United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 4, 1998 Decided December 18, 1998
No. 97-3011
United States of America,
Appellee
v.
Rico McLaughlin,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 95cv00466)
Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender.
Elizabeth C. Coombe, Assistant United States Attorney,
argued the cause for appellee. With her on the brief were
Wilma A. Lewis, United States Attorney, John R. Fisher,
Mary Patrice Brown and Henry K. Kopel, Assistant United
States Attorneys.
Before: Wald, Sentelle and Tatel, Circuit Judges.
Opinion for the court filed by Circuit Judge Sentelle.
Dissenting opinion filed by Circuit Judge Tatel.
Sentelle, Circuit Judge: Rico McLaughlin was convicted
of multiple federal and D.C. offenses, all related to the
shooting of a government informant. After trial, McLaughlin
filed a motion for a new trial on the ground that he was
denied the right to confer with counsel during a brief recess
between his cross-examination and redirect. That motion
was denied. On appeal, McLaughlin argues that the court's
denial of his request to confer with counsel during the recess
between his cross-examination and redirect violated the Sixth
Amendment. He also argues that he was convicted and
sentenced under multiple federal and D.C. provisions which
Congress did not intend to apply to the same underlying
conduct, and that his simultaneous convictions under these
statutes violate the Double Jeopardy Clause. We find that
there was no Sixth Amendment violation, and we reject
appellant's arguments that his federal and D.C. convictions
cannot stand simultaneously. However, we do find that
defendant's convictions under two D.C. assault provisions
merge. Accordingly, we reverse his conviction for aggravat-
ed assault and vacate the concurrent sentence imposed for
that offense.
I. Background
Rico McLaughlin was tried in the United States District
Court for the District of Columbia in connection with the
shooting of Thomas White. White had been an informant in
an operation called Project Uptown which involved a joint
task force of the Bureau of Alcohol, Tobacco and Firearms,
the U.S. Secret Service, the Department of Housing and
Urban Development, and the Metropolitan Police Depart-
ment. On April 26, 1995, White received multiple gunshot
wounds while being chased down a neighborhood street in the
District of Columbia. At trial, White testified that McLaugh-
lin was a drug dealer with whom he had transacted in the
past, and identified McLaughlin as the shooter. An eyewit-
ness who saw the shooting from a distance confirmed some
aspects of the identification. The court also heard evidence
from neighborhood residents, who testified that there was a
rumor in the neighborhood that White was an informant, and
that McLaughlin might have known about that rumor.
Mr. McLaughlin took the stand in his own defense. After
the government finished its cross-examination, the court or-
dered a brief recess, noting that defense counsel could redi-
rect after the recess, if desired. In response to a request
from the government, and over defense objections, the court
directed counsel not to speak to defendant during the break
"about anything he said in his testimony today." The recess
lasted fifteen minutes. After the recess, defense counsel
stated that "given the Court's ruling," she had no redirect.
Defense counsel stated: "I should also stress for the record
that I did think to myself what other areas I might want to
explore with Mr. McLaughlin. I have identified other areas,
and I would be prepared to consult with him on that. But
given the Court's ruling, I am not permitted to do that, so I
have no further questions."
At the close of trial, McLaughlin was convicted of (1)
knowingly causing bodily injury with the intent to retaliate
for providing information to law enforcement, 18 U.S.C.
s 1513(b); (2) using or carrying a firearm in relation to a
crime of violence, 18 U.S.C. s 924(c); (3) assault with intent
to kill while armed, D.C. Code ss 22-501 and 22-3202; (4)
aggravated assault while armed, D.C. Code ss 22-504.1 and
22-3202; (5) possession of a firearm during a crime of vio-
lence, D.C. Code s 22-3204(b); and (6) carrying a pistol
without a license, D.C. Code s 22-3204(a).
On December 2, 1996, defendant filed a written motion for
new trial on the ground that the court's order denying him
the right to confer with counsel about his testimony during
the recess violated his Sixth Amendment rights. The court
denied defendant's motion, and later issued a written memo-
randum explaining the denial. United States v. McLaugh-
lin, 955 F. Supp. 132 (D.D.C. 1997). Defendant was sen-
tenced on all six counts on which he was convicted. He
received eighty-seven months imprisonment on count one,
including an upward departure of twenty-four months; sixty
months imprisonment on count two, counts one and two to
be served consecutively; five to fifteen years imprisonment
on count three; five to fifteen years imprisonment on count
four, counts three and four to be served concurrently but
consecutively to counts one and two; five to fifteen years im-
prisonment on count five; and forty months to ten years im-
prisonment on count six, counts five and six to be served
concurrently, but consecutively to counts one through four.
The defendant now appeals, contending that the court's
denial of his request to confer with counsel during the recess
denied him his Sixth Amendment right to counsel. Appellant
also argues that the district court erred in allowing defendant
to be convicted and sentenced under multiple provisions
which Congress did not intend to give rise to simultaneous
convictions, and whose simultaneous application offends the
Double Jeopardy Clause. In addition, appellant asserts that
the prosecutor made improper statements at trial which
substantially prejudiced the outcome and that the district
court made an improper upward departure from the sentenc-
ing guidelines on the s 1513(b) charge. While we have
carefully considered each of appellant's arguments, the prose-
cutorial misconduct and sentencing departure arguments do
not merit separate discussion.
II. The Right to Confer with Counsel
We first examine appellant's argument that the district
court's refusal to allow him to confer with defense counsel
during a brief recess between defendant's cross-examination
and redirect denied him his Sixth Amendment right to coun-
sel. Asserting this alleged denial, McLaughlin requested a
new trial pursuant to Fed. R. Crim. P. 33. He now appeals
from the district court's denial of his request.
Three cases frame the Sixth Amendment issue in this case:
Geders v. United States, 425 U.S. 80 (1976); Mudd v. United
States, 798 F.2d 1509 (D.C. Cir. 1986); and Perry v. Leeke,
488 U.S. 272 (1989). Geders held that prohibiting discussions
with defense counsel during an overnight recess shortly be-
fore defendant's cross-examination violated the Sixth Amend-
ment, apparently without a showing of prejudice to the defen-
dant. 425 U.S. at 91. Mudd held that the Sixth Amendment
was violated by an order for a defendant not to speak to his
defense attorney over a weekend recess between his direct
and cross-examination, even where the order prohibited only
discussions regarding the defendant's testimony. 798 F.2d at
1512. Mudd squarely held that no showing of prejudice is
required once a Sixth Amendment violation is established, but
noted that restricting discussion during a very brief recess
might give rise to no Sixth Amendment violation at all. Id. at
1514. Both Geders and Mudd, while holding that prohibiting
consultation with counsel during the relatively lengthy recess-
es in those cases was a Sixth Amendment violation, explicitly
declined to decide whether the same would necessarily be
true if a shorter recess were involved. Geders, 425 U.S. at 89
n.2; Mudd, 798 F.2d at 1514 (suggesting that orders which do
not impose blanket prohibitions on discussions between coun-
sel and defendant but prevent only discussion regarding a
defendant's testimony "only interfere with the right to coun-
sel when they cover a substantial trial recess").
The question left open by Geders and Mudd was settled by
Perry v. Leeke, 488 U.S. 272 (1989), which held that, while no
prejudice need be shown once a Sixth Amendment violation is
established, the Sixth Amendment is not violated where no
discussions are allowed between a defendant and his attorney
during a fifteen-minute recess between the defendant's direct
and cross. The Perry Court distinguished Geders, noting
that during an overnight recess, a defendant may need access
to his attorney to discuss matters that "go beyond the content
of the defendant's own testimony." Id. at 284. While noting
that "[i]t is the defendant's right to unrestricted access to his
lawyer for advice on a variety of trial-related matters that is
controlling in the context of a long recess," id., the Court held
that "in a short recess in which it is appropriate to presume
that nothing but the testimony will be discussed, the testify-
ing defendant does not have a constitutional right to advice."
Id.
The lengths of the recesses in this case and in Perry are
similar. The order at issue in Perry barred all communica-
tion, while the order in this case was less restrictive, barring
only communication regarding defendant's testimony. None-
theless, appellant argues that this case is distinguishable from
Perry because the recess here was after cross-examination
rather than before. We agree with the district court that this
distinction is not constitutionally significant. See McLaugh-
lin, 955 F. Supp. at 135.
Appellant notes that the Perry Court emphasized the im-
portance of maintaining the integrity of cross-examination, a
concern not applicable here since the cross had been complet-
ed. Portions of Perry did express concern about preserving
the quality of cross-examination. See Perry, 488 U.S. at 282
("[C]ross-examination is more likely to elicit truthful respons-
es if it goes forward without allowing the witness an opportu-
nity to consult with third parties, including his or her law-
yer."); id. at 283 (" 'Once the defendant places himself at the
very heart of the trial process, it only comports with basic
fairness that the story presented on direct is measured for its
accuracy and completeness by uninfluenced testimony on
cross-examination.' ") (quoting United States v. DiLapi, 651
F.2d 140, 151 (2d Cir. 1981) (Mishler, J., concurring)). How-
ever, other portions of the Perry opinion make clear that the
decision did not turn on the fact that the recess was before
cross-examination rather than after. Indeed, the Court
phrased its holding in general terms: "We merely hold that
the Federal Constitution does not compel every trial judge to
allow the defendant to consult with his lawyer while his
testimony is in progress if the judge decides that there is a
good reason to interrupt the trial for a few minutes." Perry,
488 U.S. at 284-85 (emphasis added).
Concededly, the Perry Court was faced with a recess
before cross-examination, so that its conclusions may be
considered dicta regarding recesses at other times during a
defendant's testimony. But even if the Perry holding is not
directly controlling, a decision that there was a Sixth Amend-
ment violation in the present case would be inconsistent with
Perry's rationale. The Perry Court observed that "when a
defendant becomes a witness, he has no constitutional right to
consult with his lawyer while he is testifying." Id. at 281.1
The Court observed that courts commonly instruct witnesses
not to discuss their testimony during trial, and reasoned that
while the Confrontation Clause immunizes a defendant from
physical sequestration, it does not immunize him from limited
nondiscussion orders. As the Court noted, "when [a defen-
dant] assumes the role of a witness, the rules that generally
apply to other witnesses--rules that serve the truth-seeking
function of the trial--are generally applicable to him as well."
Id. at 282.
Appellant argues that the need to confer with counsel after
cross-examination is unique in that it is at that time that a
decision is made regarding whether to redirect at all, and that
such a decision is best made after discussion with the defen-
dant. However, appellant does not, and could not, argue that
a defendant is always entitled to a brief recess before redirect
to confer with counsel. As the Supreme Court stated in
Perry, "a trial judge has the unquestioned power to refuse to
declare a recess at the close of direct testimony--or at any
other point in the examination of a witness...." Id. at 283.
Accordingly, appellant argues only that if there happens to be
such a recess, the defendant must be allowed to confer with
counsel about his testimony. We cannot hold that Sixth
Amendment rights turn on such happenstance. It cannot be
the law that the right to counsel attaches on the fortuity of a
recess before defendant's redirect when there is no right to
such a recess.
__________
1 Our dissenting colleague, while recognizing the quoted language
from the Supreme Court, states that "nothing in Perry suggests
that the Court intended the word 'testifying' to apply to redirect
examination." Dissent at 5. The dissent suggests no definition of
"testifying" that would not include redirect examination.
Our dissenting colleague asserts that in his view, "this case
has nothing to do with a defendant's right to a recess."
Dissent at 1. He then proceeds to set forth an analysis under
which the Sixth Amendment affords the defendant a right to
consultation with counsel at the end of cross-examination and
before announcing a decision as to whether or not to conduct
redirect examination. Indeed, in our colleague's view, "[d]e-
fense counsel cannot responsibly assess the [ ] risks and
benefits" of conducting redirect "without first consulting the
client about what occurred during cross." Dissent at 2. If
such a right to consult exists, then this presupposes a right to
have some sort of recess, whether or not our colleague wishes
to announce this necessary conclusion. Appellant did not
argue that such a right to consult exists even where there is
no recess, and indeed, conceded the contrary at oral argu-
ment. Given the Supreme Court's recognition of the trial
judge's "unquestioned power" to refuse a recess in Perry, we
hold that the appellant is correct, and our colleague mistaken.
No such right to a recess exists.
Furthermore, we do not see the unique need to confer with
counsel before redirect that appellant asserts. While there
may be important matters which could be discussed prior to
redirect, there may also be important matters which counsel
might discuss with a defendant prior to cross-examination, or
for that matter during direct or cross. As the Mudd panel
noted, a defense attorney may want to advise the defendant
before cross-examination on demeanor or speaking style, or
to warn the defendant before cross-examination about ques-
tions that could raise self-incrimination concerns or questions
that could lead the defendant to mention excluded evidence.
798 F.2d at 1512. Perry does not rest on the premise that
there are no legitimate reasons for a defendant to confer with
counsel before cross-examination, and arguing that there are
legitimate reasons to confer with counsel before redirect
cannot distinguish this situation from Perry. The question
before us is not whether there are legitimate reasons for a
defendant to confer with counsel before redirect, but whether
there is a Sixth Amendment right to do so. Under the
reasoning of Perry, there is no such right.
Our colleague sees this case as controlled by Geders rather
than Perry on the theory that the decision of whether to
conduct redirect is a "tactical decision." He cites from Ged-
ers the language that the overnight recess in that case
involved "tactical decisions to be made and strategies to be
reviewed." Thus, he reasons, since there was a tactical
decision to be made here, Geders, not Perry, must control.
Our colleague's conclusion does not follow from the Geders
language. The quoted language from Geders, as our col-
league recognizes, reflects the Court's recognition that over-
night "recesses are often times of intensive work, with tactical
decisions to be made and strategies to be reviewed." True, a
tactical decision may be genuinely at issue at the time of the
submission to redirect. Indeed, many such decisions may be
circulating in the courtroom air. Many may be there be-
tween direct and cross also. Nonetheless, the Supreme
Court in Perry made it plain that the need to make decisions
does not change the fact that a defendant witness "has no
constitutional right to consult with his lawyer while he is
testifying." Perry at 281. As our colleague recognizes, the
Perry Court stated the proposition that " 'cross-examination
is more likely to elicit truthful responses if it goes forward
without allowing the witness an opportunity to consult with
third parties, including his or her lawyer.' " Dissent at 4
(quoting Perry at 282). As our colleague further recognizes,
the undertaking of redirect establishes the right of the prose-
cution to re-cross. No less than the original cross, re-cross-
examination is more likely to elicit truthful response without
third-party consultation. The fifteen or twenty minute recess
is not like an overnight recess, a time of intensive work with
tactical decisions to be made and strategies to be reviewed.
Rather, it is like the recess between direct and cross consid-
ered in Perry: a time too short for broad-ranging strategic
discussions but a prime time for the discussion of the witness'
testimony. Just as the recess in Perry could have resulted in
the sort of coached answers on cross that the Supreme Court
feared but for the trial court's restriction, an open-ended
attorney-client session at the end of cross could allow for a
reconstruction of the defendant's testimony on redirect sub-
jected only to a freshly coached re-cross-examination.
Our colleague's assertion that "[w]hen tactical questions
arise, the Sixth Amendment requires defendants to be al-
lowed to consult with their attorneys," cannot as a practical
matter state an acceptable proposition of Sixth Amendment
law. Tactical questions can arise at any point during the
defendant's testimony, and it is plain from Perry as well as
trial experience that a defendant has no unrestricted right to
interrupt the testimony for consultation. No more has he a
right to consultation during a fortuitous recess.2
III. Defendant's Multiple Convictions and Sentences
In the District of Columbia, the government may "simulta-
neously charg[e] in one indictment offenses under similar
federal and D.C. statutes arising from a single transaction."
United States v. Jones, 527 F.2d 817, 829 n.15 (D.C. Cir.
1975). Federal district courts in the District of Columbia
have jurisdiction over offenses "under any law applicable
exclusively to the District of Columbia which offense is joined
in the same information or indictment with any Federal
offense." D.C. Code s 11-502(3). Where an indictment con-
tains both District of Columbia and federal charges, the
district court may adjudicate the entire case. United States
v. Wade, 152 F.3d 969, 970 (D.C. Cir. 1998). In this instance,
the government charged defendant with six counts, including
two federal counts and four District of Columbia counts. A
grand jury returned an indictment on each of the six counts:
(1) knowingly causing bodily injury with the intent to retaliate
for providing information to law enforcement, 18 U.S.C.
s 1513(b); (2) using or carrying a firearm in relation to a
crime of violence, 18 U.S.C. s 924(c); (3) assault with intent
to kill while armed, D.C. Code ss 22-501 and 22-3202; (4)
__________
2 We find it significant that the ABA standards on criminal
defense do not list whether to redirect as one of the essential areas
where the client makes the choice. Criminal Justice Prosecution
Function and Defense Function Standards, 4-5.2, Control and
Direction of the Case.
aggravated assault while armed, D.C. Code ss 22-504.1 and
22-3202; (5) possession of a firearm during a crime of vio-
lence, D.C. Code s 22-3204(b); and (6) carrying a pistol
without a license, D.C. Code s 22-3204(a). Appellant does
not challenge the inclusion of these counts in the same
indictment, but argues that his conviction and sentencing on
all six counts is not in keeping with congressional intent
regarding the application of these provisions and is barred by
the Double Jeopardy Clause.
The parties agree that because appellant has first raised
this argument on appeal, we review for plain error. Cf.
United States v. Foster, 988 F.2d 206, 209 (D.C. Cir. 1993).
This standard is set forth by Fed. R. Crim. P. 52(b), which
provides that "[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the court." Under this standard, the Court of
Appeals should correct a plain error affecting substantial
rights if the error " 'seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.' " United States
v. Olano, 507 U.S. 725, 736 (1993) (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)).
A.Legislative Intent, Double Jeopardy, and the Block-
burger Test
Appellant argues that several of his convictions were under
statutory provisions which should not be applied to the same
conduct, either because Congress did not so intend or because
the Double Jeopardy Clause does not so permit. In particu-
lar, appellant argues that his conviction under 18 U.S.C.
s 1513(b) cannot stand together with his convictions for as-
sault with intent to kill while armed, D.C. Code ss 22-501
and 22-3202, and for aggravated assault while armed, D.C.
Code ss 22-504.1 and 22-3202; that the two "carrying" provi-
sions, 18 U.S.C. s 924(c) and D.C. Code s 22-3204(b), cannot
both apply; and that his convictions under the two D.C.
assault provisions merge.
Whether conduct can give rise to multiple convictions in a
single trial is essentially a question of statutory construction,
but it is statutory construction with constitutional implica-
tions. This is so because the question of Congress's intent
and the question of what the Double Jeopardy Clause permits
in such situations are closely intertwined. The Double Jeop-
ardy Clause affords three basic protections: "It protects
against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the
same offense after conviction. And it protects against multi-
ple punishments for the same offense." North Carolina v.
Pearce, 395 U.S. 711, 717 (1969) (footnotes omitted). It is the
third strand of protection that is at issue in this case. The
Double Jeopardy Clause's protection against cumulative pun-
ishments is designed to ensure that the sentencing discretion
of courts is confined to the limits established by the legisla-
ture. Ohio v. Johnson, 467 U.S. 493, 499 (1984). Thus in
determining whether convictions under multiple provisions
violate the Double Jeopardy Clause, our inquiry is directed at
legislative intent. United States v. Hoyle, 122 F.3d 48, 49
(D.C. Cir. 1997). When a defendant is charged under multi-
ple provisions, the "Double Jeopardy Clause does no more
than prevent the sentencing court from prescribing greater
punishment than the legislature intended." Missouri v.
Hunter, 459 U.S. 359, 366 (1983). Thus the Double Jeopardy
Clause serves principally as a restraint on courts and prose-
cutors, not the legislature. Brown v. Ohio, 432 U.S. 161, 165
(1977). Accordingly, analysis of prosecutions under multiple
statutes under the Double Jeopardy Clause is limited to
considering whether the legislature intended to allow simulta-
neous convictions. United States v. Sumler, 136 F.3d 188,
189 (D.C. Cir. 1998). If the legislature intends to impose
multiple punishment, imposition of such sentences does not
violate Double Jeopardy. Albernaz v. United States, 450 U.S.
333, 344 (1981).
The test set forth in Blockburger v. United States, 284 U.S.
299 (1932), is often used to determine whether the legislature
intended to allow punishment under multiple provisions.
United States v. Dixon, 509 U.S. 688, 696 (1993). Under this
test, we compare the elements of the offenses to see whether
"each provision requires proof of a fact which the other does
not." Blockburger, 284 U.S. at 304. The application of the
test focuses on the statutory elements of the offense, not on
the proof offered in a given case. Iannelli v. United States,
420 U.S. 770, 785 n.17 (1975). Hence if each provision
requires proof of an element that the other does not, the
Blockburger test is satisfied, indicating that simultaneous
application of the two provisions was intended. Conversely, if
the provisions do not each require an element that the other
does not, the Blockburger test is not satisfied, indicating that
simultaneous application of the two provisions was not intend-
ed.
The Blockburger test functions both as a rule of statutory
construction and a constitutional presumption. As a tool of
statutory construction, the Blockburger test is not absolutely
controlling. See, e.g., Albernaz, 450 U.S. at 340. In particu-
lar, failing the Blockburger test does not necessarily imply
that two provisions may not be applied together, as the
ultimate question is one of legislative intent. If the legisla-
ture intends two criminal provisions to apply simultaneously,
applying them together does not offend the Double Jeopardy
Clause, even if the two provisions would otherwise be consid-
ered as defining the same offense under the Blockburger test.
It is here, however, that Blockburger functions as a constitu-
tional presumption for the protection of defendants--under
the Double Jeopardy Clause, two provisions may apply to the
same conduct despite failing the Blockburger test, but only if
there are other clear indications that the provisions were
intended to be applied together. As the Court noted in
Whalen v. United States, 445 U.S. 684, 691-92 (1980), "[t]he
assumption underlying the rule is that Congress ordinarily
does not intend to punish the same offense under two differ-
ent statutes."
Several cases illustrate that where there is clear evidence
of legislative intent, multiple sentences are possible even
though a Blockburger analysis would indicate otherwise. In
Missouri v. Hunter, 459 U.S. 359, 368 (1983), the Court
considered whether a defendant was properly sentenced for
both robbery and armed criminal action under Missouri law.
Although the two sentences were improper under a Blockbur-
ger analysis, the Court held that the sentences were permissi-
ble. The Court concluded that where the Missouri legislature
had made it clear that it intended cumulative punishment for
the violation of two statutes it was the intent of the legisla-
ture, not the Blockburger test, which controlled. In Garrett
v. United States, 471 U.S. 773, 779 (1985), the Court again
refused to treat the Blockburger rule as a conclusive determi-
nant of legislative intent. The Court there concluded that
Congress clearly intended to allow conviction for both a
continuing criminal enterprise and the predicate offense, al-
though application of the Blockburger test indicated the two
were the same offense. In United States v. White, 116 F.3d
903, 931-32 (D.C. Cir. 1997), this court held that convictions
for a RICO conspiracy and a drug conspiracy in the same
proceeding did not violate the Double Jeopardy Clause. Al-
though the two conspiracies were the same under Blockbur-
ger, we concluded that Congress intended to authorize cumu-
lative punishments. Id. at 932. See also Iannelli, 420 U.S. at
779 (finding that Congress intended to allow punishment for
both conspiracy and underlying offense given longstanding
historical distinction).
Just as failing Blockburger does not preclude punishment
under multiple provisions, passing Blockburger does not man-
date it. In this context, the Blockburger test functions as a
rule of statutory construction. We recognized this in United
States v. Canty, 469 F.2d 114, 127 (D.C. Cir. 1972), when we
noted that "even [where] two provisions require different
elements of proof, there must still be a determination that
Congress intended the provisions to bear separate punish-
ments when applied to a single act or transaction." At one
level, this simply states the unremarkable fact that regardless
of the outcome of the Blockburger test, a court may not
impose punishment without ultimately concluding that the
legislature so intended. The contrary proposition would al-
low courts to exceed their authority and undermine the
separation of powers. See Whalen, 445 U.S. at 689. But
noting that a court must limit punishments to those Congress
intended does not answer the question underlying our state-
ment in Canty--How are we to determine Congress's intent?
