United States v. Locust , 95 F. App'x 507 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4687
JEREMIAH LOCUST, SR.,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-7713
JEREMIAH LOCUST, SR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Bryson City.
Lacy H. Thornburg, District Judge.
(CR-98-185)
Argued: December 5, 2003
Decided: April 26, 2004
Before WIDENER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
2 UNITED STATES v. LOCUST
COUNSEL
ARGUED: James Patrick McLoughlin, Jr., James William Haldin,
MOORE & VAN ALLEN, P.L.L.C., Charlotte, North Carolina, for
Appellant. B. Frederic Williams, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON
BRIEF: Robert J. Conrad, Jr., United States Attorney, Jerry W. Mil-
ler, Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jeremiah Locust was convicted on federal charges of first degree
murder (two counts) and attempted murder (one count). He appeals,
arguing that he is entitled to a new trial because of omissions in the
trial transcript, insufficient evidence, errors and omissions in jury
instructions, and a double jeopardy violation. We affirm the convic-
tion on count one for first degree murder and the conviction for
attempted murder. However, because Locust was convicted on two
counts of first degree murder but only killed one person, we vacate
the judgment in part and remand for the district court to vacate the
conviction and sentence on the second count of first degree murder.
I.
The indictment, returned in July 1998, charged Jeremiah Locust
with two counts of first degree murder for killing National Park
Ranger Joseph Kolodski in violation of 18 U.S.C. §§ 1114(1),
1111(a), and 7(3); one count of attempting to murder National Park
Ranger Anthony Welch in violation of 18 U.S.C. §§ 1114(1), 1113,
and 7(3); and assaulting with a dangerous weapon a person traveling
UNITED STATES v. LOCUST 3
on the Blue Ridge Parkway in violation of 18 U.S.C. §§ 113(a)(3),
and 7(3).
Trial began on January 21, 1999. The government presented the
following evidence. On June 21, 1998, several witnesses traveling
through the Blue Ridge Parkway area of North Carolina called author-
ities to report that they had seen a shirtless man, walking in the mid-
dle of the road holding a rifle and what appeared to be a beer can. The
man, who was identified at trial as Locust, was "staggering like he
had been drinking," J.A. 1019, and was "muttering to himself," J.A.
1008. Several officers, including Great Smoky Mountains National
Park Ranger Joseph Kolodski and Blue Ridge Parkway Ranger
Anthony Welch, responded to the calls.
Ranger Kolodski arrived at the scene first and radioed his dis-
patcher that a man with blue jeans and no shirt was walking in the
road and "carrying a long gun of some type." J.A. 453. Upon seeing
Kolodski, Locust left the road and entered the woods, where he con-
tinued to walk parallel to the road. Several minutes later Kolodski
informed the dispatcher that "the subject is attempting to head down
into the off side of the roadway underneath me and he is still carrying
that weapon." J.A. 455. Kolodski soon "lost sight of [the suspect]."
J.A. 1320. Before long, however, Kolodski radioed his fellow officers
to report that he had regained sight of Locust, but was unable to tell
if he was pointing his weapon in Kolodski’s direction. Seconds later,
there was a gunshot and Ranger Kolodski fell to the ground, gripping
his chest. The shot was fatal. Ranger Welch, who had just arrived at
the scene in his vehicle, heard the gunshot and saw Kolodski fall.
Several more shots followed, forcing Welch and another ranger to
take cover at the rear of their vehicles. Welch began scanning the area
in an attempt to locate the gunman when "all of a sudden . . . Jeremiah
Locust was standing there." J.A. 576. After "lock[ing] eyes" with
Locust, Welch fired his shotgun in Locust’s direction, causing him to
flee. Welch again came under sustained fire, and the rear window of
his vehicle was blown out. The gunfire eventually subsided. Hours
later, two park game wardens arrested Locust several miles from
where Ranger Kolodski was killed. Locust smelled of alcohol. A
search of the surrounding woods revealed several spent shell casings,
boot prints, and a high-powered rifle.
