186 F.3d 948 (D.C. Cir. 1999)
United States of America, Appelleev.Marc K. Weathers, Appellant
No. 98-3006
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 1998Decided August 6, 1999

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.
Rachel Adelman-Pierson, Assistant U.S. Attorney, argued  the cause for appellee.  With her on the brief were Wilma A.  Lewis, U.S. Attorney, John R. Fisher and Elizabeth Trosman, Assistant U.S. Attorneys.
Before:  Silberman, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Defendant Marc Weathers was  found guilty on all counts of a six-count indictment arising out  of his attempts to arrange for the murder of several witnesses  and a prosecutor.  He contends that two of his six convictions  should be vacated because each charges an offense also  included in the remaining four counts.  We conclude that  defendant waived this claim by failing to raise it before trial. We find that defendant's further contention, that his attorney  provided ineffective assistance by failing to assert this claim  in a timely manner, must be remanded to the district court  for an initial determination.


2
* In a case filed in the Superior Court of the District of  Columbia in 1996, Assistant United States Attorney (AUSA)  Bernadette Sargeant obtained an indictment charging Weathers with thirty-seven counts of rape and related offenses  involving five victims, including a thirteen-year-old child.1The presiding judge ordered the five rape cases severed for  separate trials.  Prior to trial on the first rape case, an  informant told Sargeant that defendant had plotted to kill the  five victims to prevent them from testifying.  The trial was  postponed, and after investigation Sargeant obtained a second  Superior Court indictment charging Weathers with two  counts of obstruction of justice.


3
In March 1997, just weeks before the rescheduled rape trial  was set to begin, a second informant told the FBI that  Weathers was trying to hire him to arrange the killing of both  the rape victims and the prosecutor.  At the government's  request, the informant met with Weathers and recorded a  conversation in which defendant said he would pay $1,000 in  advance and $19,000 after AUSA Sargeant was killed.  The plan required the informant to hire a hit man, and provided  that defendant's friend on the outside, Maurice Logan, would  make the necessary payments.  9/30/97 Tr. at 6-8, 10-11, 1519.


4
On March 19, 1997, Detective Larry Best of the Metropolitan Police Department, posing as a hit man, met with Weathers in jail and discussed the details of the murder-for-hire  scheme.  Weathers instructed Detective Best that he should  first kill the victim in the upcoming trial, who lived on Hayes  Street.  "I need Hayes done first," defendant said.  App. 19;9/29/97 Tr. at 138-40.  "Maybe you can blow that [expletive  deleted] up."  App. 23.  With respect to AUSA Sargeant,  whom he referred to as the "DA," Weathers first said that  killing her "ain't gonna do nothing but slow the proces[s] ...  cause see if she gone they just put another one in."  Id. at 19.Later, however, defendant said:  "I just want her gone.  You  know what I'm saying.  I just want 'em gone.  Set an  example....  I don't really got no ... special way.  I just  want it done.  You know what I'm saying.  Easiest way for  you."  Id. at 20, 22.  Weathers told Best that he could get his  payment for the killings from Weathers' friend Logan and a  woman named Mattie.  Id. at 15-19.


5
On March 26, 1997, the FBI conducted a search of Maurice  Logan's apartment, in which it found a letter from defendant  dated March 9.  9/29/97 Tr. at 150-53.  In that letter, Weathers urged Logan to burn down the witnesses' homes to keep  them from testifying.  The letter read, in part:


6
[T]hese people are trying to give me life without parole, and we both know I can't do that number, so I need you to get at a couple of these bitches for me.  You don't have to kill them, just burn they house down while the yin it, or something, so they won't come to court.  You know if the situation was reversed, I'd do it for you....[T]hey don't have a case without these bitches, and they ain't  going to spend no money hiding every body.


