous--namely, that both of these counts charge him with the same offense. Multiplicitous charges "improperly prejudice a jury by suggesting that a defendant has committed not one but several crimes." United States v. Reed, 639 F.2d 896, 904 (2d Cir. 1981). "An indictment is multiplicitous, and thereby defective, if a single offense is alleged in a number of counts, unfairly increasing a defendant's exposure to criminal sanctions." United States v. Anderson, 309 U.S. App. D.C. 54, 39 F.3d 331, 353-54 (D.C. Cir. 1994) (citation omitted). Defendant argues that the proper remedy is to require the government to elect between the multiplicitous counts. See United States v. Bradsby, 628 F.2d 901, 905 (5th Cir. 1980). In support of his position, Defendant Bowyer cites Judge Friedman's recent decision in United States v. Phillips, 962 F. Supp. 200 (D.D.C. 1997). There, the court held that when a defendant is charged separately with unlawful possession of a firearm and of ammunition based on the single possession of a loaded firearm, the government must be compelled to elect between the charges: "The government argues against pre-trial election, suggesting a merger of the counts at sentencing. As Judge Hogan pointed out in Kinlaw, however, 'if the Court were to adopt the government's logic then there would never be any need to force an election of counts.'" Id. at 202 (citing United States v. Kinlaw (slip op. at 3 n.2)).

 The Court cannot declare unequivocally that in every case where the Defendant alleges that there exist multiplicitous charges, the appropriate way to proceed is through pre-trial election. This decision is within the discretion of the court, see United States v. Throneburg, 921 F.2d 654, 656-57 (6th Cir. 1990), and as with any discretionary determination, it is difficult, if not impossible, to construct an abstract formula for deciding one way or another. Each case is different and unique in its own way.

 In this case, the Court believes that the way to proceed is to deal with the issue at sentencing. The two charges are not multiplicitous because they involve separate offenses. The test for determining whether two counts of an indictment are multiplicitous is set forth in Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932): "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each [count] requires proof of an additional fact which the other does not." Id. at 304. The government may prosecute violations of different subsections of the same statute provided that each charge can satisfy the Blockburger test. See, e.g., United States v. Nation, 832 F.2d 71 (5th Cir. 1987) (charging violations of 18 U.S.C. § 922(g) and 18 U.S.C. § 922(i) arising from the same incident); United States v. Goodheim, 686 F.2d 776, 780 (9th Cir. 1982) ("Under the rule of Blockburger, sections 922(a)(1) and 922(h)(1) constitute separate offenses which may be punished consecutively.").

 This case involves two crimes charged under the same statutory provision, 18 U.S.C. § 922(g)(1). Pursuant to § 922(g)(1): "It shall be unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." The statute defines two separate crimes: (1) the possession of any firearm; and (2) the possession of ammunition. These two crimes require proof of different elements. It is a crime for a defendant to be in possession of a firearm without ammunition or ammunition without a firearm. A firearm and ammunition are two distinct forms of illegal contraband when possessed by a convicted felon. Thus, the Blockburger test is met in this case.

 B. Motion to Suppress Evidence

 Defendants move the Court to suppress physical evidence and statements because they are the tainted fruit of an illegal arrest. Mr. Bowyer further moves the Court to suppress his statements made before and after his arrest because they were in violation of Miranda ...


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