US v. Leland Nielsen, III

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:13-cr-00558-TLW-1 Copies to all parties and the district court/agency. [999746496].. [14-4650]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4650

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LELAND VICTOR NIELSEN, III,
Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Terry L. Wooten, Chief District
Judge. (3:13-cr-00558-TLW-1)

Argued:

September 17, 2015

Before DUNCAN
Circuit Judge.

and

DIAZ,

Decided:

Circuit

Judges,

and

February 2, 2016

DAVIS,

Senior

Affirmed
in
part,
vacated
in
part,
and
remanded
with
instructions by unpublished opinion.
Senior Judge Davis wrote
the opinion, in which Judge Duncan and Judge Diaz joined.

ARGUED: Casper Fredric Marcinak, III, SMITH MOORE LEATHERWOOD,
LLP, Greenville, South Carolina, for Appellant.
James Hunter
May, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
ON BRIEF: William N. Nettles, United
States Attorney, Julius N. Richardson, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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DAVIS, Senior Circuit Judge:
This

case

arises

from

the

conviction

of

Leland

Victor

Nielsen, III, on four counts of aggravated sexual abuse of a
minor by force in violation of 18 U.S.C. § 2241(a), (c) (2012),
and four counts of sexual abuse of a minor in violation of 18
U.S.C. § 2243(a) (2012), based on the same conduct.

On appeal,

Nielsen

First,

presents

two

issues

for

our

review.

he

challenges the district court’s denial of his motion to suppress
statements made to federal agents.
convictions are multiplicitous.

Second, he contends that his
For the reasons stated below,

we affirm the district court’s denial of Nielsen’s motion to
suppress but vacate his conviction and sentence on Counts 2, 4,
6,

and

8

for

sexual

abuse

of

a

minor

as

multiplicitous

in

violation of the Double Jeopardy Clause of the Fifth Amendment.
Consequently, affirming in part and vacating in part, we remand
the case for the entry of an amended judgment.
I.
A.
On May 22, 2013, the FBI received a report of potential
sexual assaults occurring at the Fort Jackson Army installation
in Columbia, South Carolina.

Twelve-year-old B.R. had told her

guidance counselor that she had been sexually assaulted by her
thirty-one-year-old uncle, Leland Nielsen, III, at her family’s
home on Fort Jackson.

Nielsen, who was married to the sister of
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B.R.’s mother, also lived in the home.
proceeded

to

the

Fort

Jackson

A team of FBI agents

residence

to

investigate

the

allegations.
Nielsen was not at the residence when the agents arrived,
but some family members were present and gave consent for the
agents

to

Nielsen’s

enter

the

house.

mother-in-law

to

Agent

call

Michael

Nielsen

and

home, but not to tell him the FBI was there.

Stansbury
ask

him

asked

to

come

Nielsen’s mother-

in-law called Nielsen and falsely told him that he needed to
come home due to a medical emergency involving his sister-inlaw.
Agent Robert Waizenhofer waited in front of the house for
Nielsen to arrive.

When Nielsen arrived, at approximately 8:00

p.m., Agent Waizenhofer approached him as he exited his car.
The two began speaking in the driveway.

Agent Waizenhofer had

not drawn his gun, and he was not wearing any FBI insignia.

He

told Nielsen that he was not in trouble and asked him about
B.R.’s allegations.
B.R.

near

the

Nielsen began admitting to sexual acts with

start

of

the

interview,

and

Agent

continued to question Nielsen to elicit details.
interview,

Agent

Waizenhofer

attempted

4

to

Waizenhofer

Throughout the

“empathize”

with

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J.A. 48. 1

Nielsen in an effort to open up conversation with him.

Agent Waizenhofer was later joined by Agent Stansbury, and
the agents took turns asking Nielsen questions.
during

the

interview,

Agent

Stansbury

aggressive in his questioning.

became

At some point
more

direct

or

It had become apparent to the

agents that B.R. had performed oral sex on Nielsen but Nielsen
had not expressly admitted this.

