U.S. v. Pena-Gonzalez, Crim 97-284 JAF.

• Decision Date: 19 July 1999
• Docket Number: No. Crim 97-284 JAF.,Crim 97-284 JAF.
• Parties: UNITED STATES of America, Plaintiff, v. Nicholas PENA-GONZALEZ (03), Defendant.
• Court: U.S. District Court — District of Puerto Rico

62 F.Supp.2d 366

UNITED STATES of America, Plaintiff, v. Nicholas PENA-GONZALEZ (03), Defendant.

No. Crim 97-284 JAF.

United States District Court, D. Puerto Rico.

July 19, 1999.

Asst. U.S. Attorney Stephen Muldrow, Guillermo Gil, U.S. Attorney, San Juan, PR, for plaintiff.

Rafael Anglada-Lopez, San Juan, PR, William D. Matthewman, Miami, FL, for defendant.

OPINION AND ORDER

FUSTE, District Judge.

Defendant, Nicholas Peña-González, has been charged with a drug trafficking conspiracy in violation of 21 U.S.C. § 846 (Count I), conspiracy to commit firearms murder in relation to the drug trafficking conspiracy in violation of 18 U.S.C. § 924(o) (Count II), and firearms murder in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(j) (Count III). Defendant, through five separate motions, moves to dismiss (1) Counts I and II of the superseding indictment as multiplicitous; (2) Count II as duplicitous and improperly pled; (3) Count III as duplicitous; (4) Count III as facially void on the grounds of due process; and (5) Count II as void for failure to charge an offense.

I.

The concepts of duplicity and multiplicity are often conflated and confused. Both are pleading rules which concern the manner in which charges are joined. Duplicity refers to the joining of two or more separate and distinct offenses into a single count. Therefore, a count is duplicitous when it charges more than one offense in a single count. United States v. Rizzo, 121 F.3d 794 (1st Cir.1997) (citing United States v. Huguenin, 950 F.2d 23, 25 (1st Cir.1991)). "The vice of duplicity is that there is no way in which the jury can convict on one offense and acquit on another offense contained in the same count." 1A Charles A. Wright, FEDERAL PRACTICE AND PROCEDURE, § 142 at 16 (1999). Therefore, a general guilty verdict on a duplicitous indictment could result in improper sentencing, preclude appellate review or violate the Double Jeopardy Clause of the Fifth Amendment. Id. (citations omitted).

On the other hand, an indictment is multiplicitous when it charges a single offense in more than one count. United States v. Brandon, 17 F.3d 409, 422 (1st Cir.1994) (United States v. Serino, 835 F.2d 924, 930 (1st Cir.1987)). Thus, a multiplicitous indictment can result in a double jeopardy violation when a defendant is sentenced more than once for the same offense or when the jury is misled to believe that the defendant has committed more crimes than the record and evidence maintain. United States v. Goldberg, 913 F.Supp. 629, 631 (D.Mass.1996) (citing Wright, § 142 at 475-76 (1982)).

The core issue in determining when a count or counts is duplicitous or multiplicitous is whether one offense or separate offenses are included in the indictment. This is not a facile or straightforward task. Nevertheless, we are "bound by it." United States v. Fraza, 106 F.3d 1050, 1054 (1st Cir.1997); Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (stating that "For over half a century we have determined whether a defendant has been punished twice for the `same offense' by applying the rule set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)."). The relevant inquiry is whether Congress intended the same conduct to be punishable under two distinct criminal statutes. Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). Enunciated in Blockburger, the test "requires that courts examine the offenses to ascertain `whether each provision requires proof of a fact which the other does not.'" Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180); Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) (Blockburger test governs unless Congress gives express legislative intent to the contrary); Whalen v. United States, 445 U.S. 684, 688-89, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (finding that Double Jeopardy Clause prohibits courts from imposing consecutive sentences in the absence of Congressional authorization); United States v. Lanoue, 137 F.3d 656, 661 (1st Cir.1998).

II.

Within this framework, we analyze Defendant's first contention that Counts I and II of the superseding indictment are multiplicitous. Defendant alleges that counts I and II both charge, in essence, the same conspiracy. Relying upon the Ninth Circuit's opinion in United States v. Alerta, 96 F.3d 1230 (9th Cir.1996), Defendant maintains that both Count I and Count II relate to a drug trafficking conspiracy in which the defendants purportedly conspired to murder Carlos Roberto Rodríguez-Torres ("Robert Caballo") and to possess firearms.

