U.S. v. Gardner

• Decision Date: 02 March 2006
• Docket Number: No. CRIM. AMD 04-0029.,CRIM. AMD 04-0029.
• Citation: 417 F.Supp.2d 703
• Parties: UNITED STATES of America v. Shawn GARDNER
• Court: U.S. District Court — District of Maryland

417 F.Supp.2d 703

UNITED STATES of America v. Shawn GARDNER

No. CRIM. AMD 04-0029.

United States District Court, D. Maryland.

March 2, 2006.

COPYRIGHT MATERIAL OMITTED

Laura Kelsey Rhodes, Albright and Rhodes LLC, Rockville, MD, Timothy Joseph Sullivan, Law Offices of Timothy Sullivan, College Park, MD, for Willie Mitchell, also known as Bo.

William Walter Kanwisher, Law Offices of William Kanwisher Baltimore, MD, for Shelton Harris, also known as Little Rock.

Gerard P. Martin, Rosenberg Martin Funk Greenberg LLP, Baltimore, MD, for Willie Mitchell, also known as Bo, Shelton Harris, also known as Little Rock.

Adam Harris Kurland, Washington, DC, Barry Coburn, Trout Cacheris PLLC, Peggy Bennett, Coburn and Schertler LLP, Washington, DC, for Shawn Gardner, also known as Goo.

Robert Harding, Office of the United States Attorney, Baltimore, MD, Thomas M. Dibiagio, Baltimore, MD, for USA.

MEMORANDUM OPINION and ORDER

ANDRE M. DAVIS, District Judge.

Defendant Shawn Gardner is charged with numerous offenses stemming from his alleged involvement in a criminal racketeering enterprise. See Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961, et seq. Now before the court are two motions. First, Gardner moves to dismiss Counts 7 and 9 of the second superseding indictment for being multiplicitous in violation of the Double Jeopardy Clause of the Fifth Amendment. Second, the attorneys for Gardner, Adam Kurland, Esq., and Barry Coburn, Esq., move to withdraw from their representation of Gardner. For the reasons explained below, the motion to dismiss shall be granted.¹ The motion for leave to withdraw as counsel shall be denied.

I.

The 20-count second superceding indictment charges Gardner and three codefendants with conspiracy to participate in a criminal racketeering enterprise, and related offenses, beginning in the mid-1990s and continuing up to their arrests in 2004. The group, referred to in the second superceding indictment as the "Mitchell Organization" after its alleged leader, defendant Willie Mitchell, is described as a "RICO enterprise" that sustained itself through acts of murder, armed robbery, drug trafficking, and the establishment and operation of a music production company known as Shake Down Entertainment, Ltd. Each of the defendants is alleged to have willfully participated in one or more murders in and around Baltimore City. Gardner is alleged to have participated in the murders of Darryl Wyche, Anthony Wyche, and Tanya Jones-Spence (as well as a conspiracy to murder Darius Spence).² Three of the four defendants, including Gardner, face the possibility of the death penalty. See United States v. Mitchell, 405 F.Supp.2d 602 (D.Md.2005). For various reasons, the defendants have been severed for trial, and the case against Gardner is calendared for trial beginning in April 2006.

The pretrial proceedings in this case have taken an unusual turn, which wholly accounts for the motion for leave to withdraw submitted by Gardner's attorneys. Gardner and his co-defendants have refused to recognize the subject matter jurisdiction of this court. See id. (denying defendants' pro se motions to dismiss for lack of jurisdiction). They have also refused to cooperate with their court-appointed lawyers. See id. at 606 n. 6. On numerous occasions, I have ordered that the defendants, including Gardner, be removed from the courtroom during pre-trial hearings in response to their disruptive behavior. Nevertheless, the court remains determined to move forward in the resolution of this case.

II.

For purposes of the motion to dismiss, only two of the charges against Gardner are relevant: racketeering conspiracy in violation of 18 U.S.C. § 1962(d) (charged in Count 1, "the RICO conspiracy charge"), and conspiracy to commit murder in aid of racketeering activity in violation of 18 U.S.C. § 1959(a) (charged separately in Counts 7 and 9, "the VICAR conspiracy charges").³ Gardner argues that these distinct conspiracy charges, given the statutory scheme crafted by Congress and in light of the allegations of the second superceding indictment, are multiplicitous, and therefore, the VICAR conspiracy charges should be dismissed. So far as I can determine, this is an issue of first impression in the federal courts.⁴

A.