Our statement in Canty makes clear that the Blockburger
test is not always the whole of our analysis. Indeed, it could
not be, for two provisions could "pass" the Blockburger test
but contain plain indications in their text that they were not
intended to be applied together.
Nonetheless, the value of having a predictable and consis-
tent rule for determining which provisions may apply togeth-
er is great. Thus even where it functions only as a rule of
statutory construction, the Blockburger test cannot be disre-
garded. The question of what manifestations of congression-
al intent make resort to Blockburger unnecessary or trump
the outcome of the Blockburger test is a recurrent one, and is
encountered again today.
B.Appellant's Convictions under 18 U.S.C. s 1513(b) and
the D.C. Assault Provisions
18 U.S.C. s 1513 criminalizes retaliation against witnesses,
victims, and informants. Subsection (a) provides penalties for
"[w]hoever kills or attempts to kill another person with intent
to retaliate" for serving as a witness or providing information
to law enforcement. In the case of an attempt, the punish-
ment provided is imprisonment for not more than twenty
years. Subsection (b), the provision charged here, provides
that "[w]hoever knowingly engages in any conduct and there-
by causes bodily injury to another person or damages the
tangible property of another person, or threatens to do so,
with intent to retaliate against any person for [serving as a
witness or providing information to law enforcement,] or
attempts to do so," shall be fined, or imprisoned not more
than ten years.
Under D.C. Code s 22-501, assault with intent to kill
carries a sentence of two to fifteen years. Under s 22-504.1,
aggravated assault carries a maximum ten-year sentence. A
person commits aggravated assault if he "knowingly or pur-
posely causes serious bodily injury to another person," or if
he causes serious bodily injury by intentionally or knowingly
creating a grave risk under "circumstances manifesting ex-
treme indifference to human life." Both assault with intent
to kill and aggravated assault are subject to enhanced penal-
ties if committed while armed. D.C. Code s 22-3202.
Examining the elements of s 1513(b) and each of the D.C.
assault provisions at issue reveals that under the Blockburger
test, s 1513(b) is distinct from both assault with intent to kill
while armed and aggravated assault while armed. Section
1513(b) requires proof of intent to retaliate, which is not
required under either D.C. assault provision. Assault with
intent to kill while armed under D.C. Code ss 22-501 and
22-3202 requires proof of intent to kill and proof that the
offender was armed, neither of which are required by
s 1513(b). Aggravated assault while armed under D.C. Code
s 22-504.1 requires "serious bodily injury," while s 1513(b)
requires only "bodily injury" or damage to "tangible proper-
ty." Aggravated assault while armed also requires that the
offender was armed, which is not required by s 1513(b).
Thus under the Blockburger test, s 1513(b) is distinct from
both the D.C. assault provisions at issue.
However, appellant argues that Blockburger is not disposi-
tive in this instance. He cites a line of cases holding that
certain federal and D.C. statutes were not intended to be
applied to the same conduct, notwithstanding that the provi-
sions did not define the same offense under the Blockburger
test. None of these cases addresses the precise issue in this
case. Two of the cases cited involved the federal bank
robbery statute. In United States v. Canty, 469 F.2d 114
(D.C. Cir. 1972), we held that a defendant's convictions for
both assault with a dangerous weapon under D.C. Code
s 22-502 and for taking money or property from a federal
bank by force, violence, or intimidation could not stand. We
noted that "[t]he federal bank robbery statute establishes a
comprehensive scheme for prosecuting and punishing persons
who rob federally-insured banks." Id. at 127. Instead of
prosecuting entirely within the bank robbery scheme, the
federal government charged the defendant with the lowest
tier of robbery in the federal scheme, and sought to punish
the aggravated portion of the offense via the D.C. assault
provision. By venturing outside the comprehensive scheme
created by Congress for dealing with such offenses, the
government had obtained a greater sentence than would
otherwise have been possible. Id. at 128. We encountered
similar facts in United States v. Leek, 665 F.2d 383 (D.C. Cir.
1981), where the defendant was convicted of entering a bank
with intent to commit robbery under the Federal Bank
Robbery Act, as well as assault with a dangerous weapon
under the D.C. Code. As in Canty, the government had
declined to prosecute on the highest possible federal charge,
instead charging a lower tier under the Federal Bank Rob-
bery Act in combination with a D.C. assault charge. As in
Canty, we noted that "the Federal Bank Robbery Act is
carefully designed, matching maximum penalties with specific
offenses," and held that "fragmentation of a single course of
conduct to enable use of a local statute to multiply convictions
and enhance punishment is impermissible." Id. at 388.
Appellant argues that the present case is analogous to
these cases regarding the Federal Bank Robbery Act. In
particular, he argues that the government could have charged
s 1513(a), but instead charged the less serious offense,
s 1513(b), paired with the D.C. assault provisions, in order to
obtain a longer sentence. An attempt to kill in retaliation
under s 1513(a) would have been limited to a sentence of
twenty years. Appellant received a sentence of seven years
and three months under s 1513(b), and a sentence of five to
fifteen years under each of the D.C. assault provisions, with
the sentences under the two D.C. assault provisions to be
served concurrently. Hence his time served under these
provisions could potentially be over twenty-two years as
opposed to the twenty-year maximum provided by s 1513(a).
(Of course, if less time were actually served on the D.C.
assault charges, his time served under s 1513(b) and the D.C.
assault provisions could be much less than the federal maxi-
mum under s 1513(a).) Thus this scenario is in many re-
spects similar to that decried in Canty and Leek. For
example, Canty could have been prosecuted under the federal
scheme for assault with a dangerous weapon in connection
with a bank robbery, carrying a maximum of twenty-five
years. He was instead charged under a less serious federal
provision, bank robbery by force and violence, (twenty-year
maximum), paired with assault with a dangerous weapon
under the D.C. Code (ten-year maximum). Canty, 469 F.2d
at 127.
We nonetheless conclude that Canty and Leek are distin-
guishable from the case at hand. Canty was premised on the
existence of a comprehensive federal scheme which by its
nature made resort to local charges improper. United States
v. Jones, 527 F.2d 817, 828 n.12 (D.C. Cir. 1975). As we
noted in Canty, the federal bank robbery statute "subdivides
the offense into a series of steps--a continuum running from
entry with intent to rob, to robbery by force and violence, to
robbery with the aid of a dangerous weapon, to robbery
resulting in death or kidnapping." 469 F.2d at 127. Section
1513, in contrast, is less comprehensive. Its provisions are
not narrowly tailored to reflect differences in behavior. In
particular, subsection (b) applies equally to retaliatory con-
duct causing bodily injury (however serious), damage to
tangible property, or mere threats to engage in such conduct.
Given this less comprehensive structure, there is no reason to
conclude that Congress intended s 1513 to be the exclusive
mechanism available for conduct falling within its purview.
Therefore, the U.S. Attorney was free to charge D.C. provi-
sions as well, and free to charge the defendant with the
offenses which could yield the highest sentence. See Jones,
527 F.2d at 820-21. Cf. United States v. Batchelder, 442 U.S.
114, 125 (1979) ("Just as a defendant has no constitutional
right to elect which of two applicable federal statutes shall be
the basis of his indictment and prosecution, neither is he
entitled to choose the penalty scheme under which he will be
sentenced.").
Appellant also cites two cases interpreting the federal mail
robbery statute, but again, we find the present case distin-
guishable. In United States v. Spears, 449 F.2d 946 (D.C.
Cir. 1971), we concluded that Congress did not intend to allow
the same conduct to give rise to convictions for robbery under
the District of Columbia statutes and for assault with intent
to rob under the federal mail robbery statute. We noted that
the federal provision proscribed only assaults which formed
"an integral part of an unsuccessful attempt to rob a mail
carrier." Id. at 954. In light of "conventional doctrines"
barring conviction for both an attempt and the completed
offense, id., we concluded that Congress did not intend the
federal provision to apply where there was a conviction under
the D.C. Code for completed robbery. In contrast, no "con-
ventional doctrines" counsel against allowing a traditional
assault conviction in combination with a conviction under a
special prohibition on retaliatory conduct. Cf. United States
v. Alston, 609 F.2d 531 (D.C. Cir. 1979) (holding that both
federal mail and wire fraud statutes and the D.C. false
pretenses statute could apply to the same conduct, given that
the special interest protected under the federal statutes was
clearly distinct from the general property interest safeguard-
ed by the local statute).