Agent Stansbury thus directly

questioned Nielsen on that point, stating “she sucked your dick.
Didn’t she?

She sucked your dick.”

J.A. 159.

At another point

during the interview, the agents sought help from Agent Craig
Janikowski, who was dressed in green FBI fatigues, after coming
to an “impasse” with Nielsen.

J.A. 44-45, 154-55.

No more than

three agents ever interviewed Nielsen at once, and one agent
generally led the questioning even when others were present.
At

some

point

during

his

interaction

with

the

agents,

Nielsen told them that he had post-traumatic stress disorder
(PTSD) resulting from an accident at a chemical plant where he
was previously employed and that he was on medication to treat
the disorder.

While Nielsen ultimately admitted to engaging in

various sex acts with B.R., he indicated that his PTSD was to
blame for his conduct.

J.A. 42–44.

1

Citations to the “J.A.” are to the Joint Appendix filed by
the parties in this case.

5

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The

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entire

residence.

interview

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took

place

in

front

of

Nielsen’s

Throughout the interview, there were five or six

agents present at the residence.

Nielsen was not handcuffed or

physically restrained while agents spoke with him, and he was
able to move around the yard and driveway.
testified

that,

at

one

point,

Nielsen

Agent Waizenhofer

retrieved

water from his car during the interview.

a

bottle

J.A. 60–61.

of

Nielsen

was never told that he was free to terminate the interview and
leave, and he was not provided with Miranda warnings prior to
speaking

with

the

agents.

The

interview

lasted

until

approximately 11:00 p.m., when the agents placed Nielsen under
formal arrest.
B.
Nielsen was indicted on four counts of aggravated sexual
abuse of a minor by force under § 2241(a), (c) and four counts
of sexual abuse of a minor under § 2243(a) arising from four
sexual

encounters

between

pretrial

motion

to

interview

with

the

Nielsen

suppress
FBI,

and

B.R.

statements

which

the

Nielsen

he

made

district

filed

during

a

his

court

denied

jury

charge,

following a hearing.
The
Nielsen

case

proceeded

objected

to

to

a

trial.

portion

Before
of

the

the

district

court’s

instruction on the force element of the § 2241(a), (c) offenses.
The

instruction

permitted

the

government
6

to

prove

force

by

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inference based on a disparity in strength and coercive power
between the offender and the victim.

Nielsen argued that, under

the instruction, anyone who committed sexual abuse of a minor
under § 2243(a) would be inherently guilty of aggravated sexual
abuse under § 2241(a), (c).

The court overruled the objection

and instructed the jury accordingly.
The jury returned guilty verdicts on all counts.

Nielsen

raised his challenge to the force instruction again in a motion
for a new trial, which was denied.

The court sentenced Nielsen

on all eight convictions as follows: imprisonment for terms of
life as to each of the four § 2241(a), (c) counts and terms of
fifteen years as to each of the four § 2243(a) counts, with all
such

terms

to

run

concurrently;

and

supervised

release

for

concurrent terms of ten years for each count should Nielsen ever
be released.

The court also ordered Nielsen to pay a total of

$800 in special assessment fees based on the eight counts of
conviction.

Nielsen timely appealed.
II.
A.

Nielsen contends that the district court erred in denying
his motion to suppress the statements he made to federal agents
as described above.
been

suppressed

interrogation

He argues that his statements should have

because

without

the

they

occurred

warnings
7

during

required

under

a

custodial
Miranda

v.

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Arizona, 384 U.S. 436 (1966), and because his statements were
not voluntary.

We disagree.

We review the district court’s findings of fact on a motion
to

suppress

novo.

for

clear

error

and

its

legal

determinations

de

United States v. Hashime, 734 F.3d 278, 282 (4th Cir.

2013) (citation omitted).

When reviewing the denial of a motion

to suppress, we view the evidence in the light most favorable to
the government.

Id. (citation omitted).

