United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 1998 Decided August 6, 1999
No. 98-3006
United States of America,
Appellee
v.
Marc K. Weathers,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00165-02)
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.
Rachel Adelman-Pierson, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher and Elizabeth Tros-
man, Assistant U.S. Attorneys.
Before: Silberman, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: Defendant Marc Weathers was
found guilty on all counts of a six-count indictment arising out
of his attempts to arrange for the murder of several witnesses
and a prosecutor. He contends that two of his six convictions
should be vacated because each charges an offense also
included in the remaining four counts. We conclude that
defendant waived this claim by failing to raise it before trial.
We find that defendant's further contention, that his attorney
provided ineffective assistance by failing to assert this claim
in a timely manner, must be remanded to the district court
for an initial determination.
I
In a case filed in the Superior Court of the District of
Columbia in 1996, Assistant United States Attorney (AUSA)
Bernadette Sargeant obtained an indictment charging Weath-
ers with thirty-seven counts of rape and related offenses
involving five victims, including a thirteen-year-old child.1
The presiding judge ordered the five rape cases severed for
separate trials. Prior to trial on the first rape case, an
informant told Sargeant that defendant had plotted to kill the
five victims to prevent them from testifying. The trial was
postponed, and after investigation Sargeant obtained a second
Superior Court indictment charging Weathers with two
counts of obstruction of justice.
In March 1997, just weeks before the rescheduled rape trial
was set to begin, a second informant told the FBI that
Weathers was trying to hire him to arrange the killing of both
the rape victims and the prosecutor. At the government's
request, the informant met with Weathers and recorded a
conversation in which defendant said he would pay $1,000 in
advance and $19,000 after AUSA Sargeant was killed. The
__________
1 The United States Attorney's Office for the District of Colum-
bia prosecutes offenses in both the United States District Court and
the local Superior Court. See United States v. Brooks, 966 F.2d
1500, 1503 (D.C. Cir. 1992).
plan required the informant to hire a hit man, and provided
that defendant's friend on the outside, Maurice Logan, would
make the necessary payments. 9/30/97 Tr. at 6-8, 10-11, 15-
19.
On March 19, 1997, Detective Larry Best of the Metropoli-
tan Police Department, posing as a hit man, met with Weath-
ers in jail and discussed the details of the murder-for-hire
scheme. Weathers instructed Detective Best that he should
first kill the victim in the upcoming trial, who lived on Hayes
Street. "I need Hayes done first," defendant said. App. 19;
9/29/97 Tr. at 138-40. "Maybe you can blow that [expletive
deleted] up." App. 23. With respect to AUSA Sargeant,
whom he referred to as the "DA," Weathers first said that
killing her "ain't gonna do nothing but slow the proces[s] ...
cause see if she gone they just put another one in." Id. at 19.
Later, however, defendant said: "I just want her gone. You
know what I'm saying. I just want 'em gone. Set an
example.... I don't really got no ... special way. I just
want it done. You know what I'm saying. Easiest way for
you." Id. at 20, 22. Weathers told Best that he could get his
payment for the killings from Weathers' friend Logan and a
woman named Mattie. Id. at 15-19.
On March 26, 1997, the FBI conducted a search of Maurice
Logan's apartment, in which it found a letter from defendant
dated March 9. 9/29/97 Tr. at 150-53. In that letter, Weath-
ers urged Logan to burn down the witnesses' homes to keep
them from testifying. The letter read, in part:
[T]hese people are trying to give me life without parole,
and we both know I can't do that number, so I need you
to get at a couple of these bitches for me. You don't
have to kill them, just burn they house down while they
in it, or something, so they won't come to court. You
know if the situation was reversed, I'd do it for you....
[T]hey don't have a case without these bitches, and they
ain't going to spend no money hiding everybody.
Id. at 180-81.