In Alerta, the defendant was charged and sentenced for two conspiracies. The first was a conspiracy to distribute methamphetamine and the second was a conspiracy to use firearms in a drug trafficking offense. The court found that there was merely one conspiracy and during the course of carrying it out, defendant used firearms and distributed methamphetamine. Alerta, 96 F.3d at 1236. The court relied upon the Supreme Court's exposition of conspiracy in Braverman v. United States:

One agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one ... The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute ... For such a violation, only the single penalty prescribed by the statute can be imposed.

317 U.S. 49, 53-54, 63 S.Ct. 99, 87 L.Ed. 23 (1942). The Ninth Circuit has held, on a number of occasions, that one agreement cannot equal several conspiracies simply because it violates several statutes. See, e.g., United States v. Sanchez-Lopez, 879 F.2d 541 (9th Cir.1989) (holding that counts alleging conspiracy to smuggle heroin and conspiracy to smuggle amphetamines were multiplicitous because they involved the "same parties, duration, location and overt acts" and charged violations of the same conspiracy statute); Launius v. United States, 575 F.2d 770, 771 (9th Cir.1978) (holding that count alleging agreement to smuggle heroin and count alleging conspiracy to smuggle amphetamines equaled one conspiracy); Gilinsky v. United States, 335 F.2d 914, 917 (9th Cir.1964) (recognizing potential multiplicitous situation and remanding for further factual determinations); United States v. Noah, 475 F.2d 688, 693 (9th Cir.1973) (holding that "[s]ince there was only one agreement there could be only one conspiracy conviction").

However, there is a difference between prosecution under a statute that creates several offenses and prosecution of one agreement charged under two counts. The first is a regular pleading practice while the second is multiplicitous. The latter violates the Double Jeopardy Clause because one agreement is forming the basis of two or more charges upon which a defendant can potentially be sentenced. On the other hand, the former merely enunciates dual purposes of one conspiracy.

We turn to the charged counts. Count I charges a drug trafficking conspiracy in violation of 21 U.S.C. § 846. Section 846 provides:

Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

21 U.S.C. § 846. Normally, "to prove the elements of the crime of conspiracy, the government must show the existence of a conspiracy, the defendant's knowledge of the conspiracy, and the defendant's voluntary participation in the conspiracy." United States v. Morillo, 158 F.3d 18, 23 (1st Cir.1998) (quoting United States v. Gomez-Pabon, 911 F.2d 847, 852 (1st Cir. 1990)).

Conviction of conspiracy requires proof that the defendant entered into an agreement with another to commit a crime; the agreement need not be express but may be implicit in a working relationship. United States v. Innamorati, 996 F.2d 456, 470 (1st Cir.1993). The government must prove two kinds of intent: intent to agree and intent to commit the crime. However, "[t]he government need not prove that a co-conspirator knew all of the details or participated in all of the objectives of the plan." Gomez-Pabon, 911 F.2d at 853.

Count II charges Defendant with a conspiracy to commit firearms murder in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(o). Section 924(o) provides the penalty for using or carrying a firearm in relation to and in furtherance of a drug trafficking crime.¹

Both 21 U.S.C. § 846 and 18 U.S.C. § 924(o) are conspiracy statutes. Thus, both accompany predicate substantive counts. The substantive charge that forms the basis of a section 846 conspiracy is 21 U.S.C. § 841(a)(1). Section 841(a)(1) makes it an offense knowingly to distribute, dispense or possess a controlled substance. 21 U.S.C. § 841(a)(1). Thus, the elements upon which a section 846 conspiracy is based are: (1) possession or distribution; and (2) intent. The substantive charge that forms the basis of section 924(o) is 18 U.S.C. § 924(c)(1)(A). The elements of section 924(c)(1)(A) are: (1) that a firearm be used or carried (2) in furtherance of (3) the commission of a drug offense. 18 U.S.C. § 924(c)(1)(A). Defendant contends that Count I of his indictment alleges that possessing and carrying firearms to protect narcotics and drug proceeds was part of the conspiracy and that an overt act of the conspiracy was killing Robert Caballo. Therefore, Defendant concludes that Count I alleges a conspiracy to possess with intent (1) to distribute cocaine, (2) to engage in murder and (3) the possession of firearms in relation thereto. Count II charges Defendant with a conspiracy to commit firearms murder in relation to a drug trafficking...