The Fifth Amendment provides that “[n]o person . . . shall
be

compelled

himself.”

in

any

criminal

case

U.S. Const. amend. V.

to

be

a

witness

against

In Miranda, the Supreme Court

adopted a prophylactic rule that law enforcement must warn a
criminal

suspect

interrogation
right.

a

Miranda,

obtained
warning

as

of

from
is

a

certain
means

384

inadmissible

of

U.S.

custodial
in

rights

prior

protecting
at

444.

this
In

interrogation
the

to

a

custodial

constitutional

general,
without

prosecution’s

a

evidence
Miranda

case-in-chief.

United States v. Parker, 262 F.3d 415, 419 (4th Cir. 2001).
Absent formal arrest, Miranda warnings are required only
“where there has been such a restriction on a person’s freedom
as

to

render

him

‘in

custody.’”

Id.

Mathiason, 429 U.S. 492, 495 (1977)).

(quoting

Oregon

v.

“An individual is in

custody for Miranda purposes when, under the totality of the
circumstances, ‘a suspect’s freedom of action is curtailed to a
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degree associated with formal arrest.’”
v.

McCarty,

objective,

468

U.S.

looking

420,

to

440

Id. (quoting Berkemer

whether

(1984)).
“‘a

This

reasonable

inquiry
man

in

is
the

suspect’s position would have understood his situation’ to be
one of custody.”

Hashime, 734 F.3d at 282 (citation omitted).

A number of factors are relevant to this inquiry, including “the
time, place and purpose of the encounter, the words used by the
officer, the officer’s tone of voice and general demeanor, the
presence of multiple officers, the potential display of a weapon
by

an

officer,

and

whether

there

was

any

between the officer and the defendant.”
omitted).

We

also

consider

an

physical

contact

Id. at 283 (citation

individual’s

isolation

and

separation from family, as well as any physical restrictions.
Id. (citations omitted).
Considering the totality of the circumstances, the facts
here do not demonstrate that Nielsen was in custody when he
spoke

with

federal

agents

on

May

22,

2013.

Nielsen

was

interviewed by agents at his residence rather than at a police
station or other law enforcement facility.

While this fact is

not determinative, we are generally less likely to regard an
interview conducted in a familiar setting like a suspect’s home
as a custodial interrogation.

See id. at 284.

Five or six

federal agents were present at the residence, but no more than
three agents interviewed Nielsen at a time.
9

Agent Waizenhofer,

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the agent who initiated contact with Nielsen, told Nielsen that
he was not in trouble and maintained an “empathetic” tone with
Nielsen throughout the interview.

The agents never drew their

weapons at any point during the interaction.

Nielsen was not

handcuffed or otherwise physically restrained, and he was able
to move around the yard and driveway.

Additionally, Nielsen

never asked to end the interview or to leave.
To be sure, some aspects of the agents’ interaction with
Nielsen are consistent with custody.

While the interview was

conducted at Nielsen’s residence, Nielsen knew that agents were
searching the house while others spoke with him outside.
separated

from

his

family.

hours, ending after dark.
became more aggressive.

The

interview

lasted

for

He was
three

At times, the agents’ questioning

And while Nielsen was not under arrest

and was free to terminate the interview, no one communicated
either of those facts to him.
Taken together, however, the circumstances do not reflect
the restriction of freedom associated with formal arrest.

While

several aspects of the interview favor a finding of custody, we
do

not

fault

outweighed

by

the

district

circumstances

court’s
that

conclusion

suggest

that

they

otherwise—the

are

small

number of agents at the residence, the lack of any physical
restraints on his movement and his ability to move around the
yard and driveway, and, at the start at least, the generally
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empathetic tone of the interview.

Nielsen’s interview was not

conducted in the sort of environment that we have previously
found consistent with custody.

See, e.g., Hashime, 734 F.3d at

281, 283–85 (finding three-hour interview of suspect in home to
be custodial interrogation when suspect was awakened at gunpoint
with fifteen to thirty officers present in the residence, was
not permitted to move unless guarded, and was isolated from his
family and questioned in a small storage room); United States v.
Colonna, 511 F.3d 431, 435–36 (4th Cir. 2007) (finding threehour interview to be custodial interrogation when suspect was
awakened at gunpoint with twenty-three officers present in the
residence, was guarded at all times, and was questioned in an
FBI vehicle).
It is possible that Nielsen did not feel, subjectively,
that he was free to terminate the encounter.

But our inquiry is

objective and not based on the suspect’s subjective feelings.
Hashime, 734 F.3d at 285.
a

suspect

carries

Any interview by law enforcement with

certain

“coercive

aspects”

due

to

the

heightened risk that the suspect will be arrested and charged.
Hargrove, 625 F.3d at 178.

We cannot conclude, however, that

Nielsen was in custody simply because he was approached by law
enforcement for questioning about the allegations made against
him.

See id.

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hold

that,

viewing

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the

evidence

in

the

light

most

favorable to the government, a reasonable person in Nielsen’s
position would not have understood his position to be one of
custody.

The

agents

were

not

required

to

recite

Nielsen’s

Miranda rights prior to the interview, and Nielsen’s statements
are

thus

not

subject

to

suppression

under

Miranda

and

its

progeny.
B.
Nielsen also argues that even apart from the requirements
of Miranda, his statements were not voluntary.

A statement is

involuntary under the Due Process Clause when it is “‘extracted
by . . . threats or violence’ or ‘obtained by . . . direct or
implied

promises’

influence.’”

or

‘the

exertion

of

.

.

.

improper

United States v. Ayesh, 702 F.3d 162, 168 (4th

Cir. 2012) (omissions in original) (quoting Hutto v. Ross, 429
U.S.

28,

30

(1976)).

The

relevant

inquiry

is

“whether

the

defendant’s will has been overborne or his capacity for selfdetermination
conduct.”

critically

impaired

because

of

coercive

police

United States v. Cristobal, 293 F.3d 134, 140 (4th

Cir. 2002) (citations omitted).

To make this determination, we

examine

circumstances,

the

totality

of

the

including

“the

characteristics of the defendant, the setting of the interview,
and the details of the interrogation.”

Id. (citation omitted).

Coercive police conduct is “a necessary predicate” to a finding
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that a suspect’s statements are involuntary.

Id. (citations

omitted).
To support his argument, Nielsen points to many of the same
aspects of his interview with the agents that he identified as
indicative

of

custody.

None

of

these

factors—the

sometimes

aggressive questioning of the agents, the length and location of
the

interview,

or

the

continuation

of

the

interview

after

Nielsen had confessed to the substance of the allegations—rise
to the level of coercive police conduct.

Nielsen can point to

no conduct by the agents that would constitute the types of
actions generally considered to be coercive under our case law,
such as threats or violence, lengthy marathon interrogations, or
extended isolation.

See United States v. Braxton, 112 F.3d 777,

784–85 (4th Cir. 1997) (en banc) (collecting cases).
Nielsen
taken

also

several

emphasizes

medications

that

the

he

morning

suffers
of

the

from

PTSD,

had

interview,

and

experienced anxiety during the interaction with the agents.

A

suspect’s mental condition, whether due to mental illness or
medication, is not, standing alone, sufficient to render that
suspect’s statements involuntary.

Cristobal, 293 F.3d at 141

(citing Colorado v. Connelly, 479 U.S. 157, 164–65 (1986)).

And

even when taken together with the other circumstances of the
interview,

Nielsen’s

mental

condition

does

not

lead

to

the

conclusion that his “will [was] overborne or his capacity for
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self-determination
interrogation.

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critically

impaired”

during

Id. at 140 (citation omitted).

the

Accordingly, we

hold that the district court did not err in concluding that the
circumstances surrounding Nielsen’s interrogation comported with
due process.
III.
A.
Nielsen also challenges his convictions as multiplicitous.
He argues that Counts 1, 3, 5, and 7 of the indictment, charging
aggravated sexual abuse of a minor by force, and Counts 2, 4, 6,
and

8,

charging

sexual

abuse

of

a

minor,

are

multiplicitous

because the district court instructed the jury that it could
infer force to meet the elements of aggravated sexual abuse of a
minor

by

force

disproportionately

if

it

greater

found
strength

that
than

the
the

defendant
victim,

had

which,

Nielsen contends, will “inevitably” be the case in a child abuse
case given the disparity in age between defendant and victim.
Br.

Appellant

18.

We

agree

that

Nielsen’s

convictions

are

multiplicitous, though not for the reasons cited by Nielsen. 2

2

Because we resolve Nielsen’s multiplicity challenge on
other grounds, we need not address his argument concerning the
force instruction at length.
However, because Nielsen argues
that the alleged error in the force instruction entitles him to
a new trial rather than the usual remedy of vacating the
multiplicitous convictions, we note that the trial judge
properly instructed the jury in this regard, see United States
(Continued)
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Among the guarantees provided in the Double Jeopardy Clause
is protection against “the imposition of cumulative punishments
for the same offense in a single criminal trial.”
v.

Shrader,

omitted).

675
“The

F.3d

300,

legislature

313

(4th

remains

Cir.
free

United States

2012)
under

(citation
the

Double

Jeopardy Clause to define crimes and fix punishments; but once
the legislature has acted courts may not impose more than one
punishment for the same offense . . . .”
U.S.

161,

165

multiplicitous
counts.
1993)

(1977).

when

it

An

charges

Brown v. Ohio, 432

indictment
a

single

is

offense

improperly
in

several

United States v. Burns, 990 F.2d 1426, 1438 (4th Cir.

(citation

omitted).

“[R]eversal

is

warranted

if

the

defendant actually was convicted on multiplicitous counts and
subjected to multiple punishments.”
When

a

defendant

is

Id. (citation omitted).

convicted

of

violating

multiple

statutory provisions for a single act or transaction, we employ
the analysis set forth in Blockburger v. United States, 284 U.S.
299 (1932), to determine if the convictions offend the Double
Jeopardy Clause.

Under Blockburger, “the test to be applied to

determine whether there are two offenses or only one, is whether

v. Johnson, 492 F.3d 254, 258 (4th Cir. 2007) (collecting
cases), and that the government relied on proof of Nielsen’s
size and strength to establish the force element, not simply
B.R.’s age, see J.A. 647.

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each provision requires proof of an additional fact which the
other does not.”

United States v. Martin, 523 F.3d 281, 291

(4th Cir. 2008) (quoting Blockburger, 284 U.S. at 304).

Because

the Blockburger analysis is a “rule of statutory construction,”
it “should not be controlling where . . . there is a clear
indication of contrary legislative intent.”

United States v.

Allen, 13 F.3d 105, 108 (4th Cir. 1993) (omission in original)
(quoting Whalen v. United States, 445 U.S. 684, 691 (1980), and
Albernaz v. United States, 450 U.S. 333, 340 (1981)).
Under

Blockburger,

sexual

abuse

of

a

minor

is

a

lesser

included offense of aggravated sexual abuse of a minor by force.
Section 2243(a) proscribes sexual abuse of a minor:
Whoever, in the special maritime and territorial
jurisdiction of the United States . . . knowingly
engages in a sexual act with another person who-(1) has attained the age of 12 years but has not
attained the age of 16 years; and
(2) is at least four years younger than the person so
engaging;
or attempts to do so, shall be fined under this title,
imprisoned not more than 15 years, or both.
Section 2241(a) proscribes aggravated sexual abuse by force or
threat:
Whoever, in the special maritime and territorial
jurisdiction of the United States . . . knowingly
causes another person to engage in a sexual act-(1) by using force against that other person; or
(2) by threatening or placing that other person in
fear that any person will be subjected to death,
serious bodily injury, or kidnapping;
or attempts to do so, shall be fined under this title,
imprisoned for any term of years or life, or both.
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Section

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2241(c)

provides

for

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a

thirty-year

mandatory

minimum

sentence when the victim of aggravated sexual abuse is a minor,
including when the victim “has attained the age of 12 years but
has not attained the age of 16 years (and is at least 4 years
younger

than

[the

offender]).”