4 UNITED STATES v. LOCUST
Locust took the stand in his own defense. He testified that on the
morning of June 21 1998, he drank two beers, took his diabetes medi-
cation, and placed his rifle, a guitar, and several six-packs of beer in
his station wagon. He then drove into the woods with the intention of
sighting his rifle. Locust remembers firing his weapon a couple of
times before deciding to leave the woods. On his way out, his car
became stuck in a muddy road; at that point Locust abandoned his car
and hid his guitar in the bushes. Next, he grabbed his rifle and some
beer as he prepared to proceed on foot. After walking ten to twelve
feet, Locust said he remembered nothing further. When he came to,
he was being handcuffed by park officers.
A defense expert testified that Locust’s diabetes medication, taken
on an empty stomach in combination with alcohol, may have caused
his blood sugar to drop, thereby inducing a hypoglycemic reaction.
The expert stated that hypoglycemia can result in confusion, agitation,
and even cause seizures. The expert also indicated that an individual
with Locust’s limited cognitive ability would have a difficult time
planning and thinking ahead if he was suffering from low blood
sugar.
On the seventh day of trial, January 29, 1999, the lawyers pres-
ented closing arguments, and the court instructed the jury, which
deliberated until 9:00 p.m. At 9:30 the next morning the jury inquired
whether it would be sent back to discuss second degree murder if it
found Locust not guilty on the charges of first degree murder. After
further instruction from the court, the jury returned to deliberate.
Later, at 11:20 a.m., the jury returned a verdict of guilty against
Locust on the two counts of first degree murder and on the single
count of attempted murder, but acquitted him on the charge of assault
with a dangerous weapon. The verdict sheet indicated that the jury
believed the murder of Ranger Kolodski had been committed while
Locust was lying in wait. Shortly after the verdict was read, the gov-
ernment withdrew its notice of intent to seek the death penalty. On
August 25, 1999, the district court sentenced Locust to a term of life
in prison on the two counts of murder and a term of 240 months on
the count of attempted murder, all to be served concurrently. Locust
filed a notice of appeal on August 30, 1999.
In the months that followed, several lawyers were appointed to rep-
resent Locust on appeal and then relieved. His current lawyer was
UNITED STATES v. LOCUST 5
appointed on August 25, 2000, about a year after the appeal was filed.
None of the lawyers was able to obtain a full copy of the trial tran-
script. Eventually, the clerk of the district court filed a certification
that the court reporter’s stenographic notes and backup tapes for the
opening and closing arguments, the charge to the jury, and the verdict
could not be located. After a series of motions in this court dealing
with whether the record was complete for the purposes of appeal, we
entered an order on September 13, 2002, directing the district court
"to settle the record, pursuant to Rule 10 of the Federal Rules of
Appellate Procedure." J.A. 283-84. On October 8, 2002, the district
court ordered Locust to prepare "a statement of the evidence" summa-
rizing the missing portions of the transcript pursuant to Fed. R. App.
P. 10(c). J.A. 289-90. Locust’s lawyer in turn wrote letters to the gov-
ernment and to Locust’s trial counsel requesting any documents that
might assist in the preparation of a Rule 10(c) statement. Locust’s
lawyer also asked the government whether it would seek the death
penalty if Locust was granted a new trial. In response, the government
declined to make any documents available until Locust identified the
issues he sought to raise on appeal. The government further said that
if a new trial was granted "on the basis of insufficiency of the record
for purposes of appeal," the government would seek the death penalty
at any retrial. J.A. 415. Thereafter, Locust’s lawyer, asserting that the
government’s response was "intended to chill [Locust’s] right to
appeal," filed a motion asking the district court for an immediate rul-
ing on whether the government could seek the death penalty in a
retrial. J.A. 390. The district court concluded that it had no jurisdic-
tion to rule on the death penalty issue, but it granted Locust an exten-
sion (his second) to comply with Rule 10(c). Rather than attempting
to prepare and file a Rule 10(c) statement, Locust requested yet
another extension "so that the Fourth Circuit of Appeals [could] rule
on his Motion for an Immediate Ruling on the United States’ Ability
to Seek the Death Penalty upon Retrial." J.A. 405. When the district
court denied this third request for an extension, Locust filed a motion
to compel the government to produce any documents that might help
in preparing a Rule 10(c) statement. At that point, the district court
concluded that any effort to settle the record had become deadlocked
due to the death penalty issue. Without assigning blame to either side,
the court denied Locust’s motion to compel and proceeded to "settle
the record on appeal." J.A. 418. The court supplemented the record
6 UNITED STATES v. LOCUST
with various notes taken by his clerks, a copy of the written instruc-
tions read to the jury, and the verdict sheets. The court’s order also
stipulated that "the Defendant has preserved any assignment of error
for any argument challenging the legal sufficiency or accuracy of any
jury charge and of any request for a jury instruction made and
denied." J.A. 422.
