UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

WEATHERS, MARC K.


98-3006a

D.C. Cir. 1999


*	*	*


Garland, Circuit Judge: Defendant Marc Weathers was  found guilty on
all counts of a six-count indictment arising out  of his attempts to
arrange for the murder of several witnesses  and a prosecutor. He
contends that two of his six convictions  should be vacated because
each charges an offense also  included in the remaining four counts.
We conclude that  defendant waived this claim by failing to raise it
before trial.  We find that defendant's further contention, that his
attorney  provided ineffective assistance by failing to assert this
claim  in a timely manner, must be remanded to the district court  for
an initial determination.


I


In a case filed in the Superior Court of the District of  Columbia in
1996, Assistant United States Attorney (AUSA)  Bernadette Sargeant
obtained an indictment charging Weath- ers with thirty-seven counts of
rape and related offenses  involving five victims, including a
thirteen-year-old child.1  The presiding judge ordered the five rape
cases severed for  separate trials. Prior to trial on the first rape
case, an  informant told Sargeant that defendant had plotted to kill
the  five victims to prevent them from testifying. The trial was 
postponed, and after investigation Sargeant obtained a second 
Superior Court indictment charging Weathers with two  counts of


In March 1997, just weeks before the rescheduled rape trial  was set to
begin, a second informant told the FBI that  Weathers was trying to
hire him to arrange the killing of both  the rape victims and the
prosecutor. At the government's  request, the informant met with
Weathers and recorded a  conversation in which defendant said he would
pay $1,000 in  advance and $19,000 after AUSA Sargeant was killed. The




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n 1 The United States Attorney's Office for the District of Colum- bia
prosecutes offenses in both the United States District Court and  the
local Superior Court. See United States v. Brooks, 966 F.2d  1500,
1503 (D.C. Cir. 1992).


plan required the informant to hire a hit man, and provided  that
defendant's friend on the outside, Maurice Logan, would  make the
necessary payments. 9/30/97 Tr. at 6-8, 10-11, 15- 19.


On March 19, 1997, Detective Larry Best of the Metropoli- tan Police
Department, posing as a hit man, met with Weath- ers in jail and
discussed the details of the murder-for-hire  scheme. Weathers
instructed Detective Best that he should  first kill the victim in the
upcoming trial, who lived on Hayes  Street. "I need Hayes done first,"
defendant said. App. 19;  9/29/97 Tr. at 138-40. "Maybe you can blow
that [expletive  deleted] up." App. 23. With respect to AUSA Sargeant,
 whom he referred to as the "DA," Weathers first said that  killing
her "ain't gonna do nothing but slow the proces[s] ...  cause see if
she gone they just put another one in." Id. at 19.  Later, however,
defendant said: "I just want her gone. You  know what I'm saying. I
just want 'em gone. Set an  example.... I don't really got no ...
special way. I just  want it done. You know what I'm saying. Easiest
way for  you." Id. at 20, 22. Weathers told Best that he could get his
 payment for the killings from Weathers' friend Logan and a  woman
named Mattie. Id. at 15-19.


On March 26, 1997, the FBI conducted a search of Maurice  Logan's
apartment, in which it found a letter from defendant  dated March 9.
9/29/97 Tr. at 150-53. In that letter, Weath- ers urged Logan to burn
down the witnesses' homes to keep  them from testifying. The letter
read, in part:


[T]hese people are trying to give me life without parole,  and we both
know I can't do that number, so I need you  to get at a couple of
these bitches for me. You don't  have to kill them, just burn they
house down while they  in it, or something, so they won't come to
court. You  know if the situation was reversed, I'd do it for you.... 
[T]hey don't have a case without these bitches, and they  ain't going
to spend no money hiding everybody.


Id. at 180-81.


On April 22, 1997, Weathers was indicted in United States  District
Court for plotting against the witnesses and prosecu-


tor in his Superior Court cases. The indictment charged him  with: (1)
using facilities of interstate commerce in the com- mission of
murder-for-hire, in violation of 18 U.S.C. s 1958;  (2) threatening to
injure a person (the rape victims), in  violation of D.C. Code s
22-2307; (3) obstructing justice  (based on the threats against the
rape-victim witnesses), in  violation of D.C. Code s 22-722(a)(6); (4)
threatening a feder- al official (AUSA Sargeant), in violation of 18
U.S.C. s 115;  (5) threatening to injure a person (Sargeant), in
violation of  D.C. Code s 22-2307; and (6) obstructing justice (based
on  the threats against Sargeant), in violation of D.C. Code  s
22-722(a)(6). App. 11-14.2 The defendant was convicted  on all counts,
and was sentenced to: (1) ten years imprison- ment on Count One; (2)
80-240 months on each of Counts  Two and Five; (3) fifteen years to
life on both Counts Three  and Six; and (4) five years imprisonment on
Count Four.  The court ordered Counts Two, Three, Five, and Six to run
 consecutive to each other, but concurrent with consecutive  sentences
on Counts One and Four.


