U.S. v. Patterson

• Decision Date: 03 March 2009
• Docket Number: No. CR 07–2249 JB.,CR 07–2249 JB.
• Citation: 760 F.Supp.2d 1116
• Parties: UNITED STATES of America, Plaintiff,v.Timothy PATTERSON, Defendant.
• Court: U.S. District Court — District of New Mexico

760 F.Supp.2d 1116

UNITED STATES of America, Plaintiff,

v.Timothy PATTERSON, Defendant.

No. CR 07–2249 JB.

United States District Court, D. New Mexico.

March 3, 2009.

Gregory J. Fouratt, United States Attorney, Kyle T. Nayback, Assistant United States Attorney, Albuquerque, NM, for Plaintiff.Brian A. Pori, Inocente, P.C., Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Dismiss Superceding Indictment or, in the Alternative, to Compel Election of Counts, filed February 1, 2009 (Doc. 38). The Court held a hearing on February 18, 2009. The primary issue is whether the Superseding Indictment against Defendant Timothy Patterson contains multiplicitous counts.¹ Because each of three counts in the Superseding Indictment contains a different factual element from the other two counts, the counts are not multiplicitous, and the Court will deny the motion.

FACTUAL BACKGROUND

All of the charges in the Superseding Indictment involve an alleged theft of property from the Veterinary Office of the Crownpoint Institute of Technology (“Institute”) on or about October 7, 2006. The United States, on information and belief, based in particular on information that Patterson's counsel provided, states that Patterson will argue that he did not intend to “permanently deprive” the victim of the property he stole. The United States contends that Patterson will argue that his intent was to use the property as some sort of bargaining chip in a contract dispute Patterson was having with the Institute. The United States maintains, however, that there is no evidence of a contract dispute or that Patterson made any attempt to use the stolen property as a bargaining chip.

PROCEDURAL BACKGROUND

On November 6, 2007, a grand jury for the United States District Court for the District of New Mexico returned a single count Indictment, charging Patterson with theft of property that was located in the Navajo Nation, in violation of 18 U.S.C. §§ 661 and 1152. See Indictment at 1, filed November 6, 2007 (Doc. 2). After the parties were unable to reach a mutually acceptable disposition of the charge, a grand jury returned a Superseding Indictment, charging Patterson with three criminal offenses: (i) theft of property belonging to the Institute, in violation of 18 U.S.C. §§ 661, 1152; (ii) stealing and converting property belonging to an Indian tribal organization, in violation of § 1163; and (iii) entering a structure in the Institute with the intent to commit a theft of property, in violation of 18 U.S.C. § 1152 and N.M.S.A.1978, § 30–16–3B. See Superseding Indictment at 1–2, filed January 8, 2009 (Doc. 30).

Specifically, Count One charges:

Count 1

On or about October 7, 2006, in Indian Country, in McKinley County, in the District of New Mexico, the defendant, TIMOTHY PATTERSON, a non-Indian, did take and carry away with the intent to steal and purloin, property belonging to the Crownpoint Institute of Technology, an institution chartered and operated by the Navajo Nation and the property had a value exceeding $1,000.00.

In violation of 18 U.S.C. §§ 1152 and 661.

Superseding Indictment at 1. Count Two states in full:

Count 2

On or about October 7, 2006, in Indian country, in McKinley County, in the District of New Mexico, the defendant, TIMOTHY PATTERSON, did steal and knowingly convert to his use, property belonging to an Indian tribal organization; that is, the defendant did steal and knowingly convert to his use veterinary medical examination equipment belonging to the Crownpoint Institute of Technology, an institution chartered and operated by the Navajo Nation and the property had a value exceeding $1,000.00.

In violation of 18 U.S.C. § 1163.

Superseding Indictment at 1–2. Finally, Count Three states in full:

Count 3

On or about October 7, 2006, in Indian Country, in McKinley County, in the District of New Mexico, the defendant, TIMOTHY PATTERSON, a non-Indian, entered the structure of the Crownpoint Institute of Technology, an institution chartered and operated by the Navajo Nation, without permission and with the intent to commit a felony and theft therein.

In violation of 18 U.S.C. §§ 1152, 13 and N.M. Stat. Ann. § 30–16–3(B).

Superseding Indictment at 2.