In United States v. Knight, 509 F.2d 354 (D.C. Cir. 1974),
we considered whether convictions for armed robbery under
both the District of Columbia Code and simple robbery under
the federal mail robbery statute were permissible. We con-
cluded that Congress had "deliberately addressed itself to the
distinction between simple mail robbery and the case where a
dangerous weapon is involved, and ha[d] provided an increase
of punishment only if the use of the dangerous weapon puts
the life of the mail custodian in jeopardy." Id. at 362. Since
the jury acquitted on the charge of putting the mail custodian
in jeopardy and convicted instead of simple mail robbery, we
held that it was impermissible for the government to nonethe-
less reach the weapon use by obtaining a conviction under the
D.C. armed robbery provision. Id. Our decision in Knight
rested on a belief that applying the District of Columbia
armed robbery statute to the armed mail robbery in that case
would have flouted Congress's intent. From the fact that
Congress had provided enhanced penalties for only a certain
type of armed conduct, we inferred a congressional intent
that other types of armed conduct should not be subject to
enhanced penalties. In contrast, appellant points to no con-
gressional distinctions in the retaliation statute which would
be flouted by resort to the D.C. Code in this case.
In conclusion, we find no reason that the Blockburger test
should not be determinative in this instance. We do not claim
to find a clear indication in the statutes that Congress intend-
ed them to apply together. Neither 18 U.S.C. s 1513 nor the
D.C. assault provisions mention the other or give any other
positive indication of whether or not the federal and D.C.
provisions are intended to apply simultaneously. However,
where a federal and District offense satisfy Blockburger, no
such positive indication of intent to apply together is re-
quired. See Sumler, 136 F.3d 188, 190-92 (D.C. Cir. 1998)
(upholding convictions for both first degree murder while
armed under District of Columbia law and killing in further-
ance of a continuing criminal enterprise under federal law
where Blockburger test satisfied and no contrary intent dem-
onstrated). Cf. Albernaz, 450 U.S. at 341. Instead, it is only
necessary that whatever manifestations of congressional in-
tent are present do not seriously call into doubt whether the
Blockburger result accurately captures legislative intent.
Where, as here, the text and structure of the provisions at
issue shed little light on whether Congress would intend them
to apply together, there is no reason to deviate from the
Blockburger test. The original version of s 1513 was passed
in 1982. See Pub. L. No. 97-291, s 4(a), 96 Stat. 1250 (1982).
We must presume that when Congress drafted this provision
it knew that behavior subject to this provision would some-
times fall within the assault provisions of the District of
Columbia. We must also presume that Congress was aware
of the Blockburger rule, and legislated with it in mind.
Albernaz, 450 U.S. at 342. Given this, the absence of other
significant indications of intent regarding whether the federal
provision is exclusive leads us to conclude that the Blockbur-
ger analysis controls.
C.Appellant's Convictions under 18 U.S.C. s 924(c) and
D.C. Code s 22-3204(b)
Defendant was sentenced for violating both 18 U.S.C.
s 924(c), using or carrying a firearm during or in relation to a
drug trafficking offense or crime of violence, and D.C. Code
s 22-3204(b), possession of a firearm during the commission
of a crime of violence. Section 924(c) requires proof that the
defendant (1) "use[d] or carrie[d]" (2) "a firearm" (3) "during
and in relation to" (4) "any crime of violence or drug traffick-
ing crime ... for which he may be prosecuted in a court of
the United States." 18 U.S.C. s 924(c)(1). A "crime of
violence" is defined as a federal offense that "is a felony and
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
another, or (B) that by its nature, involves a substantial risk
that physical force against the person or property of another
may be used in the course of committing the offense." 18
U.S.C. s 924(c)(3).
D.C. Code s 22-3204(b) requires proof that the defendant
(1) "possess" (2) within the District of Columbia (3) a "firearm
or imitation firearm" (4) "while committing a crime of violence
or dangerous crime as defined in s 22-3201." Section
22-3201 defines a crime of violence as one of twenty-three
specified offenses, all of which include actual, threatened, or
intended violence, or the likelihood of violence, directed
against a person. D.C. Code s 22-3201(f). Both assault with
intent to kill and aggravated assault are among the offenses
specified. Dangerous crime is defined as "distribution of or
possession with intent to distribute a controlled substance, if
the offense is punishable by imprisonment for more than 1
year." D.C. Code s 22-3201(g).
Both the federal and D.C. statutes are silent regarding
whether they are intended to be applied simultaneously. Nor
is there any structural indication whether or not Congress
intended both provisions to apply to the same conduct. We
therefore rely on the Blockburger test. The government has
argued that these two provisions each require proof of an
element that the other does not. The government notes that
conviction under s 924(c) requires proof that the defendant
used or carried a firearm, while conviction under
s 22-3204(b) requires proof only of possession. Cf. United
States v. Smart, 98 F.3d 1379, 1393 (D.C. Cir. 1996) (more
than possession required to trigger s 924(c)(1)), with Brown
v. United States, 691 A.2d 1167, 1169 (D.C. 1997) (mere
possession of proscribed weapon is sufficient to trigger
s 22-3204(b)). Conversely, conviction under s 22-3204(b) re-
quires proof that the possession occurred during one of a
specified list of D.C. offenses. Conviction under s 924(c) can
be based on use of a firearm during offenses other than those
to which s 22-3204(b) applies. Thus the government claims
that s 22-3204(b) requires proof of an element that s 924(c)
does not--that the underlying offense is one of the offenses
specified in s 22-3204-and the two offenses are not the same
under the Blockburger test.
While we agree that the Blockburger test is satisfied here,
the government's analysis oversimplifies the application of
Blockburger to these facts. The proper method of applying
the Blockburger test in this situation is suggested by the
Supreme Court's opinion in Whalen v. United States, 445 U.S.
684, 694 (1980). Whalen considered whether convictions for
both rape and felony murder based on rape were proper.
Conducting a traditional Blockburger analysis, the govern-
ment in Whalen argued that the rape offense requires rape,
while felony murder could be based on five felonies other than
rape. Conversely, the government there argued that felony
murder requires a killing, which rape does not. However, the
Whalen Court did not accept the government's Blockburger
analysis. The Court reasoned that if instead of listing the six
felonies which can serve as a basis for felony murder in the
alternative, Congress had separately proscribed the six types
of felony murder (i.e., rape-felony murder, robbery-felony
murder, etc.), rape would clearly be a lesser included offense
of the rape version of felony murder. The Court refused to
ascribe significance to this difference in drafting, and found
that the dual convictions were improper. See also White, 116
F.3d at 931 (recognizing that Whalen analysis is required
where a statute lists several alternative sub-offenses).
Like the felony murder offense considered in Whalen, both
18 U.S.C. s 924(c) and D.C. Code s 22-3204 are compound
offenses, satisfied by possession during any one of a list of
underlying offenses. After Whalen, the fact that the lists of
offenses which can serve as the predicate offense for the two
provisions are not coextensive does not end the Blockburger
analysis. Instead, we treat this as if there is a separate
provision for each offense on the list. In this case, the
district court's instructions to the jury clearly linked the
s 924 charge to the federal retaliation count, and the
s 22-3204(b) charge to the D.C. assault counts. Thus we are
in effect considering whether the defendant was appropriately
convicted of "possession under D.C. Code s 22-3204(b) dur-
ing the commission of assault under D.C. Code ss 22-504.1
and 22-501" and "possession under 18 U.S.C. s 924(c) during
the commission of retaliation under 18 U.S.C. s 1513(b)."
Taking this view, the first conviction requires commission of
the D.C. assault offense, and the second requires commission
of the retaliation offense. Since we have already concluded
that the assault charges and the retaliation charge are not the
"same offense," defendant's s 22-3204(b) conviction and his
s 924(c) conviction each required an element that the other
did not. Therefore, the Blockburger test is satisfied.
D.Appellant's Convictions under D.C. Code s 22-501 and
s 22-504.1
Finally, we consider whether defendant was properly con-
victed for both assault with intent to kill while armed under
D.C. Code ss 22-501 and 22-3202 and aggravated assault
while armed under D.C. Code ss 22-504.1 and 22-3202.