II


Defendant contends that his indictment charged the same  offense in
more than one count, a problem known as "multi- plicity." See 1A
Charles Alan Wright, Federal Practice &  Procedure ss 142, 145, at
7-8, 86 (3d ed. 1999). Because the  Double Jeopardy Clause protects
not only against "a second  prosecution for the same offense" after
acquittal or convic- tion, but also against "multiple punishments for
the same  offense," North Carolina v. Pearce, 395 U.S. 711, 717
(1969),  defendant contends that two of his convictions must be vacat-
ed. See Jones v. Thomas, 491 U.S. 376, 381 (1989). Whether  defendant
has in fact been punished twice for the same  offense, however,
depends upon what "the legislature intend-




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n 2 Federal and District of Columbia offenses may be charged in  the
same indictment and prosecuted in the United States District  Court
for the District of Columbia. D.C. Code s 11-502(3); see  United
States v. Sumler, 136 F.3d 188, 190 (D.C. Cir. 1998).


ed." Id.; see Missouri v. Hunter, 459 U.S. 359, 366-68  (1983).3


Defendant's first contention is that his conviction on Count  Four for
threatening a federal official (AUSA Sargeant) in  violation of 18
U.S.C. s 115, and his conviction on Count Five  for threatening to
injure a person (also Sargeant) in violation  of D.C. Code s 22-2307,
constitute two convictions for the  same offense. To determine whether
Congress intended two  statutory provisions to proscribe the same
offense, the Su- preme Court has applied the rule set forth in
Blockburger v.  United States: "[W]here the same act or transaction
consti- tutes 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." 284 U.S. 299, 304 (1932); see  Rutledge v. United
States, 517 U.S. 292, 297 (1996); Hunter,  459 U.S. at 366-67.
Defendant contends that the offenses  charged under 18 U.S.C. s 115
and D.C. Code s 22-2307  constitute a single offense under


Section 115(a) makes it a crime to "threaten[ ] to assault,  kidnap, or
murder, a United States official, ... with intent to  impede,
intimidate, or interfere with such official, ... while  engaged in the
performance of official duties...." D.C.  Code s 22-2307 makes it a
crime, within the District of  Columbia, to "threaten[ ] ... to injure
the person of another."  As is apparent from a reading of the two
statutes, some facts  required to prove Count Four are not required to
prove  Count Five (for example, that the threatened person is "a 
United States official" and that the threat was made with  "intent to
impede"). Defendant contends, however, that  there is no fact required
to prove Count Five that is not also  required to prove Count Four. If
true, this would make the 




__________

n 3 Although the Double Jeopardy Clause does not bar multiple 
punishments under federal and state law, a defendant may not be 
punished twice for the same offense under both the United States 
Criminal Code and the District of Columbia Criminal Code because  both
were adopted by Congress. See Sumler, 136 F.3d at 191;  United States
v. Shepard, 515 F.2d 1324, 1331 (D.C. Cir. 1975).


local crime charged in Count Four the equivalent of a "lesser  included
offense" of the federal crime charged in Count Five.  Therefore, an
indictment charging both would fail the Block- burger test. See
Rutledge, 517 U.S. at 297.


The government disputes this conclusion. It contends that  the D.C.
statute does have an additional element not con- tained in the federal
statute. Pointing to model jury instruc- tions for D.C. Code s
22-2307, and to United States v. Baish,  460 A.2d 38, 42 (D.C. 1983),
the government argues that the  D.C. statute requires a threat of
serious bodily harm. By  contrast, the federal statute is violated by
a threat of mere  "assault," which, the government contends, may
involve a  threat of nothing more serious than being spat upon or hit 
with an egg. Gov't Br. at 15-16 & n.14. Since (if correct)  this means
the D.C. law has an element not found in the  federal statute (the
threat of serious harm), the government  contends that charging and
convicting defendant of both does  not fail Blockburger.


