United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 19, 2007 Decided July 17, 2007

No. 06-3022

UNITED STATES OF AMERICA,

APPELLEE

v.

MARC K. WEATHERS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 97cr00165-02)

Beverly G. Dyer, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A.J. Kramer,

Federal Public Defender.

Suzanne G. Curt, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Kenneth L. Wainstein,

U.S. Attorney at the time the brief was filed, and Roy W.

McLeese, III, and Thomas J. Tourish, Jr., Assistant U.S.

Attorneys.

Before: TATEL, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.
2

BROWN, Circuit Judge: Awaiting trial on rape charges,

Mark Weathers attempted to have the prosecutor, an informant,

and the rape victims murdered. For that attempt, he was

subsequently convicted on all counts of a six-count indictment.

In his direct appeal, Weathers argued (1) two of the six counts

duplicated other counts in the indictment and hence violated the

Double Jeopardy Clause, and (2) his trial attorney provided

ineffective assistance by failing to assert that claim in a timely

manner. This court rejected Weathers’s double jeopardy

challenge, ruling he waived the claim by failing to raise it before

trial, but remanded the ineffective assistance of counsel claim

for an initial determination by the district court. See United

States v. Weathers, 186 F.3d 948 (D.C. Cir. 1999). On remand,

the district court rejected Weathers’s ineffective assistance claim

— a decision he now appeals. We affirm the district court as to

one of the counts, but reverse as to the other. Because we find

Weathers’s trial counsel provided constitutionally inadequate

assistance by failing to challenge Count Five of Weathers’s

indictment, we vacate Weathers’s conviction on that count and

remand for resentencing.

I

A comprehensive recital of the underlying facts in this case

appears in the opinion resolving Weathers’s initial appeal.

Weathers, 186 F.3d at 949–51. A brief summary suffices here.

In August 1996, Weathers was awaiting trial in several cases

involving thirty-seven counts of rape and related offenses

against five victims. Before the first trial began, the prosecutor,

Assistant United States Attorney (AUSA) Bernadette Sargeant,

learned from an informant that Weathers had plotted to kill the

victims to prevent them from testifying. After an investigation,

Sargeant brought an additional indictment in the Superior Court

of the District of Columbia charging two counts of obstruction

of justice.
3

1 Recodified at D.C. CODE § 22-1810 (2001).

Later, in March 1997, the FBI learned from an inmate that

Weathers had asked for help in hiring someone to kill Sargeant,

the earlier informant, and the five victims. At the FBI’s request,

the inmate recorded a conversation with Weathers in which

Weathers offered to pay $20,000 to have the prosecutor killed.

Later that same month, a police officer, posing as a hit man, met

with Weathers in jail and recorded their conversation. Among

other things, Weathers instructed the officer to kill one of the

rape victims and “cut [the] head off” the first informant.

Weathers explained that his friend, Maurice Logan, would pay

for the killings. When the police searched Logan’s apartment,

they found a March 9, 1997 letter from Weathers asking Logan

to “get at” the rape victims by burning down their houses.

Based on that evidence, Weathers was indicted in federal

district court on six counts. Counts One and Two, which are not

at issue in this proceeding, charged, respectively, use of interstate commerce facilities in the commission of murder-for-hire

in violation of 18 U.S.C. § 1958, and threatening to injure a

person in violation of D.C. CODE § 22-2307 (1981).1

 The

remaining counts, which are at issue here, charged:

• Count Three: obstruction of justice, in violation of D.C.

CODE § 22-722(a)(6);

• Count Four: threatening a federal official, in violation of 18

U.S.C. § 115;

• Count Five: threatening to injure a person, in violation of

D.C. CODE § 22-2307 (1981); and

• Count Six: obstruction of justice, in violation of D.C. CODE

§ 22-722(a)(6).
4

Specifically, Count Three’s obstruction of justice charge related

to Weathers’s attempts to “impede, intimidate, interfere with

and retaliate against witnesses,” while Count Six’s charge under

the same code provision related to his attempts against the

prosecutor. Counts Four and Five both specifically related to

Weathers’s threats directed at the prosecutor, while Count Two

related to Weathers’s threats to injure witnesses.

Weathers was convicted by a jury on all six counts and was

sentenced by the court to: (1) ten years’ imprisonment on Count

One; (2) 80–240 months on each of Counts Two and Five; (3)

fifteen years to life on each of Counts Three and Six; and (4)

five years’ imprisonment on Count Four. The court ordered the

sentences on the federal crimes — Counts One and Four — to

run consecutively. The court also ordered consecutive sentences

on the D.C. crimes — Counts Two, Three, Five, and Six — but

ordered that the D.C. sentences run concurrently with the federal

sentences. Weathers, 186 F.3d at 950–51.

Weathers appealed his conviction, arguing for the first time

that the indictment was flawed because it had multiplicitous

counts — that is, that the indictment charged the same offense

in more than one count in violation of the Double Jeopardy

Clause. Specifically, Weathers argued his conviction on Count

Four for threatening an official (the prosecutor) in violation of

18 U.S.C. § 115, and his conviction on Count Five for threatening a person (also the prosecutor) in violation of D.C. CODE

§ 22-2307, constituted two convictions for the same offense.

Weathers, 186 F.3d at 951. He also argued his two obstruction

of justice convictions (Counts Three and Six) under the same

D.C. Code provision — D.C. CODE § 22-722(a)(6) — constituted two convictions for a single offense. Weathers, 186 F.3d

at 952. We declined to address the multiplicity claims on their

merits because they had been waived by Weathers’s failure to
5

raise them before trial. Id. at 958. Weathers had a fallback

position, however: that his trial counsel’s failure to timely raise

the multiplicity claims constituted ineffective assistance. In

accord with this court’s general practice, we remanded that

claim to the district court for an evidentiary hearing. Id.

On remand, the district court heard testimony from Weathers’s trial counsel. The government acknowledges trial counsel’s testimony “was less tha[n] perfectly clear.” Appellee’s Br.

22. When asked generally whether he considered challenging

Weathers’s indictment on double jeopardy grounds, counsel

replied he “didn’t think that double jeopardy was involved.”

When asked specifically whether he considered whether Counts

Six and Three — both charging obstruction of justice violations

under the same provision of the D.C. Code — charged the same

conduct, he replied he didn’t “believe they did charge the same”

because “[o]ne is Federal and one is District” and “[t]he

elements of the offense are different.” After it was pointed out

to him that both were District offenses, counsel stated further

that he “thought they charged different criminal conduct” and

had “different people involved.” And when asked about Counts

Four and Five — both relating to Weathers’s threats against the

prosecutor — counsel explained he “did not think there were

any double jeopardy counts. One was to injure a person, and

one was to injure a federal officer. They are two different

things.”

Counsel also stated he didn’t challenge the indictment

because he wanted “to keep everything the way it was and not

move to separate various aspects of the indictment.” When

pressed on that point, he responded: “If you get each and every

one of them separated out of — broken up, then I have more

counts, I have some fifteen counts.” Elaborating during crossexamination, counsel explained: “If I file a multiplicitous

motion I give the government a chance to file a superseding
6

indictment, and I run the risk of losing when they have ten,

eleven, fifteen counts, whatever number they are going to get.”

The district court issued a memorandum decision denying

Weathers’s claims. United States v. Weathers, Cr. No. 97-165,

2006 U.S. Dist. LEXIS 9587 (D.D.C. Feb. 8, 2006). Applying

the two-part analysis established by the Supreme Court in

Strickland v. Washington, the court assessed whether: “(1)

‘counsel’s representation fell below an objective standard of

reasonableness’; and (2) ‘there is a reasonable probability that,

but for counsel’s errors, the result of the proceeding would have

been different.’” Id. at *4 (citation omitted) (quoting Strickland

v. Washington, 466 U.S. 668, 688, 694 (1984)). The court found

deficiencies on both prongs. Regarding Strickland’s first

requirement, Weathers argued his trial counsel’s representation

“‘fell below an objective standard of reasonableness’ because

counsel (1) failed to assess his double jeopardy claims before

trial and (2) continued to believe at the evidentiary hearing that

Defendant’s double jeopardy claims were without merit.” Id.

Relying on the trial counsel’s testimony at the hearing, the court

rejected that argument:

[C]ounsel’s decision not to challenge the indictment was

based on a reasonable strategic and tactical judgment.

Counsel testified that he had considered the possibility of a

double jeopardy violation but did not challenge the indictment because the Government could have corrected any

flaws by filing a superseding indictment containing more

charges. Although there is no legal research in counsel’s

file on the issue of double jeopardy, counsel credibly

testified, as an experienced criminal defense lawyer, that he

considered the issue and made a tactical judgment based on

his assessment of the severity and circumstances of Defendant’s crimes. . . . Given the facts of the case, this assessment was quite reasonable and was not professionally
7

deficient. Thus, Defendant does not satisfy the first prong

of the Strickland test.

Id. at *5–6 (citation omitted). 

The court further reasoned that, even assuming counsel’s

representation was deficient, Weathers was not prejudiced as a

result and therefore his claims also failed under Strickland’s

second prong. Id. at *6. Here, the court considered each of

Weathers’s double jeopardy claims separately, determining that

both failed on the merits. The court explained that Counts Four

and Five could not merge because each “requires proof of an

additional fact which the other does not.” Id. at *8 (quoting

Blockburger v. United States, 284 U.S. 299, 304 (1932)).

Specifically, Count Four — threatening a federal official in

violation of 18 U.S.C. § 115 — uniquely requires the victim be

a federal officer. And surveying District of Columbia cases

discussing the D.C. statute underlying Count Five — threatening

to injure a person in violation of D.C. CODE § 22-2307 — the

court concluded that Count Five requires a threat of serious

bodily harm, which Count Four does not. Weathers, 2006 U.S.

Dist. LEXIS 9587, at *8–10. As for Counts Three and Six, the

court explained they did not merge because, even though the

two counts charged violations of the same subsection of the D.C.

Code, they related to different obstruction attempts. Id. at

*10–12.

II

Weathers’s appeal from the district court’s decision presents

two ineffective assistance of counsel claims: one relating to

Counts Three and Six of the indictment, and the other to Counts

Four and Five. Both claims arise from purported violations of

his double jeopardy rights. “The Fifth Amendment guarantee

against double jeopardy protects not only against a second trial
8

for the same offense, but also against multiple punishments for

the same offense.” Whalen v. United States, 445 U.S. 684, 688

(1980) (internal quotation marks omitted). This court has

already decided Weathers cannot directly challenge his convictions on double jeopardy grounds because he waived those

claims by failing to raise them at trial. Weathers, 186 F.3d at

958. Nonetheless, because to prevail on his ineffective assistance claims Weathers “must demonstrate both deficient

performance and prejudice to him,” the merits of his double

jeopardy claims reassert themselves in this appeal. United

States v. Williams, No. 04-3157, __ F.3d __, 2007 U.S. App.

LEXIS 12637, at *15 (D.C. Cir. June 1, 2007).

We evaluate each of Weathers’s claims independently. In

doing so, we apply Strickland v. Washington’s two-part test,

inquiring (1) whether “counsel’s representation fell below an

objective standard of reasonableness,” and (2) whether “there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

466 U.S. at 688, 694. In assessing whether counsel’s representation was reasonable, we “consider[] all the circumstances,”

recognizing “the wide latitude counsel must have in making

tactical decisions.” Id. at 688–89. Our review of counsel’s

performance “must be highly deferential” — “indulg[ing] a

strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial

strategy.’” Id. at 689.

A

As noted, Counts Three and Six relate to obstruction

attempts targeted at different individuals (the witnesses and the

prosecutor, respectively) but both allege violations of the same

subsection of D.C.’s obstruction of justice statute. That subsec-
9

tion provides: “A person commits the offense of obstruction of

justice if that person . . . [c]orruptly, or by threats of force, [in]

any way obstructs or impedes or endeavors to obstruct or

impede the due administration of justice in any official proceeding.” D.C. CODE § 22-722(a)(6). Subsection (a)(6) is the

omnibus provision of D.C.’s obstruction of justice statute; the

statute’s other subsections are directed at specific types of

obstructive conduct. See id. § 22-722(a)(1)–(5). It is not clear

why the government in Counts Three and Six charged Weathers

under the omnibus provision instead of one of the other more

specific provisions. But the fact is, it did.

