United States v. Brown: Re-affirming Judicial Control over Multiplicitous Convictions and Post-Verdict Rule 48(a) Dismissals

1. Introduction

In United States v. Brown, No. 24-20095 (5th Cir. Aug. 12, 2025), the Fifth Circuit confronted two discrete procedural questions arising out of a sprawling narcotics and murder-for-hire prosecution:

Whether the district court erred in denying a pre-trial motion to suppress on attorney-client privilege and Sixth Amendment grounds.
Whether, after the jury had convicted the defendant on four overlapping homicide counts, the court could simply grant the Government’s last-minute motion under Federal Rule of Criminal Procedure 48(a) to dismiss the two greater-included § 924(j) firearm-murder counts—thereby locking in mandatory life sentences on the two lesser-included counts—without itself deciding which convictions should fall under the Double Jeopardy Clause.

While the panel affirmed the suppression ruling, it vacated the Rule 48(a) dismissal and the sentences, holding that:

New Precedent: When a multiplicity problem exists between greater- and lesser-included offenses on which the jury has returned verdicts, the district court must exercise its own discretion to determine which convictions to vacate; it may not surrender that choice to the prosecution via a post-verdict Rule 48(a) motion—even where the motion is facially rational and unopposed as to the underlying Double Jeopardy issue.

2. Summary of the Judgment

Suppression Motion: The panel held that (1) third-party presence (a confidential informant) defeated attorney-client privilege because no “common legal interest” existed, and (2) any Sixth Amendment right had not attached because the recorded meetings occurred years before indictment. Denial of suppression was affirmed.
Rule 48(a) Dismissal: The Government, fearing cumulative punishment after Lora v. United States, sought to dismiss Counts 3-4 (§ 924(j) murder with a firearm) on sentencing day. The district court obliged, leaving only Counts 1-2 (murder-for-hire conspiracy and drug-related killing) which mandated life. The Fifth Circuit ruled that the court abdicated its duty under Ball v. United States to decide which convictions to vacate where double jeopardy bars multiple punishments. It therefore:
- Vacated the Rule 48(a) order;
- Vacated the sentences on Counts 1-2; and
- Remanded for the court to choose—in its discretion—whether to dismiss Counts 1-2 or Counts 3-4 and then resentence.

3. Analysis

3.1 Precedents Cited and Their Influence

Upjohn Co. v. United States, 449 U.S. 383 (1981) – Defines scope of corporate attorney-client privilege. Panel distinguished it: the CI was neither employee nor agent; thus no privilege.
In re Santa Fe Int’l Corp., 272 F.3d 705 (5th Cir. 2001) – “Common legal interest” limited to co-defendants or potential co-defendants facing palpable litigation. Applied to reject privilege.
Diaz & Carr decisions – Fifth Circuit cases holding Sixth Amendment right attaches post-indictment; used to defeat Brown’s Sixth Amendment claim.
Ball v. United States, 470 U.S. 856 (1985) – Requires vacatur of duplicative conviction and affirms sentencing discretion lies with court. Central to holding that trial judges—not prosecutors—choose which count to vacate.
Lora v. United States, 599 U.S. 453 (2023) – Clarified § 924(j) does not mandate consecutive sentencing and, by implication, does not authorize cumulative punishment with predicate offenses. Provided the Government’s impetus for dismissal.
United States v. Sanders, 133 F.4th 341 (5th Cir. 2025) – Post-Lora decision recognizing § 924(j) and its predicate merge for Double Jeopardy purposes; cited to underscore multiplicity.
United States v. Cowan, 524 F.2d 504 (5th Cir. 1975) – Discusses court’s power to deny Rule 48(a) dismissals; contrasted with current scenario to emphasize judicial oversight.

3.2 Court’s Legal Reasoning

Attorney-Client Privilege: Presence of CI waived confidentiality; “common interest” exception inapplicable because CI had no joint exposure or shared defense goal. The court rigorously applied Fifth Circuit precedent that narrowly construes privilege to prevent abuse.
Sixth Amendment: No adversary proceedings had begun in 2013; therefore, any governmental intrusion was outside Sixth Amendment coverage.
Rule 48(a) & Double Jeopardy:
- The text of Rule 48(a) requires defendant consent only “during trial”; post-verdict motions merely need leave of court.
- Yet, under Ball, once multiplicity is identified, the trial judge must decide which conviction to vacate; that duty is non-delegable.
- Because Counts 1-2 (lesser-included) carried harsher mandatory penalties than Counts 3-4 (greater-included) the choice was not obvious; judicial discretion was essential.
- By rubber-stamping the Government’s choice, the district court both constrained its own sentencing authority and foreclosed argument on mitigation.

3.3 Impact of the Decision

The case crystallizes two notable principles that will likely influence future federal practice:

Judicial Autonomy in Multiplicity Corrections: Trial courts must make an independent, on-the-record choice about which conviction to vacate when greater/lesser counts collide. The Government cannot strategically narrow sentencing options by dismissing counts post-verdict.
Scope of Rule 48(a) After Verdict: Although defendant consent is unnecessary, courts must guard against using Rule 48(a) in ways that effectively dictate sentencing outcomes.
Privilege & Sixth Amendment Clarification: The opinion re-affirms a restrictive view of pre-indictment privilege claims and cements the attachment standard for the right to counsel in the Fifth Circuit.

4. Complex Concepts Simplified

Rule 48(a): A procedural rule letting prosecutors drop charges “with leave of court.” The “leave” requirement ensures dismissals serve justice, not mere strategy.
Multiplicity / Double Jeopardy: Charging the same conduct in multiple counts can violate the constitutional bar on “multiple punishments” for one offense. Courts fix the problem by tossing one conviction.
Greater- vs. Lesser-Included Offense: All elements of the lesser offense are contained within the greater. Example here: § 924(j) (firearm murder) includes all elements of murder-for-hire conspiracy or drug-related killing plus the firearm element.
Blockburger Test: A Supreme Court test asking whether each statute requires proof of an element the other does not; failure means same offense for Double Jeopardy.
Common Legal Interest Privilege: Exception allowing privileged sharing among parties who face the same litigation risk and seek joint counsel. Absent shared risk, privilege evaporates when a third party is present.
Attachment of Sixth Amendment: The right to counsel formally “attaches” only once the government initiates adversarial proceedings (complaint, indictment, arraignment, etc.). Conversations before that are not constitutionally shielded.

5. Conclusion

United States v. Brown provides an important procedural guardrail. While prosecutors retain broad charging and dismissal discretion, that power stops at the courtroom door once a jury has spoken and multiplicity looms. At that juncture, the Constitution and Supreme Court precedent assign responsibility to the judiciary to determine which convictions stand and what punishment is appropriate. The Fifth Circuit’s remand underscores that sentencing is a judicial—not executive—function, and that Rule 48(a) cannot be used to short-circuit that role. Simultaneously, the panel tightened the reins on privilege claims and reiterated the post-indictment threshold for Sixth Amendment protections. Together, these holdings will shape strategic decisions by prosecutors and defense counsel alike, ensuring fuller adversarial testing and a clearer separation of powers in federal criminal practice.