The Double Jeopardy Clause states that "no person ... shall ... be subject for the same offense to be twice put in jeopardy." U.S. CONST. AMEND. V. The prohibition on multiplicity in an indictment is within the core protections of the Double Jeopardy Clause, and specifically, bars the charging of a single offense in more than one indictment count. United States v. Colton, 231 F.3d 890, 908 (4th Cir.2000); United States v. Goodine, 400 F.3d 202, 207 (4th Cir.2005) ("[T]he signal danger of a multiplicitous indictment is that a defendant might thereby receive multiple punishments for the same crime.") (internal quotation omitted).

In determining whether an indictment is multiplicitous, a court's inquiry must divine Congressional intent. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Such an inquiry can be completed through a three-step analysis. First, if the offenses arise under different statutes and each statute unambiguously authorizes punishment, it may be inferred that Congress intended to authorize punishment under each provision. Second, it must be determined, through the test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.E d. 306 (1932), whether the statutes are sufficiently distinguishable from each other so that it is reasonable to infer that Congress intended multiple punishments. Finally, a court must test the preliminary conclusion that multiple punishments are authorized against the legislative history of the statutes to see whether there exists a contrary Congressional intent. Id. at 336-42, 101 S.Ct. 1137; United States v. Nakashian, 820 F.2d 549, 551 (2d Cir.), cert. denied, 484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 392 (1987).

The crux of this inquiry is the double jeopardy analysis crafted in Blockburger, which requires the court to determine "whether each provision requires proof of an additional fact which the other does not." 284 U.S. at 304, 52 S.Ct. 180; Goodine, 400 F.3d at 207. Like the overall Albernaz inquiry, the Blockburger test has as its ultimate purpose the determination of Congressional intent. See Rutledge v. United States, 517 U.S. 292, 303, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); United States v. Teplin, 775 F.2d 1261, 1265 (4th Cir.1985) ("The key to determining whether certain counts are multiplicitous . . . is whether Congress intended to authorize cumulative punishment for the same or similar conduct.").

I find that the offenses in question pass the first step of the above-described inquiry because they are enumerated in separate statutes with each statute explicitly authorizing a punishment. Nevertheless, as explained within, I find that the offenses fail the Blockburger test and, under the third part of the inquiry, I am confident that Congress did not intend to authorize multiple punishments for the disputed conspiracy offenses under the circumstances of this case. Therefore, I conclude that Counts 7 and 9 of the second superceding indictment are multiplicitous with Count 1, and they shall be dismissed.

B.

Because the first inquiry under Albernaz requires no elaboration, I begin this analysis with the Blockburger test. Under Blockburger, a court must first determine the elements of the crimes for which the defendant has been indicted, then compare the elements. Blockburger, 284 U.S. at 304, 52 S.Ct. 180.

Under a traditional Blockburger analysis, the court determines and compares the elements of the charged offenses based on the face of the statutes. However, there are times when this rigid approach does not work. In particular, this approach is inadequate when applied to conspiracies and when applied to offenses that have alternative elements. Such is the nature of the instant case, in which each of two conspiracy offenses must be evaluated against the other, and one of them (the racketeering conspiracy) can be established beyond a reasonable doubt through proof of any number of alternative predicate acts. In such instances, the Supreme Court has acknowledged that a modified approach is warranted.⁵

That alternative approach was employed in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), in which the Court considered whether a defendant could be sentenced consecutively under District of Columbia law for rape and for the felony murder that resulted from the same rape. Under a facial Blockburger test, the offenses were different because: (1) rape was not required for felony murder, and (2) a killing was not required for rape. See id. at 694, 100 S.Ct. 1432 (outlining the Government's argument). However, the Court tailored its analysis to the specific charges in the case, explaining:

In the present case, however, proof of rape is a necessary element of proof of the felony murder, and we are unpersuaded that this case should be treated differently from other cases in which one criminal offense requires proof of every element of another offense. There would be no question in this regard if Congress, instead of listing the six lesser included offenses in the alternative, had separately proscribed the six different species of felony murder under six statutory provisions. It is doubtful that Congress could have imagined that so formal a difference in drafting had any practical significance, and we ascribe none to it.

Id. at 694, 100 S.Ct. 1432 (emphasis added). Thus, by examining the specific allegations of the indictment, the Court found that Congress did not authorize consecutive sentences for rape and a killing committed in the course of rape. Id. at 693, 100 S.Ct. 1432.

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