With the record finally settled, Locust filed his brief on appeal,
raising several challenges to his conviction. Locust contends that (1)
omissions in the transcript entitle him to a new trial; (2) the district
judge erroneously instructed the jury on first degree murder and lying
in wait; (3) there was insufficient evidence to support a finding of first
degree murder; (4) the district court erred in failing to give a jury
instruction on assessing the credibility of police officer testimony;
and (5) his indictment and subsequent conviction on two counts of
murder violated the Double Jeopardy Clause. We also have before us
Locust’s motion for a declaratory ruling that he is not subject to the
death penalty on retrial.
II.
A.
Locust first argues that he is entitled to a new trial because there
is no transcript of the opening and closing arguments or the district
court’s jury instructions. Although 28 U.S.C. § 753(b) "provides for
the recording of a verbatim transcript of trial proceedings in order to
safeguard a defendant’s right to appellate review," United States v.
Gillis, 773 F.2d 549, 554 (4th Cir. 1985), deficiencies in the transcript
warrant a new trial only when the defendant can show that the omis-
sions specifically prejudice his appeal, United States v. Huggins, 191
F.3d 532, 536 (4th Cir. 1999). Because the district court supple-
mented the record with materials that provide us an adequate means
of reviewing this case, we do not believe Locust has demonstrated
that he was specifically prejudiced by transcript omissions.
When portions of a transcript are unavailable, courts normally rely
on Federal Rule of Appellate Procedure 10(c) to settle the record. See,
e.g., Barilaro v. Consolidated Rail Corp., 876 F.2d 260, 263 (1st Cir.
1989); 16A Wright, Miller, & Cooper, Federal Practice and Procedure
UNITED STATES v. LOCUST 7
§ 3956.3 (1999). Rule 10(c) states that "the appellant may prepare a
statement of the evidence or proceedings from the best available
means, including the appellant’s recollection." The statement, along
with any objections or proposed amendments offered by the appellee,
are submitted to the district court for settlement and approval. See
Fed. R. App. P. 10(c). Because Rule 10(c) was specifically designed
to give an appellant the opportunity to reconstruct an otherwise insuf-
ficient record, courts have consistently expected the appellant to make
the first move with the Rule 10(c) statement. See United States v.
First National Bank, 691 F.2d 386, 387 (8th Cir. 1982) (noting that
because appellant "made no attempt to make a record under Rule
10(c) . . . the absence of an adequate record . . . must be laid entirely
at [the appellant’s] feet"); Bergerco v. Shipping Corp. of India, Ltd.,
896 F.2d 1210, 1217 (9th Cir. 1990)("appellant seeking a new trial
because of a missing or incomplete transcript must . . . show that a
Rule 10(c) proceeding has failed"); Herndon v. City of Massillon, 638
F.2d 963, 965 (6th Cir. 1981) (appellant’s "failure to avail [himself]
of the procedure designed to reconstruct unrecorded proceedings
[leaves] [him] with no objection based on the missing record"); see
also United States v. Renton, 700 F.2d 154, 158-59 (5th Cir. 1983);
Barilaro, 876 F.2d at 263. The district court concluded that Rule
10(c) procedures broke down here because the parties got sidetracked
by the issue of whether the government could seek the death penalty
in the event of a new trial. However, the district court did not assign
blame to either Locust or the government; it simply settled the record
without a Rule 10(c) statement. In this circumstance, we will not
weigh Locust’s failure to file a Rule 10(c) statement against him as
we consider whether he is prejudiced by the missing portions of the
transcript.