7
Id. at 180-81.


8
On April 22, 1997, Weathers was indicted in United States  District Court for plotting against the witnesses and prosecutor in his Superior Court cases.  The indictment charged him  with:  (1) using facilities of interstate commerce in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958;(2) threatening to injure a person (the rape victims), in  violation of D.C. Code § 22-2307;  (3) obstructing justice  (based on the threats against the rape-victim witnesses), in  violation of D.C. Code § 22-722(a)(6);  (4) threatening a federal official (AUSA Sargeant), in violation of 18 U.S.C. § 115;(5) threatening to injure a person (Sargeant), in violation of  D.C. Code § 22-2307;  and (6) obstructing justice (based on  the threats against Sargeant), in violation of D.C. Code  § 22-722(a)(6).  App. 11-14.2  The defendant was convicted  on all counts, and was sentenced 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 both Counts Three  and Six;  and (4) five years imprisonment on Count Four. The court ordered  Counts Two, Three, Five, and Six to run  consecutive to each other, but concurrent with consecutive  sentences on Counts One and Four.

II

9
Defendant contends that his indictment charged the same  offense in more than one count, a  problem known as "multiplicity."  See 1A Charles Alan Wright, Federal Practice &  Procedure §§ 142, 145, at 7-8, 86 (3d ed. 1999).  Because the  Double Jeopardy Clause protects not only against "a second  prosecution for the same offense" after acquittal or conviction, but also against "multiple punishments for the same  offense," North Carolina v. Pearce, 395 U.S. 711, 717 (1969),  defendant contends that two of his convictions must be vacated.  See Jones v. Thomas, 491 U.S. 376, 381 (1989).  Whether  defendant has in fact been punished  twice for the same  offense, however, depends upon what "the legislature intended."  Id.;  see Missouri v. Hunter, 459 U.S. 359, 366-68  (1983).3


10
Defendant's first contention is that his conviction on Count  Four for threatening a federal official (AUSA Sargeant) in  violation of 18 U.S.C. § 115, and his conviction on Count Five  for threatening to injure a person (also Sargeant) in violation  of D.C. Code § 22-2307, constitute two convictions for the  same offense.  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:  "[W]here 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."  284 U.S. 299, 304 (1932);  see  Rutledge v. United States, 517 U.S. 292, 297 (1996);  Hunter,  459 U.S. at 366-67.  Defendant contends that the offenses  charged under 18 U.S.C. § 115 and D.C. Code § 22-2307  constitute a single offense under Blockburger.


11
Section 115(a) makes it a crime to "threaten[ ] 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...."  D.C.  Code § 22-2307 makes it a crime, within the District of  Columbia, to "threaten[ ] ... to injure the person of another."As is apparent from a reading of the two statutes, some facts  required to prove Count Four are not required to prove  Count Five (for example, that the threatened person is "a  United States official" and that the threat was made with  "intent to impede").  Defendant contends, however, that  there is no fact required to prove Count Five that is not also  required to prove Count Four.  If true, this would make the local crime charged in Count Four the equivalent of a "lesser  included offense" of the federal crime charged in Count Five. Therefore, an indictment charging both would fail the Blockburger test.  See Rutledge, 517 U.S. at 297.


12
The government disputes this conclusion.  It contends that  the D.C. statute does have an additional element not contained in the federal statute.  Pointing to model jury instructions for D.C. Code § 22-2307, and to United States v. Baish,  460 A.2d 38, 42 (D.C. 1983), the government argues that the  D.C. statute requires a threat of serious bodily harm.  By  contrast, the federal statute is violated by a threat of mere  "assault," which, the government contends, may involve a  threat of nothing more serious than being spat upon or hit  with an egg.  Gov't Br. at 15-16 & n.14.  Since (if correct)  this means the D.C. law has an element not found in the  federal statute (the threat of serious harm), the government  contends that charging and convicting defendant of both does  not fail Blockburger.


13
Defendant's second contention is that we must vacate either his conviction on Count Three, for violating D.C. Code  § 22-722(a)(6) by obstructing justice based on the threats he  made against the rape-victim witnesses, or his conviction on  Count Six, for violating the same statute based on the threats  he made against Sargeant.  He argues that these also constitute a single offense.  Where two violations of the same  statute rather than two violations of different statutes are  charged, courts determine whether a single offense is involved not by applying the Blockburger test, but rather by  asking what act the legislature intended as the "unit of  prosecution" under the statute.  See Sanabria v. United  States, 437 U.S. 54, 70 n.24 (1978);  see also Bell v. United  States, 349 U.S. 81 (1955) (holding that interstate transportation of two women on same trip in same vehicle constitutes  single violation of Mann Act, 18 U.S.C. § 2421).


