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UNITED STATES v. MEBUST

March 28, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN MEBUST, Defendant.


Williams


The opinion of the court was delivered by: ANN CLAIRE WILLIAMS

Defendant John Earl Mebust ("Mebust") is charged with illegally possessing firearms in violation of 18 U.S.C. §§ 922(a)(6), 922(g)(1), 922(k), and 922(o). This matter is before the court on the parties pretrial motions.

 Background

 In October 1992, Special Agent Edward Diamond ("Agent Diamond") of the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), received information from Richard Dixon that defendant had stolen his Firearm Owner's Identification Card ("FOID card") and was using it to illegally purchase weapons. On February 1, 1993, Mebust spoke with Agent Diamond at defendant's home. During that interview, Mebust stated that he knew a Richard Dixon, and that he purchased firearms with Richard Dixon's FOID card. However, defendant stated that he no longer had the firearms, and that he would call around to his friends to locate them. The interview was continued on February 2, 1993, when Mebust and his previous lawyer, Steven Decker, met with Agent Diamond and Special Agent Joe Ruzevich ("Agent Ruzevich") at the ATF offices.

 After this meeting, a cooperating individual ("CI") informed law enforcement officers that defendant used certain storage lockers at Safeway Storage in Round Lake Heights, Illinois to store machine guns, silencers, and illegal drugs. On June 18, 1993, ATF agents accompanied state police officers in the execution of a search warrant for storage lockers 311 and 501 at Safeway Storage.

 Locker 311 contained numerous firearms, related paraphernalia, *fn1" and the lease to locker 501. *fn2" Also, 10 of the weapons found in locker 311 were purchased with the Dixon FOID card.

 Locker 501 included books on firearms; an FOID card in the name of Albert Johnson with defendant's picture; an Albert Johnson social security card, registration card, and parking ticket; two photo albums containing pictures of Mebust, his check book and passport.

 On August 4, 1993, the government filed a three count indictment against Mebust for being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1), possessing firearms with obliterated or altered serial numbers in violation of 18 U.S.C. § 922(k), and possessing machine guns in violation of 18 U.S.C. § 922(o). On December 16, 1993, the government filed a superseding indictment which added four additional counts under 18 U.S.C. § 922(a)(6), for making false statements to a licensed firearms dealer.

 Pretrial Motions

 I. Defendant's Motions

 Defendant moves (1) for relief from prejudicial joinder of counts, (2) to dismiss counts four and six, (3) to dismiss for vindictive prosecution, (4) to produce agents' notes, (5) to bar use of defendant's statement, and (6) to dismiss the superseding indictment (7) to bar "other crimes or other acts" evidence, (8) for supplemental Brady production, (9) to bar use of tape-recorded conversations. The court addresses each motion in turn.

 A. Prejudicial Joinder

 Mebust moves for an order pursuant to Federal Rule of Criminal Procedure ("Rule") 14 *fn3" that Count One of the Superseding Indictment be severed from Counts Two and Three on the grounds of prejudicial joinder. Mebust claims that he will be severely prejudiced at trial because under Count One, the jury will learn about his 20 year old conviction, which would be inadmissible in a separate trial of Counts Two and Three. Thus, Mebust fears that he will be found guilty of Counts Two and Three based upon the "prejudicial and irrelevant proof" of his 20 year old conviction. (Pretrial Motion for Relief from Prejudicial Joinder at 4).

 Count One charges that on June 18, 1993, Mebust was a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1). *fn4" In Counts Two and Three, he is charged with possessing firearms with obliterated serial numbers in violation of 18 U.S.C. § 922(k), *fn5" and possessing machine guns in violation of 18 U.S.C. § 922(o) *fn6" on that same day. Counts One through Three are closely related. *fn7" In Count One, Mebust is charged with being in possession of all of the weapons found in the storage locker, which include the very weapons which are identified in Counts Two and Three. Moreover, since all of the weapons were found in locker 311, the government must prove that Mebust actually or constructively possessed the storage lockers to obtain a conviction on any of the three counts. Therefore, contrary to defendant's assertion, he is requesting two separate trials consisting of essentially the same evidence.

