United States v. Ganadonegro

• Decision Date: 14 February 2012
• Docket Number: No. CR 09–0312 JB.,CR 09–0312 JB.
• Citation: 854 F.Supp.2d 1068
• Parties: UNITED STATES of America, Plaintiff, v. Kalvest GANADONEGRO, Defendant.
• Court: U.S. District Court — District of New Mexico

854 F.Supp.2d 1068

UNITED STATES of America, Plaintiff,

v.Kalvest GANADONEGRO, Defendant.

No. CR 09–0312 JB.

United States District Court, D. New Mexico.

Feb. 14, 2012.

Jennifer M. Rozzoni, United States Attorney's Office, Albuquerque, NM, for Plaintiff.

Kari Converse, Federal Public Defender, 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 Count 3, filed December 6, 2011 (Doc. 218)(“Motion”). The Court held a hearing on February 2, 2012. The primary issues are: (i) the Court should dismiss Count 3 in the Superseding Indictment, filed November 9, 2011 (Doc. 201), on the basis that the charged New Mexico state offense is not properly assimilated into federal law under the Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13; and (ii) whether the Court should dismiss Count 3 in the Superseding Indictment on the basis that the Count 3 is multiplicitous of the other Counts in the Superseding Indictment. The Court will deny the Motion. Plaintiff United States of America does not need to rely on the ACA to prosecute the New Mexico state offense charged in Count 3, because the Indian Major Crimes Act (“IMCA”), 18 U.S.C. § 1153, permits the United States to prosecute that offense. Because Count 1 and Count 3 as well as Count 2 and Count 3 each require proof of a fact which the other does not to establish that an offense occurred, the Court concludes that neither Count 1 nor Count 2 is multiplicitous of Count 3.

PROCEDURAL BACKGROUND

Ganadonegro went to trial on charges of intentional child abuse, charged as first-degree murder, on September 1, 2011. See Clerk's Minutes, filed September 1, 2011 (Doc. 192). The jury hung, and the Court declared a mistrial. See Jury Notes at 2–4, filed September 13, 2011 (Doc. 194). On October 9, 2011, the United States superseded the indictment with a new one, charging three separate charges: (i) second-degree murder in violation of 18 U.S.C. § 1111; (ii) voluntary manslaughter in violation of 18 U.S.C. § 1112; and (iii) negligent child abuse resulting in death in violation of N.M.S.A.1978, § 30–6–1(D)(1) and 18 U.S.C. §§ 13 and 1153. See Superseding Indictment at 1–2.

Ganadonegro filed his Motion on December 6, 2011. Ganadonegro argues that the United States cannot use the ACA to assimilate a violation of N.M.S.A.1978, § 30–6–1(D)(1). See Motion at 2. He argues that “federal law covers all forms of homicide on federal enclaves and leaves no gap for any state-law homicide crimes.” Motion at 2. He argues that the federal statutes currently in effect, particularly the homicide statutes, are such that they cover a violation of this New Mexico statute. See Motion at 2–4. He argues that 18 U.S.C. § 1111 “specifically cover[s] homicides caused by child abuse.” Motion at 4. With respect to his multiplicity argument, Ganadonegro asserts that, “[b]ecause state child abuse count [sic] covers the same conduct as Count 1 (the second-degree murder charge) and Count 2 (the voluntary manslaughter charge), allowing a state child abuse charge to go to the jury would unfairly prejudice Mr. Ganadonegro.” Motion at 5. He argues that presenting these multiplicitous Counts to a jury will “exaggerate[ ] the jury's impression of the nature and scope of defendant's alleged criminal activity by charging—and requiring a separate finding of guilty—‘an offense multiple times, in separate counts, when, in law and fact, only one crime has been committed.’ ” Motion at 6. He asserts that presenting “unnecessary counts to the jury also undermines the reliability of the trial process” by “increas[ing] the risk that the jury will be diverted from careful analysis of the conduct at issue,” and by compromising “verdicts or assumptions that, with so many charges pending the defendant must be guilty on at least some of them.” Motion at 6. Ganadonegro argues that, “[i]n this case, the danger is especially aggravated with the confusing and overlapping mens rea requirements” that these different Counts present. Motion at 6–7.