On April 22, 1997, Weathers was indicted in United States
District Court for plotting against the witnesses and prosecu-
tor in his Superior Court cases. The indictment charged him
with: (1) using facilities of interstate commerce in the com-
mission of murder-for-hire, in violation of 18 U.S.C. s 1958;
(2) threatening to injure a person (the rape victims), in
violation of D.C. Code s 22-2307; (3) obstructing justice
(based on the threats against the rape-victim witnesses), in
violation of D.C. Code s 22-722(a)(6); (4) threatening a feder-
al official (AUSA Sargeant), in violation of 18 U.S.C. s 115;
(5) threatening to injure a person (Sargeant), in violation of
D.C. Code s 22-2307; and (6) obstructing justice (based on
the threats against Sargeant), in violation of D.C. Code
s 22-722(a)(6). App. 11-14.2 The defendant was convicted
on all counts, and was sentenced to: (1) ten years imprison-
ment on Count One; (2) 80-240 months on each of Counts
Two and Five; (3) fifteen years to life on both Counts Three
and Six; and (4) five years imprisonment on Count Four.
The court ordered Counts Two, Three, Five, and Six to run
consecutive to each other, but concurrent with consecutive
sentences on Counts One and Four.
II
Defendant contends that his indictment charged the same
offense in more than one count, a problem known as "multi-
plicity." See 1A Charles Alan Wright, Federal Practice &
Procedure ss 142, 145, at 7-8, 86 (3d ed. 1999). Because the
Double Jeopardy Clause protects not only against "a second
prosecution for the same offense" after acquittal or convic-
tion, but also against "multiple punishments for the same
offense," North Carolina v. Pearce, 395 U.S. 711, 717 (1969),
defendant contends that two of his convictions must be vacat-
ed. See Jones v. Thomas, 491 U.S. 376, 381 (1989). Whether
defendant has in fact been punished twice for the same
offense, however, depends upon what "the legislature intend-
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2 Federal and District of Columbia offenses may be charged in
the same indictment and prosecuted in the United States District
Court for the District of Columbia. D.C. Code s 11-502(3); see
United States v. Sumler, 136 F.3d 188, 190 (D.C. Cir. 1998).
ed." Id.; see Missouri v. Hunter, 459 U.S. 359, 366-68
(1983).3
Defendant's first contention is that his conviction on Count
Four for threatening a federal official (AUSA Sargeant) in
violation of 18 U.S.C. s 115, and his conviction on Count Five
for threatening to injure a person (also Sargeant) in violation
of D.C. Code s 22-2307, constitute two convictions for the
same offense. To determine whether Congress intended two
statutory provisions to proscribe the same offense, the Su-
preme Court has applied the rule set forth in Blockburger v.
United States: "[W]here the same act or transaction consti-
tutes a violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact
which the other does not." 284 U.S. 299, 304 (1932); see
Rutledge v. United States, 517 U.S. 292, 297 (1996); Hunter,
459 U.S. at 366-67. Defendant contends that the offenses
charged under 18 U.S.C. s 115 and D.C. Code s 22-2307
constitute a single offense under Blockburger.
Section 115(a) makes it a crime to "threaten[ ] to assault,
kidnap, or murder, a United States official, ... with intent to
impede, intimidate, or interfere with such official, ... while
engaged in the performance of official duties...." D.C.
Code s 22-2307 makes it a crime, within the District of
Columbia, to "threaten[ ] ... to injure the person of another."
As is apparent from a reading of the two statutes, some facts
required to prove Count Four are not required to prove
Count Five (for example, that the threatened person is "a
United States official" and that the threat was made with
"intent to impede"). Defendant contends, however, that
there is no fact required to prove Count Five that is not also
required to prove Count Four. If true, this would make the
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3 Although the Double Jeopardy Clause does not bar multiple
punishments under federal and state law, a defendant may not be
punished twice for the same offense under both the United States
Criminal Code and the District of Columbia Criminal Code because
both were adopted by Congress. See Sumler, 136 F.3d at 191;
United States v. Shepard, 515 F.2d 1324, 1331 (D.C. Cir. 1975).
local crime charged in Count Four the equivalent of a "lesser
included offense" of the federal crime charged in Count Five.
Therefore, an indictment charging both would fail the Block-
burger test. See Rutledge, 517 U.S. at 297.
The government disputes this conclusion. It contends that
the D.C. statute does have an additional element not con-
tained in the federal statute. Pointing to model jury instruc-
tions for D.C. Code s 22-2307, and to United States v. Baish,
460 A.2d 38, 42 (D.C. 1983), the government argues that the
D.C. statute requires a threat of serious bodily harm. By
contrast, the federal statute is violated by a threat of mere
"assault," which, the government contends, may involve a
threat of nothing more serious than being spat upon or hit
with an egg. Gov't Br. at 15-16 & n.14. Since (if correct)
this means the D.C. law has an element not found in the
federal statute (the threat of serious harm), the government
contends that charging and convicting defendant of both does
not fail Blockburger.
Defendant's second contention is that we must vacate ei-
ther his conviction on Count Three, for violating D.C. Code
s 22-722(a)(6) by obstructing justice based on the threats he
made against the rape-victim witnesses, or his conviction on
Count Six, for violating the same statute based on the threats
he made against Sargeant. He argues that these also consti-
tute a single offense. Where two violations of the same
statute rather than two violations of different statutes are
charged, courts determine whether a single offense is in-
volved not by applying the Blockburger test, but rather by
asking what act the legislature intended as the "unit of
prosecution" under the statute. See Sanabria v. United
States, 437 U.S. 54, 70 n.24 (1978); see also Bell v. United
States, 349 U.S. 81 (1955) (holding that interstate transporta-
tion of two women on same trip in same vehicle constitutes
single violation of Mann Act, 18 U.S.C. s 2421).
D.C. Code s 22-722(a)(6) provides that
[a] person commits the offense of obstruction of justice if
that person [c]orruptly, or by threats of force, any way
obstructs or impedes or endeavors to obstruct or impede
the due administration of justice in any official proceed-
ing.
Defendant contends that the unit of prosecution intended by
the statute is an "official proceeding," and hence that any
number of threats against any number of witnesses on any
number of occasions may be charged only once, as long as
they all relate to a single such proceeding. The government
responds by asserting that the District of Columbia Court of
Appeals has routinely permitted multiple convictions for ob-
struction of justice (albeit under a different subsection of the
statute), where the defendant has impeded multiple witnesses
in a single trial. See Gov't Br. at 22 (citing Skyers v. United
States, 619 A.2d 931 (D.C. 1993) (prosecution under D.C.
Code s 22-722(a)(1)); Smith v. United States, 591 A.2d 229
(D.C. 1991) (same)). Hence, in the government's view,
Counts Three and Six are not multiplicitous.
III
Although it denies that its indictment is multiplicitous, the
government argues that we need not resolve the merits of
defendant's multiplicity challenges because he failed to raise
them before trial, or at any time prior to this appeal. We
agree. Rule 12(b)(2) of the Federal Rules of Criminal Proce-
dure states:
Any defense, objection, or request which is capable of
determination without the trial of the general issue may
be raised before trial by motion ..... The following
must be raised prior to trial: ... Defenses and objec-
tions based on defects in the indictment or informa-
tion....
Fed. R. Crim. P. 12(b)(2). Rule 12(f) provides that "[f]ailure
by a party to raise defenses or objections or to make requests
which must be made prior to trial ... shall constitute waiver
thereof, but the court for cause shown may grant relief from
the waiver." Fed. R. Crim. P. 12(f). According to Circuit
precedent, multiplicity claims of the kind presented here are
defenses based on "defects in the indictment" within the
meaning of Rule 12(b)(2), and hence are waived under Rule
12(f) if not raised prior to trial. This means that unless
"cause" is shown, they "may not later be resurrected" on
appeal. Davis v. United States, 411 U.S. 233, 242 (1973).
Because defendant has asserted no "cause" for granting relief
from the waiver (other than his claim of ineffective assistance
of counsel, which we discuss separately below), we must
affirm Weathers' convictions.
In United States v. Harris, 959 F.2d 246, 250-51 (D.C. Cir.
1992), the defendants challenged their convictions for both
conspiracy to distribute cocaine and conspiracy to use fire-
arms during a drug trafficking offense. Those convictions
subjected them to multiple sentences for the same offense,
defendants argued, since under Blockburger the counts were
"substantially identical because there was only one alleged
conspiracy." Id. at 250. Defendants, however, had "not even
allude[d] to such an objection prior to a motion they made
midway through the trial." Id. We therefore held that
under Rule 12, defendants had waived their claims and could
not revive them on appeal. Id.
In reaching this result, Harris expressly rejected the argu-
ment "that a multiplicity objection is not included within the
defects contemplated by Rule 12(b)(2), because it is a defect
in the sentencing, not in the indictment." Id. To the con-
trary, the court held that "if the multiplicity objection could
have been raised based on the indictment, Rule 12(b)(2)
applies." Id. "The purpose of the rule," Harris said, "is to
compel defendants to object to technical defects in the indict-
ment early enough to allow the district court ... to permit
the prosecution to accommodate meritorious challenges, and
to do so without disrupting an ongoing trial." Id. The court
then quoted extensively from the Supreme Court's opinion in
Davis v. United States, which identified the same underlying
purpose for the waiver provision of Rule 12:
If [Rule 12(b)(2)] time limits are followed, inquiry into an
alleged defect may be concluded and, if necessary, cured
before the court, the witnesses, and the parties have
gone to the burden and expense of a trial. If defendants
were allowed to flout its time limitations, on the other
hand, there would be little incentive to comply with its
terms when a successful attack might simply result in a
new indictment prior to trial. Strong tactical consider-
ations would militate in favor of delaying the raising of
the claim in the hopes of an acquittal, with the thought
that if those hopes did not materialize, the claim could be
used to upset an otherwise valid conviction at a time
when reprosecution might well be difficult.
Id. (quoting Davis, 411 U.S. at 241) (alteration in Harris).
"A claim of multiplicity," we concluded, "at least in the typical
case where the defect appears on the face of the indictment,
falls clearly within the letter and spirit of the rule." Id. at
250-51.
Two years later, in United States v. Clarke, 24 F.3d 257
(D.C. Cir. 1994), we applied Harris to defendants' claim that
they had been convicted twice for the violation of a single
statute. " '[O]bjections based on defects in the indictment or
information,' " Clarke said, "including an objection to the
indictment on the grounds of multiplicity, must be raised
before trial." Id. at 261 (quoting Fed. R. Crim. P. 12(b)(2) and
citing Harris, 959 F.2d at 250-51). Because defendants had
not objected to the indictment until after the jury was select-
ed, the court held that "any complaint based on multiplicity
was waived." Id. (citing Fed. R. Crim. P. 12(f) and Davis, 411
U.S. at 242). See also United States v. Scott, 464 F.2d 832,
833 (D.C. Cir. 1972) ("[C]onstitutional immunity from double
jeopardy is a personal right which, if not affirmatively plead-
ed by the defendant at the time of trial, will be regarded as
waived.") (citing Fed. R. Crim. P. 12(b)(2)).4
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4 In United States v. Anderson (Anderson I), 39 F.3d 331, 353-
54 (D.C. Cir. 1994), a panel of this court held that defendant's claim
that "his sentence on multiplicitous counts [was] illegal" could be
raised on appeal even though it had not been raised before trial.
The full court, however, granted rehearing en banc and vacated the
judgment. Id. at 361 (order of Feb. 9, 1995). As a consequence,
the panel's decision has "no precedential value." National Fed'n of
Fed. Employees v. Greenberg, 983 F.2d 286, 293 (D.C. Cir. 1993).
Rehearing en banc was "granted on the limited issue" of the merits
This case is on all fours with Harris and Clarke. Weathers
challenges his convictions on multiplicity grounds; he makes
both the two-statutes-charge-one-offense claim considered in
Harris and the single-statute-charges-only-one-offense claim
reviewed in Clarke. Like defendants Harris and Clarke,
Weathers did not object before trial. And as in Harris and
Clarke, the alleged defect appears on the face of the indict-
ment--a point which defendant concedes and upon which he
even insists, see Def. Br. at 20; Reply Br. at 8, 11, 18.5
Counts Four and Five expressly charge Weathers with
threatening the same person (Sargeant) during the same time
period, and specifically list the two statutes assertedly violat-
ed. App. 13. Since a Blockburger claim focuses exclusively
on the statutory elements of the offenses, see United States v.
White, 116 F.3d 903, 931 (D.C. Cir. 1997), the face of the
indictment presents all the information defendant required to
notice the alleged error. Similarly, Counts Three and Six
expressly charge Weathers with violating a single statute by
impeding the same proceedings during the same time period,
the only difference being that Count Three refers to the
threats against the rape-victim witnesses while Count Six
refers to the threats against AUSA Sargeant. App. 12-14.
If there is a multiplicity problem in these counts, then it is, as
defendant himself insists, "clear from the plain language of
s 22-722(a)(6) and the indictment," Reply Br. at 18, and
therefore subject to Rule 12(b)(2) and (f).6
__________
of the defendant's multiplicity claim, and the court did not address
the question of waiver. United States v. Anderson (Anderson II),
59 F.3d 1323, 1325 (D.C. Cir. 1995) (en banc); see Whitacre v.
Davey, 890 F.2d 1168, 1172 (D.C. Cir. 1989) ("We cannot count as
controlling a decision that never touched upon the issue we con-
front."). Accordingly, Harris and Clarke stand as the law of the
Circuit.
5 Defendant insists that the multiplicity violation is clear on the
face of the indictment as support for his argument that it consti-
tutes plain error under Fed. R. Crim. P. 52(b). See discussion infra
pp. 11-12.
6 Counts Three and Six each charged Weathers with impeding
two proceedings, the original (unsevered) Superior Court rape case
The "spirit of the rule" identified in Harris is also consis-
tent with a finding of waiver in this case. See Harris, 959
F.2d at 250-51. Had defendant raised his Blockburger claim
before trial, the government could have filed a superseding
indictment, replacing Counts Four and Five with three new
counts for making threats against Sargeant on three separate
occasions--the threat recorded by the informant, by the
undercover detective, and in the letter found in Logan's
apartment. See generally United States v. Lindsay, 47 F.3d
440, 444 (D.C. Cir. 1995). Similarly, the government could
have cured any defect based on a "per proceeding" unit of
prosecution for obstruction by replacing Counts Three and
Six with five new counts, one for each of the five severed rape
trials. As the Supreme Court said in Davis, if Rule 12(b)(2)'s
"time limits [had been] followed," the alleged defect might
have been "cured before the court, the witnesses, and the
parties [went] to the burden and expense of a trial" by the
"simpl[e]" expedient of "a new indictment prior to trial."
Davis, 411 U.S. at 241 (quoted in Harris, 959 F.2d at 250).
In his reply brief, defendant urges us not to follow Harris,
contending that the Supreme Court's subsequent decision in
United States v. Olano, 507 U.S. 725 (1993), puts Harris'
continuing validity in doubt. Olano concerned the meaning of
__________
and the Superior Court obstruction case. App. 12-14. Hence, as
the government contends, if defendant had timely objected, any
multiplicity problem might have been repairable through a bill of
particulars stating that each count referred to a different Superior
Court case. The fact that the problem was curable, however, does
not take it outside the scope of Rule 12(b)(2). To the contrary, the
purpose of the Rule is to ensure that "inquiry into an alleged defect
may be concluded and, if necessary, cured." Davis, 411 U.S. at 241.
See Clarke, 24 F.3d at 261 (holding multiplicity claim waived
because not raised before trial notwithstanding trial court's attempt
to cure by instructing jury that separate counts referred to drugs
found at different locations). As long as "the multiplicity objection
could have been raised based on the indictment, Rule 12(b)(2)
applies." Harris, 959 F.2d at 250 (emphasis added). Weathers
does not dispute that he could have raised his multiplicity objection
based on the face of his indictment.
Federal Rule of Criminal Procedure 52(b),7 rather than Rule
12. Rule 52(b), the Court said, gives courts of appeals "a
limited power to correct errors that were forfeited because
not timely raised in district court." Id. at 731. "Forfeiture,"
the court noted, is different from "waiver." When an error is
forfeited, it is not "extinguish[ed]" but instead is subject to
review under the plain error standard of Rule 52(b). Id. at
733. When an error is waived, on the other hand, it is
extinguished; the result is that there is no error at all and an
appellate court is without authority to reverse a conviction on
that basis. Id. at 733-34. Finally, "[w]hereas forfeiture is
the failure to make the timely assertion of a right," Olano
described "waiver [as] the 'intentional relinquishment or
abandonment of a known right.' " Id. at 733 (quoting John-
son v. Zerbst, 304 U.S. 458, 464 (1938)).
Weathers contends that the failure to raise a multiplicity
(or any other) claim before trial cannot by itself amount to
the intentional relinquishment of a known right. Thus, he
argues, that failure must be considered a forfeiture and not a
waiver. From this he concludes that Olano requires that his
appeal be reviewed for plain error--effectively overturning
Harris' holding that a failure to come within Rule 12(b)(2)'s
time limits results in the waiver of any claim covered by that
Rule.
