United States of America v. Pernell C. Starks

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2784
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
P ERNELL C. S TARKS ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 CR 30016—Michael J. Reagan, Judge.
____________
A RGUED N OVEMBER 30, 2006—D ECIDED D ECEMBER 22, 2006
____________
Before P OSNER , K ANNE , and E VANS , Circuit Judges.
K ANNE , Circuit Judge. Pernell Starks was found guilty
of one count of obstructing a government investigation
in violation of 18 U.S.C. § 1505 and was sentenced to 15
months’ imprisonment. He challenges the indictment on
multiplicity and duplicity grounds. We find no error and
therefore affirm his conviction.
I. HISTORY
In 2004, the Department of Justice, Office of Inspector
General (“OIG”) commenced an investigation into poten-
tial misconduct by Starks during his employment at the

-- 1 of 9 --

2 No. 06-2784
Federal Correctional Facility in Greenville, Illinois. OIG
Special Agents Kimberly A. Thomas and Pete Werderitch
interviewed Starks on May 19, 2004 in the warden’s
conference room at Greenville. The agents were ultimately
able to obtain an affidavit containing incriminating
statements from Starks. Starks, however, changed his
mind about providing the affidavit and received it back
from the agents during the interview. He then ripped the
affidavit into pieces and put the paper into his mouth. As
one could imagine, Starks’ efforts to destroy the affidavit
created a scuffle. Agent Thomas attempted to reclaim the
affidavit while Agent Werderitch and other prison offi-
cials subdued Starks.
Starks was charged in a two count indictment. Count
One alleged that Starks:
Knowingly did forcibly assault making physical con-
tact with Kimberly A. Thomas, a Special Agent with
the Office of the Inspector General, United States
Department of Justice while she was engaged in her
official duties, in violation of Title 18, United States
Code, Section 111(a).
Count Two alleged that Starks:
Did knowingly by force endeavor to obstruct and
impede the due and proper administration of the law
under which a pending investigation proceeding was
being had before the United States Department of
Justice, Office of the Inspector General, to wit: Defen-
dant struck and pushed Kimberly A. Thomas, a Special
Agent in the Office of Inspector General, U.S. Depart-
ment of Justice, and attempted to destroy an affidavit
made in furtherance of the pending investigation of
the United States Department of Justice, Office of
Inspector General, in violation of Title 18, United
States Code, Section 1505.

-- 2 of 9 --

No. 06-2784 3
The district judge instructed the jury that they could
find Starks guilty of the Count Two obstruction charge by
either his alleged act of: (A) striking or pushing Agent
Thomas, or (B) attempting to destroy the affidavit. The
jury was instructed that it had to unanimously agree as
to whether Starks struck or pushed Agent Thomas,
attempted to destroy the affidavit, or committed both
acts in order to find him guilty on the obstruction charge.
The jury was also given general verdict and special verdict
forms. The jury returned a general verdict form finding
Starks not guilty on the Count One assault charge, but
found him guilty on the Count Two obstruction charge. As
to the special verdict form for Count Two, the jury found
that Starks did not strike or push Agent Thomas, but
found that Starks obstructed the investigation through
his efforts to destroy the affidavit.
II. ANALYSIS
Starks brings a multiplicity challenge to the indict-
ment arguing that Counts One and Two charge the
same criminal conduct of assaulting a federal officer
while she was engaged in the performance of her official
duties. He also brings a duplicity challenge to Count Two
arguing that the inclusion of the two separate acts of
assaulting Agent Thomas and destroying the affidavit in
the same count could have led the jury to return a less
than unanimous verdict. Starks preserved these argu-
ments for appeal before the district court and therefore
we review his claims de novo. United States v. Snyder, 189
F.3d 640, 646 (7th Cir. 1999).
A. Multiplicity
“Multiplicity is the charging of a single offense in
separate counts of an indictment.” United States v.