The United States filed its Response on December 20, 2011. See United States' Response to Motion to Dismiss Count 3 (Doc. 225)(“Response”). In its Response, the United States asserts that Ganadonegro “focuses on the” ACA, and fails to address that the IMCA “is a separate and distinct statute that specifically assimilates state felony child abuse and neglect charges into federal law.” Response at 2. It contends that N.M.S.A.1978, § 30–6–1(D)(1) criminalizes felony child abuse or neglect, and thus is properly within the IMCA's scope. See Response at 3. It argues that the IMCA specifically “gives the federal government jurisdiction to prosecute Indians who commit certain enumerated crimes within Indian Country,” including felony child abuse or neglect. Response at 2–4. The United States asserts that the only definition of felony child abuse under federal law is narrow, because it applies only to the felony murder offenses under 18 U.S.C. § 1111 and has no application outside that context. See Response at 4–5. The United States contends that the ACA has no impact on the IMCA, as the two statutes are separate enactments and do not overlap. See Response at 6. The United States argues that the charged offenses in the Superseding Indictment are not multiplicitous, as they each contain elements distinct from the others. See Response at 7. The United States contends that no violation of the Double Jeopardy Clause in the Fifth Amendment to the United States Constitution arises from these offenses under the applicable test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See Response at 7–8. It contends that, under this test, each of the statutes on which it relies to charge offenses requires proof of an additional fact that the other does not. See Response at 7–8. It also asserts that the Double Jeopardy Clause does not prohibit the prosecution from proceeding on several charges against a defendant, including lesser included offenses. See Response at 9. It asserts that the proper procedural solution if the jury convicts Ganadonegro on inconsistent legal theories is for the Court to vacate one of those convictions. See Response at 9.

On January 4, 2012, Ganadonegro filed his Reply to Government's Response to Motion to Dismiss Count 3. See Doc. 230 (“Reply”). He contends that the IMCA does not apply, because child abuse is already an offense that federal law defines and punishes. See Reply at 1. Ganadonegro contends that he “is not just charged with child abuse,” because “he is charged with child abuse resulting in death.” Reply at 1. He argues that, while federal law does not cover some child abuse offenses, such as child abuse offenses that do not result in death, federal law covers those offenses that result in death. See Reply at 2–3.

At the hearing on February 2, 2012, Ganadonegro emphasized that a jury may be confused when it is dealing with multiple crimes that require different mens rea. See Transcript of Hearing at 4:1–15 (taken February 2, 2012)(Converse)( “Tr.”).¹ The Court questioned whether the jury would have significant difficulty sorting out these issues given that juries commonly deal with multiple counts. See Tr. at 4:16–20 (Court). Ganadonegro emphasized that Count 3, which incorporates state child abuse requirements, will particularly confuse the jury. See Tr. at 4:21–5:5 (Converse). Ganadonegro argued that the effect of the current charges proceeding to the jury will be that the jury will believe Ganadonegro is a triple murderer. See Tr. at 45:2–13 (Pori). He asserted that it is improper for the United States to proceed on all the theories contained in the Superseding Indictment and that they should have to elect a particular theory on which they will proceed. See Tr. at 45:21–46:17 (Pori).

Ganadonegro argued that the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109–248, 120 Stat. 587 (2006), provides a federally defined offense for child abuse resulting in death. See Tr. at 5:6–22 (Converse). He asserted that there is no gap in the federal statutory scheme that permits the United States to prosecute a state child abuse statute when the offense results in death. See Tr. at 6:2–24 (Converse). The Court inquired whether the state statute at issue was the same as the comparable federal murder statutes, because the state statute allows for a conviction when the offense is committed with criminal negligence. See Tr. at 7:1–15 (Court). He argued that the Court should assess not whether the elements of the state and federal offense are identical but rather whether federal law covers the criminal conduct. See Tr. at 8:21–9:4 (Converse).

The United States emphasized that the ACA and the IMCA are separate statutory schemes. See Tr. at 9:11–24 (Pena). The United States represented that it is not arguing that the ACA incorporates a violationof N.M.S.A.1978, § 30–6–1(D)(1). See Tr. at 9:11–24 (Pena). The United States contended that the ACA contains language which does not appear in the IMCA, and that this ACA language requires a broader inquiry into whether the act or omission at issue is punishable by any act of Congress. See Tr. at 9:25–10:5 (Pena). The United States asserted that, in comparison, the IMCA permits prosecution of an offense under state law when the offense is not defined and punished by federal law. See Tr. at 10:6–13 (Pena). The United States argued that it is improper in the context of the IMCA to inquire into the underlying conduct at issue to see if that conduct could be prosecuted under federal law. See Tr. at 14:11–20 (Pena). The United States emphasized that it is charging Ganadonegro with a New Mexico state offense that involves criminal negligence. See Tr. at 15:3–15 (Pena). It argued that there is no similarly defined offense under federal law, whether one looks at the crime as a felony child abuse...