We cannot agree that Harris has been annulled by Olano.
First, we have continued to apply Harris to multiplicity
claims even after Olano was decided in 1993. See Clarke, 124
F.3d at 261.8 More broadly, we have continued to hold that
other claims within the compass of Rule 12(f) are waived if
not timely raised. See United States v. Sobin, 56 F.3d 1423,
__________
7 Rule 52(b) states: "Plain errors or defects affecting substan-
tial rights may be noticed although they were not brought to the
attention of the court."
8 Although Clarke did not discuss Olano and Rule 52(b) in the
course of finding defendants' multiplicity claim barred by waiver, it
did discuss both in deciding that another of defendants' claims was
governed by the plain error standard. See Clarke, 24 F.3d at 266.
1427 (D.C. Cir. 1995) (holding that untimely claims under
Rule 12(b)(3) are waived).
Second, Olano itself recognized that there is a difference
between waiver and forfeiture. While Rule 52(b) does not
mention "waiver," Rule 12(f) expressly does. Yet, on defen-
dant's reading, the waiver language of Rule 12(f) would add
nothing to the forfeiture principle of Rule 52(b). Defendant's
"waiver" of his multiplicity claim under Rule 12(f) would have
no consequence other than that it would be reviewed for plain
error, the same result as if there were no Rule 12(f). We
cannot conclude that the Supreme Court intended to render
Rule 12(f) a nullity in a decision that did not even mention it.
Finally, although in the context of its discussion of Rule
52(b) Olano said that waiver is the "intentional relinquish-
ment or abandonment of a known right," the Court also noted
that "whether the defendant's choice must be particularly
informed or voluntary ... depend[s] on the right at stake."
Olano, 507 U.S. at 733. The Court further stated that
"[a]lthough in theory it could be argued that if the question
was not presented to the trial court no error was committed
by the trial court, ... this is not the theory that Rule 52(b)
adopts." Id. at 733 (emphasis added) (internal quotation
omitted). The key question, then, is what theory Rule 12
adopts for the rights that come within Rule 12(b)(2). That is
not a question we answered on our own in Harris; with
respect to that issue we did nothing more than follow the path
laid down by the Supreme Court in Davis.
Davis involved a postconviction attack on a defendant's
indictment, based on the allegation that there had been
unconstitutional discrimination in the selection of the grand
jury that issued it. 411 U.S. at 234-35. Although the
defendant had failed to raise the point at trial, he contended
that he had not "understandingly and knowingly waived his
claim." Id. at 236 (citing Zerbst, 304 U.S. 458) (internal
quotation omitted). He also cited a prior case, Kaufman v.
United States, 394 U.S. 217 (1969), in which the Court had
held that a failure to raise a Fourth Amendment claim on
direct appeal did not bar postconviction relief. 411 U.S. at
239.9 The dissent agreed with the defendant, concluding that
in the absence of an intentional relinquishment of a known
right, defendant's claim should be subject to plain error
analysis under Rule 52(b) rather than waiver under Rule 12.
Id. at 245, 252, 254-57 (Marshall, J., dissenting).
The Court, however, did not agree. It conceded that
defendant had alleged the deprivation of a "substantial consti-
tutional right," id. at 243, but held that Rule 12(b)(2) "[b]y its
terms ... applies to both procedural and constitutional de-
fects in the institution of prosecutions." Id. at 236. It also
acknowledged its prior opinion in Kaufman, but noted that
there it "was not dealing with the sort of express waiver
provision contained in Rule 12(b)(2) which specifically pro-
vides for the waiver of a particular kind of constitutional
claim if it be not timely asserted." Id. at 239-40.10 Where
Congress "had not spoken on the subject of waiver," Davis
said, the Court might adopt its own "particular doctrine of
waiver." Id. at 242. The "express waiver provision" of Rule
12(b)(2), however, was a different matter. Id. at 240. That
Rule was "promulgated by this Court and ... 'adopted' by
Congress," and it "governs by its terms the manner in which
the claims of defects in the institution of criminal proceedings
may be waived." Id. at 241. According to those terms, the
Court held, an untimely claim is waived and "may not later be
resurrected, either in the criminal proceedings or in federal
habeas, in the absence of the showing of 'cause' which that
Rule requires." Id. at 242. See also Peretz v. United States,
501 U.S. 923, 936 (1991) (citing United States v. Bascaro, 742
F.2d 1335, 1365 (11th Cir. 1984), for the proposition that
"absence of objection is waiver of double jeopardy defense").11
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9 Kaufman was subsequently overruled in Stone v. Powell, 428
U.S. 465 (1976).
