United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
DISMISS ONE COUNT OF THE INDICTMENT (ECF NO. 28)
V. PARKER, U.S. DISTRICT JUDGE
21, 2017, Defendant Amor M. Ftouhi approached an airport
police officer at the Bishop International Airport and using
a serrated knife stabbed the officer in the neck. (ECF No. 1
at Pg ID 3.) The victim officer and others were able to
subdue and restrain Defendant, who was placed under arrest.
(Id.) Defendant was indicted on July 5, 2017 with
one count of committing an act of violence at an
international airport in violation of 18 U.S.C. §
37(a)(1) and one count of interfering with airport security
personnel in violation of 49 U.S.C. § 46503. (ECF No.
11.) Presently before the Court is Defendant's Motion to
Dismiss One Count of the Indictment, filed January 17, 2018.
(ECF No. 28.) The motion has been fully briefed. For the
reasons stated below, the Court denies Defendant's
Factual and Procedural Background
21, 2017, Defendant, carrying a red duffle bag and a dark
satchel bag, entered Bishop International Airport in Flint,
Michigan. (ECF No. 1 at Pg ID 4.) Walking up to a police
officer, Defendant yelled “Allahu Akbar” and
stabbed the officer with a large knife. (Id. at Pg
ID 3.) As Defendant stabbed the officer, he exclaimed
something to the effect of: “You have killed people in
Syria, Iraq, and Afghanistan, and we are all going to
die.” (Id.) Defendant was subdued and arrested
immediately after the incident. (Id.)
5, 2017, Defendant was indicted for violence at an
international airport in violation of 18 U.S.C. §
37(a)(1) and interference with airport security in violation
of 49 U.S.C. § 46503. On January 18, 2018, Defendant
filed the instant motion, arguing the two-count indictment is
multiplicitous. (ECF No. 28.) The government filed a response
on February 8, 2018, and Defendant filed a reply on February
22, 2018. (ECF Nos. 30 & 31.) The government filed a
first superseding indictment for commission of an act of
terrorism transcending national boundaries in violation of 18
U.S.C. §§ 2332b(a)(1), 2332b(a)(2), 2232b(c)(1)(A),
and 2332b(c)(1)(F) on March 21, 2018. (ECF No. 32.) Defendant
filed a supplemental brief on May 8, 2018. (ECF No. 36.)
Applicable Law & Analysis
contends that charging him with committing an act of violence
at an international airport and interfering with airport
security violates the Fifth Amendment's Double Jeopardy
Clause because the government will use the same theory to try
Fifth Amendment to the U.S. Constitution states that no
person shall “be subject for the same offence to be
twice put in jeopardy of life or limb.” U.S. Const.
amend. V. “Multiplicity is charging a single offense in
more than one count in an indictment.” United
States v. Swafford, 512 F.3d 833, 844 (6th Cir.
2008). “The [D]ouble [J]eopardy [C]lause has
traditionally provided a bulwark against both multiple
punishments as well as multiple prosecutions for the same
offense.” United States v. Sinito, 723 F.2d
1250, 1255 (6th Cir. 1983) (citing Brown v. Ohio,
432 U.S. 161, 165 (1977) and North Carolina v.
Pearce, 395 U.S. 711, 717 (1969)).
the Court must determine whether Congress intended to punish
each statutory violation separately. See Jeffers v.
United States, 432 U.S. 137, 155 (1977). If the
Congressional intent is unclear, courts apply the test
enunciated in Blockburger v. United States, 284 U.S.
299, 304 (1932). The Blockburger test focuses on
whether, of the statutory provisions charged, each requires
proof of a fact that the other does not. Id.
“Using the same evidence to prove violations of two
statutes does not violate Blockburger.”
United States v. Swafford, 512 F.3d 833, 844 (6th
Cir. 2008). In determining if there is overlap, the Sixth
Circuit has instructed the district court to go further and
“look to the legal theory of the case on the elements
of the specific criminal cause of action for which the
Defendant was convicted without examining the facts in
detail.” Pandelli v. United States, 635 F.2d
533, 538 (6th Cir. 1980); see also United States v.
Whaley, No. 3:10-CR-169, 2012 U.S. Dist. LEXIS 50123, at
*67 (E.D. Tenn. Mar.5, 2012) (“However, ‘when
dealing with complex and overlapping statutes that define
multiple ways that they may be violated and contain
alternative elements[, ]' the Court may use a modified
version of the Blockburger test that compares only
those elements of the statutes that conform to the
government's theory of the case.”) (citing
United States v. DeCarlo, 434 F.3d 447, 454 (6th
Cir. 2006)). Finally, the court has broad discretion in
requiring the prosecution to elect between multiplicitous
counts when the defendant would not be prejudiced or to merge
the convictions at sentencing.
parties agree that the Court should apply the test in
Blockburger because the congressional intent
regarding separate punishments is not explicitly indicated.
(See ECF No. 30 at Pg ID 129; ECF No. 28 at Pg ID
U.S.C. § 37(a)(1) provides:
(a) Offense. A person who unlawfully and intentionally, using
any device, substance, or weapon--
(1) performs an act of violence against a person at an
airport serving international civil aviation that causes or
is likely to cause serious bodily injury (as defined in
section 1365 of this title [18 USCS § 1365]) or death;
or . . .
if such an act endangers or is likely to endanger safety at
that airport, or attempts or conspires to do such an act,
shall be fined under this title, imprisoned not more than 20
years, or both; and if the death of any person results from
conduct prohibited by this subsection, shall ...