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U.S. v. STARKS

October 24, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
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.

A. Background

  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 Count 2.

  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 ...


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