-- 3 of 9 --

4 No. 06-2784
Allender, 62 F.3d 909, 912 (7th Cir. 1995) (citing United
States v. Gonzalez, 933 F.2d 417, 424 (7th Cir. 1991)).
Multiplicity in an indictment exposes a defendant to the
threat of receiving multiple punishments for the same
offense in violation of the Double Jeopardy Clause of the
Fifth Amendment. United States v. Conley, 291 F.3d 464,
470 (7th Cir. 2002) (citing Schiro v. Farley, 510 U.S. 222,
229 (1994); United States v. Colvin, 276 F.3d 945, 948 (7th
Cir. 2002); United States v. Handford, 39 F.3d 731, 735
(7th Cir. 1994)); United States v. Briscoe, 896 F.2d 1476,
1522 (7th Cir. 1990) (quoting United States v. Podell, 869
F.2d 328, 330 (7th Cir. 1989)). “The traditional test of
multiplicity determines whether each count requires
proof of a fact which the other does not. If one element
is required to prove the offense in one count which is not
required to prove the offense in the second count, there
is no multiplicity.” Gonzalez, 933 F.2d at 424 (internal
citations and quotations omitted); see, e.g., United States
v. Muhammad, 120 F.3d 688, 702-03 (7th Cir. 1997)
(“The . . . Blockburger test directs our analysis in this
regard.”) (citing Albernaz v. United States, 450 U.S. 333,
337 (1981); Blockburger v. United States, 284 U.S. 299, 304
(1932); Gonzalez, 933 F.2d at 424). “[W]e focus on the
statutory elements of the charged offenses, not the overlap
in the proof offered to establish them, because a single act
may violate several statutes without rendering those
statutes identical.” Muhammad, 120 F.3d at 703 (citing
Albernaz, 450 U.S. at 338; Gore v. United States, 357 U.S.
386, 389 (1958)).
Title 18, United States Code, § 111(a)(1) prohibits the
forcible assault, resistance, opposition, impediment or
interference with a federal officer, as designated by 18
U.S.C. § 1114, when the federal officer is engaged in, or
on account of, the performance of official duties. 18 U.S.C.
§ 111(a)(1). Title 18, United States Code, § 1505 prohibits
the use of corruption, threats or force to obstruct, impede

-- 4 of 9 --

No. 06-2784 5
or influence the due and proper administration of the
laws by a department or agency of the United States or
the due and proper exercise of an inquiry or investiga-
tion by the Congress of the United States. 18 U.S.C.
§ 1505. The elements required for conviction under
§ 111(a) and § 1505 are different and therefore we must
reject Starks’ multiplicity argument. By way of example,
a defendant could assault a federal officer while in the
performance of her duties because of a personal dispute
unrelated to a desire to obstruct the administration of
laws thus resulting in liability under § 111 but not
under § 1505. And Starks’ instant case demonstrates a
situation of criminal liability under § 1505 for obstructing
an investigation without liability for assault under § 111.
Starks cites to the Supreme Court’s decision in Arthur
Andersen, L.L.P. v. United States, 544 U.S. 696 (2005), and
our decision in United States v. McCarter, 406 F.3d 460
(7th Cir. 2005), in support of his multiplicity argument. In
Arthur Andersen, a jury found Arthur Andersen guilty
of corruptly persuading its employees to destroy docu-
ments in anticipation of a likely government investiga-
tion into Andersen’s client Enron in violation of 18 U.S.C.
§ 1512(b). 544 U.S. at 699-700, 702. The Supreme Court
reversed the conviction holding that the jury instruc-
tions, among other defects, failed to properly instruct the
jury that it needed to find a nexus between the corrupt
persuasion to destroy documents and a particular gov-
ernment proceeding impeded by that corrupt action. Id.
at 703-08.
Starks latches onto Arthur Andersen’s requirement that
there must be a nexus between the corrupt act and the
obstructed government proceeding and argues that the
corruption prong of § 1505 cannot be applied in this case.
This leads Starks to conclude that the elimination of
corruption as a means of obstructing a government
investigation results in leaving only the physical obstruc-