Weathers argues Counts Three and Six charge the same

offense, and thus his convictions for both constitute a double

jeopardy violation. When two violations of the same statutory

provision are charged, we evaluate whether only a single offense

is involved by “asking what act the legislature intended as the

‘unit of prosecution’ under the statute.” Weathers, 186 F.3d at

952 (citing Sanabria v. United States, 437 U.S. 54, 70 n.24

(1978)). Weathers’s argument therefore turns on the proper

“unit of prosecution” for D.C. CODE § 22-722(a)(6).

Relying primarily on the provision’s language, Weathers

contends that an “individual” is not an allowable unit of

prosecution under subsection 22-722(a)(6). Because, according

to Weathers, Counts Three and Six differ only in that they relate

to different individuals, they must merge. And because he was

convicted and received separate sentences for both counts,

Weathers contends he fulfills both prongs of Strickland — that

is, it was unreasonable for his trial counsel not to challenge the

counts as multiplicitous, and he was prejudiced by that failure.

But as Weathers recognizes, even if he is correct that

Counts Three and Six merge, that is not itself sufficient for him

to prevail in this appeal, because this is an ineffective assistance
10

claim, not a direct challenge to his convictions on double

jeopardy grounds. The crux of an ineffective assistance claim

is not simply whether trial counsel neglected to press a viable

legal argument, but whether counsel’s failure to do so was

objectively unreasonable under the circumstances. Indeed, for

Counts Three and Six it is not necessary for us to address merger

because, even assuming the two counts merge, Weathers’s

counsel still acted reasonably in not challenging them.

Weathers concedes the government originally could have

brought multiple obstruction charges against him under various

subsections of D.C. CODE § 22-722 authorizing similar sentences. See Appellant’s Reply Br. 2, 5–6 & n.1, 9. He also

concedes that if he had successfully challenged Counts Three

and Six as multiplicitous, “the government could have ‘cured’

the errors by returning a superseding indictment again charging

[multiple] offenses authorizing similar sentences.” Id. at 5–6.

Weathers is plainly correct in that regard. Because Weathers

endeavored to obstruct multiple criminal proceedings involving

multiple individuals on multiple occasions, there are many ways

the government could have restructured its indictment to avoid

unit of prosecution concerns, and any restructuring would

almost certainly have resulted in more obstruction of justice

counts against Weathers under D.C. CODE § 22-722. Thus, for

example, if the government had returned a superseding indictment relying on a relevant subsection that clearly permits an

“individual” as a unit of prosecution, see id. § 22-722(a)(2), it

could have replaced Counts Three and Six with seven obstruction counts — one each for the five victims, the prosecutor, and

the first informant. Or, if the government had focused instead

on “proceedings,” see id. § 22-722(a)(2), (6), it could have

replaced Counts Three and Six with six obstruction counts —

one for each of the five rape cases and one for the obstruction

case then pending in Superior Court. Alternatively, even

focusing exclusively on Weathers’s discrete acts or “endeavors”
11

to obstruct, see id. § 22-722(a)(2), the government could have

returned a superseding indictment with three counts — one for

his second attempt to solicit a fellow inmate’s help in killing

witnesses, one for his solicitation of the undercover police

officer posing as a hit man, and one for his letter to Logan

asking him to burn down witnesses’ houses. And had the

government returned an indictment breaking Weathers’s

obstruction attempts down even further — for example, by

proceedings per endeavor — the number of counts would have

multiplied even more.

 Before the district court on remand, Weathers’s trial

counsel testified he specifically considered the possibility of a

superseding indictment with more counts and made a “tactical

decision” not to challenge the indictment on multiplicity

grounds. As explained, that decision made perfectly good sense

with regard to Counts Three and Six. Strickland’s first prong

asks whether “counsel’s representation fell below an objective

standard of reasonableness.” 466 U.S. at 688 (emphasis added).

