United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 19, 2007 Decided July 17, 2007
No. 06-3022
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, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender.
Suzanne G. Curt, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and Roy W.
McLeese, III, and Thomas J. Tourish, Jr., Assistant U.S.
Attorneys.
Before: TATEL, BROWN and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
2
BROWN, Circuit Judge: Awaiting trial on rape charges,
Mark Weathers attempted to have the prosecutor, an informant,
and the rape victims murdered. For that attempt, he was
subsequently convicted on all counts of a six-count indictment.
In his direct appeal, Weathers argued (1) two of the six counts
duplicated other counts in the indictment and hence violated the
Double Jeopardy Clause, and (2) his trial attorney provided
ineffective assistance by failing to assert that claim in a timely
manner. This court rejected Weathers’s double jeopardy
challenge, ruling he waived the claim by failing to raise it before
trial, but remanded the ineffective assistance of counsel claim
for an initial determination by the district court. See United
States v. Weathers, 186 F.3d 948 (D.C. Cir. 1999). On remand,
the district court rejected Weathers’s ineffective assistance claim
— a decision he now appeals. We affirm the district court as to
one of the counts, but reverse as to the other. Because we find
Weathers’s trial counsel provided constitutionally inadequate
assistance by failing to challenge Count Five of Weathers’s
indictment, we vacate Weathers’s conviction on that count and
remand for resentencing.
I
A comprehensive recital of the underlying facts in this case
appears in the opinion resolving Weathers’s initial appeal.
Weathers, 186 F.3d at 949–51. A brief summary suffices here.
In August 1996, Weathers was awaiting trial in several cases
involving thirty-seven counts of rape and related offenses
against five victims. Before the first trial began, the prosecutor,
Assistant United States Attorney (AUSA) Bernadette Sargeant,
learned from an informant that Weathers had plotted to kill the
victims to prevent them from testifying. After an investigation,
Sargeant brought an additional indictment in the Superior Court
of the District of Columbia charging two counts of obstruction
of justice.
3
Later, in March 1997, the FBI learned from an inmate that
Weathers had asked for help in hiring someone to kill Sargeant,
the earlier informant, and the five victims. At the FBI’s request,
the inmate recorded a conversation with Weathers in which
Weathers offered to pay $20,000 to have the prosecutor killed.
Later that same month, a police officer, posing as a hit man, met
with Weathers in jail and recorded their conversation. Among
other things, Weathers instructed the officer to kill one of the
rape victims and “cut [the] head off” the first informant.
Weathers explained that his friend, Maurice Logan, would pay
for the killings. When the police searched Logan’s apartment,
they found a March 9, 1997 letter from Weathers asking Logan
to “get at” the rape victims by burning down their houses.
Based on that evidence, Weathers was indicted in federal
district court on six counts. Counts One and Two, which are not
at issue in this proceeding, charged, respectively, use of inter-
state commerce facilities in the commission of murder-for-hire
in violation of 18 U.S.C. § 1958, and threatening to injure a
person in violation of D.C. CODE § 22-2307 (1981).1 The
remaining counts, which are at issue here, charged:
• Count Three: obstruction of justice, in violation of D.C.
CODE § 22-722(a)(6);
• Count Four: threatening a federal official, in violation of 18
U.S.C. § 115;
• Count Five: threatening to injure a person, in violation of
D.C. CODE § 22-2307 (1981); and
• Count Six: obstruction of justice, in violation of D.C. CODE
§ 22-722(a)(6).
1
Recodified at D.C. CODE § 22-1810 (2001).
4
Specifically, Count Three’s obstruction of justice charge related
to Weathers’s attempts to “impede, intimidate, interfere with
and retaliate against witnesses,” while Count Six’s charge under
the same code provision related to his attempts against the
prosecutor. Counts Four and Five both specifically related to
Weathers’s threats directed at the prosecutor, while Count Two
related to Weathers’s threats to injure witnesses.
Weathers was convicted by a jury on all six counts and was
sentenced by the court to: (1) ten years’ imprisonment on Count
One; (2) 80–240 months on each of Counts Two and Five; (3)
fifteen years to life on each of Counts Three and Six; and (4)
five years’ imprisonment on Count Four. The court ordered the
sentences on the federal crimes — Counts One and Four — to
run consecutively. The court also ordered consecutive sentences
on the D.C. crimes — Counts Two, Three, Five, and Six — but
ordered that the D.C. sentences run concurrently with the federal
sentences. Weathers, 186 F.3d at 950–51.
Weathers appealed his conviction, arguing for the first time
that the indictment was flawed because it had multiplicitous
counts — that is, that the indictment charged the same offense
in more than one count in violation of the Double Jeopardy
Clause. Specifically, Weathers argued his conviction on Count
Four for threatening an official (the prosecutor) in violation of
18 U.S.C. § 115, and his conviction on Count Five for threaten-
ing a person (also the prosecutor) in violation of D.C. CODE
§ 22-2307, constituted two convictions for the same offense.
Weathers, 186 F.3d at 951. He also argued his two obstruction
of justice convictions (Counts Three and Six) under the same
D.C. Code provision — D.C. CODE § 22-722(a)(6) — consti-
tuted two convictions for a single offense. Weathers, 186 F.3d
at 952. We declined to address the multiplicity claims on their
merits because they had been waived by Weathers’s failure to
5
raise them before trial. Id. at 958. Weathers had a fallback
position, however: that his trial counsel’s failure to timely raise
the multiplicity claims constituted ineffective assistance. In
accord with this court’s general practice, we remanded that
claim to the district court for an evidentiary hearing. Id.
On remand, the district court heard testimony from Weath-
ers’s trial counsel. The government acknowledges trial coun-
sel’s testimony “was less tha[n] perfectly clear.” Appellee’s Br.
22. When asked generally whether he considered challenging
Weathers’s indictment on double jeopardy grounds, counsel
replied he “didn’t think that double jeopardy was involved.”
When asked specifically whether he considered whether Counts
Six and Three — both charging obstruction of justice violations
under the same provision of the D.C. Code — charged the same
conduct, he replied he didn’t “believe they did charge the same”
because “[o]ne is Federal and one is District” and “[t]he
elements of the offense are different.” After it was pointed out
to him that both were District offenses, counsel stated further
that he “thought they charged different criminal conduct” and
had “different people involved.” And when asked about Counts
Four and Five — both relating to Weathers’s threats against the
prosecutor — counsel explained he “did not think there were
any double jeopardy counts. One was to injure a person, and
one was to injure a federal officer. They are two different
things.”
Counsel also stated he didn’t challenge the indictment
because he wanted “to keep everything the way it was and not
move to separate various aspects of the indictment.” When
pressed on that point, he responded: “If you get each and every
one of them separated out of — broken up, then I have more
counts, I have some fifteen counts.” Elaborating during cross-
examination, counsel explained: “If I file a multiplicitous
motion I give the government a chance to file a superseding
6
indictment, and I run the risk of losing when they have ten,
eleven, fifteen counts, whatever number they are going to get.”
The district court issued a memorandum decision denying
Weathers’s claims. United States v. Weathers, Cr. No. 97-165,
2006 U.S. Dist. LEXIS 9587 (D.D.C. Feb. 8, 2006). Applying
the two-part analysis established by the Supreme Court in
Strickland v. Washington, the court assessed whether: “(1)
‘counsel’s representation fell below an objective standard of
reasonableness’; and (2) ‘there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different.’” Id. at *4 (citation omitted) (quoting Strickland
v. Washington, 466 U.S. 668, 688, 694 (1984)). The court found
deficiencies on both prongs. Regarding Strickland’s first
requirement, Weathers argued his trial counsel’s representation
“‘fell below an objective standard of reasonableness’ because
counsel (1) failed to assess his double jeopardy claims before
trial and (2) continued to believe at the evidentiary hearing that
Defendant’s double jeopardy claims were without merit.” Id.
Relying on the trial counsel’s testimony at the hearing, the court
rejected that argument:
[C]ounsel’s decision not to challenge the indictment was
based on a reasonable strategic and tactical judgment.
Counsel testified that he had considered the possibility of a
double jeopardy violation but did not challenge the indict-
ment because the Government could have corrected any
flaws by filing a superseding indictment containing more
charges. Although there is no legal research in counsel’s
file on the issue of double jeopardy, counsel credibly
testified, as an experienced criminal defense lawyer, that he
considered the issue and made a tactical judgment based on
his assessment of the severity and circumstances of Defen-
dant’s crimes. . . . Given the facts of the case, this assess-
ment was quite reasonable and was not professionally
7
deficient. Thus, Defendant does not satisfy the first prong
of the Strickland test.
Id. at *5–6 (citation omitted).
The court further reasoned that, even assuming counsel’s
representation was deficient, Weathers was not prejudiced as a
result and therefore his claims also failed under Strickland’s
second prong. Id. at *6. Here, the court considered each of
Weathers’s double jeopardy claims separately, determining that
both failed on the merits. The court explained that Counts Four
and Five could not merge because each “requires proof of an
additional fact which the other does not.” Id. at *8 (quoting
Blockburger v. United States, 284 U.S. 299, 304 (1932)).
Specifically, Count Four — threatening a federal official in
violation of 18 U.S.C. § 115 — uniquely requires the victim be
a federal officer. And surveying District of Columbia cases
discussing the D.C. statute underlying Count Five — threatening
to injure a person in violation of D.C. CODE § 22-2307 — the
court concluded that Count Five requires a threat of serious
bodily harm, which Count Four does not. Weathers, 2006 U.S.
Dist. LEXIS 9587, at *8–10. As for Counts Three and Six, the
court explained they did not merge because, even though the
two counts charged violations of the same subsection of the D.C.
Code, they related to different obstruction attempts. Id. at
*10–12.
II
Weathers’s appeal from the district court’s decision presents
two ineffective assistance of counsel claims: one relating to
Counts Three and Six of the indictment, and the other to Counts
Four and Five. Both claims arise from purported violations of
his double jeopardy rights. “The Fifth Amendment guarantee
against double jeopardy protects not only against a second trial
8
for the same offense, but also against multiple punishments for
the same offense.” Whalen v. United States, 445 U.S. 684, 688
(1980) (internal quotation marks omitted). This court has
already decided Weathers cannot directly challenge his convic-
tions on double jeopardy grounds because he waived those
claims by failing to raise them at trial. Weathers, 186 F.3d at
958. Nonetheless, because to prevail on his ineffective assis-
tance claims Weathers “must demonstrate both deficient
performance and prejudice to him,” the merits of his double
jeopardy claims reassert themselves in this appeal. United
States v. Williams, No. 04-3157, __ F.3d __, 2007 U.S. App.
LEXIS 12637, at *15 (D.C. Cir. June 1, 2007).
We evaluate each of Weathers’s claims independently. In
doing so, we apply Strickland v. Washington’s two-part test,
inquiring (1) whether “counsel’s representation fell below an
objective standard of reasonableness,” and (2) whether “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
466 U.S. at 688, 694. In assessing whether counsel’s representa-
tion was reasonable, we “consider[] all the circumstances,”
recognizing “the wide latitude counsel must have in making
tactical decisions.” Id. at 688–89. Our review of counsel’s
performance “must be highly deferential” — “indulg[ing] a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defen-
dant must overcome the presumption that, under the circum-
stances, the challenged action ‘might be considered sound trial
strategy.’” Id. at 689.
A
As noted, Counts Three and Six relate to obstruction
attempts targeted at different individuals (the witnesses and the
prosecutor, respectively) but both allege violations of the same
subsection of D.C.’s obstruction of justice statute. That subsec-
9
tion provides: “A person commits the offense of obstruction of
justice if that person . . . [c]orruptly, or by threats of force, [in]
any way obstructs or impedes or endeavors to obstruct or
impede the due administration of justice in any official proceed-
ing.” D.C. CODE § 22-722(a)(6). Subsection (a)(6) is the
omnibus provision of D.C.’s obstruction of justice statute; the
statute’s other subsections are directed at specific types of
obstructive conduct. See id. § 22-722(a)(1)–(5). It is not clear
why the government in Counts Three and Six charged Weathers
under the omnibus provision instead of one of the other more
specific provisions. But the fact is, it did.
Weathers argues Counts Three and Six charge the same
offense, and thus his convictions for both constitute a double
jeopardy violation. When two violations of the same statutory
provision are charged, we evaluate whether only a single offense
is involved by “asking what act the legislature intended as the
‘unit of prosecution’ under the statute.” Weathers, 186 F.3d at
952 (citing Sanabria v. United States, 437 U.S. 54, 70 n.24
(1978)). Weathers’s argument therefore turns on the proper
“unit of prosecution” for D.C. CODE § 22-722(a)(6).
Relying primarily on the provision’s language, Weathers
contends that an “individual” is not an allowable unit of
prosecution under subsection 22-722(a)(6). Because, according
to Weathers, Counts Three and Six differ only in that they relate
to different individuals, they must merge. And because he was
convicted and received separate sentences for both counts,
Weathers contends he fulfills both prongs of Strickland — that
is, it was unreasonable for his trial counsel not to challenge the
counts as multiplicitous, and he was prejudiced by that failure.
But as Weathers recognizes, even if he is correct that
Counts Three and Six merge, that is not itself sufficient for him
to prevail in this appeal, because this is an ineffective assistance
10
claim, not a direct challenge to his convictions on double
jeopardy grounds. The crux of an ineffective assistance claim
is not simply whether trial counsel neglected to press a viable
legal argument, but whether counsel’s failure to do so was
objectively unreasonable under the circumstances. Indeed, for
Counts Three and Six it is not necessary for us to address merger
because, even assuming the two counts merge, Weathers’s
counsel still acted reasonably in not challenging them.
Weathers concedes the government originally could have
brought multiple obstruction charges against him under various
subsections of D.C. CODE § 22-722 authorizing similar sen-
tences. See Appellant’s Reply Br. 2, 5–6 & n.1, 9. He also
concedes that if he had successfully challenged Counts Three
and Six as multiplicitous, “the government could have ‘cured’
the errors by returning a superseding indictment again charging
[multiple] offenses authorizing similar sentences.” Id. at 5–6.
Weathers is plainly correct in that regard. Because Weathers
endeavored to obstruct multiple criminal proceedings involving
multiple individuals on multiple occasions, there are many ways
the government could have restructured its indictment to avoid
unit of prosecution concerns, and any restructuring would
almost certainly have resulted in more obstruction of justice
counts against Weathers under D.C. CODE § 22-722. Thus, for
example, if the government had returned a superseding indict-
ment relying on a relevant subsection that clearly permits an
“individual” as a unit of prosecution, see id. § 22-722(a)(2), it
could have replaced Counts Three and Six with seven obstruc-
tion counts — one each for the five victims, the prosecutor, and
the first informant. Or, if the government had focused instead
on “proceedings,” see id. § 22-722(a)(2), (6), it could have
replaced Counts Three and Six with six obstruction counts —
one for each of the five rape cases and one for the obstruction
case then pending in Superior Court. Alternatively, even
focusing exclusively on Weathers’s discrete acts or “endeavors”
11
to obstruct, see id. § 22-722(a)(2), the government could have
returned a superseding indictment with three counts — one for
his second attempt to solicit a fellow inmate’s help in killing
witnesses, one for his solicitation of the undercover police
officer posing as a hit man, and one for his letter to Logan
asking him to burn down witnesses’ houses. And had the
government returned an indictment breaking Weathers’s
obstruction attempts down even further — for example, by
proceedings per endeavor — the number of counts would have
multiplied even more.
Before the district court on remand, Weathers’s trial
counsel testified he specifically considered the possibility of a
superseding indictment with more counts and made a “tactical
decision” not to challenge the indictment on multiplicity
grounds. As explained, that decision made perfectly good sense
with regard to Counts Three and Six. Strickland’s first prong
asks whether “counsel’s representation fell below an objective
standard of reasonableness.” 466 U.S. at 688 (emphasis added).
Given the very real possibility of a worse superseding indict-
ment, and the strong deference accorded trial counsel’s strategic
choices, id. at 691, we cannot say the decision made by Weath-
ers’s trial counsel was objectively unreasonable. Hence,
Weathers’s ineffective assistance claim relating to Counts Three
and Six fails on the first prong of Strickland.
Weathers argues his trial counsel could not have made an
informed strategic decision, because the counsel’s testimony
establishes “at best that he judged, mistakenly, [a double
jeopardy claim] to be meritless.” But evaluating the merit of
Weathers’s Counts Three and Six merger claim was unnecessary
to the tactical choice his trial counsel faced. Even assuming the
merger argument was a slam-dunk, counsel still had to consider
the threat of a worse superseding indictment. As the Supreme
Court explained in Strickland, “strategic choices made after less
12
than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation. In other words, counsel has a duty
to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Id.
at 690–91 (emphasis added). In this instance, it was not
necessary that counsel know whether the merger claim had merit
for him reasonably to decide it was not in his client’s best
interest to pursue it.2
B
Weathers’s second ineffective assistance of counsel claim
relates to Counts Four and Five of his indictment. Both counts
pertain to Weathers’s threats to injure the prosecutor. Unlike
Counts Three and Six, Counts Four and Five charge under
different statutes — one under federal law and the other under
the D.C. Code. Count Five charged Weathers with threatening
to injure a person, in violation of D.C. CODE § 22-2307. Count
Four charged him with threatening a federal official, in violation
of 18 U.S.C. § 115. Weathers contends Count Five is a lesser
included offense of Count Four, and therefore the counts merge.
As this court explained in Weathers’s first appeal:
2
Weathers also argues that it may have constituted “prosecutorial
vindictiveness” for the government to respond to a multiplicitous
challenge by replacing Counts Three and Six with more obstruction
counts. Appellant’s Br. 10 (citing United States v. Meyer, 810 F.2d
1242, 1245–46 (D.C. Cir. 1987)). That argument has no merit. Where
one or more counts of an indictment are defeated pretrial because of
a curable defect, merely curing the defect does not constitute
prosecutorial vindictiveness. See Meyer, 810 F.2d at 1246 (citing
United States v. Goodwin, 457 U.S. 368, 381–84 (1982)) (“[A]
prosecutorial decision to increase charges after a defendant has
exercised a legal right does not alone give rise to a presumption [of
vindictiveness] in the pretrial context.”).
13
To determine whether Congress intended two statutory
provisions to proscribe the same offense, the Supreme
Court has applied the rule set forth in Blockburger v. United
States: “Where the same act or transaction constitutes 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.”
Weathers, 186 F.3d at 951 (alteration omitted) (quoting Block-
burger v. United States, 284 U.S. 299, 304 (1932)). Count
Four’s § 115 proscribes “threat[s] 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 . . . .” 18 U.S.C. § 115(a)(1)(B). Count Five’s
§ 22-2307 proscribes “threat[s] . . . to injure the person of
another . . . .” Plainly, Count Four requires proof of facts not
required by Count Five; namely, that the threatened individual
is “a United States official” and there was “intent to impede . . .
the performance of official duties.” Less clear is whether Count
Five requires proof of any element not required by Count Four.
Weathers insists it does not.
Prior to this appeal, the government argued Count Five
requires proof of an independent fact; namely, that, unlike
§ 115, the D.C. statute requires a threat of serious injury.
Although § 22-2307 on its face contains no such requirement,
the government relied on the model jury instructions for the
threats statute, as well as District of Columbia cases suggesting
that serious bodily injury is an element of that statute. See, e.g.,
United States v. Baish, 460 A.2d 38, 42 (D.C. 1983). The
government’s argument was sufficiently compelling to convince
the district court, which, relying on the District of Columbia
Court of Appeals’s “most recent cases,” interpreted § 22-2307
to require a threat of serious injury and concluded that “[c]ount
14
five, therefore, is not a lesser-included offense of count four.”
Weathers, 2006 U.S. Dist. LEXIS 9587, at *9–10.
But the government has changed its mind. At some point
between prevailing in district court and preparing for this appeal,
the government discovered its litigating position in this case is
inconsistent with its broader attempt to persuade D.C. courts that
serious bodily injury is not an element of D.C.’s threats statute.
Thus, the government now agrees with Weathers “that his
convictions under Count Four . . . and Count Five . . . merge
under Blockburger” because “Count Five does not contain an
element that is not present in Count Four.” Appellee’s Br. 38.
The government’s concession that Counts Four and Five
merge does not necessarily mean Weathers prevails on his
claim, however. This court has already decided it is too late for
Weathers to directly challenge his convictions as multiplicitous.
See Weathers, 186 F.3d at 958. Weathers can only prevail in
this appeal if he can show his trial counsel’s failure to press the
merger claim constituted ineffective assistance of counsel. To
do so, Weathers must satisfy Strickland’s two-part test, showing
his counsel’s actions were both objectively unreasonable and
prejudicial.
We are persuaded the failure of counsel to challenge Counts
Four and Five as multiplicitous was ineffective under Strickland.
We see no evidence counsel made a reasoned tactical decision
for Counts Four and Five like that made with regard to Counts
Three and Six. As noted, counsel’s testimony was not pellucid,
and so it is impossible to foreclose entirely the possibility that
his concern about a worse superseding indictment extended to
Counts Four and Five. But as the government conceded at oral
argument, counsel’s confusing testimony regarding his concern
about a worse superseding indictment is best interpreted as
relating to counts Three and Six, not Four and Five.
15
The district court’s opinion rejecting Weathers’s ineffective
assistance of counsel claims further supports this interpretation.
The court determined that “counsel’s decision not to challenge
the indictment was based on a reasonable strategic and tactical
judgment,” but the opinion does not explicitly indicate to which
decision it is referring — Counts Three and Six, Counts Four
and Five, or both. Weathers, 2006 U.S. Dist. LEXIS 9587, at
*5. The opinion continues, however: “Counsel testified that he
had considered the possibility of a double jeopardy violation but
did not challenge the indictment because the Government could
have corrected any flaws by filing a superseding indictment
containing more charges.” Id. The concern about the govern-
ment “correct[ing] any flaws” with “more charges” has no
applicability to Counts Four and Five. Thus, the district court’s
opinion supports, albeit indirectly, that counsel’s “strategic and
tactical judgment” was limited to Counts Three and Six, which,
as explained, presented a real possibility of a superseding
indictment with “more charges.”
Moreover, the reason provided by Weathers’s trial counsel
for not challenging Counts Four and Five is not objectively
reasonable. When asked if he considered “whether there were
any double jeopardy concerns with regard to counts four and
five,” counsel replied: “I did not think that there were any
double jeopardy counts. One was to injure a person, and one
was to injure a federal officer. They are two different things.”
Of course, not every person is a federal officer, but presumably
every federal officer is a person.3 Thus, the rationale given by
counsel for not pursuing a double jeopardy claim is inadequate
in light of Blockburger’s requirement that “each provision
require[] proof of a fact which the other does not.” 284 U.S. at
304 (emphasis added).
3
This testimony brings to mind the humorous statement that, in
D.C., there are more lawyers than people.
16
And finally, had Weathers’s counsel challenged Counts
Four and Five as multiplicitous, there is a reasonable probability
that the challenge would have successfully reduced his indict-
ment by one count. There are at least three independent
arguments supporting merger for Counts Four and Five. We do
not find it necessary to resolve any of those arguments on their
merits, for under Strickland Weathers need show only “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
466 U.S. at 694 (emphasis added). We are satisfied there is a
reasonable probability Weathers would have prevailed on one of
the merger arguments briefly limned below.4
First, Weathers contends — and the government joins this
argument on appeal — that Count Five’s § 22-2307 does not
require a showing of threatened serious injury; “[n]umerous
D.C. cases have discussed the elements of § 22-2307 without
mention of a requirement that the threatened injury be serious.”
Appellant’s Br. 11–12 (citing, inter alia, Joiner v. United States,
585 A.2d 176, 179 (D.C. 1991); Holt v. United States, 565 A.2d
970, 971 (D.C. 1989) (en banc)). Recognizing that more recent
cases have included seriousness in the listed requirements of
§ 22-2307, Weathers notes that they have done so “without
discussion of its origin or basis as an element of the statute.” Id.
at 12. Elaborating on this, the government in its brief points out
4
Part of our hesitation in definitively deciding any of Weathers’s
merger claims is that none of them has been subjected to “the crucible
of litigation — the presence of parties motivated to present a neutral
court with the most persuasive arguments.” Nat’l Wildlife Fed’n v.
Burford, 835 F.2d 305, 333 (1987) (Williams, J., concurring and
dissenting). The government conceded on appeal that Counts Four
and Five merge, and thus did not attempt to rebut any merger
arguments relating to those counts.
17
the seriousness requirement was first added without explanation
in Campbell v. United States, 450 A.2d 428, 431 n.5 (D.C.
1982), perhaps in reliance on a model jury instruction. Appel-
lee’s Br. 40. The government suggests that Campbell’s unex-
plained change was simply carried forward by later cases citing
to Campbell or its progeny, and that there was never a deliberate
decision to make seriousness an element of § 22-2307. The
government has presented this argument to the District of
Columbia Court of Appeals in recent criminal cases, but so far
the court has not found it necessary to decide the issue. None-
theless, both Weathers and the government point to a footnote
in the recent case of Jenkins v. United States, 902 A.2d 79, 86
n.10 (D.C. 2006), as casting some doubt on the continued
viability of the seriousness requirement. Appellant’s Br. 12;
Appellee’s Br. 41–42. In sum, while the question remains open
whether § 22-2307 requires a showing of threatened serious
injury, both Weathers and the government agree there is a
compelling argument it does not. And, if Count Five does not
require a showing of threatened serious injury, then Counts Four
and Five merge, because Count Five does not require proof of
an element not present in Count Four.
Second, Weathers argues that even if Count Five’s § 22-
2307 does require threatened serious injury, Counts Four and
Five nonetheless merge. Weathers contends the part of Count
Four’s § 115 relevant for comparison purposes under Block-
burger is not its broader prohibition against “threat[s] to assault,
kidnap, or murder,” but rather the specific sub-offense of
“threat[s] to . . . murder.” Appellant’s Br. 14 (citing Whalen v.
United States, 445 U.S. 684, 694 (1980), and United States v.
White, 116 F.3d 903, 931 (D.C. Cir. 1997) (per curiam)). Thus,
even if Count Five requires the threatened injury be serious,
Weathers argues that requirement overlaps with the “threat[] to
. . . murder” element of Count Four, and the two counts merge.
See White, 116 F.3d at 931 (“An offense . . . constitutes a lesser
18
included offense even if it overlaps with only one of several
offenses listed in the statute criminalizing the greater offense.”).
Third, relying on the ambiguity in the law with regard to
whether seriousness is a required element of Count Five,
Weathers argues the rule of lenity mandates merger. Appel-
lant’s Br. 17. It is a “settled rule that ambiguity concerning the
ambit of criminal statutes should be resolved in favor of lenity.”
Whalen, 445 U.S. at 695 n.10 (internal quotation marks omitted)
(quoting United States v. Bass, 404 U.S. 336, 347 (1971)); see
also Ladner v. United States, 358 U.S. 169, 177–78 (1958); Bell
v. United States, 349 U.S. 81, 84 (1955). This court has
previously applied the rule of lenity in resolving ambiguity in
favor of merger. See United States v. Cunningham, 145 F.3d
1385, 1398–99 (D.C. Cir. 1998).
There is a reasonable probability Weathers would have
prevailed on one of these merger arguments. Moreover, in
contrast to Counts Three and Six, there is nothing in the record
to indicate that Weathers’s counsel made an objectively reason-
able tactical decision in neglecting to challenge Count Five as a
lesser included offense of Count Four. Weathers has therefore
satisfied Strickland’s two-part test with regard to Counts Four
and Five.
III
We affirm the district court’s order as to Counts Three and
Six, but reverse as to Counts Four and Five. We accordingly
vacate Weathers’s conviction on Count Five, and remand for
resentencing.
So ordered.