United States District Court, S.D. Illinois
October 24, 2005.
UNITED STATES OF AMERICA, Plaintiff,
PERNELL CORTEZ STARKS, Defendant.
The opinion of the court was delivered by: MICHAEL REAGAN, District Judge
MEMORANDUM & ORDER
On June 23, 2005, Pernell Cortez Starks was found not guilty of
assaulting a Special Agent of the Office of Inspector General,
U.S. Department of Justice (18 U.S.C. § 111(a)), charged in
Count 1 of the indictment herein. Starks also was found not
guilty of simple assault, but was found guilty of obstruction of
proceedings in an investigation (18 U.S.C. § 1505), charged in
Count 2 of the indictment. Before this Court is Starks' motion
for new trial pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 33
(Doc. 48). For the reasons that follow, the motion is denied.
On February 8, 2005, a grand jury returned a two-count
indictment against Starks. Count 1 charges Starks with forcibly
assaulting a federal officer engaged in official duties, in
violation of 18 U.S.C. § 111(a). Count 2 charges Starks with
obstruction of proceedings in an investigation, in violation of
18 U.S.C. § 1505. Specifically, the indictment alleges that on
or about May 19, 2004, Starks struck and pushed Kimberly A.
Thomas, a Special Agent with the Office of the Inspector General,
U.S. Department of Justice, while she was engaged in her official
duties. The indictment further alleges that during this
altercation, Starks attempted to destroy an affidavit made in
furtherance of a pending investigative proceeding.
Prior to trial, on June 6, 2005, Starks filed separate motions
seeking to dismiss as duplicitous Count 2 of the indictment (Doc. 23) and seeking to
dismiss as multiplicitous Count 1 of the indictment (Doc. 24). On
June 9, 2005, this Court denied these motions and on June 20,
2005, orally made its finding consistent with the June 9, 2005
order. On June 23, 2005, following a four-day trial, a jury
convicted Starks on Count 2 of the indictment and acquitted him
on Count 1.
B. Standard of Review
Starks now asserts that he is entitled to a new trial pursuant
to FEDERAL RULE OF CRIMINAL PROCEDURE 33(a). For support,
Starks again asserts that Count 1 of the indictment is
multiplicitous and Count 2 of the indictment is duplicitous. As a
result of these defects, Starks argues, his trial was tainted to
the extent that the interest of justice requires that he be
granted a new trial.
Pursuant to Rule 33(a), "[u]pon the defendant's motion, the
court may vacate any judgment and grant a new trial if the
interest of justice so requires." FED. R. CRIM. P. 33(a).
"[C]ourts have interpreted Rule 33 to require a new trial `in the
interests of justice' in . . . situations in which the
substantial rights of the defendant have been jeopardized by
errors or admissions during trial." United States v. Kuzniar,
881 F.2d 466, 470 (7th Cir. 1989). However, "a jury verdict
in a criminal case is not to be overturned lightly, and therefore
a Rule 33 motion is not to be granted lightly." United States v.
Eberhart, 388 F.3d 1043, 1048 (7th Cir. 2004), quoting
United States v. Santos, 20 F.3d 280, 285 (7th Cir.
1994). "The exercise of power conferred by Rule 33 is reserved
for only the most extreme cases." United States v. Linwood,
142 F.3d 418, 422 (7th Cir. 1998). A trial court may not
grant a new trial in the interests of justice unless it properly
concludes that (i) a miscarriage of justice will occur absent a
new trial, or (ii) an error occurred at trial that was not
harmless. United States v. Washington, 184 F.3d 653, 657-58
(7th Cir. 1989).
C. Analysis In again asserting the multiplicity and duplicity arguments,
Starks is essentially re-alleging the same arguments that this
Court has already carefully considered and rejected.