Defendant's second contention is that we must vacate ei- ther his
conviction on Count Three, for violating D.C. Code  s 22-722(a)(6) by
obstructing justice based on the threats he  made against the
rape-victim witnesses, or his conviction on  Count Six, for violating
the same statute based on the threats  he made against Sargeant. He
argues that these also consti- tute a single offense. Where two
violations of the same  statute rather than two violations of
different statutes are  charged, courts determine whether a single
offense is in- volved not by applying the Blockburger test, but rather
by  asking what act the legislature intended as the "unit of 
prosecution" under the statute. See Sanabria v. United  States, 437
U.S. 54, 70 n.24 (1978); see also Bell v. United  States, 349 U.S. 81
(1955) (holding that interstate transporta- tion of two women on same
trip in same vehicle constitutes  single violation of Mann Act, 18


D.C. Code s 22-722(a)(6) provides that


[a] person commits the offense of obstruction of justice if  that
person [c]orruptly, or by threats of force, any way  obstructs or
impedes or endeavors to obstruct or impede 


the due administration of justice in any official proceed- ing.


Defendant contends that the unit of prosecution intended by  the
statute is an "official proceeding," and hence that any  number of
threats against any number of witnesses on any  number of occasions
may be charged only once, as long as  they all relate to a single such
proceeding. The government  responds by asserting that the District of
Columbia Court of  Appeals has routinely permitted multiple
convictions for ob- struction of justice (albeit under a different
subsection of the  statute), where the defendant has impeded multiple
witnesses  in a single trial. See Gov't Br. at 22 (citing Skyers v.
United  States, 619 A.2d 931 (D.C. 1993) (prosecution under D.C.  Code
s 22-722(a)(1)); Smith v. United States, 591 A.2d 229  (D.C. 1991)
(same)). Hence, in the government's view,  Counts Three and Six are


III


Although it denies that its indictment is multiplicitous, the 
government argues that we need not resolve the merits of  defendant's
multiplicity challenges because he failed to raise  them before trial,
or at any time prior to this appeal. We  agree. Rule 12(b)(2) of the
Federal Rules of Criminal Proce- dure states:


Any defense, objection, or request which is capable of  determination
without the trial of the general issue may  be raised before trial by
motion ..... The following  must be raised prior to trial: ...
Defenses and objec- tions based on defects in the indictment or
informa- tion....


Fed. R. Crim. P. 12(b)(2). Rule 12(f) provides that "[f]ailure  by a
party to raise defenses or objections or to make requests  which must
be made prior to trial ... shall constitute waiver  thereof, but the
court for cause shown may grant relief from  the waiver." Fed. R.
Crim. P. 12(f). According to Circuit  precedent, multiplicity claims
of the kind presented here are  defenses based on "defects in the
indictment" within the  meaning of Rule 12(b)(2), and hence are waived
under Rule 


12(f) if not raised prior to trial. This means that unless  "cause" is
shown, they "may not later be resurrected" on  appeal. Davis v. United
States, 411 U.S. 233, 242 (1973).  Because defendant has asserted no
"cause" for granting relief  from the waiver (other than his claim of
ineffective assistance  of counsel, which we discuss separately
below), we must  affirm Weathers' convictions.


In United States v. Harris, 959 F.2d 246, 250-51 (D.C. Cir.  1992), the
defendants challenged their convictions for both  conspiracy to
distribute cocaine and conspiracy to use fire- arms during a drug
trafficking offense. Those convictions  subjected them to multiple
sentences for the same offense,  defendants argued, since under
Blockburger the counts were  "substantially identical because there
was only one alleged  conspiracy." Id. at 250. Defendants, however,
had "not even  allude[d] to such an objection prior to a motion they
made  midway through the trial." Id. We therefore held that  under
Rule 12, defendants had waived their claims and could  not revive them


In reaching this result, Harris expressly rejected the argu- ment "that
a multiplicity objection is not included within the  defects
contemplated by Rule 12(b)(2), because it is a defect  in the
sentencing, not in the indictment." Id. To the con- trary, the court
held that "if the multiplicity objection could  have been raised based
on the indictment, Rule 12(b)(2)  applies." Id. "The purpose of the
rule," Harris said, "is to  compel defendants to object to technical
defects in the indict- ment early enough to allow the district court
... to permit  the prosecution to accommodate meritorious challenges,
and  to do so without disrupting an ongoing trial." Id. The court 
then quoted extensively from the Supreme Court's opinion in  Davis v.
United States, which identified the same underlying  purpose for the
waiver provision of Rule 12:


