Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Hill

United States District Court, D. Minnesota

October 16, 2017

United States of America, Plaintiff,
v.
Joshua Francis Hill, Defendant.

          REPORT AND RECOMMENDATION

          Hon. Leo I. Brisbois, United States Magistrate Judge

         This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of 28 U.S.C. § 636 and Local Rule 72.1, and upon Defendant's Motion to Dismiss Multiplicitous Counts, [Docket No. 28], and Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 32]. The Court held a Motions Hearing on September 18, 2017, regarding the parties' pretrial motions.[1] At the Motions Hearing, the parties requested the opportunity to submit supplemental briefing, which was completed on October 4, 2017, after which the Defendant's Motion to Dismiss Multiplicitous County, [Docket No. 28], and Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 32], were taken under advisement by the undersigned.

         For the reasons set forth below, the Court recommends that Defendant's Motion to Dismiss Multiplicitous Counts, [Docket No. 28], be GRANTED, and Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 32], be DENIED.

         I. RELEVANT FACTS

         The facts in this opening paragraph are by way of background only; they come from the Government's allegations in its initial Complaint. On July 7, 2017, FBI Agent Travis C. Putrah swore out a criminal Complaint and Affidavit setting forth probable cause to believe that Defendant had committed the offense of the murder of A.C. (Compl., [Docket No. 1]). On June 25, 2017, the Red Lake Police Department responded to a call and discovered the body of a deceased juvenile male, A.C., who had died as a result of a gunshot wound to the chest. (Compl., [Docket No. 1], 3, 8). A.C.'s legal guardian informed law enforcement that the victim had been “feuding” with Defendant Joshua Francis Hill. (Id. at 4). During additional interviews, other individuals informed law enforcement that on June 24, 2017, they had seen Defendant retrieve a rifle from “his purple van” and take it to the general area in which the victim was later found. (Id. at 4-7). Witnesses in the area at the time reported hearing a single gunshot; they also informed law enforcement that, at Defendant's request, they retrieved a rifle from Defendant's “purple van, [which was] located next to [Gladys Saragosa's] house” and disposed of the rifle on the morning of June 27, 2017. (Id. at 7-8).

         The relevant testimony at the September 18, 2017, Motions Hearing was largely limited to the following.

         Gladys Saragosa is Defendant's mother. (Sept. 18, 2017, Motions Hearing, Digital Record, 10:32-33).

         On June 29, 2017, law enforcement went to Ms. Saragosa's home; there was a maroon minivan parked in Ms. Saragosa's yard which was not visible from the street. (Id. at 10:36-37, 10:45-46). Ms. Saragosa was the registered owner of the van. (Id. at 10:34-35). Ms. Saragosa was not at home at the time, and law enforcement taped the van's doors closed, contacted a towing company, and had the van towed to the Bemidji Police Department auto theft garage. (Id. at 10:37-38, 10:42-43, 10:45-46). Ms. Saragosa did not give permission for anyone to take the van, and when she returned home on approximately July 3, 2017, she did not know where the van was located. (Id. at 10:37-39).

         On July 13, 2017, Ms. Saragosa spoke to agents from the Federal Bureau of Investigation, and she signed a written consent form authorizing a search of the van. (Sept. 18, 2017, Motions Hearing, Digital Record, 10:37-38; Def.'s Exhibit 1). The van was searched on July 20, 2017, and was later returned to Ms. Saragosa. (Id. at 10:42-45).

         At the September 18, 2017, Motions Hearing, Ms. Saragosa testified that although she is the registered owner of the van now at issue, Defendant paid for the purchase of the van; Ms. Saragosa's name was put on the title because Defendant was a minor at the time of the purchase. (Sept. 18, 2017, Motions Hearing, Digital Record, 10:34-35). Ms. Saragosa also testified, however, that Defendant was allowed to drive the van only in the presence of a licensed driver. (Id.). According to Ms. Saragosa, beginning in October or November 2016, Defendant drove the van daily until the transmission went out in February 2017, and the van was no longer drivable. (Id. at 10:35-37). At that point, Defendant began using the van to store his papers and some clothing. (Id. at 10:36-37). As of June 2017, when the van was seized, Defendant was still storing his belongings in the van. (Id.).

         On July 26, 2017, the Government filed an Indictment charging Defendant with one count of murder in the first degree under 18 U.S.C. § 1111(a), one count of murder in the second degree under 18 U.S.C. § 111(b), and one count of discharge of a firearm during a crime of violence under 18 U.S.C. 924(c)(1)(A)(iii). ([Docket No. 12]).

         II. DEFENDANT'S MOTION TO DISMISS MULTIPLICITOUS COUNTS, [Docket No. 28]

         A. Standard of Review

         “‘The rule against multiplicitous prosecutions is based on the Fifth Amendment's Double Jeopardy Clause, which “protects against multiple punishments for the same offense.”'” United States v. Lohse, 797 F.3d 515, 523 (8th Cir. 2015) (citations omitted). “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[.]” United States v. Sandstrom, 594 F.3d 634, 651 (8th Cir. 2010). There are two ways in which an indictment can charge multiplicitous counts: (1) the indictment includes more than one count of the same statutory violation based upon the same act, or (2) the same act is charged as violating two distinct statutory provisions. See, Blockburger v. United States, 284 U.S. 299, 304 (1932) (establishing the “elements test, ” which determines whether charging the same act as violating two distinct statutory provisions is impermissibly multiplicitous); United States v. Hinkeldey, 626 F.3d 1010, 1013 (8th Cir. 2010) (applying the “unit of prosecution test, ” which determines whether charging more than one count of the same statutory violation is impermissibly multiplicitous). Under the “elements” theory of multiplicity, which Defendant argues in the instant case:

If “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 provision requires proof of a fact which the other does not.” [The United States Supreme Court has] often concluded that two different statutes define the “same offense, ” typically because one is a lesser included offense of the other.