14
D.C. Code § 22-722(a)(6) provides that [a] person commits the offense of obstruction of justice if that person [c]orruptly, or by threats of force, any way obstructs or impedes or endeavors to obstruct or impede the due administration of justice in any official proceeding.


15
Defendant contends that the unit of prosecution intended by  the statute is an "official proceeding," and hence that any  number of threats against any number of witnesses on any  number of occasions may be charged only once, as long as  they all relate to a single such proceeding.  The government  responds by asserting that the District of Columbia Court of  Appeals has routinely permitted multiple convictions for obstruction of justice (albeit under a different subsection of the  statute), where the defendant has impeded multiple witnesses  in a single trial.  See Gov't Br. at 22 (citing Skyers v. United  States, 619 A.2d 931 (D.C. 1993) (prosecution under D.C.  Code § 22-722(a)(1));  Smith v. United States, 591 A.2d 229  (D.C. 1991) (same)).  Hence, in the government's view,  Counts Three and Six are not multiplicitous.

III

16
Although it denies that its indictment is multiplicitous, the  government argues that we need not resolve the merits of  defendant's multiplicity challenges because he failed to raise  them before trial, or at any time prior to this appeal.  We  agree.  Rule 12(b)(2) of the Federal Rules of Criminal Procedure states:


17
Any defense, objection, or request which is capable of determination without the trial of the general issue maybe raised before trial by motion ..... The following must be raised prior to trial:  ... Defenses and objections based on defects in the indictment or information....


18
Fed. R. Crim. P. 12(b)(2).  Rule 12(f) provides that "[f]ailure  by a party to raise defenses or objections or to make requests  which must be made prior to trial ... shall constitute waiver  thereof, but the court for cause shown may grant relief from  the waiver."  Fed. R. Crim. P. 12(f).  According to Circuit  precedent, multiplicity claims of the kind presented here are  defenses based on "defects in the indictment" within the  meaning of Rule 12(b)(2), and hence are waived under Rule 12(f) if not raised prior to trial.  This means that unless  "cause" is shown, they "may not later be resurrected" on  appeal.  Davis v. United States, 411 U.S. 233, 242 (1973).Because defendant has asserted no "cause" for granting relief  from the waiver (other than his claim of ineffective assistance  of counsel, which we discuss separately below), we must  affirm Weathers' convictions.


19
In United States v. Harris, 959 F.2d 246, 250-51 (D.C. Cir.  1992), the defendants challenged their convictions for both  conspiracy to distribute cocaine and conspiracy to use firearms during a drug trafficking offense.  Those convictions  subjected them to multiple sentences for the same offense,  defendants argued, since under Blockburger the counts were  "substantially identical because there was only one alleged  conspiracy."  Id. at 250.  Defendants, however, had "not even  allude[d] to such an objection prior to a motion they made  midway through the trial."  Id.  We therefore held that  under Rule 12, defendants had waived their claims and could  not revive them on appeal.  Id.


20
In reaching this result, Harris expressly rejected the argument "that a multiplicity objection is not included within the  defects contemplated by Rule 12(b)(2), because it is a defect  in the sentencing, not in the indictment."  Id.  To the contrary, the court held that "if the multiplicity objection could  have been raised based on the indictment, Rule 12(b)(2)  applies."  Id.  "The purpose of the rule," Harris said, "is to  compel defendants to object to technical defects in the indictment early enough to allow the district court ... to permit  the prosecution to accommodate meritorious challenges, and  to do so without disrupting an ongoing trial."  Id.  The court  then quoted extensively from the Supreme Court's opinion in  Davis v. United States, which identified the same underlying  purpose for the waiver provision of Rule 12:


21
If [Rule 12(b)(2)] time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial.  If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in anew indictment prior to trial.  Strong tactical considerations would militate in favor of delaying the raising of the claim in the hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult.


22
Id. (quoting Davis, 411 U.S. at 241) (alteration in Harris)."A claim of multiplicity," we concluded, "at least in the typical  case where the defect appears on the face of the indictment,  falls clearly within the letter and spirit of the rule."  Id. at  250-51.