Starks' Assertion of Multiplicity in the Indictment
"Multiplicity is the charging of a single offense in separate
counts of an indictment." United States v. Conley,
291 F.3d 464, 469 n. 4 (7th Cir. 2002).
Starks argues now, as he did prior to trial, that Count 1 is
multiplicitous in relation to Count 2. This Court rejected that
argument prior to trial. Whether counts are multiplicitous is
most often determined by applying the "same elements" test from
Blockburger, which requires that, to avoid multiplicity, each
of the two statutes at issue must require proof of a fact which
the other does not. United States v. DeCorte, 851 F.2d 948,
957-58 (7th Cir. 1988), citing Blockburger v. United
States, 284 U.S. 299, 304 (1932). This test "focuses on the
proof necessary to prove the statutory elements of each
offense, rather than on the actual evidence . . . presented at
trial." United States v. Patterson, 782 F.2d 68, 72-73
(7th Cir. 1986) (emphasis added), citing Illinois v.
Vitale, 447 U.S. 410, 416 (1980).
In Starks' case, Count 1 charges a violation of
18 U.S.C. § 111(a) (assault on a federal officer), whereas Count 2 charges a
violation of 18 U.S.C. § 1505 (obstruction of a pending
investigative proceeding). Unlike § 1505, § 111(a) requires proof
that the person assaulted be an employee of the United States
engaged in his or her official duty. 18 U.S.C. § 111(a). And,
unlike § 111(a), § 1505 requires proof that the obstructing
conduct be done with the purpose of obstructing or impeding the
due administration of justice. 18 U.S.C. § 1505. Accordingly,
under Blockburger, Count 1 is not multiplicitous in relation to
This is true regardless of whether there later existed an
"overlap in the quantum of proof" presented at trial. See
Patterson, 782 F.2d at 72-73 ("the Blockburger test is
satisfied, notwithstanding a substantial overlap in the quantum of proof
offered to establish the crimes, if each of the statutory
offenses require proof of a fact that the other does not
require"). Therefore, this Court again rejects Starks'
multiplicity assertion as well as Starks' additional argument
based on this assertion that the allegedly multiplicitous count
tainted the jury's deliberations and resulted in a "compromise
Starks' Assertion of Duplicity in the Indictment
"A duplicitous count is one that charges more than one distinct
and separate offense." United States v. Zeidman, 540 F.2d 314,
316 (7th Cir. 1976).
Starks argues now, as he did prior to trial, that Count 2 of
the indictment is duplicitous because it contains two separate
factual bases for criminal liability. The Court rejected this
argument prior to trial based on United States v. Berardi,
675 F.2d 895 (7th Cir. 1982). In Berardi, the Seventh Circuit
pointed out that "[a] count is not duplicitous . . . if it simply
charges the commission of a single offense by different means."
Berardi, 675 F.2d at 897, citing United States v. Pavloski,
574 F.2d 933, 936 (7th Cir. 1978). FEDERAL RULE OF CRIMINAL
PROCEDURE 7(c) provides that "[i]t may be alleged in a single
count that the means by which the defendant committed the offense
are unknown or that he committed it by one or more specified
means." FED. R. CRIM. P. 7(c)(1) (emphasis added). "This rule
necessarily contemplates that two or more acts, each one of which
would constitute an offense standing alone, may be joined in a
single count without offending the rule against duplicity."
Berardi, 675 F.2d at 898, citing Pavloski,
574 F.2d at 936. Where two or more acts comprise a single continuous episode
of conduct in a discrete period of time and constitute the
commission of a single offense by different means, a finding of
duplicity is not warranted. Berardi, 675 F.2d 897-900.
In this case, both the alleged assault and the alleged taking
of the affidavit happened contiguously by Starks toward Thomas during a short time period;
the acts "comprised a single continuous episode of conduct in a
discrete period of time." Moreover, both actions are alleged as
being in furtherance of a single offense obstruction of
justice in violation of 18 U.S.C. § 1505. Acting in accord with
Seventh Circuit law, this Court rejected Starks' argument that
Count 2 was duplicitous.
