United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.
four-count indictment in this case charges the defendant,
Joseph Cosby, with: (1) possession with intent to
distribute/distribute cocaine base; (2) possession with
intent to distribute/distribute cocaine base; (3) possession
with intent to distribute cocaine base; and (4) possession of
firearm by a felon. The defendant has moved to dismiss counts
1, 2, and 4, on the grounds that those counts are
duplicitous, or allege more than one offense each. Because
the indictment is not duplicitous, the Court denies the
defendant's motion to dismiss.
occurs when an indictment joins two or more separate and
distinct offenses in a single count. United States v.
Hawkes, 753 F.2d 355, 357 (4th Cir. 1985). When the
government uses a single act to prove two charges, however,
the indictment is not duplicitous. Id. at 358.
Conversely, when "separate evidence is required to prove
two charges arising from the same factual situation, "
they are separate offenses and can support separate verdicts.
Counts 1 and 2
defendant moved to dismiss counts 1 and 2 because they each
allege two violations of 21 U.S.C. § 841: possession
with intent to distribute and distribution of crack cocaine.
with intent to distribute and distribution are two different
offenses. United States v. Randall, 171 F.3d 195,
209 (4th Cir. 1999). Joining possession and distribution in
one count, however, is not necessarily duplicitous.
United States v. Sellers, 657 Fed.Appx. 145, 147
(4th Cir. 2016) (citing Hawkes, 753 F.2d at 357).
Specifically, when a single act constitutes two violations of
the same subsection of a statute, charging both possession
and distribution in the same count is not duplicitous.
Id. In Hawkes, for instance, the
defendant's sole act of cultivating marijuana constituted
both the possession and manufacture of the drug. 753 F.2d at
case, the government informed the Court in its opposition
brief that the defendant distributed crack cocaine to an
informant working with law enforcement on two occasions. On
these facts, as in Hawkes, a single act in both
instances constitutes proof of two offenses, as the
defendant's act of providing crack cocaine to the
government informant establishes both possession and
distribution. Thus, charging both offenses in the same count
is not duplicitous, and the Court denies the defendant's
motion to dismiss counts 1 and 2.
defendant next argues that count 4 of the indictment is
defective because it alleges a violation of 18 U.S.C. §
922(g) for possession of two different firearms, as well as
defendant's possession of multiple firearms and
ammunition, "seized at the same time from his house,
supports only one conviction of 18 U.S.C. §
922(g)." United States v. Dunford, 148 F.3d
385, 390 (4th Cir. 1998). The Fourth Circuit reversed
thirteen of the fourteen § 922(g) counts against Dunford
because authorities seized six firearms, plus ammunition,
from his house at one time, which could only support one
the government informed the Court that officers recovered two
firearms stored together in a toilet water tank. As such, the
indictment conforms to the rule in Dunford. The
government may bring multiple prosecutions if it can show
that "the seized weapons were acquired at different
times and places, " but that is not before the Court.
United States v. Mullins, 698 F.2d 686, 687 (4th
Cir. 1983). The indictment as to count 4 is proper, and the
Court denies the defendant's motion to dismiss count 4.