23
Two years later, in United States v. Clarke, 24 F.3d 257  (D.C. Cir. 1994), we applied Harris to defendants' claim that  they had been convicted twice for the violation of a single  statute.  " '[O]bjections based on defects in the indictment or  information,' " Clarke said, "including an objection to the  indictment on the grounds of multiplicity, must be raised  before trial."  Id. at 261 (quoting Fed. R. Crim. P. 12(b)(2) and  citing Harris, 959 F.2d at 250-51).  Because defendants had  not objected to the indictment until after the jury was selected, the court held that "any complaint based on multiplicity  was waived."  Id. (citing Fed. R. Crim. P. 12(f) and Davis, 411  U.S. at 242).  See also United States v. Scott, 464 F.2d 832,  833 (D.C. Cir. 1972) ("[C]onstitutional immunity from double  jeopardy is a personal right which, if not affirmatively pleaded by the defendant at the time of trial, will be regarded as  waived.") (citing Fed. R. Crim. P. 12(b)(2)).4


24
This case is on all fours with Harris and Clarke.  Weathers  challenges his convictions on multiplicity grounds;  he makes  both the two-statutes-charge-one-offense claim considered in  Harris and the single-statute-charges-only-one-offense claim  reviewed in Clarke.  Like defendants Harris and Clarke,  Weathers did not object before trial.  And as in Harris and  Clarke, the alleged defect appears on the face of the indictment--a point which defendant concedes and upon which he  even insists, see Def. Br. at 20;  Reply Br. at 8, 11, 18.5Counts Four and Five expressly charge Weathers with  threatening the same person (Sargeant) during the same time  period, and specifically list the two statutes assertedly violated.  App. 13.  Since a Blockburger claim focuses exclusively  on the statutory elements of the offenses, see United States v.  White, 116 F.3d 903, 931 (D.C. Cir. 1997), the face of the  indictment presents all the information defendant required to  notice the alleged error.  Similarly, Counts Three and Six  expressly charge Weathers with violating a single statute by  impeding the same proceedings during the same time period,  the only difference being that Count Three refers to the  threats against the rape-victim witnesses while Count Six  refers to the threats against AUSA Sargeant.  App. 12-14.If there is a multiplicity problem in these counts, then it is, as  defendant himself insists, "clear from the plain language of  § 22-722(a)(6) and the indictment," Reply Br. at 18, and  therefore subject to Rule 12(b)(2) and (f).6


25
The "spirit of the rule" identified in Harris is also consistent with a finding of waiver in this case.  See Harris, 959  F.2d at 250-51.  Had defendant raised his Blockburger claim  before trial, the government could have filed a superseding  indictment, replacing Counts Four and Five with three new  counts for making threats against Sargeant on three separate  occasions--the threat recorded by the informant, by the  undercover detective, and in the letter found in Logan's  apartment.  See generally United States v. Lindsay, 47 F.3d  440, 444 (D.C. Cir. 1995).  Similarly, the government could  have cured any defect based on a "per proceeding" unit of  prosecution for obstruction by replacing Counts Three and  Six with five new counts, one for each of the five severed rape  trials.  As the Supreme Court said in Davis, if Rule 12(b)(2)'s  "time limits [had been] followed," the alleged defect might have been "cured before the court, the witnesses, and the  parties [went] to the burden and expense of a trial" by the  "simpl[e]" expedient of "a new indictment prior to trial."Davis, 411 U.S. at 241 (quoted in Harris, 959 F.2d at 250).


26
In his reply brief, defendant urges us not to follow Harris,  contending that the Supreme Court's subsequent decision in  United States v. Olano, 507 U.S. 725 (1993), puts Harris'  continuing validity in doubt.  Olano concerned the meaning of  Federal Rule of Criminal Procedure 52(b),7 rather than Rule  12.  Rule 52(b), the Court said, gives courts of appeals "a  limited power to correct errors that were forfeited because  not timely raised in district court."  Id. at 731.  "Forfeiture,"  the court noted, is different from "waiver."  When an error is  forfeited, it is not "extinguish[ed]" but instead is subject to  review under the plain error standard of Rule 52(b).  Id. at  733.  When an error is waived, on the other hand, it is  extinguished;  the result is that there is no error at all and an  appellate court is without authority to reverse a conviction on  that basis.  Id. at 733-34.  Finally, "[w]hereas forfeiture is  the failure to make the timely assertion of a right," Olano  described "waiver [as] the 'intentional relinquishment or  abandonment of a known right.' "  Id. at 733 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).


