United States v. Demetrius Sharron Davis, 2017 U.S. App. LEXIS 6908

On Oct. 26, 2013 police found a loaded pistol on a couch in Tacarra Wilson’s home where Demetrius Davis was present; Davis was a convicted felon and later indicted for possession under 18 U.S.C. § 922(g).
While detained pretrial Davis made recorded jail calls to Wilson and to his nine‑year‑old daughter D.D.; a call on Oct. 7, 2014 included Davis urging D.D. not to testify and saying her testimony would "lock me up."
The government filed a superseding indictment adding Count Two (witness tampering, 18 U.S.C. § 1512(b)(1)) and Count Three (obstruction of justice, 18 U.S.C. § 1503) based on the post‑indictment phone calls.
Davis moved to dismiss the superseding indictment as multiplicitous and vindictive, requested a bill of particulars, sought continuances, challenged the venire and one juror, and sought admission of a letter from Wilson; the district court denied relief and a jury convicted Davis on all counts.
On appeal Davis challenged multiplicity/vindictiveness of Counts Two/Three, sufficiency of the evidence for those counts, denial of bill of particulars and continuance, venire composition and Juror 14 rulings, and exclusion of Wilson’s letter.
The Eleventh Circuit affirmed, holding (inter alia) § 1503’s omnibus clause still reaches witness‑related conduct, §§ 1503 and 1512(b)(1) are not multiplicitous, and the evidence (the jail call) supported convictions.

Issue	Davis’s Argument	Government’s Argument	Held
Multiplicity: charging both § 1503 and § 1512(b)(1)	Congress did not intend cumulative prosecutions; witness tampering should be charged only under § 1512	The statutes cover different elements/interests; Congress left § 1503’s omnibus clause intact so both may apply	Not multiplicitous; Blockburger elements differ (§1503 requires endeavor to obstruct due administration of justice; §1512(b)(1) focuses on influencing testimony)
Vindictiveness (adding charges pretrial)	Superseding indictment was retaliatory for Davis’s refusal to cooperate in another case	Charges were based on post‑indictment conduct and uncovered evidence; no presumption of vindictiveness pretrial	No actual vindictiveness shown; denial affirmed
Sufficiency of evidence for obstruction/witness tampering	D.D. testified she did not feel threatened; thus evidence insufficient	The Oct. 7 call showed corrupt persuasion/attempt to prevent testimony; intent and endeavor suffice even if target wasn’t actually intimidated	Evidence sufficient for both §1503 and §1512(b)(1) convictions
Denial of continuance and bill of particulars	Late discovery (many calls) + Davis’s mental health required more time; wanted specifics of statements	Record/discovery and indictment identified the call(s); defense counsel had access and participated in calls	No abuse of discretion; indictment and discovery were adequate and no prejudice shown

United States v. Moody, 977 F.2d 1420 (11th Cir. 1992) (§1503 omnibus clause can encompass witness tampering)
United States v. LeMoure, 474 F.3d 37 (1st Cir. 2007) (§1503’s omnibus clause remains applicable to witness tampering after §1512 amendments)
United States v. Hernandez, 730 F.2d 895 (2d Cir. 1984) (holding §1512 intended to replace §1503 for witness intimidation — treated as differing minority view)
United States v. Goodwin, 457 U.S. 368 (1982) (pretrial addition of charges does not create presumption of vindictiveness; defendant must show actual vindictiveness)
United States v. Silverman, 745 F.2d 1386 (11th Cir. 1984) (elements of §1503’s omnibus clause explained)
Blockburger v. United States, 284 U.S. 299 (1932) (same‑elements test for double jeopardy/multiplicity)