If [Rule 12(b)(2)] time limits are followed, inquiry into an  alleged
defect may be concluded and, if necessary, cured  before the court,
the witnesses, and the parties have  gone to the burden and expense of
a trial. If defendants  were allowed to flout its time limitations, on
the other 


hand, there would be little incentive to comply with its  terms when a
successful attack might simply result in a  new indictment prior to
trial. Strong tactical consider- ations would militate in favor of
delaying the raising of  the claim in the hopes of an acquittal, with
the thought  that if those hopes did not materialize, the claim could
be  used to upset an otherwise valid conviction at a time  when
reprosecution might well be difficult.


Id. (quoting Davis, 411 U.S. at 241) (alteration in Harris).  "A claim
of multiplicity," we concluded, "at least in the typical  case where
the defect appears on the face of the indictment,  falls clearly
within the letter and spirit of the rule." Id. at  250-51.


Two years later, in United States v. Clarke, 24 F.3d 257  (D.C. Cir.
1994), we applied Harris to defendants' claim that  they had been
convicted twice for the violation of a single  statute. "
'[O]bjections based on defects in the indictment or  information,' "
Clarke said, "including an objection to the  indictment on the grounds
of multiplicity, must be raised  before trial." Id. at 261 (quoting
Fed. R. Crim. P. 12(b)(2) and  citing Harris, 959 F.2d at 250-51).
Because defendants had  not objected to the indictment until after the
jury was select- ed, the court held that "any complaint based on
multiplicity  was waived." Id. (citing Fed. R. Crim. P. 12(f) and
Davis, 411  U.S. at 242). See also United States v. Scott, 464 F.2d
832,  833 (D.C. Cir. 1972) ("[C]onstitutional immunity from double 
jeopardy is a personal right which, if not affirmatively plead- ed by
the defendant at the time of trial, will be regarded as  waived.")




__________

n 4 In United States v. Anderson (Anderson I), 39 F.3d 331, 353- 54
(D.C. Cir. 1994), a panel of this court held that defendant's claim 
that "his sentence on multiplicitous counts [was] illegal" could be 
raised on appeal even though it had not been raised before trial.  The
full court, however, granted rehearing en banc and vacated the 
judgment. Id. at 361 (order of Feb. 9, 1995). As a consequence,  the
panel's decision has "no precedential value." National Fed'n of  Fed.
Employees v. Greenberg, 983 F.2d 286, 293 (D.C. Cir. 1993).  Rehearing
en banc was "granted on the limited issue" of the merits 


This case is on all fours with Harris and Clarke. Weathers  challenges
his convictions on multiplicity grounds; he makes  both the
two-statutes-charge-one-offense claim considered in  Harris and the
single-statute-charges-only-one-offense claim  reviewed in Clarke.
Like defendants Harris and Clarke,  Weathers did not object before
trial. And as in Harris and  Clarke, the alleged defect appears on the
face of the indict- ment--a point which defendant concedes and upon
which he  even insists, see Def. Br. at 20; Reply Br. at 8, 11, 18.5 
Counts Four and Five expressly charge Weathers with  threatening the
same person (Sargeant) during the same time  period, and specifically
list the two statutes assertedly violat- ed. App. 13. Since a
Blockburger claim focuses exclusively  on the statutory elements of
the offenses, see United States v.  White, 116 F.3d 903, 931 (D.C.
Cir. 1997), the face of the  indictment presents all the information
defendant required to  notice the alleged error. Similarly, Counts
Three and Six  expressly charge Weathers with violating a single
statute by  impeding the same proceedings during the same time period,
 the only difference being that Count Three refers to the  threats
against the rape-victim witnesses while Count Six  refers to the
threats against AUSA Sargeant. App. 12-14.  If there is a multiplicity
problem in these counts, then it is, as  defendant himself insists,
"clear from the plain language of  s 22-722(a)(6) and the indictment,"
Reply Br. at 18, and  therefore subject to Rule 12(b)(2) and (f).6




__________

n of the defendant's multiplicity claim, and the court did not address 
the question of waiver. United States v. Anderson (Anderson II),  59
F.3d 1323, 1325 (D.C. Cir. 1995) (en banc); see Whitacre v.  Davey,
890 F.2d 1168, 1172 (D.C. Cir. 1989) ("We cannot count as  controlling
a decision that never touched upon the issue we con- front.").
Accordingly, Harris and Clarke stand as the law of the  Circuit.