10 At the time the Court decided Davis, the waiver provision
now in Rule 12(f) was contained in Rule 12(b)(2) itself. See Fed. R.
Crim. P. 12(b)(2) (1971).
11 Defendant cites the pre-Davis case of Green v. United
States, 355 U.S. 184 (1957), as one that applied the intentional and
In sum, Olano and Davis (and therefore Harris) are not
inconsistent with each other. Although Olano indicates that
untimely objections are generally regarded as forfeitures
subject to Rule 52(b), Davis dictates that untimely objections
that come within the ambit of Rule 12(b)(2) must be consid-
ered waivers and may not be revived on appeal. We cannot
conclude that the Court intended Olano, a case which men-
tioned neither Rule 12 nor Davis, to overrule Davis by
redefining sub silentio the meaning of the word "waiver" in
Rule 12.12
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knowing standard to waivers of Double Jeopardy rights. Reply Br.
at 4-5. The defendant in Green was tried for first degree murder
and the lesser included offense of second degree murder. The jury
convicted him of the latter but was silent as to the former. Defen-
dant appealed his conviction on the second degree charge, which
was overturned on insufficiency of the evidence grounds. 355 U.S.
at 185-86. On remand, defendant was retried and convicted on the
first degree murder charge despite his pre-trial plea of former
jeopardy. Id. at 186. The Court held the second conviction a
violation of the Double Jeopardy Clause, rejecting the government's
contention that merely by appealing his second degree murder
conviction defendant had voluntarily and knowingly " 'waived' his
constitutional defense of former jeopardy to a second prosecution on
the first degree murder charge." Id. at 191.
Green does not assist defendant in the instant case. Unlike the
provision in Rule 12 that expressly makes the failure to timely
object a waiver, there is no rule that makes the filing of an appeal a
waiver. Nor is there any logical reason to regard an appeal as a
waiver. Rather, as the Court ultimately concluded, the notion that
an appeal constitutes a waiver was nothing more than the "wholly
fictional" construct of government counsel. Id. at 192.
12 Of course, even if we thought it did, it is not for the lower
courts to conclude that the Supreme Court's "more recent cases
have, by implication, overruled an earlier precedent." Agostini v.
Felton, 521 U.S. 203, 237 (1997). "If a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected
in some other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to this Court the preroga-
tive of overruling its own decisions." Id. (quoting Rodriguez de
Finally, defendant seeks some support for his position in
the post-Davis, pre-Olano case of United States v. Broce, 488
U.S. 563 (1989). But if anything, Broce is contrary to defen-
dant's view. Broce held that a defendant's plea of guilty
under Federal Rule of Criminal Procedure 11 waives any
multiplicity challenge he may have had to his indictment.
Although waiver of multiplicity claims as part of a broader
voluntary plea of guilty is, of course, distinguishable from
waiver based solely on an untimely objection, in Broce the
Court expressly rejected the defendants' claim that they had
not intentionally and knowingly waived their multiplicity chal-
lenge because they had not known of it. Id. at 572-74.13
Defendant focuses on the fact that Broce distinguished an
earlier case, Menna v. New York, 423 U.S. 61 (1975), in which
the Court had refused to find that defendant's plea of guilty
waived a claim that he had previously been prosecuted for the
same crime. But Broce distinguished Menna on the ground
that the nature of defendant's claim in the latter case "pre-
cluded" the government "from haling a defendant into court
on a charge" at all. Broce, 488 U.S. at 575 (quoting Menna,
423 U.S. at 62). That is, Menna's claim of former jeopardy
was "a claim that ... the charge [was] one which the State
may not constitutionally prosecute." Broce, 488 U.S. at 575
(quoting Menna, 423 U.S. at 63 n.2). A claim of multiplicity,
by contrast, does not bar prosecution or prevent the govern-
ment from haling a defendant into court--as the defendant
himself recognizes, Reply Br. at 6-7. See Ohio v. Johnson,
467 U.S. 493, 500 (1984) ("While the Double Jeopardy Clause
may protect a defendant against cumulative punishments for
convictions on the same offense, the Clause does not prohibit
the State from prosecuting respondent for such multiple
offenses in a single prosecution."); see also Ball v. United
__________
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484
(1989)) (alteration omitted).