Rutledge v. United States, 517 U.S. 292, 297 (1996); see, also, Brown v. Ohio, 432 U.S. 161, 169 (1977) (“[T]he Fifth Amendment forbids . . . cumulative punishment for greater and lesser included offenses.”).

         B. Analysis

         As a threshold matter, the Government asserts that Defendant's present Motion to Dismiss Multiplicitous Counts is premature because the trial court will have “the ability to structure jury instructions to include murder in the second degree as a lesser included offense” or could “at sentencing . . . merge counts of conviction to avoid multiple [sic] sentences.” (Govt. Mem., [Docket No. 43], 5). In support, the Government cites United States v. Platter, 514 F.3d 782, 786 (8th Cir. 2008). (Id.). However, there are multiple reasons why Platter does not conclusively support the Government's present position.

         First, the Eighth Circuit issued its opinion in Platter in 2008. In 2014, Federal Rule of Criminal Procedure 12(b)(3) was amended to provide that a motion alleging ‘a defect in the indictment' generally must be raised before trial, ” including multiplicity objections which are apparent from the face of the indictment. See, United States v. Anderson, 783 F.3d 727, 740 (8th Cir. 2015) (emphasis added); see, also, Fed. R. Crim. P. 12(b)(3)(B)(ii) (identifying multiplicity as a defect in the indictment which must be raised “by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits”). The current timing requirement in Rule 12(b)(3) that issues of multiplicitous indictments generally must be raised before trial undermines the Government's position that Defendant's present Motion on this issue is premature.

         Second, although Platter does hold that the Government “has ‘broad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a particular case” and “is free to prove a defendant's liability for one criminal offense using multiple theories of guilt, ” Platter further instructs that such multiple theories of guilt “may be alleged in the conjunctive in one count of the indictment . . . .” See, 514 F.3d at 786. The indictment in the case presently before the Court does not allege the multiple theories of guilt as alternative theories within one count; it clearly charges two separate and distinct counts of murder based on the same alleged conduct which are not pled in the alternative - Count I, for first-degree murder, and Count II, for second-degree murder. (Indictment, [Docket No. 12], 1-2). Therefore, contrary to the Government's assertions, Platter does not “moot” or otherwise render premature Defendant's present Motion to Dismiss Multiplicitous Counts.

         Turning to the substance of the Motion, Defendant contends that Count I, which charges first-degree murder, is multiplicitous with Count II, which charges second-degree murder. (Def. Mem., [Docket No. 42], 7). The Government responds that the charges are not multiplicitous because “the elements [of first-degree murder and second-degree murder] are different.” (Govt. Mem., [Docket No. 43], 5). The Government's position is an inexact description of the test for whether charges for the violation of different criminal statutes by the same act are unconstitutionally multiplicitous. While the applicable test does require examination of the elements of the crimes charged, as stated above, charging multiple statutory violations based upon the same act is permissible if “‘each provision requires proof of a fact which the other does not.'” Rutledge, 517 U.S. at 297.

         The relevant statute, 18 U.S.C. § 1111, states:

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as a part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
Any other murder is murder in the second degree.

         Although the Government points out that, as charged in the Indictment, murder in the first degree requires proof that Defendant unlawfully killed a human being “with malice aforethought and lying in wait and with premeditation, ” while murder in the second degree does not require proof of lying in wait or premeditation, (Govt. Mem., [Docket No. 43], 4-5); Indictment, [Docket No. 12], 1-2), in order for these two charges to pass the test for multiplicity, “‘each provision requires proof of a fact which the other does not.'” Rutledge, 517 U.S. at 297 (emphasis added). In other words, the elements of one of the crimes charged may not be wholly encompassed within the elements of the other crime charged. Where some of the elements of Crime A are identical to all of the elements of Crime B, Crime B is a lesser included offense of Crime A. See, e.g., Evans v. Michigan, 568 U.S. 313, 331 (2013) (the crime of burning real property is a lesser included offense of the crime of burning a house); United States v. Mann, 701 F.3d 274, 286 (8th Cir. 2012) (the crime of owning a machinegun is a lesser included offense of the crime of owning an unregistered machinegun).

         Although first-degree murder requires proof of an additional element-as charged herein, lying in wait or premeditation-that second-degree murder does not require, the elements of second-degree murder are wholly encompassed within the elements of first-degree murder; thus, second-degree murder is a lesser included offense of first-degree murder. See, also, United States v. Weise, 89 F.3d 502, 505 (8th Cir. 1996) (recognizing that federal second-degree murder is a lesser-included offense of federal first-degree murder). As such, they are “‘same offense'” for purposes of a multiplicity analysis, see, Rutledge, 517 U.S. at 297, and they may not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.