5 Defendant insists that the multiplicity violation is clear on the 
face of the indictment as support for his argument that it consti-
tutes plain error under Fed. R. Crim. P. 52(b). See discussion infra 
pp. 11-12.


6 Counts Three and Six each charged Weathers with impeding  two
proceedings, the original (unsevered) Superior Court rape case 


The "spirit of the rule" identified in Harris is also consis- tent with
a finding of waiver in this case. See Harris, 959  F.2d at 250-51. Had
defendant raised his Blockburger claim  before trial, the government
could have filed a superseding  indictment, replacing Counts Four and
Five with three new  counts for making threats against Sargeant on
three separate  occasions--the threat recorded by the informant, by
the  undercover detective, and in the letter found in Logan's 
apartment. See generally United States v. Lindsay, 47 F.3d  440, 444
(D.C. Cir. 1995). Similarly, the government could  have cured any
defect based on a "per proceeding" unit of  prosecution for
obstruction by replacing Counts Three and  Six with five new counts,
one for each of the five severed rape  trials. As the Supreme Court
said in Davis, if Rule 12(b)(2)'s  "time limits [had been] followed,"
the alleged defect might  have been "cured before the court, the
witnesses, and the  parties [went] to the burden and expense of a
trial" by the  "simpl[e]" expedient of "a new indictment prior to
trial."  Davis, 411 U.S. at 241 (quoted in Harris, 959 F.2d at 250).


In his reply brief, defendant urges us not to follow Harris, 
contending that the Supreme Court's subsequent decision in  United
States v. Olano, 507 U.S. 725 (1993), puts Harris'  continuing
validity in doubt. Olano concerned the meaning of 




__________

n and the Superior Court obstruction case. App. 12-14. Hence, as  the
government contends, if defendant had timely objected, any 
multiplicity problem might have been repairable through a bill of 
particulars stating that each count referred to a different Superior 
Court case. The fact that the problem was curable, however, does  not
take it outside the scope of Rule 12(b)(2). To the contrary, the 
purpose of the Rule is to ensure that "inquiry into an alleged defect 
may be concluded and, if necessary, cured." Davis, 411 U.S. at 241. 
See Clarke, 24 F.3d at 261 (holding multiplicity claim waived  because
not raised before trial notwithstanding trial court's attempt  to cure
by instructing jury that separate counts referred to drugs  found at
different locations). As long as "the multiplicity objection  could
have been raised based on the indictment, Rule 12(b)(2)  applies."
Harris, 959 F.2d at 250 (emphasis added). Weathers  does not dispute
that he could have raised his multiplicity objection  based on the


Federal Rule of Criminal Procedure 52(b),7 rather than Rule  12. Rule
52(b), the Court said, gives courts of appeals "a  limited power to
correct errors that were forfeited because  not timely raised in
district court." Id. at 731. "Forfeiture,"  the court noted, is
different from "waiver." When an error is  forfeited, it is not
"extinguish[ed]" but instead is subject to  review under the plain
error standard of Rule 52(b). Id. at  733. When an error is waived, on
the other hand, it is  extinguished; the result is that there is no
error at all and an  appellate court is without authority to reverse a
conviction on  that basis. Id. at 733-34. Finally, "[w]hereas
forfeiture is  the failure to make the timely assertion of a right,"
Olano  described "waiver [as] the 'intentional relinquishment or 
abandonment of a known right.' " Id. at 733 (quoting John- son v.


Weathers contends that the failure to raise a multiplicity  (or any
other) claim before trial cannot by itself amount to  the intentional
relinquishment of a known right. Thus, he  argues, that failure must
be considered a forfeiture and not a  waiver. From this he concludes
that Olano requires that his  appeal be reviewed for plain
error--effectively overturning  Harris' holding that a failure to come
within Rule 12(b)(2)'s  time limits results in the waiver of any claim
covered by that  Rule.


