United States v. Dominique Outlaw , 464 F. App'x 165 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4625
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOMINIQUE OUTLAW,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:09-cr-00123-IMK-JSK-2)
Submitted: January 5, 2012 Decided: February 8, 2012
Before MOTZ, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stephen D. Herndon, Wheeling, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Brandon S.
Flower, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury indicted Dominique Outlaw for
aiding and abetting Jonathan Heiligh in the assault of a fellow
inmate with a deadly weapon (Count One); assaulting a fellow
inmate with a deadly weapon, specifically, a “shank” (Count
Two); and assaulting a fellow inmate with a deadly weapon,
specifically, a “shod foot” (Count Three), all in violation of
18 U.S.C. § 113(a)(3), 7(3) (2006). Following a jury trial,
Outlaw was convicted of all counts and sentenced to fifty-seven
months’ imprisonment, and he now appeals. Finding no reversible
error, we affirm.
On appeal, Outlaw first contends that his convictions
for two counts of assault with a deadly weapon violate the
Double Jeopardy Clause of the Fifth Amendment. Outlaw argues
that the charged conduct constitutes a single, continuous
offense permitting conviction for only one violation of 18
U.S.C. § 113. Therefore, Outlaw asserts, the superseding
indictment was multiplicitous in violation of the Double
Jeopardy Clause.
An indictment is multiplicitous if it charges the same
crime in two counts, subjecting the defendant to two punishments
for the same crime in violation of the Double Jeopardy Clause.
United States v. Goodine, 400 F.3d 202, 207 (4th Cir. 2005). We
review a double jeopardy claim raised for the first time on
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appeal for plain error. Brecht v. Abrahamson, 507 U.S. 619, 635
(1993); United States v. Sutton, 961 F.2d 476, 479 (4th Cir.
1992). When a challenge is urged for the first time on appeal,
“[i]ndictments and informations are construed more liberally
. . . in support of the sufficiency.” Sutton, 961 F.2d at 479.
“An indictment may divide a course of conduct into
separate assaults only when the Government demonstrates that
‘the actions and intent of [the] defendant constitute distinct
successive criminal episodes, rather than two phases of a single
assault.’” United States v. Thomas, No. 11-4065, slip op. at 8
(4th Cir. Jan. 25, 2012) (published). Reviewing only for plain
error, however, we cannot say that “under current law” Outlaw’s
actions involving two different weapons “obvious[ly] or
clear[ly]” constituted a single assault. United States v.
Knight, 606 F.3d 171, 177 (4th Cir. 2010).
Outlaw next argues that the district court erroneously
denied his motion to dismiss the superseding indictment based on
false testimony before the grand jury. According to Outlaw,
Special Investigative Agent Petrisko, who testified based upon
his review of video surveillance footage capturing the prison
assault, provided false grand jury testimony regarding the
alleged assault. Outlaw disputes Agent Petrisko’s depiction of
the events, arguing that his testimony “falsely exaggerated the
strength of the Government’s case.”
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When reviewing the denial of a motion to dismiss an
indictment, we review a district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Pasquantino, 305 F.3d 291, 294 (4th Cir. 2002). A court may
exercise its supervisory power to dismiss an indictment because
of misconduct before the grand jury if the misconduct “amounts
to a violation of one of those few, clear rules which were
carefully drafted and approved by [the Supreme Court] and by
Congress to ensure the integrity of the grand jury’s functions.”
United States v. Williams, 504 U.S. 36, 46 (1992) (internal
quotation marks and citation omitted).
If a defendant establishes such a violation, dismissal
of an indictment is only warranted if the violation resulted in
prejudice to the defendant. Bank of Nova Scotia v. United
States, 487 U.S. 250, 256 (1988). Such prejudice may be shown
“only if it is established that the violation substantially
influenced the grand jury’s decision to indict, or if there is
grave doubt that the decision to indict was free from the
substantial influence of such violations.” Id. However, “the
mere fact that evidence itself is unreliable is not sufficient
to require a dismissal of the indictment.” Id. at 261; Costello
v. United States, 350 U.S. 363-64 (1956) (holding that “[i]t
would run counter to the whole history of the grand jury
institution” to permit an indictment to be challenged “on the
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ground that there was inadequate or incompetent evidence before
the grand jury.”).
We find that the district court did not err in denying
Outlaw’s motion to dismiss the superseding indictment based upon
false testimony. As the district court correctly noted,
Outlaw’s argument that dismissal of the superseding indictment
was warranted because Agent Petrisko provided false grand jury
testimony amounts to “nothing more than a disagreement with the
witness’s opinions of the facts of the case.”
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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