Patterson requests that the Court, pursuant to the Fifth, Sixth, and Ninth Amendments to the United States Constitution, dismiss the allegedly multiplicitous counts contained in the Superseding Indictment or, in the alternative, compel the prosecution to elect between the different criminal charges it is bringing. Patterson contends that Counts One and Two, Counts One and Three, and Counts Two and Three are all multiplicitous, and charge the same offense, or markedly similar offenses, from the same course of conduct. ² Patterson asks that the Court dismiss these overlapping counts because they violate his double jeopardy rights. In the alternative, Patterson urges the Court to require the United States Attorney's Office for the District of New Mexico to elect which of the three counts in the Superseding Indictment they will prosecute against Patterson. The United States disagrees with Patterson's position and urges the Court to reject his motion.

LAW ON DOUBLE JEOPARDY AND MULTIPLICITOUS COUNTS

The Fifth Amendment's guarantee that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb,” U.S. Const., amend. V, protects individuals not only from “successive prosecutions, but also [from] successive punishments for the same offense,” United States v. Morris, 247 F.3d 1080, 1083 (10th Cir.2001) (citing United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)). Accordingly, the United States Court of Appeals for the Tenth Circuit's “jurisprudence establishes that multiplicitous sentences violate the Double Jeopardy Clause.” United States v. McCullough, 457 F.3d 1150, 1162 (10th Cir.2006) (internal quotation marks omitted). “ ‘Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior.’ ” Id. at 1162 (quoting United States v. Johnson, 130 F.3d 1420, 1424 (10th Cir.1997)). “Although multiplicity is not fatal to an indictment, multiplicitous counts which may result in multiplicitous convictions are considered improper because they allow multiple punishments for a single criminal offense.” United States v. McCullough, 457 F.3d at 1162 (internal quotation marks omitted).

The issue of multiplicity may arise when a defendant is faced with an indictment charging multiple violations of the same statute from relatively contemporaneous conduct, such as multiple assault charges stemming from two episodes concerning a prison guard occurring close in time, see United States v. Segien, 114 F.3d 1014, 1022 (10th Cir.1997) (discussing multiple 18 U.S.C. § 111 charges) abrogated on other grounds by Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), or simultaneously mailing to the IRS several different false documents in support of a single tax return, see United States v. Bettenhausen, 499 F.2d 1223, 1234 (10th Cir.1974). In such situations, the central question is often whether the underlying conduct is part of the same transaction or comprises distinct episodes that can be punished separately. See, e.g., United States v. Neha, No. CR 04–1677, Memorandum Opinion and Order at 3, entered June 20, 2006 (Doc. 130) (D.N.M.) (concluding that the offenses charged in four counts constituted separate acts and were not multiplicitous charges for the same offensive conduct because there was more than one rape, because the defendant was the principal in one rape and the aider and abettor in the other, and because the alleged crimes likely did not occur at the same time).

The issue of multiplicity may also arise, as it does here, when the defendant is charged with violations of multiple criminal statutes for the same underlying acts or omissions. When confronting such a situation, courts employ a two-step test. “A person may be prosecuted for more than one crime based on the same conduct (1) if each crime requires proof of a fact that the other does not, or (2) if Congress has clearly expressed its intent to impose cumulative punishment for the same conduct under different statutory provisions.” United States v. Pearson, 203 F.3d 1243, 1267–68 (10th Cir.2000) (citations omitted). When, as is often the case, there is no clearly discernible Congressional intent to impose cumulative punishment, the rule of statutory construction that is described in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), is used. See United States v. Greene, 239 Fed.Appx. 431, 436 (10th Cir.2007) (citing United States v. Morehead, 959 F.2d 1489, 1506 (10th Cir.1992), aff'd on reh'g en banc sub nom. United States v. Hill, 971 F.2d 1461 (10th Cir.1992)).

The Blockburger rule is often known as the “same elements test.” United States v. Pearson, 203 F.3d at 1268. “The applicable rule is that, 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.” Blockburger v. United States, 284 U.S. at 304, 52 S.Ct. 180. “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Id. (internal quotation marks omitted).

As the Supreme Court of the United States has noted in the related context of determining when a jury instruction for a lesser-included offense may be given, an elements test is “certain and predictable .... [b]ecause the elements approach involves a textual comparison of criminal ...