The District of Columbia Code contains a series of assault
offenses. Section 22-501 prohibits assault with intent to kill,
to rob, to poison, or to commit sexual abuse, with a maximum
sentence of fifteen years. Section 22-502 prohibits assault
with intent to commit mayhem or assault with a dangerous
weapon, with a maximum sentence of ten years. Section
22-503 prohibits assault with intent to commit any other
offense, with a maximum sentence of five years. Section 22-
504 prohibits simple assault, threats, and stalking. The maxi-
mum sentence for simple assault is 180 days.
In 1994, an aggravated assault provision was added to the
existing assault provisions of the D.C. Code. See Omnibus
Criminal Justice Reform Amendment Act of 1994, D.C. Law
No. 10-151, s 202. At the same time, the penalty for simple
assault was decreased from twelve months to 180 days. Id.;
Burgess v. United States, 681 A.2d 1090, 1094 (D.C. 1996).
The new aggravated assault provision applies to conduct
which knowingly, purposely, or recklessly causes serious bodi-
ly injury to another person, and carries a maximum sentence
of ten years. D.C. Code s 22-504.1.
The government correctly points out that assault with
intent to kill requires intent to kill, which aggravated assault
does not, and that aggravated assault requires serious bodily
injury, which assault with intent to kill does not. Hence, the
government notes, the Blockburger test is satisfied. Howev-
er, we do not believe that Blockburger is determinative in this
instance.
As we noted earlier in this opinion, the ultimate question is
one of legislative intent, and Blockburger is not always con-
trolling. Just as we may conclude that a legislature intended
to allow punishment under multiple provisions when a Block-
burger analysis taken alone would not support such a conclu-
sion, see Hunter, 459 U.S. at 368; Garrett, 471 U.S. at 779, we
may conclude that a legislature intended not to allow punish-
ment under multiple provisions although a Blockburger analy-
sis would allow it. In the latter instance, as in the former, it
is the intent of the legislature that controls. In Prince v.
United States, 352 U.S. 322 (1957), without undertaking a
Blockburger analysis, the Court held that Congress did not
intend unlawful entry of a bank and bank robbery to be
consecutively punishable under different provisions of the
Federal Bank Robbery Act. In Heflin v. United States, 358
U.S. 415 (1959), again without employing a Blockburger anal-
ysis, the Court interpreted the same act not to provide for
punishment for both taking property from a bank and receiv-
ing the same stolen property. See also Milanovich v. United
States, 365 U.S. 551 (1961) (interpreting federal statute re-
garding theft from government agencies as not permitting
punishment both for taking and for receiving stolen property
from a United States naval base); Jeffers v. United States,
432 U.S. 137, 155-56 (1977) (concluding that Congress did not
intend cumulative penalties under 18 U.S.C. ss 846 and 848
without undertaking a Blockburger analysis); United States
v. Dale, 991 F.2d 819, 858 (D.C. Cir. 1993) (holding that I.R.S.
Code offenses of subscribing to a false tax return and aiding
preparation of a false tax return should merge even though
they would not be considered the same offense under Block-
burger).
It is not coincidental that each of the cited cases involved
prosecution under two provisions of a single statutory
scheme. Offenses defined by the same statutory scheme can
be viewed as somewhere between the usual Blockburger
situation involving two entirely distinct provisions and cases
involving multiple convictions under a single statutory provi-
sion. Cases in the latter category are often referred to as
"unit of prosecution" cases, as they consider whether the
conduct at issue was intended to give rise to more than one
offense under the same provision. See, e.g., Bell v. United
States, 349 U.S. 81 (1955) (simultaneous transportation of
more than one woman constitutes a single violation of Mann
Act); United States v. Universal C.I.T. Credit Corp., 344 U.S.
218 (1952) (under the Fair Labor Standards Act, unit of
prosecution is a course of conduct, not each individual act).
In "unit of prosecution" cases, although the ultimate question
remains one of legislative intent, the Blockburger test is not
used. Sanabria v. United States, 437 U.S. 54, 70 n.24 (1978);
United States v. Evans, 854 F.2d 56, 58 (5th Cir. 1988);
Morris v. United States, 622 A.2d 1116, 1130 (D.C. 1993).
Instead, courts will presume that a single violation is intended
unless Congress clearly expresses its intention to allow multi-
ple offenses under the statute. See Bell, 349 U.S. at 84 ("[I]f
Congress does not fix the punishment for a federal offense
clearly and without ambiguity, doubt will be resolved against
turning a single transaction into multiple offenses....").
"Unit of prosecution" cases are thus resolved in favor of
lenity. Id.
Cases like this one, which involve offenses within the same
statutory scheme but not the same provision, are not properly
"unit of prosecution" cases. Unlike in those cases, the Block-
burger rule is applicable. Indeed, Blockburger itself involved
provisions within a single statutory scheme. See Blockbur-
ger, 284 U.S. at 305 (allowing convictions under multiple
provisions of the Harrison Narcotic Act). However, because
offenses defined by the same statutory scheme will often have
similar purposes and serve similar interests, it may be less
appropriate to assume from silence that the legislature in-
tended to allow multiple punishments as long as Blockburger
is satisfied. See United States v. Nichols, 401 F. Supp. 1377
(E.D. Mich. 1975) (concluding that the "Bell-Prince-Heflin-
Milanovich line establishes a principle of lenity in construing
closely related statutory provisions arguably violated by a
single act") (emphasis added). Cf. United States v. Alston,
609 F.2d 531, 536 (D.C. Cir. 1979) (noting disparate interests
served by federal and D.C. statute in allowing application of
both); Irby v. United States, 390 F.2d 432, 433-34 (D.C. Cir.
1967) (noting that housebreaking and robbery involved dis-
tinct interests in allowing both to operate).
In cases involving application of more than one provision of
a single statutory scheme, the absence of positive indications
that the provisions were intended to apply simultaneously
becomes more troublesome. In such situations, the structure
of the scheme itself may provide an indication that the
scheme was intended as a hierarchy of offenses, with only one
of the offenses applying to conduct in a given instance. See
United States v. Makres, 598 F.2d 1072, 1075 (7th Cir. 1979)
(noting that when two provisions are in the same section of
the code, the structure of the statute and the apparent
relationship of the provisions may support the conclusion that
cumulative punishment was not intended, but that the struc-
ture and relationship of the provisions are less likely to be
helpful when two separate sections of the code are involved).
Thus resort to Blockburger in such cases may be unnecessary
(as in Prince, Heflin, Milanovich, and Jeffers) or nondetermi-
native (as in Dale).
Although there is by no means any special rule for handling
Blockburger situations involving provisions within a single
statutory scheme, courts in such situations are often more
hesitant to base punishment under both provisions on Block-
burger alone than is the case with provisions from distinct
statutory schemes. See, e.g., United States v. Munoz-Romo,
989 F.2d 757, 759 (5th Cir. 1993) (holding that although 18
U.S.C. s 922(g)(1) and s 922(g)(5) constitute distinct offenses
under Blockburger, "Congress, by rooting all the offenses in a
single legislative enactment and including all the offenses in
subsections of the same statute, signalled that it did not
intend multiple punishments for the possession of a single
weapon"); United States v. Parr, 741 F.2d 878 (6th Cir. 1984)
(concluding that fact that two provisions of the Mann Act
were not the same under Blockburger was not controlling,
and proceeding to consider other indications of whether provi-
sions were intended to apply together). See also Dale, 991
F.2d at 859 n.61 (noting that the analysis by which it conclud-
ed that two Internal Revenue Code offenses could not apply
simultaneously "does not spill over to embrace prosecutions
for Internal Revenue Code offenses plus offenses under other
statutes with discrete objectives").
Gore v. United States, 357 U.S. 386, 390-91 (1958), which
might be cited to the contrary, is in fact distinguishable. The
Court in that case did reject the argument that three sections
which were codified together and which shared the single
purpose of outlawing nonmedicinal sales of narcotics were not
intended to apply together. However, in doing so it noted
factors other than the Blockburger analysis which supported
its conclusion: the three provisions were enacted at three
different times, and Congress had manifested an attitude of
severity toward the narcotics laws.