Because

§ 2241(c)

imposes

a

mandatory minimum penalty for aggravated sexual abuse by force
or threat when the victim is a minor, age of the victim is an
element

of

the

offense

that

must

be

submitted

to

the

jury.

Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013).
As

the

government

concedes,

because

the

only

difference

between the two offenses is the additional requirement under
§ 2241(a)(1) that force be proved to establish aggravated sexual
abuse,

the

§ 2243(a)

offenses

are

merely

lesser

offenses of the greater § 2241(a), (c) offenses.
Appellee

1.

“It

has

long

been

understood

included

Suppl. Br.

that

separate

statutory crimes need not be identical either in constituent
elements or in actual proof in order to be the same within the
meaning of the constitutional prohibition.”
164

(citations

included

omitted).

offense

are

the

A

greater

“same”

Brown, 432 U.S. at

offense

offense

for

and

a

double

lesser
jeopardy

purposes because the lesser included offense “requires no proof
beyond

that

[offense].”

which

is

required

for

Id. at 168.

17

conviction

of

the

greater

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The

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government

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nonetheless

contends

that

Nielsen’s

convictions do not offend the Double Jeopardy Clause because
Congress intended to authorize separate punishments for sexual
abuse of a minor and aggravated sexual abuse of a minor by
force.

However, it can point to nothing in the legislative

history

of

either

statute

evincing

“a

clear

indication

of

contrary legislative intent” to impose multiple punishments for
the same offense.

Allen, 13 F.3d at 108 (quoting Albernaz, 450

U.S. at 340).

And the cases on which the government relies were

decided

on

prior

based
to

therefore

the

a

Blockburger

Supreme

inapposite.

See

of

the

decision

Court’s

analysis

in

Alleyne

United

States

v.

two

statutes
and

Rivera,

43

are
F.3d

1291, 1297 (9th Cir. 1995); United States v. Amos, 952 F.2d 992,
994 (8th Cir. 1991), abrogated on other grounds, United States
v.

Allery,

175

F.3d

610

Morsette,

858

F.

Supp.

therefore

see

no

reason

(8th

2d

Cir.

1049,

to

1999);

1052–53

deviate

from

United

(D.N.D.
the

States
2012).

result

of

v.
We
the

Blockburger analysis here.
Accordingly,

we

conclude

that

the

district

court

should

have merged the offenses so that Nielsen would have only been
convicted

of,

and

sentenced

for,

the

greater

§ 2241(a),

(c)

offense in connection with each of the four charged instances of
abuse.

See United States v. Jones, 204 F.3d 541, 544 (4th Cir.

2000) (citing Brown, 432 U.S. at 169) (holding that district
18

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court erred in imposing separate sentence for lesser included
offense).

In failing to do so, the district court erred.
B.

Nielsen, however, failed to preserve this issue for appeal.
While

Nielsen

apparent

until

argues
the

that

district

the

multiplicity

court

charged

error

the

was

not

jury

with

the

allegedly erroneous force instruction, the multiplicity error we
identify above was apparent on the face of the indictment, yet
was never raised before the district court.

Pursuant to the

version of Rule 12 in effect at the time of Nielsen’s trial,
Nielsen’s challenge to the indictment is waived because he did
not raise it in a pretrial motion, although “relief from the
waiver” may be granted “[f]or good cause.”
12(b)(3)(B), (e) (2011).

Fed. R. Crim. P.

Under the circumstances of this case,

where the error is so obvious that the government now concedes
that § 2243(a) is a lesser included offense of § 2241(a), (c)
under Blockburger and Nielsen attempted to raise a multiplicity
challenge during trial, we exercise our discretion to relieve
Nielsen of his waiver under Rule 12 and review the multiplicity
error discussed

above

under

plain

error

review.

