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UNITED STATES v. TATMON

April 7, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
VINCENT M. HILL and MARK A. TATMON, Defendants.



The opinion of the court was delivered by: BARBARA A. CAULFIELD

 On December 20, 1993, the United States filed a four-count indictment in this action charging defendants, inter alia, with violations of the Anti-Car Theft Act of 1992, 18 U.S.C. § 2119, and the Comprehensive Crime Control Act of 1984, 18 U.S.C. § 924(c)(1). In Count One, the Grand Jury charged that defendants Vincent Hill and Mark Tatmon "each possessing a loaded firearm, did knowingly take a motor vehicle that had been transported or shipped in interstate commerce . . . from the person and presence of Byron Cox by force, violence, and intimidation, in violation of Title 18, United States Code, Section 2119." In Count Two, the Grand Jury further charged that defendants Hill and Tatmon "during and in relation [to] a crime of violence, that is the armed carjacking charged in Count One herein, did knowingly use and carry loaded firearms, in violation of 18 United States Code, Section 924(c)(1)."

 Defendants are before the court seeking dismissal of Count Two of the Indictment on the grounds that it imposes cumulative punishments for the same offense as set forth in Count One of the indictment in violation of the double jeopardy clause of the Fifth Amendment. Count One, the carjacking count, charges defendants with taking a motor vehicle by force and violence or intimidation while possessing a loaded firearm. Count Two, the firearm count, charges defendants with using and carrying a loaded firearm during the armed carjacking charged in Count One. Defendants assert that Count Two, therefore, essentially alleges that the defendants took the vehicle at gunpoint and, incidently, carried a gun while doing so. Proof of either count, by definition, entails proof of the other. For the foregoing reasons, the court agrees. Accordingly, defendants' motion to dismiss Count Two of the Indictment is GRANTED.

 DISCUSSION

 The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "Nor shall any person be subject for the same events to be twice put in jeopardy of life or limb." The Supreme Court has interpreted the clause as affording three different types of protection: (1) it protects against a second prosecution for the same offense after acquittal, (2) it protects against a second prosecution after conviction, and (3) it protects against multiple punishments for the same offense. Albernaz v. United States, 450 U.S. 333, 343, 67 L. Ed. 2d 275, 101 S. Ct. 1137 (1981); North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). The last of the three protections are implicated by the current motion to dismiss.

 A. The "Same Offense"

 Initially, the court must determine whether the two distinct statutory provisions constitute "the same offense" for Double Jeopardy purposes. In Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), the Supreme Court devised a rule of statutory construction to aid in this determination. If two violations are found to be "the same offense" under Blockburger, then absent clear legislative intent to the contrary, the presumption is that Congress did not intend to permit cumulative punishment. Conversely, if two violations are not found to be "the same offense" then Congress is presumed to have intended to allow multiple punishment Albernaz, 450 U.S. at 339-40. Neither presumption is dispositive, as the ultimate question remains one of discerning the actual legislative intent. Government of Virgin Islands v. Soto, 718 F.2d 72, 77 (3d Cir. 1983).

 1. Section 2119

 Section 2119 authorizes prosecution of "whoever, possessing a firearm . . . takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation." 18 U.S.C. § 2119. Notably, the statute "makes the use of a firearm an essential element of the crime . . . it does not cover carjacking with the use of other types of weapons nor would simple brute force be covered." 138 Cong. Rec. S17,960 (daily ed. Oct. 8, 1992) (Statement of Senator DeConcini) (cited in United States v. Singleton, 824 F. Supp. 609, 612, n.3 (E.D. La. 1993). rev'd and remanded, 16 F.3d 1419, 1994 U.S. App. LEXIS 4220 (5th Cir. 1994). Section 2119, therefore, entails proof of four elements:

 
(1) possession of a firearm;
 
(2) the taking of a motor vehicle from the person or presence of another;
 
(3) a nexus with interstate or foreign commerce;
 
(4) and the use of force and violence or ...

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