Given the very real possibility of a worse superseding indictment, and the strong deference accorded trial counsel’s strategic

choices, id. at 691, we cannot say the decision made by Weathers’s trial counsel was objectively unreasonable. Hence,

Weathers’s ineffective assistance claim relating to Counts Three

and Six fails on the first prong of Strickland.

Weathers argues his trial counsel could not have made an

informed strategic decision, because the counsel’s testimony

establishes “at best that he judged, mistakenly, [a double

jeopardy claim] to be meritless.” But evaluating the merit of

Weathers’s Counts Three and Six merger claim was unnecessary

to the tactical choice his trial counsel faced. Even assuming the

merger argument was a slam-dunk, counsel still had to consider

the threat of a worse superseding indictment. As the Supreme

Court explained in Strickland, “strategic choices made after less
12

2Weathers also argues that it may have constituted “prosecutorial

vindictiveness” for the government to respond to a multiplicitous

challenge by replacing Counts Three and Six with more obstruction

counts. Appellant’s Br. 10 (citing United States v. Meyer, 810 F.2d

1242, 1245–46 (D.C. Cir. 1987)). That argument has no merit. Where

one or more counts of an indictment are defeated pretrial because of

a curable defect, merely curing the defect does not constitute

prosecutorial vindictiveness. See Meyer, 810 F.2d at 1246 (citing

United States v. Goodwin, 457 U.S. 368, 381–84 (1982)) (“[A]

prosecutorial decision to increase charges after a defendant has

exercised a legal right does not alone give rise to a presumption [of

vindictiveness] in the pretrial context.”).

than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the

limitations on investigation. In other words, counsel has a duty

to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.” Id.

at 690–91 (emphasis added). In this instance, it was not

necessary that counsel know whether the merger claim had merit

for him reasonably to decide it was not in his client’s best

interest to pursue it.2

B

Weathers’s second ineffective assistance of counsel claim

relates to Counts Four and Five of his indictment. Both counts

pertain to Weathers’s threats to injure the prosecutor. Unlike

Counts Three and Six, Counts Four and Five charge under

different statutes — one under federal law and the other under

the D.C. Code. Count Five charged Weathers with threatening

to injure a person, in violation of D.C. CODE § 22-2307. Count

Four charged him with threatening a federal official, in violation

of 18 U.S.C. § 115. Weathers contends Count Five is a lesser

included offense of Count Four, and therefore the counts merge.

As this court explained in Weathers’s first appeal:
13

To determine whether Congress intended two statutory

provisions to proscribe the same offense, the Supreme

Court has applied the rule set forth in Blockburger v. United

States: “Where the same act or transaction constitutes 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.”

Weathers, 186 F.3d at 951 (alteration omitted) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). Count

Four’s § 115 proscribes “threat[s] 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 . . . .” 18 U.S.C. § 115(a)(1)(B). Count Five’s

§ 22-2307 proscribes “threat[s] . . . to injure the person of

another . . . .” Plainly, Count Four requires proof of facts not

required by Count Five; namely, that the threatened individual

is “a United States official” and there was “intent to impede . . .

the performance of official duties.” Less clear is whether Count

Five requires proof of any element not required by Count Four.

Weathers insists it does not.

Prior to this appeal, the government argued Count Five

requires proof of an independent fact; namely, that, unlike

§ 115, the D.C. statute requires a threat of serious injury.

Although § 22-2307 on its face contains no such requirement,

the government relied on the model jury instructions for the

threats statute, as well as District of Columbia cases suggesting

that serious bodily injury is an element of that statute. See, e.g.,

United States v. Baish, 460 A.2d 38, 42 (D.C. 1983). The

government’s argument was sufficiently compelling to convince

the district court, which, relying on the District of Columbia

Court of Appeals’s “most recent cases,” interpreted § 22-2307

to require a threat of serious injury and concluded that “[c]ount
14

five, therefore, is not a lesser-included offense of count four.”

Weathers, 2006 U.S. Dist. LEXIS 9587, at *9–10. 