Locust argues that he is prejudiced by his inability to obtain a ver-
batim transcript of the district court’s instructions to the jury. In lieu
of the unattainable transcript, the district court placed in the record a
written copy of "the actual jury instructions read to the jury." J.A.
422. Locust offers nothing to suggest that these written instructions
do not accurately reflect what was read to the jury. In a similar case
the Third Circuit said, "although we recognize that at times a judge
may vary a few words from the written version of the charge, there
has been no argument made here that such alterations, if any, were
substantial. Without this showing, any slight changes in the reading
8 UNITED STATES v. LOCUST
of the charge should make no difference to our review function."
United States v. Sierra, 981 F.2d 123, 126-27 (3d Cir. 1992). That
reasoning applies here. Locust has not shown any prejudice as a result
of his inability to obtain a transcript of the jury instructions. The writ-
ten copy of the instructions is sufficient for our review.
The transcript also omits the proceedings when the jury asked the
district court "whether it would be sent back to the jury room to dis-
cuss second degree murder if it found the defendant not guilty on the
charges of first degree murder." J.A. 132. The clerk’s notes indicate
that in response to this question, the court "repeated portions of previ-
ous instructions relating to first and second degree murder and how
they are to complete the verdict sheet. Portion of the verdict sheet re-
read to the jury." J.A. 444. The written jury instructions, in turn, con-
tain a detailed and accurate instruction regarding the jury’s role in
considering the lesser-included offense of second degree murder and
the proper method of filling out the verdict sheet. In addition, the ver-
dict form contained an instruction directing the jury, "If you find the
defendant not guilty of the crime of first degree murder, consider next
the included offense [of second degree murder]." J.A. 135. The jury’s
completed verdict form shows no inconsistencies or errors, thereby
indicating that it understood its role in deciding whether Locust’s
actions constituted first or second degree murder. Based on the
lengthy instruction regarding lesser included offenses, as well as the
consistent verdict sheet, we conclude that Locust is not prejudiced by
the lack of a transcript of the proceedings relating to the jury’s ques-
tion.
Locust also alleges that he is prejudiced by his failure to have a
transcript of the opening arguments. Specifically, Locust claims that
a transcript of opening arguments is necessary because his trial coun-
sel recalled the government "ma[king] highly prejudicial remarks
[during oral argument] about Mr. Locust stalking the victims like a
wild animal and once he had shot his victims, doing some type of
Native American war chants in celebration of the kill." J.A. 277. Even
accepting as true Locust’s account of the government’s opening argu-
ment, no prejudicial error occurred because the evidence at trial sup-
ported the theories advanced by the prosecutor during his opening
statement. Our court has recognized that "the very purpose of an
opening statement is to inform the jury how the case developed, its
UNITED STATES v. LOCUST 9
background and what will be attempted to be proved." Butler v.
United States, 191 F.2d 433, 435 (4th Cir. 1951). The record shows
that Locust did in fact utter some type of chant after shooting Ranger
Kolodski. There was also lengthy testimony regarding Locust’s
movements through the woods preceding Kolodski’s death. The jury
could have taken this evidence as proof that Locust had been stalking
Kolodski on the day in question. Because the statements purportedly
made during opening statement would not, of themselves, provide
grounds for reversal, Locust is not prejudiced by the transcript’s
omission of those statements. See, e.g., Edward v. United States, 374
F.2d 24, 26-27 (10th Cir. 1967).
Locust also contends that he is prejudiced by the transcript’s omis-
sion of closing arguments because his trial counsel recalls objecting
to a tape that was played by the government during closing argu-
ments. However, a copy of that tape was specifically made part of the
record in the district judge’s order settling the record on February 27,
2002. Because Locust had a copy of the tape, he had the wherewithal
to appeal any issue relating to the tape’s use at trial. Therefore, he has
suffered no prejudice.
In sum, Locust is not entitled to a new trial because of omissions
in the transcript.
B.
