United States v. Johnson (D.C. Cir. July 13, 2021)

The Federal Docket

Sentencing/Firearm Offenses – A conviction on charges of both Unlawful Receipt or Possession of an Unregistered Firearm and Destructive Device (26 U.S.C. §§ 5861(d), 5871) and Unlawful Making of a Firearm (26 U.S.C. §§ 5822, 5861(f), 5871) violates the Fifth Amendment’s Double Jeopardy Clause because the possession count is multiplicitous of the manufacturing count.

Defendant Morris Johnson was convicted by a jury on two counts of unlawful possession or receipt of a firearm and explosive device, two counts of unlawfully making a firearm, one count of conspiracy to smuggle goods into the United States (18 U.S.C. § 371), and two counts of possession of a weapon of mass destruction under D.C. Code § 22-3154(a).

A search warrant was executed at Johnson’s home where ATF agents found explosive powder, boxes of .37-millimeter ammunition shells with caps and primers on them, and one of those shells had been assembled as an IED. Three years later, an ATF agent was reviewing photos of items seized he had never reviewed before and noticed that one of the .37-millimeter shell casings left in a box “had some weight to it and appeared to be loaded with something.” He then disassembled it and discovered it was also an IED. The grand jury returned an indictment on the above charges and after a jury trial, he was convicted on all 7 charges.

On appeal, Johnson argued in relevant part: (1) his two federal possession counts were multiplicitous of his two manufacturing counts; (2) his two D.C. law convictions were multiplicitous of each other; and (3) his trial attorney rendered him constitutionally ineffective assistance for failing to advise him that his preferred defense wouldn’t be presented to the jury.

As to the first issue, the government concurred with Defendant and the Court that the federal possession charges failed the Blockburger test—the possession charges did not require proof of any additional facts beyond what was required to prove his guilt on the federal manufacturing charges. Therefore, the Court vacated Defendant’s conviction on both possession charges. The Court reached a similar conclusion with respect to the two D.C. charges of possession of a weapon of mass destruction. The Court held that under the D.C. Code, the unit of prosecution under the statute was possession, not the weapon itself. Therefore, because there was only one act of possession—the single, simultaneous possession of two IEDs—Johnson’s conviction on both counts of the D.C. statute was multiplicitous and one of the two must be vacated.  

Lastly, before trial, the government made a plea offer under which Johnson would plead guilty to two of the federal counts and the remaining charges would be dismissed. He rejected this offer. On appeal, he contended that he would have accepted the offer if defense counsel had told him that his preferred defense would not be presented at trial. Because the trial record did not contain any reference to what his preferred defense was or what discussions he had with his attorney about presenting that defense, the Court remanded the case back to the district court so that they may consider and rule on Johnson’s ineffective assistance claim in the first instance.

Opinion for the Court by Chief Judge Srinivasan, joined by Rogers and Edwards.

Click here to read the opinion.  

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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