But the government has changed its mind. At some point

between prevailing in district court and preparing for this appeal,

the government discovered its litigating position in this case is

inconsistent with its broader attempt to persuade D.C. courts that

serious bodily injury is not an element of D.C.’s threats statute.

Thus, the government now agrees with Weathers “that his

convictions under Count Four . . . and Count Five . . . merge

under Blockburger” because “Count Five does not contain an

element that is not present in Count Four.” Appellee’s Br. 38.

The government’s concession that Counts Four and Five

merge does not necessarily mean Weathers prevails on his

claim, however. This court has already decided it is too late for

Weathers to directly challenge his convictions as multiplicitous.

See Weathers, 186 F.3d at 958. Weathers can only prevail in

this appeal if he can show his trial counsel’s failure to press the

merger claim constituted ineffective assistance of counsel. To

do so, Weathers must satisfy Strickland’s two-part test, showing

his counsel’s actions were both objectively unreasonable and

prejudicial.

We are persuaded the failure of counsel to challenge Counts

Four and Five as multiplicitous was ineffective under Strickland.

We see no evidence counsel made a reasoned tactical decision

for Counts Four and Five like that made with regard to Counts

Three and Six. As noted, counsel’s testimony was not pellucid,

and so it is impossible to foreclose entirely the possibility that

his concern about a worse superseding indictment extended to

Counts Four and Five. But as the government conceded at oral

argument, counsel’s confusing testimony regarding his concern

about a worse superseding indictment is best interpreted as

relating to counts Three and Six, not Four and Five. 
15

3This testimony brings to mind the humorous statement that, in

D.C., there are more lawyers than people.

The district court’s opinion rejecting Weathers’s ineffective

assistance of counsel claims further supports this interpretation.

The court determined that “counsel’s decision not to challenge

the indictment was based on a reasonable strategic and tactical

judgment,” but the opinion does not explicitly indicate to which

decision it is referring — Counts Three and Six, Counts Four

and Five, or both. Weathers, 2006 U.S. Dist. LEXIS 9587, at

*5. The opinion continues, however: “Counsel testified that he

had considered the possibility of a double jeopardy violation but

did not challenge the indictment because the Government could

have corrected any flaws by filing a superseding indictment

containing more charges.” Id. The concern about the government “correct[ing] any flaws” with “more charges” has no

applicability to Counts Four and Five. Thus, the district court’s

opinion supports, albeit indirectly, that counsel’s “strategic and

tactical judgment” was limited to Counts Three and Six, which,

as explained, presented a real possibility of a superseding

indictment with “more charges.”

Moreover, the reason provided by Weathers’s trial counsel

for not challenging Counts Four and Five is not objectively

reasonable. When asked if he considered “whether there were

any double jeopardy concerns with regard to counts four and

five,” counsel replied: “I did not think that there were any

double jeopardy counts. One was to injure a person, and one

was to injure a federal officer. They are two different things.”

Of course, not every person is a federal officer, but presumably

every federal officer is a person.3

 Thus, the rationale given by

counsel for not pursuing a double jeopardy claim is inadequate

in light of Blockburger’s requirement that “each provision

require[] proof of a fact which the other does not.” 284 U.S. at

304 (emphasis added).
16

4 Part of our hesitation in definitively deciding any of Weathers’s

merger claims is that none of them has been subjected to “the crucible

of litigation — the presence of parties motivated to present a neutral

court with the most persuasive arguments.” Nat’l Wildlife Fed’n v.

Burford, 835 F.2d 305, 333 (1987) (Williams, J., concurring and

dissenting). The government conceded on appeal that Counts Four

and Five merge, and thus did not attempt to rebut any merger

arguments relating to those counts. 

And finally, had Weathers’s counsel challenged Counts

Four and Five as multiplicitous, there is a reasonable probability

that the challenge would have successfully reduced his indictment by one count. There are at least three independent

arguments supporting merger for Counts Four and Five. We do

not find it necessary to resolve any of those arguments on their

merits, for under Strickland Weathers need show only “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

466 U.S. at 694 (emphasis added). We are satisfied there is a

reasonable probability Weathers would have prevailed on one of

the merger arguments briefly limned below.4

First, Weathers contends — and the government joins this

argument on appeal — that Count Five’s § 22-2307 does not

require a showing of threatened serious injury; “[n]umerous

D.C. cases have discussed the elements of § 22-2307 without

mention of a requirement that the threatened injury be serious.”

