Opinion for the Court filed by Circuit Judge BROWN.
Awаiting 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 raisе it before trial, but remanded the ineffective assistance of counsel claim for an initial determination by the district court.
See United States v. Weathers,
I
A comprehеnsive recital of the underlying facts in this case appears in the opinion resolving Weathers’s initial appeal.
Weathers,
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 federаl 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).
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,
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Weathers appealed his conviction, arguing for thе 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,
On remand, the district court heard testimony from Weathers’s trial counsel. The government acknowledgеs 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 tо 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 cross-examination, counsel explained: “If I file a mul-tiplicitous motion I give the government a chance to file a superseding 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,
[Cjounsel’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 doublе 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 deficient. Thus, Defendant does not satisfy the first prong of the Strickland test.
Id.
at *2,
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.,
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 for the same offense, but also against multiple рunishments for the same offense.”
Whalen v. United States,
We evaluate each of Weathers’s claims independently. In doing so, we apрly
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.”
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 subsection provides: “A person commits the offense of obstruction of justice if that person ... [cjorruptly, 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,
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 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 *235 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 multiplici-tous, “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” 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.”
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 indictmеnt. As the Supreme Court explained in
Strickland,
“strategic choices made after less than complete investigation are reasonable precisely to the extent that rea
*236
sonable 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,
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:
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,
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,
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 аs multi-plicitous.
See Weathers,
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.
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,
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
*238
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
Blockburgef
s requirement that
“each
provision require[] proof of a fact which the other does not.”
And finally, had Weathers’s counsel challenged Counts Four and Five as multi-plicitous, there is a reasonable probability that the challenge would have successfully reduced his ' indictment by one count. There are at leаst 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.”
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; “[njumerous 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,
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,
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,
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.
Ill
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.
Notes
. Recodified at D.C. Code § 22-1810 (2001).
. Weathers 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,
. This testimony brings to mind the humorous statement that, in D.C., there are more lawyers than people.
. 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,