Locust next argues that the written jury instructions, placed in the
record by the district court, erroneously define first degree murder
and lying in wait. We review jury instructions to insure that they
"fairly state the controlling law." United States v. Cobb, 905 F.2d 784,
789 (4th Cir. 1990). A judgment will be reversed for error associated
with the jury instructions "only if the error is determined to have been
prejudicial, based on review of the record as a whole." Sturges v. Mat-
thews, 53 F.3d 659, 661 (4th Cir. 1995).
1.
We first consider the district court’s instructions regarding first
degree murder. The court instructed the jury that for it to find Locust
10 UNITED STATES v. LOCUST
guilty of first degree murder, the evidence had to show "beyond a rea-
sonable doubt . . . [that he] killed Joseph Kolodski by lying in wait
OR with willfulness, deliberateness, maliciousness, and premedita-
tion." J.A. 341. Locust argues that by using the disjunctive form in the
instruction, the court improperly permitted the jury to convict on a
theory of lying in wait without concluding that Locust’s actions were
willful, deliberate, malicious, and premeditated. Because federal law
defines first degree murder as any killing committed while lying in
wait or with premeditation, there was no error in the instruction.
The term "lying in wait" is generally defined as "the series of acts
involved in watching, waiting, and hiding from someone, with the
intent of killing or inflicting serious bodily injury on that person."
Black’s Law Dictionary 960 (7th ed. 1999). Federal law, in turn,
defines first degree murder as "every murder perpetrated by . . . lying
in wait, or any other kind of willful, deliberate, malicious, and pre-
meditated killing." 18 U.S.C. § 1111(a). By its very terms, the statute
implies that a murder committed while lying in wait inherently dem-
onstrates the deliberation and premeditation necessary to elevate a
murder to the grade of first degree. Indeed, if section 1111(a) required
the government to prove a murder was premeditated in addition to
demonstrating that it was committed while lying in wait, the statute’s
reference to lying in wait would be rendered meaningless. It is "a car-
dinal principle of statutory construction that a statute ought . . . to be
so construed that, when it can be prevented, no clause, sentence, or
word shall be superfluous, void, or insignificant." TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001). We therefore hold, consistent with
established authority, that section 1111(a) requires the government to
prove only that a murder was committed while lying in wait or with
premeditation. See, e.g., United States v. Downs, 56 F.3d 973, 977
(8th Cir. 1995) (stating that section 1111(a) embodies "two indepen-
dently sufficient grounds for first-degree murder . . . first, that [defen-
dant] had been ‘lying in wait’; and second, that the killing was
‘willful, deliberate, malicious, and premeditated.’"); United States v.
Shaw, 701 F.2d 367, 392 n.20 (5th Cir. 1983) ("[A] conviction for
first degree murder requires the additional proof of premeditation,
poisoning, or lying in wait") (emphasis added); see also Hutchins v.
Garrison, 724 F.2d 1425, 1430 (4th Cir. 1983) (noting that killing
was "premeditated or committed while lying in wait") (emphasis
added); Black’s Law Dictionary 960 (7th ed. 1999) ("Because lying
UNITED STATES v. LOCUST 11
in wait shows premeditation and deliberation, it can result in an
increased sentence."); 18 A.L.R.4th 961 (1995) (same).
Locust also argues that the district court’s first degree murder
instructions constructively amended the indictment. Although the
indictment states that "Jeremiah Locust did unlawfully, willfully,
deliberately, maliciously with premeditation and by lying in wait kill
. . . Joseph Kolodski," J.A. 32-33 (emphasis added), the district court
amended the indictment, Locust says, by instructing the jury in the
disjunctive, stating that the government had to prove that "the defen-
dant killed Joseph Kolodski by lying in wait OR with willfulness,
deliberateness, maliciousness, and premeditation." Our circuit has
rejected this argument. "Where a statute is worded in the disjunctive,
federal pleading requires the Government to charge in the conjunc-
tive. The district court, however, can instruct the jury in the disjunc-
tive." United States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001)
(citing United States v. Rhynes, 206 F.3d 349, 384 (4th Cir. 1999).