Appellant’s Br. 11–12 (citing, inter alia, Joiner v. United States,

585 A.2d 176, 179 (D.C. 1991); Holt v. United States, 565 A.2d

970, 971 (D.C. 1989) (en banc)). Recognizing that more recent

cases have included seriousness in the listed requirements of

§ 22-2307, Weathers notes that they have done so “without

discussion of its origin or basis as an element of the statute.” Id.

at 12. Elaborating on this, the government in its brief points out
17

the seriousness requirement was first added without explanation

in Campbell v. United States, 450 A.2d 428, 431 n.5 (D.C.

1982), perhaps in reliance on a model jury instruction. Appellee’s Br. 40. The government suggests that Campbell’s unexplained change was simply carried forward by later cases citing

to Campbell or its progeny, and that there was never a deliberate

decision to make seriousness an element of § 22-2307. The

government has presented this argument to the District of

Columbia Court of Appeals in recent criminal cases, but so far

the court has not found it necessary to decide the issue. Nonetheless, both Weathers and the government point to a footnote

in the recent case of Jenkins v. United States, 902 A.2d 79, 86

n.10 (D.C. 2006), as casting some doubt on the continued

viability of the seriousness requirement. Appellant’s Br. 12;

Appellee’s Br. 41–42. In sum, while the question remains open

whether § 22-2307 requires a showing of threatened serious

injury, both Weathers and the government agree there is a

compelling argument it does not. And, if Count Five does not

require a showing of threatened serious injury, then Counts Four

and Five merge, because Count Five does not require proof of

an element not present in Count Four.

Second, Weathers argues that even if Count Five’s § 22-

2307 does require threatened serious injury, Counts Four and

Five nonetheless merge. Weathers contends the part of Count

Four’s § 115 relevant for comparison purposes under Blockburger is not its broader prohibition against “threat[s] to assault,

kidnap, or murder,” but rather the specific sub-offense of

“threat[s] to . . . murder.” Appellant’s Br. 14 (citing Whalen v.

United States, 445 U.S. 684, 694 (1980), and United States v.

White, 116 F.3d 903, 931 (D.C. Cir. 1997) (per curiam)). Thus,

even if Count Five requires the threatened injury be serious,

Weathers argues that requirement overlaps with the “threat[] to

. . . murder” element of Count Four, and the two counts merge.

See White, 116 F.3d at 931 (“An offense . . . constitutes a lesser
18

included offense even if it overlaps with only one of several

offenses listed in the statute criminalizing the greater offense.”).

Third, relying on the ambiguity in the law with regard to

whether seriousness is a required element of Count Five,

Weathers argues the rule of lenity mandates merger. Appellant’s Br. 17. It is a “settled rule that ambiguity concerning the

ambit of criminal statutes should be resolved in favor of lenity.”

Whalen, 445 U.S. at 695 n.10 (internal quotation marks omitted)

(quoting United States v. Bass, 404 U.S. 336, 347 (1971)); see

also Ladner v. United States, 358 U.S. 169, 177–78 (1958); Bell

v. United States, 349 U.S. 81, 84 (1955). This court has

previously applied the rule of lenity in resolving ambiguity in

favor of merger. See United States v. Cunningham, 145 F.3d

1385, 1398–99 (D.C. Cir. 1998).

There is a reasonable probability Weathers would have

prevailed on one of these merger arguments. Moreover, in

contrast to Counts Three and Six, there is nothing in the record

to indicate that Weathers’s counsel made an objectively reasonable tactical decision in neglecting to challenge Count Five as a

lesser included offense of Count Four. Weathers has therefore

satisfied Strickland’s two-part test with regard to Counts Four

and Five.

III

We affirm the district court’s order as to Counts Three and

Six, but reverse as to Counts Four and Five. We accordingly

vacate Weathers’s conviction on Count Five, and remand for

resentencing.

So ordered.