The opinion of the court was delivered by: MICHAEL REAGAN, District Judge
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.
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 ...