13 Defendants' trial counsel submitted an affidavit stating that
he had not discussed his clients' Double Jeopardy rights with them,
nor had his clients considered the possibility of raising that defense
before entering their plea. Id. at 572-73.
States, 470 U.S. 856, 859-61 & n.7 (1985). There is thus
nothing in Broce, or in Menna, to bar the application of Rule
12's waiver provision to Weathers' claim of multiplicity.14
In sum, Harris and Davis continue to guide our course
here. Together, they compel the conclusion that defendant
has waived his multiplicity claims by failing to raise them
before trial.
IV
Defendant contends that his trial counsel's failure to raise
his multiplicity claims in a timely manner constituted ineffec-
tive assistance under Strickland v. Washington, 466 U.S. 668
(1984). The government argues, and defendant acknowl-
edges, that when a defendant has not previously raised such a
claim before the district court, our general practice is to
remand it for an evidentiary hearing. Gov't Br. at 25; Def.
Br. at 21; see United States v. Soto, 132 F.3d 56, 59 (D.C. Cir.
1997); United States v. Fennell, 53 F.3d 1296, 1304 (D.C. Cir.
1995). Defendant notes, however, that there is an exception
to this usual practice where no factual issues are in dispute
and the proper disposition is clear. See Soto, 132 F.3d at 59.
In his reply brief, Weathers contends that this is such an
exceptional case because "the government raises no factual
__________
14 Indeed, unlike a claim of multiplicity, a claim of former
jeopardy like that at issue in Menna may not fall within Rule
12(b)(2) at all. But see Scott, 464 F.2d at 833. The Advisory
Committee Notes regarding Rule 12(b)(1) and (b)(2) specifically
state that "such matters as former jeopardy, former conviction,
[and] former acquittal" fall within the permissive category of de-
fenses "which at the defendant's option may be raised by motion,
failure to do so, however, not constituting a waiver." Fed. R. Crim.
P. 12 Advisory Committee Note (1944 Adoption) (Note to Subdivi-
sion (b)(1) and (2)), 18 U.S.C. App., p. 744. These three prohibi-
tions all arise out of the Double Jeopardy Clause's successive
prosecution prong, see United States v. Andrews, 146 F.3d 933, 936
n.3 (D.C. Cir. 1998). They are therefore distinguishable from a
claim of multiplicity (not mentioned by the Advisory Committee)
which, to the extent it sounds in Double Jeopardy, is rooted in the
multiple punishments prong. See Ohio v. Johnson, 467 U.S. at 499.
disputes or arguable trial strategy that would limit review by
this Court." Reply Br. at 9.
A Strickland claim has two components. First, "the defen-
dant must show that counsel's performance was deficient."
466 U.S. at 687. Second, "the defendant must show that the
deficient performance prejudiced the defense." Id. With
regard to the first requirement, "the defendant must over-
come the presumption that ... the challenged action might
be considered sound trial strategy." Id. at 689 (internal
quotation omitted).
Notwithstanding the argument made in his reply brief, at
oral argument defendant conceded that his trial counsel's
failure to raise the multiplicity claims before trial might have
been predicated on a tactical choice. As discussed in Part
III, had defense counsel raised the claims pretrial, not only
might the defects have been repaired, see supra note 6, they
might have been repaired by increasing the number of counts
arrayed against defendant, see supra page 11. Faced with
that possibility, defense counsel might well have opted to
leave the indictment as it stood rather than risk making
matters worse for his client. Recognizing that defense coun-
sel's silence may therefore have represented a strategic deci-
sion, at oral argument defendant changed course and joined
the government in requesting a remand of his ineffective
assistance claim for initial determination by the district court.
That is clearly the proper disposition of this issue. See
Fennell, 53 F.3d at 1304 (stating that ineffective assistance
claim "cannot be resolved without a hearing in district court"
where defense counsel's decisions "could have involved a
reasoned tactical choice").
V
For the foregoing reasons, we hold that defendant has
waived his multiplicity claims. His charge of ineffective
assistance of counsel is remanded to the district court.