In the present case, despite the outcome of a Blockburger
analysis, we are skeptical as to whether Congress intended a
single assault to lead to convictions for both assault with
intent to kill while armed and aggravated assault. We faced
a similar question regarding two D.C. assault provisions in
Ingram v. United States, 353 F.2d 872 (D.C. Cir. 1965).
There, appellant was convicted of both assault with intent to
kill, in violation of D.C. Code s 22-501, and assault with a
dangerous weapon, in violation of D.C. Code s 22-502. Al-
though the dissent pointed out that the offenses were distinct
under the Blockburger test, we held that consecutive sen-
tences could not be imposed for the two offenses. We noted
that the hierarchical structure of the D.C. assault provisions
suggested that the two assault offenses at issue were "of-
fenses on the same spectrum, the former being worse than
the latter." Id. at 875. We concluded that "[a]lthough the
various sections may define 'separate and distinct offenses,' it
is unlikely that Congress intended a single act to be punished
cumulatively as both a more and a less serious form of
aggravated assault." Id. But see Bridgeford v. United
States, 411 A.2d 633 (D.C. 1980) (holding that assault with
intent to kill under s 22-501 and mayhem under s 22-506 do
not merge given the differences in elements and in the
interests protected); Robinson v. United States, 501 A.2d
1273 (D.C. 1985) (concluding that convictions for both assault
with intent to commit rape and assault with intent to commit
sodomy were proper in light of distinct elements and interests
served, but also noting that the first assault on the victim had
concluded before the second began).
Courts interpreting the assault provisions of other jurisdic-
tions have been similarly reluctant to assume that a single act
of assault was intended to be punished under multiple assault
provisions. See State v. Jenkins, 515 A.2d 465, 474-75 (Md.
1986) (citing Ingram in holding that although the two offenses
pass Blockburger, Maryland's assault with intent to murder
and assault with intent to maim provisions were not intended
to apply to a single assault, as "an assault aggravated up to
the felonious level in two separate ways [does not] become
two assaults") (quoting Manigault v. State, 486 A.2d 240 (Md.
Ct. Spec. App. 1985)); State v. Denton, 938 S.W.2d 373, 382
(Tenn. 1996) (concluding that although each required proof of
fact that other did not, convictions under both Tennessee's
aggravated assault and attempted manslaughter provisions
were inappropriate, given common purpose of both to deter
assaultive-type conduct); State v. Ritter, 714 A.2d 624, 626
(Vt. 1998) (holding that two aggravated domestic assault
provisions which pass Blockburger test were nonetheless in-
tended merely to define alternative ways of committing ag-
gravated assault, not to create two separate offenses).
While we recognized in Ingram the hierarchical structure
of the D.C. assault provisions, we did not reverse either the
assault with intent to kill or assault with a deadly weapon
convictions. Instead, we simply held that consecutive sen-
tences were improper and remanded for resentencing on one
of the counts. Ingram, 353 F.2d at 873. However, in light of
subsequent case law, the relief afforded in Ingram is no
longer sufficient. Since Ingram, the Supreme Court has
made clear that the propriety of multiple convictions must be
carefully considered even where the sentences are concur-
rent. See Ball v. United States, 470 U.S. 856, 865 (1985);
Benton v. Maryland, 395 U.S. 784, 790 (1969). This is so
because a conviction, even one with a concurrent sentence,
carries significant collateral consequences. See Ball, 470 U.S.
at 864-65. After Ball, "punishment" in this context includes
not only the sentence, but the conviction itself. See id. at 861.
Hence, the reasoning which supported vacating one of the
sentences at issue in Ingram now also supports reversing one
of the assault convictions here.3 Accordingly, we reverse
appellant's conviction for aggravated assault.
IV. Conclusion
In light of the foregoing, we affirm appellant's convictions
under 18 U.S.C. s 1513(b), 18 U.S.C. s 924(c), D.C. Code
s 22-501, D.C. Code s 22-3204(b), and D.C. Code
s 22-3204(a). However, we vacate the judgment of convic-
tion under D.C. Code s 22-504.1.
__________
3 We do not decide what application D.C. Code s 23-112 might
have in this instance, as neither party has raised the issue.
Tatel, Circuit Judge, dissenting: During a recess at the
end of McLaughlin's cross-examination, the district court
ordered him not to discuss with his lawyer anything "relating
to his testimony and potential redirect examination." United
States v. McLaughlin, 955 F. Supp. 132, 133 n.1 (D.D.C.
1997). Objecting both before and after the break, McLaugh-
lin's lawyer informed the court that she wished to consult
with her client because she had "identified other areas" that
she "might want to explore" with him on redirect. This
court, reasoning that McLaughlin had no constitutional right
to the recess in the first place, now holds that he had no right
to consult with his lawyer because Sixth Amendment rights
cannot turn on "happenstance." Maj. Op. at 7. But this case
has nothing to do with a defendant's right to a recess. The
question before us is whether the Sixth Amendment right to
counsel required the court to allow McLaughlin's lawyer to
consult with him regarding the important tactical decision of
whether to conduct redirect. Because I believe it did, I
respectfully dissent.
It is a bedrock principle of our system of justice that "to
minimize the imbalance in the adversary system," United
States v. Ash, 413 U.S. 300, 309 (1973), a criminal defendant
has the fundamental right to "the guiding hand of counsel at
every step in the proceedings against him." Powell v. Ala-
bama, 287 U.S. 45, 69 (1932). Indeed, " '[o]f all the rights
that an accused person has, the right to be represented by
counsel is by far the most pervasive for it affects his ability to
assert any other rights he may have.' " United States v.
Chronic, 466 U.S. 648, 654 (1984) (quoting Walter V. Schae-
fer, Federalism and State Criminal Procedure, 70 Harv. L.
Rev. 1, 8 (1956)).
In Geders v. United States, 425 U.S. 80 (1976), the Supreme
Court recognized that the Sixth Amendment guarantees not
just the right to have counsel, but also the right to consult
with counsel about important tactical decisions. More than
merely allowing the defendant to participate in tactical deci-
sions, consultation enables the lawyer to obtain factual infor-
mation crucial to making them. Geders reversed the convic-
tion of a defendant ordered by the trial court not to discuss
his testimony with anyone, including his lawyer, during an
overnight recess between his direct and cross-examinations.
Acknowledging that trial courts ordinarily enjoy wide discre-
tion to sequester witnesses in order to insulate them from
"improper attempts to influence the[ir] testimony," id. at 87,
the Court nonetheless found that an overnight sequestration
order unconstitutionally limits the right to counsel. "Such
recesses," the Court said, "are often times of intensive work,
with tactical decisions to be made and strategies to be re-
viewed." Id. at 88. Observing that "[t]he lawyer may need
to obtain from his client information" and "pursue inquiry
along lines not fully explored earlier," id., the Court held that
the conflict between a trial court's otherwise proper seques-
tration order and a defendant's right to consult with counsel
about tactical decisions must be resolved in favor of the Sixth
Amendment. See id. at 91.
The tactical decision involved in this case--whether to
conduct redirect examination--undoubtedly required the as-
sistance of counsel, including the opportunity for defense
counsel to consult with the defendant in order to obtain
information. While redirect examination allows a defendant
to clarify testimony, it also presents serious risks, for it
subjects the defendant to further cross-examination. Given
the uncertainty surrounding recross, prudent defense counsel
must always consider whether the expected benefit of redi-
rect outweighs its potential cost. See Mark A. Dombroff,
Dombroff on Direct and Cross-Examination s 11.2 (1985)
("The major question which you confront in conducting a
redirect examination is the extent to which that redirect
should be pursued."); Francis X. Busch, Law and Tactics in
Jury Trials s 353 (1949) ("[I]t is highly important for an
advocate ... to pause and consider carefully whether the
status of the witness' testimony, and the witness, after cross-
examination, will be improved by a redirect examination.").
Defense counsel cannot responsibly assess these risks and
benefits without first consulting the client about what oc-
curred during cross.
