Eleventh Circuit Notes Split Re Whether Indictment under Both the Bank Robbery Act and the Hobbs Act Is Multiplicitous

Per U.S. v. Reddick, Slip Copy, 2007 WL 1540210 (11th Cir. May 29, 2007):

Reddick and Bannister argue that the Government should not have indicted them for violating both the Bank Robbery Act and the Hobbs Act since these statutes proscribe the same conduct. As we noted previously, the defendants did not raise this issue at trial, so we only review the decision for plain error. This Court has not addressed the question of whether prosecuting someone for armed bank robbery under both the FBRA and the Hobbs Act is multiplicitous. Our sister circuits have, but their decisions are inconsistent. Compare United States v. Maldonado-Rivera, 922 F.2d 934, 981-983 (2d Cir.1990) (holding that the imposition of punishment for convictions under both § 1951 and § 2113 does not violate the Double Jeopardy Clause) and United States v. Golay, 560 F.2d 866 (8th Cir.1977) (holding that it was proper to convict under both statutes, but improper to sentence under both).

The very fact that the circuits are split on this issue indicates the district court did not commit plain error in this case. Indeed, we have held that “where neither the Supreme Court nor this Court has ever resolved an issue, and other circuits are split on it, there can be no plain error in regard to that issue.” Aguillard, 217 F.3d at 1321.