See

United

States v. Bennafield, 287 F.3d 320, 322 (4th Cir. 2002) (citing
United States v. Olano, 507 U.S. 725, 731–32 (1993)).
Under plain error review, a defendant must demonstrate that
“an error occurred, that the error was plain, and that the error
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affected his substantial rights.”
at 732).

Id. (citing Olano, 507 U.S.

An error is plain if it is “clear” or “obvious,”

Olano, 507 U.S. at 734, and it affects substantial rights if it
prejudices the defendant, Bennafield, 287 F.3d at 322 (citing
United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998)).
Correction of the error is at our discretion, which we exercise
only when the error “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.”

Olano, 507 U.S.

at 736 (citation omitted).
Nielsen’s
requirements.

multiplicitous
That

the

convictions

§ 2243(a)

and

satisfy

§ 2241(a),

(c)

these
counts

shared all elements besides force is clear and obvious from the
face

of

the

indictment

instructions to the jury.

and

from

the

district

court’s

The multiplicity error resulted in

Nielsen’s conviction and sentencing on eight counts instead of
four,

including

supervised

eight

release)

concurrent

and

terms

special

of

imprisonment

assessment

fees

on

(and
eight

convictions instead of four, and was therefore prejudicial to
him.

See United States v. Shorter, 328 F.3d 167, 173 (4th Cir.

2003) (discussing how even concurrent sentences on duplicative
convictions are improper); United States v. Leftenant, 341 F.3d
338, 348 (4th Cir. 2003) (vacating all but one of multiplicitous
sentences and special assessments).
error

“seriously

affect[s]

the
20

And finally, because the

fairness,

integrity

or

public

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reputation

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of

judicial

Pg: 21 of 22

proceedings,”

Olano,

507

U.S.

at

736

(citation omitted), we should exercise our discretion to correct
it.

When “a federal court exceeds its own authority by imposing

multiple punishments not authorized by Congress, it violates not
only the specific guarantee against double jeopardy, but also
the constitutional principle of separation of powers in a manner
that

trenches

Whalen,

445

convictions

particularly

U.S.
and

at

harshly

689.

The

sentences

in

on

individual

imposition

this

case

of

was

liberty.”

multiplicitous

therefore

plain

convictions

are

error.
C.
Having

concluded

that

Nielsen’s

multiplicitous and that the error was plain and is appropriate
for us to correct, we turn to the remedy.
multiplicitous
convictions
accordingly.

convictions

and

order

a

is

to

The usual remedy for

vacate

resentencing

of

the

offending

the

defendant

See United States v. Brown, 701 F.3d 120, 127–28

(4th Cir. 2012) (citing Ball v. United States, 470 U.S. 856, 865
(1985)).

Nielsen nonetheless argues that the multiplicity error

entitles him to a new trial because the jury “was prejudiced by
the Government’s ‘prolix pleading’ with regard to multiplicitous
charges implicating the same exact elements of proof.”

Suppl.

Br.

United

Appellant

7.

We

rejected

a

similar

argument

in

States v. Colton, 231 F.3d 890 (4th Cir. 2000), and do so again
21

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here.

Filed: 02/02/2016

Because

§ 2241(a),

(c)

the

same

offenses

Pg: 22 of 22

evidence
as

the

was

lesser

used

to

§ 2243(a)

prove

the

offenses,

Nielsen has suffered no cognizable prejudice from the jury’s
consideration of the multiplicitous counts.

See Colton, 231

F.3d at 910.
IV.
For
denial

the
of

reasons

the

motion

set
to

forth

above,

suppress

is

the

district

affirmed.

court’s

Nielsen’s

convictions and sentences on Counts 2, 4, 6, and 8 for sexual
abuse of a minor under § 2243(a) are vacated, and the case is
remanded for entry of an order dismissing Counts 2, 4, 6, and 8
of the indictment and issuance of an amended judgment consistent
with this opinion.
AFFIRMED IN PART,
VACATED IN PART, AND
REMANDED WITH INSTRUCTIONS

22