We cannot agree that Harris has been annulled by Olano.  First, we have
continued to apply Harris to multiplicity  claims even after Olano was
decided in 1993. See Clarke, 124  F.3d at 261.8 More broadly, we have
continued to hold that  other claims within the compass of Rule 12(f)
are waived if  not timely raised. See United States v. Sobin, 56 F.3d
1423, 




__________

n 7 Rule 52(b) states: "Plain errors or defects affecting substan- tial
rights may be noticed although they were not brought to the  attention
of the court."


8 Although Clarke did not discuss Olano and Rule 52(b) in the  course
of finding defendants' multiplicity claim barred by waiver, it  did
discuss both in deciding that another of defendants' claims was 
governed by the plain error standard. See Clarke, 24 F.3d at 266.


1427 (D.C. Cir. 1995) (holding that untimely claims under  Rule
12(b)(3) are waived).


Second, Olano itself recognized that there is a difference  between
waiver and forfeiture. While Rule 52(b) does not  mention "waiver,"
Rule 12(f) expressly does. Yet, on defen- dant's reading, the waiver
language of Rule 12(f) would add  nothing to the forfeiture principle
of Rule 52(b). Defendant's  "waiver" of his multiplicity claim under
Rule 12(f) would have  no consequence other than that it would be
reviewed for plain  error, the same result as if there were no Rule
12(f). We  cannot conclude that the Supreme Court intended to render 
Rule 12(f) a nullity in a decision that did not even mention it.


Finally, although in the context of its discussion of Rule  52(b) Olano
said that waiver is the "intentional relinquish- ment or abandonment
of a known right," the Court also noted  that "whether the defendant's
choice must be particularly  informed or voluntary ... depend[s] on
the right at stake."  Olano, 507 U.S. at 733. The Court further stated
that  "[a]lthough in theory it could be argued that if the question 
was not presented to the trial court no error was committed  by the
trial court, ... this is not the theory that Rule 52(b)  adopts." Id.
at 733 (emphasis added) (internal quotation  omitted). The key
question, then, is what theory Rule 12  adopts for the rights that
come within Rule 12(b)(2). That is  not a question we answered on our
own in Harris; with  respect to that issue we did nothing more than
follow the path  laid down by the Supreme Court in Davis.


Davis involved a postconviction attack on a defendant's  indictment,
based on the allegation that there had been  unconstitutional
discrimination in the selection of the grand  jury that issued it. 411
U.S. at 234-35. Although the  defendant had failed to raise the point
at trial, he contended  that he had not "understandingly and knowingly
waived his  claim." Id. at 236 (citing Zerbst, 304 U.S. 458) (internal
 quotation omitted). He also cited a prior case, Kaufman v.  United
States, 394 U.S. 217 (1969), in which the Court had  held that a
failure to raise a Fourth Amendment claim on 


direct appeal did not bar postconviction relief. 411 U.S. at  239.9 The
dissent agreed with the defendant, concluding that  in the absence of
an intentional relinquishment of a known  right, defendant's claim
should be subject to plain error  analysis under Rule 52(b) rather
than waiver under Rule 12.  Id. at 245, 252, 254-57 (Marshall, J.,
dissenting).


The Court, however, did not agree. It conceded that  defendant had
alleged the deprivation of a "substantial consti- tutional right," id.
at 243, but held that Rule 12(b)(2) "[b]y its  terms ... applies to
both procedural and constitutional de- fects in the institution of
prosecutions." Id. at 236. It also  acknowledged its prior opinion in
Kaufman, but noted that  there it "was not dealing with the sort of
express waiver  provision contained in Rule 12(b)(2) which
specifically pro- vides for the waiver of a particular kind of
constitutional  claim if it be not timely asserted." Id. at 239-40.10
Where  Congress "had not spoken on the subject of waiver," Davis 
said, the Court might adopt its own "particular doctrine of  waiver."
Id. at 242. The "express waiver provision" of Rule  12(b)(2), however,
was a different matter. Id. at 240. That  Rule was "promulgated by
this Court and ... 'adopted' by  Congress," and it "governs by its
terms the manner in which  the claims of defects in the institution of
criminal proceedings  may be waived." Id. at 241. According to those
terms, the  Court held, an untimely claim is waived and "may not later
be  resurrected, either in the criminal proceedings or in federal 
habeas, in the absence of the showing of 'cause' which that  Rule
requires." Id. at 242. See also Peretz v. United States,  501 U.S.
923, 936 (1991) (citing United States v. Bascaro, 742  F.2d 1335, 1365
(11th Cir. 1984), for the proposition that  "absence of objection is




__________

n 9 Kaufman was subsequently overruled in Stone v. Powell, 428  U.S.
465 (1976).