 Furthermore, it is not clear that defendant will be prejudiced by trying these counts together. As the government correctly notes, several options are available to cure any prejudice. Specifically, (1) the fact of defendant's conviction could be introduced by a stipulation, (2) the court can give limiting instructions emphasizing that the jury must give separate consideration to each count of the indictment, and (3) more specifically, the jury could be instructed to only consider the prior conviction as it relates to Count One. These proposals are more than adequate to counter any prejudice, and are certainly preferable to squandering judicial resources by having two almost identical trials. See United States v. Balzano, 916 F.2d 1273, 1280-82 (7th Cir. 1990) (sanctioning the use of limiting instructions and noting that the trial court is in the best position to balance the costs of separate trials against possible prejudice to the defendant). Consequently, defendant's request to sever Count One from Counts Two and Three is denied.

 Defendant also moves that Counts Four through Seven be severed from the first three counts due to improper joinder of different charges under Rule 8(a). *fn8" Mebust contends that these counts should be severed because they are not part of the same transaction or occurrence. The court disagrees.

 Counts Four through Seven charge that on separate occasions from December 21, 1991, to January 23, 1993, Mebust made false statements to firearms dealers in violation of 18 U.S.C. § 922(a)(6), *fn9" in order to obtain firearms. Significantly, the government notes that all but one of the numerous firearms listed in these counts were recovered in locker 311 on June 18, 1993. The government claims that the acquisition and possession of the weapons are "inextricably intertwined concepts." (Government's Consolidated Response ("Response") at 9). The government also contends that joining all of these counts presents the whole scheme which involved acquiring and possessing firearms in violation of the law.

 Based upon these representations, Counts Four through Seven concerning the false statements, are properly joined with Counts One through Three, the possession counts, because these events are "based on the same act or transaction" within the meaning of Rule 8(a). See United States v. Berardi, 675 F.2d 894, 899 (7th Cir. 1982) (explaining that "transaction" is a flexible concept which "may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship"). The court is also persuaded that were the counts severed, the separate trials would both require evidence of defendant's purchase and possession of the guns. (See Response at 10). Accordingly, defendant's motion and amended motion for relief from prejudicial joinder are both denied.

 Mebust contends that Counts Four and Six should be dismissed because "indictments charging two or more offenses in a single count are duplicitous." (Motion to Dismiss Counts Four and Six at 1). Specifically, defendant asserts that Count Four, a false statement count, should be pleaded in nine separate counts because it lists nine violations of 18 U.S.C. § 922(a)(6). *fn10" Likewise, defendant argues that Count Six, another false statement count, erroneously contains two separate and distinct violations of 18 U.S.C. § 922(a)(6) in a single count.

 "A duplicitous count is one that charges more than one distinct and separate offense." Berardi, 675 F.2d at 897. However, a count is not duplicitous if it merely charges the commission of a single offense by different means. Id. Since this line is sometimes difficult to draw, the initial decision is left to the discretion of the prosecutor. Id. at 898.

 Here, Count Four charges that from December 21, 1991, through July 2, 1992, Mebust falsely identified himself as Richard Dixon, and denied having a conviction for a felony on ATF Form 4473 in order to purchase guns from R Guns, in Carpentersville, Illinois. This count then lists the nine firearms which were bought. Similarly, Count Six charges that from January 1992 to May 1992, defendant made the same false statements on ATF Form 4473 in order to purchase guns from Dave's Guns, in Hampton, Illinois, and lists the two guns purchased. The government explains that "the acts are divided by gun dealer. The lies were identical in each case and for each gun." (Response at 22).

 After reviewing the superseding indictment, the court finds that the government made a reasonable decision to characterize the acts in Counts Four and Six as two separate offenses since the purchases were made from two separate gun dealers, and such characterization is not prejudicially duplicitous. In reaching this decision, the court notes that Mebust is adequately notified of the charges against him, he may not be tried again for these same false statements after a verdict is reached in this trial, and any evidentiary ruling applying to the purchase of one gun would apply to all. See Berardi, 675 F.2d at 899 (noting the dangers of a duplicitous count). Also, as the government points out, the court can ensure a unanimous verdict by instructing the jury that it "must be unanimous in . . . finding that the defendant did at least one of the acts charged . . . ." Id. (quoting jury instruction given by the trial court). Therefore, defendant's motion to dismiss Counts Four and Six is denied.

 C. Dismissal Based upon Vindictive Prosecution

 Mebust brings this pro se motion *fn11" to dismiss the last four counts of his indictment charging him with violations of 18 U.S.C. § 922(a)(6). Defendant claims that the December 14, 1993, superseding indictment containing the additional charges was sought in retaliation for ...


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