-- 5 of 9 --

6 No. 06-2784
tion of the investigation, and this is not permissible
because this is the same crime as an assault against a
federal officer punishable under § 111. We must reject
Starks’ argument because, as discussed above, Starks
was convicted for obstructing the investigation by trying
to destroy the affidavit on his own. There was no allega-
tion that Starks tried to corruptly persuade a third
party to destroy the affidavit and therefore Arthur
Andersen’s nexus requirement is not relevant to this case.
We must also reject Starks’ attempted application of our
McCarter decision. In McCarter, the defendant was
found guilty of attempted robbery in violation of the
Hobbs Act, 18 U.S.C. § 1951(a), and also found guilty of
attempted robbery in violation of the federal bank robbery
statute, 18 U.S.C. § 2113(a). 406 F.3d at 461. We recog-
nized that both statutes contained different elements
for conviction and therefore the application of the tradi-
tional Blockburger approach would permit the punish-
ment of the defendant under both acts. Id. at 463. Yet,
we rejected the application of the Blockburger test in
McCarter because we recognized that bank robbery is
always an obstruction of commerce and therefore it was
inappropriate to punish the defendant under both the
Hobbs Act and the bank robbery statute. Id.
However, Starks’ case involves two statutes, § 111 and
§ 1505, that do not overlap in the same manner as the
Hobbs Act and the bank robbery statute. The purpose of
§ 111 is to protect federal officers from assault while
§ 1505 protects the operations of the United States govern-
ment. Often times, one factual event will implicate both
§ 111 and § 1505 as the operations of the United States
government are implemented by federal officers and
therefore an attack on the government will likely also be
aimed at federal officers. But, unlike the situation of the
Hobbs Act and the bank robbery statute in which every

-- 6 of 9 --

No. 06-2784 7
bank robbery is also a disruption of commerce, not all
obstructions of government operations result in assaults
on federal officers and conversely not all assaults on
federal officers result in obstructing government opera-
tions. As we recognized in McCarter, “[t]he same physical
act can have multiple consequences addressed by differ-
ent statutes, . . . [for example] the defendant [who is]
punished separately both for selling drugs and, by that
sale, aiding and abetting his buyer to resell the drugs.” 406
F.3d at 463 (citing United States v. Hachette, 245 F.3d 625,
630-42 (7th Cir. 2001)). Consequently, we reject Starks’
multiplicity challenge and turn to his duplicity argument.
B. Duplicity
“Duplicity is the joining of two or more offenses in a
single count.” United States v. Hughes, 310 F.3d 557, 560
(7th Cir. 2002) (quoting United States v. Marshall, 75 F.3d
1097, 1111 (7th Cir. 1996)). “The overall vice of duplicity
is that the jury cannot in a general verdict render its
finding on each offense, making it difficult to determine
whether a conviction rests on only one of the offenses or
both.” United States v. Buchmeier, 255 F.3d 415, 425 (7th
Cir. 2001) (quoting Marshall, 75 F.3d at 1111; United
States v. Blandford, 33 F.3d 685, 699 n.17 (6th Cir. 1994)).
“Additionally, . . . a duplicitous indictment may expose
a defendant to other adverse effects including improper
notice of the charges against him, prejudice in shaping of
evidentiary rulings, in sentencing, in limiting review on
appeal, [and] in exposure to double jeopardy.” Buchmeier,
255 F.3d at 425 (internal quotations and citations omit-
ted).
Any concerns about duplicity in Starks’ indictment
were cured by the prudent actions of the district judge.
The jury instructions properly instructed the jury on the
need to be in unanimous agreement as to whether Starks

-- 7 of 9 --

8 No. 06-2784
obstructed the investigation by either the assault, attempt-
ing to destroy the affidavit or both. The judge wisely
went further by using the special verdict form so that the
record clearly reflects that the jury unanimously found
Starks guilty of obstructing the government through his
actions with the affidavit. See Buchmeier, 255 F.3d at 425
(citing Marshall, 75 F.3d at 1112; United States v.
Trammell, 133 F.3d 1343, 1354-55 (10th Cir. 1998); United
States v. Nattier, 127 F.3d 655, 657 (8th Cir. 1997); United
States v. Cherif, 943 F.2d 692, 701 (7th Cir. 1991) (noting
that the use of jury instructions informing the jury of the
need for an unanimous verdict can cure an otherwise
duplicitous indictment)). We also conclude that there
was no prejudice to Starks in the pretrial or post-trial
portion of the case as the government’s theory of the
case was to pursue both the alleged assault and destruc-
tion of the affidavit. The jury rejected the government’s
assault claim but found Starks guilty as to his actions
with the affidavit. We see no reason for us to set aside
the jury’s decision.
III. CONCLUSION
The defendant’s conviction is A FFIRMED .

-- 8 of 9 --

No. 06-2784 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-22-06

-- 9 of 9 --