10 At the time the Court decided Davis, the waiver provision  now in
Rule 12(f) was contained in Rule 12(b)(2) itself. See Fed. R.  Crim.
P. 12(b)(2) (1971).


11 Defendant cites the pre-Davis case of Green v. United  States, 355
U.S. 184 (1957), as one that applied the intentional and 


In sum, Olano and Davis (and therefore Harris) are not  inconsistent
with each other. Although Olano indicates that  untimely objections
are generally regarded as forfeitures  subject to Rule 52(b), Davis
dictates that untimely objections  that come within the ambit of Rule
12(b)(2) must be consid- ered waivers and may not be revived on
appeal. We cannot  conclude that the Court intended Olano, a case
which men- tioned neither Rule 12 nor Davis, to overrule Davis by 
redefining sub silentio the meaning of the word "waiver" in  Rule




__________

n knowing standard to waivers of Double Jeopardy rights. Reply Br.  at
4-5. The defendant in Green was tried for first degree murder  and the
lesser included offense of second degree murder. The jury  convicted
him of the latter but was silent as to the former. Defen- dant
appealed his conviction on the second degree charge, which  was
overturned on insufficiency of the evidence grounds. 355 U.S.  at
185-86. On remand, defendant was retried and convicted on the  first
degree murder charge despite his pre-trial plea of former  jeopardy.
Id. at 186. The Court held the second conviction a  violation of the
Double Jeopardy Clause, rejecting the government's  contention that
merely by appealing his second degree murder  conviction defendant had
voluntarily and knowingly " 'waived' his  constitutional defense of
former jeopardy to a second prosecution on  the first degree murder


Green does not assist defendant in the instant case. Unlike the 
provision in Rule 12 that expressly makes the failure to timely 
object a waiver, there is no rule that makes the filing of an appeal a
 waiver. Nor is there any logical reason to regard an appeal as a 
waiver. Rather, as the Court ultimately concluded, the notion that  an
appeal constitutes a waiver was nothing more than the "wholly 
fictional" construct of government counsel. Id. at 192.


12 Of course, even if we thought it did, it is not for the lower 
courts to conclude that the Supreme Court's "more recent cases  have,
by implication, overruled an earlier precedent." Agostini v.  Felton,
521 U.S. 203, 237 (1997). "If a precedent of this Court has  direct
application in a case, yet appears to rest on reasons rejected  in
some other line of decisions, the Court of Appeals should follow  the
case which directly controls, leaving to this Court the preroga- tive
of overruling its own decisions." Id. (quoting Rodriguez de 


Finally, defendant seeks some support for his position in  the
post-Davis, pre-Olano case of United States v. Broce, 488  U.S. 563
(1989). But if anything, Broce is contrary to defen- dant's view.
Broce held that a defendant's plea of guilty  under Federal Rule of
Criminal Procedure 11 waives any  multiplicity challenge he may have
had to his indictment.  Although waiver of multiplicity claims as part
of a broader  voluntary plea of guilty is, of course, distinguishable
from  waiver based solely on an untimely objection, in Broce the 
Court expressly rejected the defendants' claim that they had  not
intentionally and knowingly waived their multiplicity chal- lenge
because they had not known of it. Id. at 572-74.13


Defendant focuses on the fact that Broce distinguished an  earlier
case, Menna v. New York, 423 U.S. 61 (1975), in which  the Court had
refused to find that defendant's plea of guilty  waived a claim that
he had previously been prosecuted for the  same crime. But Broce
distinguished Menna on the ground  that the nature of defendant's
claim in the latter case "pre- cluded" the government "from haling a
defendant into court  on a charge" at all. Broce, 488 U.S. at 575
(quoting Menna,  423 U.S. at 62). That is, Menna's claim of former
jeopardy  was "a claim that ... the charge [was] one which the State 
may not constitutionally prosecute." Broce, 488 U.S. at 575  (quoting
Menna, 423 U.S. at 63 n.2). A claim of multiplicity,  by contrast,
does not bar prosecution or prevent the govern- ment from haling a
defendant into court--as the defendant  himself recognizes, Reply Br.
at 6-7. See Ohio v. Johnson,  467 U.S. 493, 500 (1984) ("While the
Double Jeopardy Clause  may protect a defendant against cumulative
punishments for  convictions on the same offense, the Clause does not
prohibit  the State from prosecuting respondent for such multiple 
offenses in a single prosecution."); see also Ball v. United 




__________

n


Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484  (1989))
(alteration omitted).