Accordingly, we conclude that the district court’s instructions did
not result in a constructive amendment to the indictment.
2.
Locust also argues that the district court’s definition of lying in
wait was erroneous. The court instructed the jury that "lying in wait
is generally held to require a watching and waiting in a concealed
position with an intent to kill or do serious bodily harm to another.
It does not require being in a prone position." J.A. 350. The district
court used a definition that is generally accepted. See, e.g., United
States v. Shaw, 701 F.2d 367, 393 n.21 (5th Cir. 1983) (using the
same language); see also 2A Fed. Jury Prac. & Instr. § 45.03 (5th ed.
2000); Black’s Law Dictionary 960 (7th ed. 1999). Nevertheless,
Locust contends that "the instruction fails to give the jury correct
information that some time is required to form the requisite intent."
Appellant’s Br. at 30. We reject this argument because the definition
given by the court specifically required the jury to find that the defen-
dant was "watching and waiting," which clearly embodies the element
of time. There was thus no error in the district court’s definition of
lying in wait.
12 UNITED STATES v. LOCUST
C.
Locust argues that there was insufficient evidence for the jury to
conclude that he killed Ranger Kolodski while lying in wait. Again,
lying in wait is defined as "the series of acts involved in watching,
waiting, and hiding from someone, with the intent of killing or inflict-
ing serious bodily injury on that person." Black’s Law Dictionary 960
(7th ed. 1999). There was sufficient evidence for a jury to conclude
that Locust was lying in wait at the time he shot Ranger Kolodski.
Kolodski’s radio transmissions indicate that when he arrived at the
scene, Locust left the road. Kolodski "lost sight of [Locust]" when he
"disappeared into the woods." J.A. 1320. Kolodski saw Locust again
before he was shot, and the evidence suggests that Locust had been
using the intervening time to maneuver himself into a dominant posi-
tion. Several shell casings were found at the base of a tree some sev-
enteen to eighteen feet off the edge of the road on a steep
embankment, a location that provided Locust with a favorable van-
tage point above Kolodski’s position. After Kolodski was shot, sev-
eral more shots were fired in the direction of other officers. Based on
this evidence, a reasonable jury could find that Locust entered the
woods in order to take cover and wait for an opportune moment to
fire upon Kolodski and his fellow officers. The evidence was thus suf-
ficient for the jury to convict Locust of killing Ranger Kolodski while
lying in wait.
D.
Locust next claims that he is entitled to a new trial because the dis-
trict court erred in failing to instruct the jury on assessing the credibil-
ity of police officer testimony. Locust did not request such an
instruction at trial, and we therefore review its omission for plain
error. United States v. Brown, 202 F.3d 691, 698 n.13 (4th Cir. 2000).
Here, the district court gave a general instruction on witness credibil-
ity, advising the jury that it:
must determine the credibility of the witnesses . . . [and]
among the things which you may properly consider in the
determination of the credibility of the witnesses are . . . (3)
Whether there has appeared from his or her attitude or con-
UNITED STATES v. LOCUST 13
duct any bias, prejudice or feeling which may cause his or
her testimony to be influenced.
J.A. 328. A general witness credibility instruction is sufficient, unless
the defendant can demonstrate some special need for an instruction on
assessing the credibility of a particular witness or witness category.
See United States v. Torres, 115 F.3d 1033, 1038 (D.C. Cir. 1997);
United States v. Tamura, 694 F.2d 591, 602 (9th Cir. 1982); see also
United States v. Urian, 858 F.2d 124, 127 n.2 (3d Cir. 1988). Locust
had full opportunity to raise credibility issues during his cross-
examination of any officer who testified, and he has made no showing
of a special need for the supplemental instruction on officer credibil-
ity. See Torres, 115 F.3d at 1038. There was no error, much less plain
error, in his failure to have this instruction.
E.
Finally, Locust invokes the Double Jeopardy Clause to argue that
he is entitled to a new trial because he was charged twice under the
same statute for the single killing of Ranger Kolodski. Locust is not
entitled to a new trial on this ground. Nevertheless, because he only
committed a single act of murder, his conviction on one of the two
counts of first degree murder should be vacated.
