United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge.
matter is before the Court on Defendant Lance Hardiman's
[ECF No. 150] motion to dismiss counts four and five (now
counts three and four of the superseding indictment).
Defendant Justin Pressley has also joined in the motion. The
government filed a response on September 6, 2018. On October
22, 2018, Defendant Hardiman file a reply. The Court heard
argument from the parties on October 23, 2018, following a
pretrial conference. For the reasons set forth below, the
Court denies Defendants' motion to dismiss.
the government argues and alleges that on May 4, 2016, three
individuals armed with handguns robbed the South State Bank
at 606 Main Street in North Myrtle Beach, South Carolina.
While in the bank, two of the individuals fired their
handguns into the ceiling and into the wall. The bank robbers
fled in a silver 2001 Chevy Impala bearing a stolen Wisconsin
license plate, No. 737-SMW. During the attempted flight from
the scene, which consisted of a high speed chase through
commercial, tourist, and residential areas, the bank robbers
fired multiple weapons at law enforcement vehicles, passing
cars, and occupied houses. The individual in the passenger
seat of the Chevy Impala fired numerous rounds with a
handgun, while the individual in the back seat shot out the
back window and fired an AK-47 type weapon with a 30 round
magazine at pursuing law enforcement officers. The chase
ended when the driver of the Impala lost control and ran into
a ditch where the car got stuck. The individuals abandoned
the car and ran together into the woods. Defendants Lance
Hardiman, Justin Pressley, and Rodrick Berklery were each
found in or around the wooded area over the course of the
next twelve or so hours.
were indicted on May 23, 2017. A superseding indictment was
filed on September 18, 2018. Count one of the superseding
indictment alleges armed bank robbery in violation of 18
U.S.C. §§ 2113(a), (d), and 2. Count two alleges
that Defendants used a firearm during and in relation to a
crime of violence, the armed bank robbery alleged in count
one, when the firearm was discharged inside the bank
in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and
2. Count three alleges witness tampering based on shooting at
pursuing law enforcement officers during the flight from the
bank robbery in violation of 18 U.S.C. §§
1512(a)(2)(C) and 2. Count four alleges that Defendants used
a firearm during and in relation to a crime of violence, the
armed bank robbery alleged in count one and the witness
tampering/obstruction of justice alleged in count three,
when the firearm was discharged shooting at police
officers in violation of 18 U.S.C. §§
924(c)(1)(A)(iii) and 2. Count five alleges that Defendants
Hardiman and Pressley possessed a firearm and ammunition
after having been convicted of a felony in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2), 924(e) and 2. Count
six alleges that Defendants possessed a firearm that had an
obliterated serial number in violation of 18 U.S.C.
§§ 922(k) and 2. Count seven alleges that Defendant
Hardiman possessed a firearm after having been convicted of a
felony; however, the government has indicated that it intends
to dismiss count seven.
noted above, the government has charged Defendants with armed
bank robbery (count one) and witness tampering (count three).
The witness tampering charge is based on Defendants'
alleged shooting at pursuing police officers during their
attempt to flee the bank robbery.
government has also charged Defendants with two separate
924(c) charges. Count two is a § 924(c) charge
predicated on count one (armed bank robbery) and involves the
use of a firearm inside the bank. Count four is a
§ 924(c) charge predicated on count one (armed bank
robbery) and count three (witness tampering/obstruction of
justice) and involves the use of a firearm during the flight
from the bank robbery when Defendants allegedly fired at
pursuing police officers outside the bank.
argue that because the offense of bank robbery includes any
hot pursuit thereafter, there is only one unit of
prosecution, supporting only a single count of bank robbery
and a single § 924(c) count. Defendants contend that
because there is only one unit of prosecution, counts three
(witness tampering) and four (§ 924(c)) must be
dismissed as multiplicitous.
indictment is multiplicitous when it charges a single offense
in multiple counts. United States v. Burns, 990 F.2d
1426, 1438 (4th Cir. 1993). The danger in multiplicitous
indictments is that the defendant can be subjected to
multiple sentences for the same offense in violation of the
double jeopardy clause. Burns, 990 F.2d at 1438.
However, it has long been held that a defendant may be tried,
convicted and sentenced for two separate offenses, even
though he committed a single act. See, e.g., Albernaz v.
United States, 450 U.S. 333, 344-45 n. 3, 101 S.Ct.
1137, 1145 n. 3, 67 L.Ed.2d 275 (1981) (“It is well
settled that a single transaction can give rise to distinct
offenses under separate statutes without violating the Double
clearly contrary legislative intent, “ ‘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.' ” United States v. Allen,
13 F.3d 105, 108 (4th Cir.1993) (citing Blockburger v.
United States, 284 U.S. 299, 304 (1932)). In other
words, the question is whether each of the offenses requires
proof of a different element. Blockburger, 284 U.S.
at 304, 52 S.Ct. at 182 (“Each of the offenses created
requires proof of a different element.”). “The
Supreme Court has steadfastly adhered to the
Blockburger analysis when determining whether the
legislature intended to authorize multiple punishments for a
particular act.” Allen, 13 F.3d at 108 (citing
Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct.
673, 678, 74 L.Ed.2d 535 (1983)).
armed bank robbery and witness tampering charged in counts
one and three of the superseding indictment are separate
offenses because armed bank robbery requires proof of
different elements than witness tampering. Armed bank robbery
under § 2113(d) has four elements: (1) the defendant
took, or attempted to take, money belonging to, or in the
custody, care, or possession of, a bank, credit union, or
saving and loan association; (2) the money was taken
“by force and violence, or by intimidation”; (3)
the deposits of the institution were federally insured; and
(4) in committing or attempting to commit the offense, the
defendant assaulted any person, or put in jeopardy the life
of any person, by the use of a dangerous weapon or device.
United States v. McNeal, 818 F.3d 141, 152 (4th Cir.
2016). The elements of witness tampering under 18 U.S.C.
§ 1512(a)(2)(C) are: (1) the accused used or threatened
the use of physical force against any person; and (2) the
accused did so with the intent to hinder, delay, or prevent
the communication of information relating to a federal
offense to a law enforcement officer. Cf. United States
v. Harris, 498 F.3d 278, 284 n. 4 (4th Cir.2007) (noting
that § 1512(b)(3) and § 1512(a)(2)(C) share an
identical mens rea element); United States v.
Barbeito, No. 2:09-cr-00222, 2010 WL 2243878, *43
(S.D.W.V. June 3, 2010); United States v. Perry, 335
F.3d 316, 320-21 (4th Cir.2003) (setting forth elements of
§ 1512(b)(3)). Applying the Blockburger
analysis to section 2113(d) and section 1512(a)(2)(C), each
provision clearly requires proof of a fact which the other
evident that Congress intended to create two distinct,
separate offenses with armed bank robbery and witness
tampering. The fact that armed bank robbery may include the
subsequent flight or escape from the bank robbery does not
prevent the government from also charging a violation of the
witness tampering statute for the same conduct. There is no
double jeopardy violation because armed bank robbery and
witness tampering require proof of different elements. The
armed bank robbery charged in count one is not multiplictious
with the witness tampering charged in count three.
also contend that even if bank robbery and witness tampering
are separate offenses, the single use of a firearm during
simultaneous offenses does not support more than one §
924(c) offense. The superseding indictment, however, clearly
alleges two separate uses of a firearm. Section 924(c)(1)
makes it a crime to use or carry a firearm during a crime of
violence or drug trafficking crime. 18 U.S.C. §
924(c)(1). Each separate “use” or
“carriage” of a firearm during a crime of
violence or drug trafficking crime constitutes a separate
violation of the statute and is separately punishable.
United States v. Camps, 32 F.3d 102, 107-8 (4th Cir.
1994). In this case, the § 924(c) charge alleged in
count two involves the “use” of a firearm
inside the bank. The § 924(c) charge alleged in
count four involves the “use” of a firearm
outside the bank when Defendants allegedly shot at
pursuing police officers during the hot pursuit. ...