In his re-assertion of this argument, Starks has failed to
present any evidence that would convince the Court that this
ruling was erroneous. Accordingly, this Court now affirms its
previous ruling. Further, the Court also rejects those arguments
the basis of which is that Count 2 is duplicitous Starks'
assertion that the duplicity in the indictment was not harmless,
and that dismissal of Count 2 is warranted. This Court's finding
that Count 2 is not duplicitous strips these arguments of their
In conjunction with re-asserting his multiplicity and duplicity
arguments, Starks argues that the precautionary instructions that
this Court gave to the jury were ineffective to ensure a just
verdict. This argument, notably, relies in large part on Starks'
multiplicity and duplicity assertions: "[the Court's]
precautionary measures . . . may have proven effective in less
egregious instances of multiplicity and duplicity" (Doc. 48, p.
9). For the reasons articulated above, this case does not present
an "instance of multiplicity and duplicity." From the outset,
then, this argument is premised upon flimsy ground.
This Court had no obligation prior to trial to take any
additional steps to limit the risk that might otherwise be
inherent in a duplicitous or multiplicitous count, because, quite
simply, the counts were neither duplicitous nor multiplicitous.
By giving limiting instructions, the Court did not mean to imply
that this wasn't the case. The Court's giving of the relevant
instructions was not an attempt to remedy duplicitous or multiplicitous counts.
Rather, the Court's actions constituted an exceptional
precautionary measure designed to address the exact argument that
Starks now raises that the jurors convicted Starks on Count 2
as a compromise, rather than because of true unanimity as to what
the government had proven.
According to the Seventh Circuit, the possibility that a jury
might convict a defendant even though it did not unanimously
agree on the exact manner by which the defendant committed the
charged offense can be "easily cured by [the Court instructing]
the jury that it [can] convict . . . only if it unanimously
agree[s] on [the act the defendant committed]." United States v.
Cherif, 943 F.2d 692, 701 (7th Cir. 1991). This Court did
precisely that, instructing the jury that they must agree
unanimously as to how Starks endeavored to obstruct and impede
the pending investigative proceeding.*fn1 The Court further
directed the jurors to execute a special verdict form indicating
unanimously the means by which Starks endeavored to impede the
investigative proceedings. The jurors dutifully executed and
returned this form.
The law "presumes that jurors . . . attend closely the
particular language of the trial court's instructions in a
criminal case and strive to understand . . . and follow the
instructions given them." United States v. Linwood,
142 F.3d 418, 426 (7th Cir. 1998), citing Francis v. Franklin,
471 U.S. 307, 324 n. 9 (1985). "This presumption is only overcome if
there is an overwhelming probability that the jury was unable to follow the instructions
as given." Linwood, 142 F.3d at 426, citing Doe v. Johnson,
52 F.3d 1448, 1458 (7th Cir. 1995).
Here, Starks has failed to present evidence that could indicate
an "overwhelming probability" that the jury did not truly follow
the instructions given. In asking this Court to "consider the
mindset" of certain jurors, Starks posits observations that,
while perhaps insightful from a psychological standpoint, are
from a legal standpoint conjecturable and suppositional.
Consequently, the Court adheres to its presumption that the
jurors dutifully followed the Court's limiting instructions.
The Court affirms its earlier ruling that Count 1 was not
multiplicitous. Likewise, the Court affirms its previous ruling
that Count 2 was not duplicitous. Starks' arguments that rely on
contrary findings are without merit. Moreover, this Court finds
meritless Starks' assertion that the jury instructions given were
ineffective to prevent an unjust verdict. The Court is not faced
with a situation "in which the substantial rights of [Starks]
have been jeopardized by errors or admissions during trial."
Kuzniar, 881 F.2d at 470. Cognizant that "a jury verdict is
not to be overturned lightly," the Court finds that this case is
not a "most extreme case" that merits a new trial pursuant to
Rule 33(a). Eberhart, 388 F.3d at 1048; Linwood,
142 F.3d at 422. Accordingly, the Court DENIES Starks' motion for a new
trial (Doc. 48).
IT IS SO ORDERED.
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