Imagine a cross-examination that elicits ambiguous testi-
mony not explored on direct examination that, left alone,
would harm the defense by confusing the jury. It cannot be
that instead of permitting defense counsel to consult with the
defendant to ascertain the facts underlying the ambiguous
testimony, the law requires counsel to rely on educated
guesswork in deciding whether to explore the ambiguity on
redirect. The district court's order forbidding McLaughlin's
attorney from consulting with him prior to redirect did exact-
ly that: It forced her to choose between proceeding with
redirect on a hunch or foregoing the opportunity to clarify
her client's testimony. After the recess, the attorney told the
court:
I should ... stress for the record that [during the break]
I did think to myself what other areas I might want to
explore with Mr. McLaughlin. I have identified other
areas, and I would be prepared to consult with him on
that. But given the Court's ruling, I am not permitted to
do that, so I have no further questions.
The district court's order conflicts with Geders's holding that
the Sixth Amendment requires trial courts to allow defense
counsel to obtain information from their clients prior to
making important tactical decisions.
Nothing in Perry v. Leeke, 488 U.S. 272 (1989), displaces
Geders. Unlike the overnight recess in Geders, in Perry
there was "virtual certainty" that any conversation between
the defendant and his lawyer during a fifteen minute recess
between direct and cross would relate only to his ongoing
testimony and would not "encompass matters ... that the
defendant [has] a constitutional right to discuss with his
lawyer, such as ... trial tactics." Id. at 283-84. Citing
Geders with approval, Perry reaffirmed the principle that a
trial court's interest in thwarting external influences on testi-
mony, while legitimate, cannot defeat a criminal defendant's
right to consult with counsel about tactical decisions. See id.
at 284 (stating that the fact that discussions between a
defendant and his attorney "will inevitably include some
consideration of the defendant's ongoing testimony" does not
compromise the basic right to "unrestricted access" to counsel
regarding trial tactics). The difference between Geders and
Perry turns not on the length of their respective recesses (as
my colleagues suggest), but on the fact that during the pre-
cross-examination recess in Perry, no legitimate tactical deci-
sions had to be made, nor did the defendant have any need to
provide information to his lawyer. The defendant's decision
to testify left him with no choice but to submit to cross-
examination and to answer the prosecutor's questions truth-
fully. Indeed, Perry's analysis focused exclusively on the
importance of maintaining the integrity of cross-examination
and protecting the prosecution's ability to elicit uninfluenced
testimony from the defendant. See id. at 282 ("[C]ross-
examination is more likely to elicit truthful responses if it
goes forward without allowing the witness an opportunity to
consult with third parties, including his or her lawyer."); id.
("Cross-examination often depends for its effectiveness on the
ability of counsel to punch holes in a witness' testimony at
just the right time, in just the right way."); id. ("[C]ross-
examination of a witness who is uncounseled between direct
examination and cross-examination is more likely to lead to
the discovery of truth than is cross-examination of a witness
who is given time to pause and consult with his attorney.").
To be sure, Mudd v. United States, a pre-Perry decision,
identified several subjects that defendants might want to
discuss with counsel between direct and cross, such as de-
meanor, speaking style, and not mentioning excluded evi-
dence. 798 F.2d 1509, 1512 (D.C. Cir. 1986). But after
Perry, no right to counsel attaches to such considerations
because their discussion would interfere with the govern-
ment's right to unencumbered cross-examination.
In contrast to Perry, this case presents no threat to the
government's right to cross-examination uninfluenced by de-
fense counsel because the prosecution had completed
McLaughlin's cross. Also unlike in Perry, McLaughlin's law-
yer faced a tactical decision--whether to conduct redirect--a
decision she believed she could not make without consulting
her client. It seems to me that this decision presented the
defense with the same set of issues that it confronted when
deciding whether McLaughlin should take the stand in the
first place. McLaughlin was thus essentially in the same
position between cross and redirect as he was before deciding
whether to testify at all. Surely no one would argue that he
had no Sixth Amendment right to consult with his lawyer
regarding that tactical decision.
Although Perry also stated in broad language--language
that my colleagues agree is dicta, see Maj. Op. at 6-7--that "a
defendant ... has no constitutional right to consult with his
lawyer while he is testifying," id. at 281 (emphasis added),
nothing in Perry suggests that the Court intended the word
"testifying" to apply to redirect examination. Not only did
the Court never mention redirect examination, but Perry's
rationale cannot be extended to this case without running
afoul of the very rule that it reaffirmed: When tactical
questions arise, the Sixth Amendment requires defendants to
be allowed to consult with their attorneys. My colleagues
fault me for not offering a definition of the word "testifying"
that excludes redirect, see Maj. Op. at 7 n.1, but they them-
selves make no effort to define the word to exclude the
overnight recess between direct and cross in Geders. Indeed,
because the Geders recess came while the defendant was still
"testifying," and because Perry unquestionably reaffirmed
that the right to consult with counsel attached during the
Geders recess, the Perry Court could not have intended the
word "testifying" to be as broad as my colleagues read it.
A few final thoughts bear mentioning about my colleagues'
effort to recharacterize McLaughlin's Sixth Amendment claim
as a claim that he had a right to a recess. To begin with,
affording defense counsel a reasonable opportunity to confer
with the defendant prior to redirect would not necessarily
require a recess; depending upon the circumstances, allowing
the defendant and counsel to whisper to one another for a
minute or two might suffice. But if a recess is required, the
district court must order one not because the defendant has a
right to a recess, but because the defendant has a constitu-
tional right to counsel. This case no more involves a constitu-
tional right to a recess than a prisoner's right to visits from
his lawyer involves a constitutional right to visitation.
Second, McLaughlin's brief plainly argues that the right to
counsel does not depend on the court declaring a recess. See
Appellant's Br. at 34 ("[I]t was error ... for the court to deny
defendant the right to confer with counsel during the 25-
minute recess that took place, whether or not counsel would
have had such a right had no recess been ordered."). True,
counsel said the opposite at oral argument, but surely a
defendant's constitutional right cannot turn on counsel's hasty
answer to a judge's question, particularly where, as here, the
brief is to the contrary.
Finally, the language from Perry that my colleagues quote
out of context for the proposition that McLaughlin had no
right to a recess before redirect has no applicability to this
case because, once again, Perry focused solely on protecting
the prosecution's right to a clean cross-examination. The full
passage reads:
"Once the defendant places himself at the very heart of
the trial process, it only comports with basic fairness that
the story presented on direct is measured for its accura-
cy and completeness by uninfluenced testimony on
cross-examination."
Thus, just as a trial judge has the unquestioned power
to refuse to declare a recess at the close of direct
testimony--or at any other point in the examination of a
witness--we think the judge must also have the power to
maintain the status quo during a brief recess in which
there is a virtual certainty that any conversation between
the witness and the lawyer would relate to that ongoing
testimony.
Perry, 488 U.S. at 283-84 (citation and footnote omitted)
(emphasis added). By using the word "thus," the Court
clearly linked its reference to a recess to the previous sen-
tence's discussion of the importance of unencumbered cross-
examinations, a discussion without relevance to the issue
before us.
The irony of this court's decision is that it not only impairs
the Sixth Amendment right to counsel, but by inhibiting
redirect examination it also hampers the truth-seeking pro-
cess, the central concern of both Geders and Perry. While
cross-examination promotes the goal of truth-seeking, so does
redirect. Redirect allows counsel to help the defendant clari-
fy testimonial inconsistencies and ambiguities elicited through
cross-examination that might otherwise leave the factfinder
confused or distracted. The importance of redirect to the
truth-seeking process cannot be overstated. "[O]ur adver-
sarial system of justice ... is premised on the well-tested
principle that truth ... is best discovered by powerful state-
ments on both sides of the equation." Penson v. Ohio, 488
U.S. 75, 84 (1988) (internal quotation omitted). While the
possibility of improper coaching exists at any stage of any
witness's testimony, Geders pointed out that lawyers operate
under ethical standards that distinguish between "discussing
testimony and seeking improperly to influence it," and that
cross--in this case recross--allows the prosecutor to expose
any such influence. Geders, 425 U.S. at 89-90 & n.3. And as
Geders squarely held, any remaining conflict between the risk
of improper influence and an accused's fundamental right to
counsel must be resolved in favor of the Sixth Amendment.
See id. at 91.
I would reverse McLaughlin's conviction on the ground that
the district court's refusal to allow him to consult with his
lawyer before redirect violated the Sixth Amendment. See
Perry, 488 U.S. at 278-80 (holding that harmless error analy-
sis does not apply to claims of "denial of access" to counsel).
Accordingly, I would not reach the double jeopardy issues.