27
Weathers contends that the failure to raise a multiplicity  (or any other) claim before trial cannot by itself amount to  the intentional relinquishment of a known right.  Thus, he  argues, that failure must be considered a forfeiture and not a  waiver.  From this he concludes that Olano requires that his  appeal be reviewed for plain error--effectively overturning  Harris' holding that a failure to come within Rule 12(b)(2)'s  time limits results in the waiver of any claim covered by that  Rule.


28
We cannot agree that Harris has been annulled by Olano. First, we have continued to apply Harris to multiplicity  claims even after Olano was decided in 1993.  See Clarke, 124  F.3d at 261.8  More broadly, we have continued to hold that  other claims within the compass of Rule 12(f) are waived if  not timely raised.  See United States v. Sobin, 56 F.3d 1423, 1427 (D.C. Cir. 1995) (holding that untimely claims under  Rule 12(b)(3) are waived).


29
Second, Olano itself recognized that there is a difference  between waiver and forfeiture.  While Rule 52(b) does not  mention "waiver," Rule 12(f) expressly does.  Yet, on defendant's reading, the waiver language of Rule 12(f) would add  nothing to the forfeiture principle of Rule 52(b).  Defendant's  "waiver" of his multiplicity claim under Rule 12(f) would have  no consequence other than that it would be reviewed for plain  error, the same result as if there were no Rule 12(f).  We  cannot conclude that the Supreme Court intended to render  Rule 12(f) a nullity in a decision that did not even mention it.


30
Finally, although in the context of its discussion of Rule  52(b) Olano said that waiver is the "intentional relinquishment or abandonment of a known right," the Court also noted  that "whether the defendant's choice must be particularly  informed or voluntary ... depend[s] on the right at stake."Olano, 507 U.S. at 733.  The Court further stated that  "[a]lthough in theory it could be argued that if the question  was not presented to the trial court no error was committed  by the trial court, ... this is not the theory that Rule 52(b)  adopts."  Id. at 733 (emphasis added) (internal quotation  omitted).  The key question, then, is what theory Rule 12  adopts for the rights that come within Rule 12(b)(2).  That is  not a question we answered on our own in Harris;  with  respect to that issue we did nothing more than follow the path  laid down by the Supreme Court in Davis.


31
Davis involved a post conviction attack on a defendant's  indictment, based on the allegation that there had been  unconstitutional discrimination in the selection of the grand  jury that issued it.  411 U.S. at 234-35.  Although the  defendant had failed to raise the point at trial, he contended  that he had not "understandingly and knowingly waived his  claim."  Id. at 236 (citing Zerbst, 304 U.S. 458) (internal  quotation omitted).  He also cited a prior case, Kaufman v.  United States, 394 U.S. 217 (1969), in which the Court had  held that a failure to raise a Fourth Amendment claim on direct appeal did not bar post conviction relief.  411 U.S. at  239.9  The dissent agreed with the defendant, concluding that  in the absence of an intentional relinquishment of a known  right, defendant's claim should be subject to plain error  analysis under Rule 52(b) rather than waiver under Rule 12.Id. at 245, 252, 254-57 (Marshall, J., dissenting).


32
The Court, however, did not agree.  It conceded that  defendant had alleged the deprivation of a "substantial constitutional right," id. at 243, but held that Rule 12(b)(2) "[b]y its  terms ... applies to both procedural and constitutional defects in the institution of prosecutions."  Id. at 236.  It also  acknowledged its prior opinion in Kaufman, but noted that  there it "was not dealing with the sort of express waiver  provision contained in Rule 12(b)(2) which specifically provides for the waiver of a particular kind of constitutional  claim if it be not timely asserted."  Id. at 239-40.10  Where  Congress "had not spoken on the subject of waiver," Davis  said, the Court might adopt its own "particular doctrine of  waiver."  Id. at 242.  The "express waiver provision" of Rule  12(b)(2), however, was a different matter.  Id. at 240.  That  Rule was "promulgated by this Court and ... 'adopted' by  Congress," and it "governs by its terms the manner in which  the claims of defects in the institution of criminal proceedings  may be waived."  Id. at 241.  According to those terms, the  Court held, an untimely claim is waived and "may not later be  resurrected, either in the criminal proceedings or in federal  habeas, in the absence of the showing of 'cause' which that  Rule requires."  Id. at 242.  See also Peretz v. United States,  501 U.S. 923, 936 (1991) (citing United States v. Bascaro, 742  F.2d 1335, 1365 (11th Cir. 1984), for the proposition that  "absence of objection is waiver of double jeopardy defense").11


33
In sum, Olano and Davis (and therefore Harris) are not  inconsistent with each other.  Although Olano indicates that  untimely objections are generally regarded as forfeitures  subject to Rule 52(b), Davis dictates that untimely objections  that come within the ambit of Rule 12(b)(2) must be considered waivers and may not be revived on appeal.  We cannot  conclude that the Court intended Olano, a case which mentioned neither Rule 12 nor Davis, to overrule Davis by  redefining sub silentio the meaning of the word "waiver" in  Rule 12.12


34
Finally, defendant seeks some support for his position in  the post-Davis, pre-Olano case of United States v. Broce, 488  U.S. 563 (1989).  But if anything, Broce is contrary to defendant's view.  Broce held that a defendant's plea of guilty  under Federal Rule of Criminal Procedure 11 waives any  multiplicity challenge he may have had to his indictment. Although waiver of multiplicity claims as part of a broader  voluntary plea of guilty is, of course, distinguishable from  waiver based solely on an untimely objection, in Broce the  Court expressly rejected the defendants' claim that they had  not intentionally and knowingly waived their multiplicity challenge because they had not known of it.  Id. at 572-74.13


35
Defendant focuses on the fact that Broce distinguished an  earlier case, Menna v. New York, 423 U.S. 61 (1975), in which  the Court had refused to find that defendant's plea of guilty  waived a claim that he had previously been prosecuted for the  same crime.  But Broce distinguished Menna on the ground  that the nature of defendant's claim in the latter case "precluded" the government "from haling a defendant into court  on a charge" at all.  Broce, 488 U.S. at 575 (quoting Menna,  423 U.S. at 62).  That is, Menna's claim of former jeopardy  was "a claim that ... the charge [was] one which the State  may not constitutionally prosecute."  Broce, 488 U.S. at 575  (quoting Menna, 423 U.S. at 63 n.2).  A claim of multiplicity,  by contrast, does not bar prosecution or prevent the government from haling a defendant into court--as the defendant  himself recognizes, Reply Br. at 6-7.  See Ohio v. Johnson,  467 U.S. 493, 500 (1984) ("While the Double Jeopardy Clause  may protect a defendant against cumulative punishments for  convictions on the same offense, the Clause does not prohibit  the State from prosecuting respondent for such multiple  offenses in a single prosecution.");  see also Ball v. United States, 470 U.S. 856, 859-61 & n.7 (1985).  There is thus  nothing in Broce, or in Menna, to bar the application of Rule  12's waiver provision to Weathers' claim of multiplicity.14


36
In sum, Harris and Davis continue to guide our course  here.  Together, they compel the conclusion that defendant  has waived his multiplicity claims by failing to raise them  before trial.

IV

37
Defendant contends that his trial counsel's failure to raise  his multiplicity claims in a timely manner constituted ineffective assistance under Strickland v. Washington, 466 U.S. 668  (1984).  The government argues, and defendant acknowledges, that when a defendant has not previously raised such a  claim before the district court, our general practice is to  remand it for an evidentiary hearing.  Gov't Br. at 25;  Def.  Br. at 21;  see United States v. Soto, 132 F.3d 56, 59 (D.C. Cir.  1997);  United States v. Fennell, 53 F.3d 1296, 1304 (D.C. Cir.  1995).  Defendant notes, however, that there is an exception  to this usual practice where no factual issues are in dispute  and the proper disposition is clear.  See Soto, 132 F.3d at 59.In his reply brief, Weathers contends that this is such an  exceptional case because "the government raises no factual disputes or arguable trial strategy that would limit review by  this Court."  Reply Br. at 9.


38
A Strickland claim has two components.  First, "the defendant must show that counsel's performance was deficient."466 U.S. at 687.  Second, "the defendant must show that the  deficient performance prejudiced the defense."  Id. With  regard to the first requirement, "the defendant must overcome the presumption that ... the challenged action might  be considered sound trial strategy."  Id. at 689 (internal  quotation omitted).


39
Notwithstanding the argument made in his reply brief, at  oral argument defendant conceded that his trial counsel's  failure to raise the multiplicity claims before trial might have  been predicated on a tactical choice.  As discussed in Part  III, had defense counsel raised the claims pretrial, not only  might the defects have been repaired, see supra note 6, they  might have been repaired by increasing the number of counts  arrayed against defendant, see supra page 11.  Faced with  that possibility, defense counsel might well have opted to  leave the indictment as it stood rather than risk making  matters worse for his client.  Recognizing that defense counsel's silence may therefore have represented a strategic decision, at oral argument defendant changed course and joined  the government in requesting a remand of his ineffective  assistance claim for initial determination by the district court. That is clearly the proper disposition of this issue.  See  Fennell, 53 F.3d at 1304 (stating that ineffective assistance  claim "cannot be resolved without a hearing in district court"  where defense counsel's decisions "could have involved a  reasoned tactical choice").

V

40
For the foregoing reasons, we hold that defendant has  waived his multiplicity claims.  His charge of ineffective  assistance of counsel is remanded to the district court.



Notes:


1
  The United States Attorney's Office for the District of Columbia prosecutes offenses in both the United States District Court and  the local Superior Court.  See United States v. Brooks, 966 F.2d  1500, 1503 (D.C. Cir. 1992).


2
  Federal and District of Columbia offenses may be charged in  the same indictment and prosecuted in the United States District  Court for the District of Columbia.  D.C. Code § 11-502(3);  see  United States v. Sumler, 136 F.3d 188, 190 (D.C. Cir. 1998).


3
  Although the Double Jeopardy Clause does not bar multiple  punishments under federal and state law, a defendant may not be  punished twice for the same offense under both the United States  Criminal Code and the District of Columbia Criminal Code because  both were adopted by Congress.  See Sumler, 136 F.3d at 191;United States v. Shepard, 515 F.2d 1324, 1331 (D.C. Cir. 1975).


4
  In United States v. Anderson (Anderson I), 39 F.3d 331, 35354 (D.C. Cir. 1994), a panel of this court held that defendant's claim  that "his sentence on multiplicitous counts [was] illegal" could be  raised on appeal even though it had not been raised before trial. The full court, however, granted rehearing en banc and vacated the  judgment.  Id. at 361 (order of Feb. 9, 1995).  As a consequence,  the panel's decision has "no precedential value."  National Fed'n of  Fed. Employees v. Greenberg, 983 F.2d 286, 293 (D.C. Cir. 1993).Rehearing en banc was "granted on the limited issue" of the merits  of the defendant's multiplicity claim, and the court did not address  the question of waiver.  United States v. Anderson (Anderson II),  59 F.3d 1323, 1325 (D.C. Cir. 1995) (en banc);  see Whitacre v.  Davey, 890 F.2d 1168, 1172 (D.C. Cir. 1989) ("We cannot count as  controlling a decision that never touched upon the issue we confront.").  Accordingly, Harris and Clarke stand as the law of the  Circuit.


5
  Defendant insists that the multiplicity violation is clear on the  face of the indictment as support for his argument that it constitutes plain error under Fed. R. Crim. P. 52(b).  See discussion infra  pp. 11-12.


6
  Counts Three and Six each charged Weathers with impeding  two proceedings, the original (unsevered) Superior Court rape case  and the Superior Court obstruction case.  App. 12-14.  Hence, as  the government contends, if defendant had timely objected, any  multiplicity problem might have been repairable through a bill of  particulars stating that each count referred to a different Superior  Court case.  The fact that the problem was curable, however, does  not take it outside the scope of Rule 12(b)(2).  To the contrary, the  purpose of the Rule is to ensure that "inquiry into an alleged defect  may be concluded and, if necessary, cured."  Davis, 411 U.S. at 241.See Clarke, 24 F.3d at 261 (holding multiplicity claim waived  because not raised before trial notwithstanding trial court's attempt  to cure by instructing jury that separate counts referred to drugs  found at different locations).  As long as "the multiplicity objection  could have been raised based on the indictment, Rule 12(b)(2)  applies."  Harris, 959 F.2d at 250 (emphasis added).  Weathers  does not dispute that he could have raised his multiplicity objection  based on the face of his indictment.


7
  Rule 52(b) states:  "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the  attention of the court."


8
  Although Clarke did not discuss Olano and Rule 52(b) in the  course of finding defendants' multiplicity claim barred by waiver, it  did discuss both in deciding that another of defendants' claims was  governed by the plain error standard.  See Clarke, 24 F.3d at 266.


9
  Kaufman was subsequently overruled in Stone v. Powell, 428  U.S. 465 (1976).


10
  At the time the Court decided Davis, the waiver provision  now in Rule 12(f) was contained in Rule 12(b)(2) itself.  See Fed. R.  Crim. P. 12(b)(2) (1971).


11
  Defendant cites the pre-Davis case of Green v. United  States, 355 U.S. 184 (1957), as one that applied the intentional and  knowing standard to waivers of Double Jeopardy rights.  Reply Br.  at 4-5.  The defendant in Green was tried for first degree murder  and the lesser included offense of second degree murder.  The jury  convicted him of the latter but was silent as to the former.  Defendant appealed his conviction on the second degree charge, which  was overturned on insufficiency of the evidence grounds.  355 U.S.  at 185-86.  On remand, defendant was retried and convicted on the  first degree murder charge despite his pre-trial plea of former  jeopardy.  Id. at 186.  The Court held the second conviction a  violation of the Double Jeopardy Clause, rejecting the government's  contention that merely by appealing his second degree murder  conviction defendant had voluntarily and knowingly " 'waived' his  constitutional defense of former jeopardy to a second prosecution on  the first degree murder charge."  Id. at 191.
Green does not assist defendant in the instant case.  Unlike the  provision in Rule 12 that expressly makes the failure to timely  object a waiver, there is no rule that makes the filing of an appeal a  waiver.  Nor is there any logical reason to regard an appeal as a  waiver.  Rather, as the Court ultimately concluded, the notion that  an appeal constitutes a waiver was nothing more than the "wholly  fictional" construct of government counsel.  Id. at 192.


12
  Of course, even if we thought it did, it is not for the lower  courts to conclude that the Supreme Court's "more recent cases  have, by implication, overruled an earlier precedent."  Agostini v.  Felton, 521 U.S. 203, 237 (1997).  "If a precedent of this Court has  direct application in a case, yet appears to rest on reasons rejected  in some other line of decisions, the Court of Appeals should follow  the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."  Id. (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484  (1989)) (alteration omitted).


13
  Defendants' trial counsel submitted an affidavit stating that  he had not discussed his clients' Double Jeopardy rights with them,  nor had his clients considered the possibility of raising that defense  before entering their plea.  Id. at 572-73.


14
  Indeed, unlike a claim of multiplicity, a claim of former  jeopardy like that at issue in Menna may not fall within Rule  12(b)(2) at all.  But see Scott, 464 F.2d at 833.  The Advisory  Committee Notes regarding Rule 12(b)(1) and (b)(2) specifically  state that "such matters as former jeopardy, former conviction,  [and] former acquittal" fall within the permissive category of defenses "which at the defendant's option may be raised by motion,  failure to do so, however, not constituting a waiver."  Fed. R. Crim.  P. 12 Advisory Committee Note (1944 Adoption) (Note to Subdivision (b)(1) and (2)), 18 U.S.C. App., p. 744.  These three prohibitions all arise out of the Double Jeopardy Clause's successive  prosecution prong, see United States v. Andrews, 146 F.3d 933, 936  n.3 (D.C. Cir. 1998).  They are therefore distinguishable from a  claim of multiplicity (not mentioned by the Advisory Committee)  which, to the extent it sounds in Double Jeopardy, is rooted in the  multiple punishments prong.  See Ohio v. Johnson, 467 U.S. at 499.