13 Defendants' trial counsel submitted an affidavit stating that  he
had not discussed his clients' Double Jeopardy rights with them,  nor
had his clients considered the possibility of raising that defense 
before entering their plea. Id. at 572-73.


States, 470 U.S. 856, 859-61 & n.7 (1985). There is thus  nothing in
Broce, or in Menna, to bar the application of Rule  12's waiver
provision to Weathers' claim of multiplicity.14


In sum, Harris and Davis continue to guide our course  here. Together,
they compel the conclusion that defendant  has waived his multiplicity
claims by failing to raise them  before trial.


IV


Defendant contends that his trial counsel's failure to raise  his
multiplicity claims in a timely manner constituted ineffec- tive
assistance under Strickland v. Washington, 466 U.S. 668  (1984). The
government argues, and defendant acknowl- edges, that when a defendant
has not previously raised such a  claim before the district court, our
general practice is to  remand it for an evidentiary hearing. Gov't
Br. at 25; Def.  Br. at 21; see United States v. Soto, 132 F.3d 56, 59
(D.C. Cir.  1997); United States v. Fennell, 53 F.3d 1296, 1304 (D.C.
Cir.  1995). Defendant notes, however, that there is an exception  to
this usual practice where no factual issues are in dispute  and the
proper disposition is clear. See Soto, 132 F.3d at 59.  In his reply
brief, Weathers contends that this is such an  exceptional case
because "the government raises no factual 




__________

n 14 Indeed, unlike a claim of multiplicity, a claim of former 
jeopardy like that at issue in Menna may not fall within Rule 
12(b)(2) at all. But see Scott, 464 F.2d at 833. The Advisory 
Committee Notes regarding Rule 12(b)(1) and (b)(2) specifically  state
that "such matters as former jeopardy, former conviction,  [and]
former acquittal" fall within the permissive category of de- fenses
"which at the defendant's option may be raised by motion,  failure to
do so, however, not constituting a waiver." Fed. R. Crim.  P. 12
Advisory Committee Note (1944 Adoption) (Note to Subdivi- sion (b)(1)
and (2)), 18 U.S.C. App., p. 744. These three prohibi- tions all arise
out of the Double Jeopardy Clause's successive  prosecution prong, see
United States v. Andrews, 146 F.3d 933, 936  n.3 (D.C. Cir. 1998).
They are therefore distinguishable from a  claim of multiplicity (not
mentioned by the Advisory Committee)  which, to the extent it sounds
in Double Jeopardy, is rooted in the  multiple punishments prong. See


disputes or arguable trial strategy that would limit review by  this
Court." Reply Br. at 9.


A Strickland claim has two components. First, "the defen- dant must
show that counsel's performance was deficient."  466 U.S. at 687.
Second, "the defendant must show that the  deficient performance
prejudiced the defense." Id. With  regard to the first requirement,
"the defendant must over- come the presumption that ... the challenged
action might  be considered sound trial strategy." Id. at 689
(internal  quotation omitted).


Notwithstanding the argument made in his reply brief, at  oral argument
defendant conceded that his trial counsel's  failure to raise the
multiplicity claims before trial might have  been predicated on a
tactical choice. As discussed in Part  III, had defense counsel raised
the claims pretrial, not only  might the defects have been repaired,
see supra note 6, they  might have been repaired by increasing the
number of counts  arrayed against defendant, see supra page 11. Faced
with  that possibility, defense counsel might well have opted to 
leave the indictment as it stood rather than risk making  matters
worse for his client. Recognizing that defense coun- sel's silence may
therefore have represented a strategic deci- sion, at oral argument
defendant changed course and joined  the government in requesting a
remand of his ineffective  assistance claim for initial determination
by the district court.  That is clearly the proper disposition of this
issue. See  Fennell, 53 F.3d at 1304 (stating that ineffective
assistance  claim "cannot be resolved without a hearing in district
court"  where defense counsel's decisions "could have involved a 


V


For the foregoing reasons, we hold that defendant has  waived his
multiplicity claims. His charge of ineffective  assistance of counsel
is remanded to the district court.