Locust was indicted on two counts of violating 18 U.S.C. § 1114,
which states:
whoever kills or attempts to kill any officer or employee of
the United States . . . while such officer or employee is
engaged in or on account of performance of official duties,
or any person assisting such an officer or employee in the
performance of such duties or on account of that assistance,
shall be punished . . . .
Count one charged Locust with killing "an officer and employee of
the United States while such officer and employee was engaged in the
performance of his official duties." J.A. 32. Count two charged him
with killing "a person assisting an [officer of the United States] in the
performance of . . . official duties as an officer . . . of the United
14 UNITED STATES v. LOCUST
States." J.A. 33. Although Ranger Kolodski was an officer of the
Great Smoky Mountains National Park, he was shot while acting in
the jurisdiction of The Blue Ridge Parkway. The government asserts
that it charged Locust with two separate counts of first degree murder
because it believed a jury might find that Kolodski was not acting in
the performance of his official duties when he responded to a call out-
side of his jurisdiction. By additionally charging Locust with murder-
ing a person assisting an officer of the United States in his official
duties, that is, killing Ranger Kolodski while he was assisting Blue
Ridge Parkway Ranger Welch, the government sought to avoid this
potential problem.
Our circuit has made it clear that "the prosecutor [is permitted] to
carve up criminal conduct into many counts so that technical prob-
lems with the evidence will not allow the true criminal to walk free."
United States v. Luskin, 926 F.2d 372, 374-75 (4th Cir. 1991). This
is permissible "even if some of the counts are . . . constitutionally
identical offenses." Id. at 378. See also Ball v. United States, 470 U.S.
856, 859-60 (1985) (defendant may be "prosecuted simultaneously"
for violating two statutes even though he ultimately could not be con-
victed and punished for both offenses). Therefore, there was no error
in indicting and trying Locust on two counts of first degree murder.
However, while Locust could be prosecuted simultaneously for two
counts of violating § 1114, that does not mean that his conviction and
punishment on both counts can stand. See Ball, 470 U.S. at 861.
Rather, when an act "violates but a single statute . . . only the single
penalty prescribed by the statute can be imposed." Braverman v.
United States, 317 U.S. 49, 54 (1942). See also United States v.
Thornton, 972 F.2d 764, 766 (7th Cir. 1992). Because the murder of
Ranger Kolodski violated a single statute, it appears that Congress
only intended Locust to be punished once for this offense. The district
court, however, imposed two life sentences to be served concurrently
for the separate convictions arising out of count one and count two,
both charged under § 1114. It was error for the court to enter judg-
ment and sentence on both counts because "the second conviction,
even if it results in no greater sentence, is an impermissible punish-
ment" that "does not evaporate simply because of the concurrence of
the sentence." Ball, 470 U.S. at 864-65. According to Ball "the district
UNITED STATES v. LOCUST 15
judge should [have] enter[ed] judgment on only one of the statutory
offenses." Id. at 865.
Because it is now clear that Locust’s conviction for the murder of
Ranger Kolodski should be affirmed, we will affirm the murder con-
viction on count one of the indictment. However, in accordance with
Supreme Court precedent, we vacate the judgment in part and remand
for the district court to vacate Locust’s conviction and sentence for
first degree murder under count two of the indictment. This prompts
us to add a final note. If Locust’s conviction on count one should be
set aside in some later proceeding, the district court would not be pre-
cluded from reinstating the conviction and sentence on count two. See
United States v. Silvers, 90 F.3d 95 (4th Cir. 1996) (after one convic-
tion was overturned in habeas proceeding because key witness com-
mitted perjury, district court could reinstate another conviction that
was previously vacated on double jeopardy grounds).
III.
We affirm Locust’s conviction and sentence on count one for first
degree murder and on count three for attempted murder. We vacate
the judgment in part and remand for the district court to vacate
Locust’s conviction and sentence on count two for first degree mur-
der. We deny as moot Locust’s motion for a ruling that he is not sub-
ject to the death penalty on retrial. Locust’s motion to file an amended
reply brief is granted.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED