U.S. v. Clinkscale, No. 4:99 CR 0368.

• Decision Date: 22 February 2000
• Docket Number: No. 4:99 CR 0368.
• Citation: 86 F.Supp.2d 780
• Parties: UNITED STATES of America, Plaintiff, v. Jantz S. CLINKSCALE and Sheila D. Clinkscale, Defendants.
• Court: U.S. District Court — Northern District of Ohio

86 F.Supp.2d 780

UNITED STATES of America, Plaintiff, v. Jantz S. CLINKSCALE and Sheila D. Clinkscale, Defendants.

No. 4:99 CR 0368.

United States District Court, N.D. Ohio, Eastern Division.

February 22, 2000.

James V. Moroney, Jr., Asst. U.S. Atty., Office of U.S. Atty., Cleveland, OH, for plaintiff.

James R. Willis, Willis, Blackwell & Rodgers, Cleveland, OH, Wesley A. Dumas, Sr., Law Offices of Wesley A. Dumas, Sr. & Associates, Cleveland, OH, for defendants.

ORDER DENYING MOTION TO DISMISS COUNT 1 OF THE INDICTMENT AND DENYING MOTION TO DISMISS FORFEITURE ACTION

WELLS, District Judge.

This case is before the Court on the motion of Defendants Jantz Clinkscale and Sheila Clinkscale to dismiss Count 1 of the indictment and to dismiss the forfeiture action as to certain conveyances.¹ The government responded to the motion to dismiss Count I on 16 November 1999, and the Clinkscales replied on 7 December 1999. The government responded to the motion to dismiss the forfeiture action on 29 November 1999. For the following reasons, both motions are denied.

I. Factual Background

On 3 August 1998, United States Magistrate Judge James Thomas issued a search warrant for the Clinkscales' home in Niles, Ohio. The warrant was based on an affidavit signed by Special Agent Gruver of the Internal Revenue Service, Criminal Investigation Division, and sought evidence of "drug related" crimes and "any and all evidence" of violations of 18 U.S.C. § 1956 or § 1957 (money laundering), 26 U.S.C. §§ 7021 and 7206(1) (tax evasion), and 31 U.S.C. §§ 5313 or 5324 (structuring currency transactions). Federal agents searched the Clinkscale home on 4 August 1998 and seized approximately $321,380.00 in United States currency, financial records, miscellaneous jewelry, a 1998 Land Rover Range Rover, and a 1996 Toyota Land Cruiser. After obtaining a second search warrant, the agents also searched the Clinkscales' investment account at Smith Barney.

On 26 February 1999, Mr. Clinkscale and Mrs. Clinkscale filed a petition for return of property, seeking the return of the "financial records and jewelry." (Gov's Br. in Opp'n to Def's Mtn. to Dismiss Forfeiture Action [hereinafter "Docket No. 28"], Ex. 1 at 1.) Their primary argument was that the government had unreasonably delayed the forfeiture proceedings and that the seized property should therefore be returned. (Docket No. 28, at 1-2.) On 16 March 1999, Magistrate Judge Thomas held a hearing on, among other things, the Clinkscales' petition for return of property. On 23 March 1999, he issued an opinion denying their request.

On 20 October 1999, a Grand Jury returned a 31-count indictment against Mr. and Mrs. Clinkscale. Count I made the following charge against Mr. Clinkscale:

1. Beginning as early as January, 1993, and continuing through at least September 2, 1998, the exact dates unknown to the Grand Jury, in the Northern District of Ohio, Eastern Division, and elsewhere, the defendant JANTZ S. CLINKSCALE, and others known and unknown to the Grand Jury, did unlawfully, knowingly, and intentionally combine, conspire, and confederate and agree together and with each other, and with diverse others to the Grand Jury known and unknown, to distribute a mixture or substance containing a detectable amount of cocaine and to possess cocaine with intent to distribute said substance, a Schedule II narcotic drug controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(a).

2. In order to further the conspiracy, and to effect its objects, the defendant JANTZ S. CLINKSCALE, in the Northern District of Ohio, Eastern Division, and elsewhere, did commit and cause to be committed those acts specified in Counts 8-25 and 26-31 of this indictment.

All in violation of Title 21, United States Code, Section 846.

Counts 8-25 charged Mr. Clinkscale with evading the reporting requirements of 31 U.S.C. § 5313(a) by structuring currency transactions in violation of 31 U.S.C. §§ 5324(a)(3) and 5322(b). Counts 26-31 charged both Mr. Clinkscale and Mrs. Clinkscale with engaging or attempting to engage in a monetary transaction in criminally derived property in violation of 18 U.S.C. § 1957.² The indictment also alleged forfeiture pursuant to both 21 U.S.C. § 853 and 18 U.S.C. § 982.

The Clinkscales appeared before United States Magistrate Judge James S. Gallas on 21 October 1999, and both pled not guilty. A joint motion for a continuance was granted on 1 December 1999, with the trial now scheduled to begin on 28 February 2000.

II. Motion to Dismiss Count 1 of the Indictment

Mr. Clinkscale has moved to dismiss Count 1 of the indictment on the following grounds: (1) the indictment is unconstitutionally vague; (2) the indictment charges multiple conspiracies; and (3) the indictment suffers from duplicity.

A. Vagueness

To survive a motion to dismiss on the grounds of vagueness, an indictment must meet two criteria. It must enable the defendant to invoke the double jeopardy clause "in case any other proceedings are taken against him for a similar offense." Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (internal quotes omitted). It must also "contain the elements of the offense intended to be charged, and sufficiently apprise[ ] the defendant of what he must be prepared to meet." Id. at 763, 82 S.Ct. 1038. An indictment that follows the statutory language is generally sufficient to satisfy the requirements of due process, but it need not quote the statute verbatim. See United States v. Andrews, 754 F.Supp. 1189, 1192 (N.D.Ill.1990). "The law does not compel a ritual of words. The validity of an indictment is governed by practical, not technical considerations." United States v. Devoll, 39 F.3d 575, 579 (5th Cir.1994).

Mr. Clinkscale does not argue Count 1 jeopardizes his right not to be tried twice for the same crime. Rather, he contends it fails to afford him adequate "notice of the specific conduct relied on as a basis for the charges made — here of being a member of a drug conspiracy." (Def's Mtn. to Dismiss [hereinafter Docket No. 18] at 6.) More specifically, Mr. Clinkscale admits that Count 1 "tracks the statute upon which the [drug] conspiracy charge is bottomed" (Docket No. 18, at 1), and that it alleges he furthered the conspiracy by engaging in both money laundering and structuring of currency transactions. However, he maintains the Count does not point to any specific acts involving drugs or drug activity. (Docket No. 18, at 1, 2.)

[M]erely tracking the statute (in making the charge that this defendant "conspired" with various others to violate 21 U.S.C. § 841) without identifying any specific act or acts this particular defendant did in connection with any of the charged drug offenses is most unsatisfactory.

...

[W]e fully contend that only by a serious stretch of the prosecutor's imagination, and that to a degree that truly taxes our credulity can it be said that the acts of "money laundering," and the money structuring accusations charged in this indictment, can be forged into the charged Title 21 drug conspiracy offense.

(Docket No. 17, at 4-5.) According to Mr. Clinkscale, the government must make some specific allegation that he was involved with "particular drug or drug related acts" to justify charging him with a Title 21 drug conspiracy. (Docket No. 17, at 4.)³

Mr. Clinkscale's arguments are without merit. As even he concedes, an indictment that "follow[s] statutory language [is] generally sufficient" if (as here) the statute sets forth the elements of the crime. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Zavala, 839 F.2d 523, 526 (9th Cir.1988). In this case, Count 1 tracks closely the language of 18 U.S.C. § 846.⁴ It informs Mr. Clinkscale he is being charged with "knowingly and intentionally" conspiring with others to distribute cocaine "and to possess cocaine with intent to distribute," and it tells him the government is concentrating on the period from January 1993 to 2 September 1998. Such an indictment would itself be sufficient to survive constitutional scrutiny. Here, however, the government went further. Although it is not required either to plead or to prove an overt act, see United States v. Nelson, 922 F.2d 311, 317 (1990), Count 1 informs Mr. Clinkscale the government will attempt to show he furthered the conspiracy by engaging in money laundering and structuring currency transactions. Mr. Clinkscale's assertions to the contrary, courts have found a clear link between these actions and involvement with drugs. United States v. Avery, 128 F.3d 966, 971 (6th Cir.1997); United States v. Todd, 920 F.2d 399, 406 (6th Cir.1990); United States v. Castro, 908 F.2d 85, 87-88 (6th Cir.1990). In the words of the Avery court, "money laundering is an integral part of a drug enterprise," and a jury is therefore "entitled to infer from such conduct a conspiracy to aid and abet the violation of the narcotics laws." Avery, 128 F.3d at 971.

As such, the indictment satisfies the criteria set forth in Russell v. United States, 369 U.S. at 763-64, 82 S.Ct. 1038. The indictment does not threaten Mr. Clinkscale with double jeopardy, Count 1 "contains the elements of the offense intended to be charged, and [it] sufficiently apprises [him] of what he must be prepared to meet." Id.

B. Multiplicity

Mr. Clinkscale further suggests the indictment suffers from "multiplicity." First, he contends Count 1 charges him with involvement in more than one conspiracy — "a money laundering conspiracy and a conspiracy to structure financial transactions as those offenses are charged in the indictment." (Docket No. 17, at 1). In his words:

the indictment can be read as also charging in Count I several other, and different conspiracies, than the separate and isolatable conspiracy charged in Count I. Here our reference is to the fact that the allegations made can also be...