UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10993
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN DOE, a/k/a Tony Ricardo Milton,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(4:95-CR-82-E)
July 11, 1996
Before POLITZ, Chief Judge, HIGGINBOTHAM and BENAVIDES, Circuit Judges.
PER CURIAM:*
John Doe, a/k/a Tony Ricardo Milton,1 was convicted by a jury of two counts
of making false statements in a passport application. In Count One he falsely
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule
47.5.4.
1
The record contains evidence that the appellant’s name is Peter Osaro Onwe.
claimed his name to be Tony Ricardo Milton; in Count Three he falsely claimed
Texas as his place of birth. He received concurrent sentences of imprisonment for
six months, followed by three years of supervised release, plus the statutory
assessment of $50 on each count.
On appeal Doe complains that Counts One and Three are multiplicitous. The
government candidly concedes that the counts are multiplicitous, citing, as does
appellant, our decision in United States v. Sahley2 and that of our colleagues in the
Ninth Circuit in United States v. Praml.3 The government suggests that the
essential issue is whether this plea can be first raised on appeal. Appellant did not
urge a plea of multiplicity in the trial court but maintains that it may be raised on
appeal in this instance because, despite the imposition of concurrent sentences, 4
under our recent holding in United States v. Hard5 the plea may be urged because
of the duplication of the statutory assessments. Once again the government
professionally and candidly cites to our controlling precedents and recognizes that
the plea may be first raised on appeal.
2
526 F.2d 913 (5th Cir. 1976).
3
909 F.2d 1489 (9th Cir. 1990) (table) (unpublished) 1990 WL 113608.
4
United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983), cert. denied, 465 U.S. 1005
(1984).
5
6 F.3d 276 (5th Cir. 1993), cert. denied, 114 S.Ct. 1551 (1994).
2
We conclude and hold that Counts One and Three are multiplicitous and, in
the interest of justice and considerate of concerns of judicial economy and
consistent with the suggestions of the parties, we VACATE the conviction and
sentence on Count Three and AFFIRM the conviction and sentence on Count One
and return the matter to the district court for entry of a judgment and commitment
order consistent herewith.
3