Case 4:24-cr-40137-RAL Document 94 Filed 06/09/25 Page 1 of 3 PageID #: 496
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA, 4:24-CR-40I37-RAL
Plaintiff,
vs. OPINION AND ORDER GRANTING
MOTION TO STRIKE SURPLUSAGE
LAMONT VICTOR GARRETT,
Defendant.
The Government moves to strike what it considers surplusage in the Superseding
Indictment. Doc. 87. The Government specifically seeks to strike the phrase "and being an
unlawful user of a controlled substance, and knowing he was an unlawful user of a controlled
substance" from the Superseding Indictment. Id. Garrett does not object.
Under Rule 7(c)(1) ofthe Federal Rules of Criminal Procedure, an indictment "must be a
plain, concise, and definite written statement of the essential facts constituting the offense
charged." Fed. R. Crim. P. 7(c)(1). "An indictment is sufficient if it(I)contains the elements of
the charged offense and fairly informs the defendant of the charge against which he or she must
defend and(2)enables him or her to plead doublejeopardy as a bar to further prosecution." United
States V. Stands. 105 F.3d 1565, 1575 (8th Cir.1997). Accordingly, "drop[ping] from an
indictment those allegations that are unnecessary to an offense that is clearly contained within it"
does not result in an unconstitutional amendment to the indictment. United States v. Miller. 471
U.S. 130,144(1985). Indeed,"[ajllegations in the indictment that are not necessary to establish a
violation of a statute are surplusage and may be disregarded if the remaining allegations are
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sufficient to charge a crime." United States v. Mclntosh. 23 F.3d 1454, 1457 (8th Cir. 1994).
Moreover, "where an indictment charges several offenses, or the commission of one offense in
several ways, the withdrawal from the jury's consideration of one offense or one alleged method
of committing it does not constitute a forbidden amendment ofthe indictment." Miller 471 U.S.
at 146.
Federal Rule of Criminal Procedure 7(d) authorizes a district court, "[ujpon the
defendant's motion," to "strike surplusage from the indictment or information." Despite Rule
7(d)'s language, the Government may also move to strike surplusage from an indictment. See
United States v. Augustin. 661 F.3d 1105, 1116 (11th Cir. 2011)(per curiam)("This Court and
the Supreme Court have both recognized that the government may move to strike surplusage from
an indictment."). "A motion to strike surplusage from an indictment is a matter within the
discretion ofthe district court." United States v. Morales. 813 F.3d 1058, 1066(8th Cir. 2016).
Here, the Superseding Indictment charges Garrett with one count of Possession of
Ammunition by a Prohibited Person in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and
924(a)(8). Doc. 59. Section 922(g)(1) makes it unlawful for any person "who has been convicted
in any court of, a crime punishable by imprisonment for a term exceeding one year" to "possess in
or affecting commerce,any firearm or ammunition." Section 922(g)(3) makes it unlawful for any
person "who is an unlawful user of or addicted to any controlled substance" to "possess in or
affecting commerce, any firearm or ammunition." Despite alleging violations of two separate
provisions of 18 U.S.C. § 922(g),the Superseding Indictment does not allege the violations as two
separate counts. Nor should it. In United States v. Richardson,the United States Court ofAppeals
for the Eighth Circuit held that"Congress intended the'allowable unit ofprosecution'[in § 922(g)]
to be an incident of possession regardless of whether a defendant satisfied more than one § 922(g)
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classification." 439 F.3d 421,422(8th Cir. 2006)(en banc)(per curiam). Alleging the violations
of § 922(g)(1) and § 922(g)(3) as separate counts would have been multiplicitous and in violation
of double jeopardy. See United States v. Havnes. 62 F.4th 454. 460 fSth Cir. 20231. Instead, the
Eighth Circuit has instructed that"where a statute specifies two or more ways in which one offense
may be committed, all may be alleged in the conjunctive in one count ofthe indictment, and proof
of any one ofthe methods will sustain a conviction." United States v. Rov,408 F.3d 484,492 n.4
(8th Cir. 2005)(cleaned up and citation omitted). The Government did so here.
The Superseding Indictment presents two distinct theories for a violation of § 922(g), both
of which, if proven beyond a reasonable doubt, could independently support a conviction. The
Government now moves to strike only the portion of the Superseding Indictment alleging a
violation of § 922(g)(3) based on Garrett's alleged status as an unlawful user of a controlled
substance and intends to only prosecute Garrett for a violation of§ 922(g)(1)as sufficiently alleged
in the indictment. Beeause the Government intends only to pursue § 922(g)(1), the allegations
related to Garrett being an unlawful user of a controlled substance "are not necessary to establish
a violation of a statute" and "may be disregarded." Mclntosh. 23 F.3d at 1457. Therefore, it is
ORDERED that the Government's Motion to Strike Surplusage, Doc. 87, is granted. The
phrase "and being an unlawful user of a controlled substance, and knowing he was an unlawful
user of a controlled substance" and the reference to 18 U.S.C. § 922(g)(3) are struck from the
Superseding Indictment.
DATED this day of June, 2025.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE