United States v. Giampietro

• Decision Date: 28 July 2020
• Docket Number: No. 2:19-cr-00013,2:19-cr-00013
• Citation: 475 F.Supp.3d 779
• Parties: UNITED STATES of America, Plaintiff, v. Georgianna A.M. GIAMPIETRO, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

475 F.Supp.3d 779

UNITED STATES of America, Plaintiff,

v.Georgianna A.M. GIAMPIETRO, Defendant.

No. 2:19-cr-00013

United States District Court, M.D. Tennessee, Northeastern Division.

Filed July 28, 2020

Philip H. Wehby, Office of the United States Attorney, John Benjamin Schrader, U.S. Attorney's Office (Nashville Office) Middle District of Tennessee, Nashville, TN, Jennifer E. Levy, U.S. Department of Justice-National Security Division, Washington, DC, for Plaintiffs.

Peter J. Strianse, Tune, Entrekin & White, P.C., Nashville, TN, Charles D. Swift, Constitutional Law Center for Muslims in America, Richardson, TX, for Defendants.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

On December 18, 2019, a federal grand jury returned a Superseding Indictment (Doc. No. 77) against Georgianna A.M. Giampietro charging her with (1) attempting to provide material support and resources to a foreign terrorist organization, namely Hayat Tahrir al-Sham (Count One); (2) altering, destroying, mutilating, or concealing evidence relating to a federal investigation (Count Two); and (3) altering, destroying, mutilating, or concealing evidence in relation to a federal grand jury investigation (Count Three). Now before the Court is Giampietro's "Motion to Dismiss Count Three [sic] as Duplicitous and/or Multiplicitous, or in the Alternative to Dismiss Count Three" (Doc. No. 112), and her "Motion to Dismiss Counts [sic] Two as Void for Vagueness as Applied and Count Three for Absence of a Nexus" (Doc. No. 113). The Government has filed a response in opposition to both Motions (Doc. Nos. 122, 123), and Giampietro has replied (Doc. Nos. 133, 134).

I. Background

Giampietro's Motions relate solely to the obstruction of justices charges. Count Two alleges a violation of 18 U.S.C. § 1519, which provides:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Giampietro is alleged to have violated that statute by engaging in the following conduct:

Beginning in or about March 2018, and continuing until on or about October 23, 2018, in the Middle District of Tennessee, the defendant, GEORGIANNA A.M. GIAMPIETRO, did knowingly alter, destroy, mutilate, conceal, and cover up a record and document, including, but not limited to, social media accounts, text messages, chat conversations, and other electronic communications, with the intent to impede, obstruct, and influence the investigation and proper administration of a matter within the jurisdiction of a department and agency of the United States, that is, a possible violation of Title 18, United States Code, Section 2339B(a)(1), a matter within the jurisdiction of the Federal Bureau of Investigation, and in relation to and in contemplation of such matter.

(Doc. No. 77 at 2).

Count Three alleges a violation of 18 U.S.C. § 1512(c)(1), which states that "[w]hoever corruptly alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding ... shall be fined under this title or imprisoned not more than 20 years, or both." In violation of this provision, Giampietro allegedly did the following:

Between on or about September 23, 2018, and on or about October 23, 2018, in the Middle District of Tennessee, the defendant, GEORGIANNA A.M. GIAMPIETRO, knowingly and corruptly did alter, destroy, mutilate, and conceal a record and document, including but not limited to, contact information, text messages, electronic communications, and a cell phone, and corruptly did attempt to do so, with the intent to impair the record and document's integrity and availability for use in an official proceeding, namely, a grand jury investigation into a possible violation of Title 18, United States Code, Section 2339B(a)(1).

(Id. at 3).

II. Motion to Dismiss as Duplicitous or to Amend (Doc. No. 112)

Although the title of this Motion suggests it is directed only at Count Three, in the body of the motion Giampietro requests "this Court to direct the government to dismiss Counts Two and Three as duplicitous" because "they each charge multiple distinct allegations of obstruction over a broad spectrum of time." (Doc. No. 112 at 1, 4). She also claims that those Counts "are multiplicitous because, as charged, they permit conviction based on identical factual conduct." (Id. at 10). The Court is unpersuaded by either argument.

A. Duplicitous Counts

"An indictment is duplicitous if it sets forth separate and distinct crimes in one count." United States v. Davis, 306 F.3d 398, 415 (6th Cir. 2002). "The overall vice of duplicity is that the jury cannot in a general verdict render its finding on each offense, making it difficult to determine whether a conviction rests on only one of the offenses or on both.’ " United States v. Anderson, 605 F.3d 404, 414 (6th Cir. 2010) (citing United States v. Washington, 127 F.3d 510, 513 (6th Cir. 1997) ).

Nevertheless, a duplicitous "charge is not prejudicial per se , because proper jury instructions can mitigate the risk of jury confusion and alleviate the doubt that would otherwise exist as to whether all members of the jury had found the defendant guilty of the same offense." United States v. Savoires, 430 F.3d 376, 380 (6th Cir. 2005). This has long been the law in the Sixth Circuit. See United States v. Eaton, 784 F.3d 298, 308 (6th Cir. 2015) (citation omitted) ("A special unanimity instruction is a means of clarifying a so-called ‘duplicitous’ charge, or one that ‘sets forth separate and distinct crimes in one count.’ "); United States v. Blandford, 33 F.3d 685, 699 (6th Cir. 1994) ("In light of this unanimity instruction, we reject Blandford's duplicity argument."); United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir. 1981) ("[A] duplicitous or multiplicitous indictment is remediable by the court's instruction to the jury particularizing the distinct offense charged in each count in the indictment.").

Providing the jury with a unanimity instruction or a special verdict form is not the only possible remedy to duplicitous charges, however. Instead, "[a] defendant moving pursuant to Rule 12 can request that a duplicitous indictment be dismissed, ... [s]he can attempt to force the government to elect the charge within the count upon which it will rely, or [s]he can ask the court to particularize the distinct offenses contained within a count." United States v. Kakos, 483 F.3d 441, 444 (6th Cir. 2007) (internal citation omitted); see also United States v. Sturdivant, 244 F.3d 71, 79 (2d Cir. 2001) (collecting cases for the proposition that "courts have held that prior to a defendant's conviction, prejudice to the defendant can be avoided by having the government elect to proceed based upon only one of the distinct crimes included within a duplicitous count").

In lieu of awaiting the jury charge, Giampietro requests that either Counts Two and Three be dismissed, or the Government be required to choose and set out in a Bill of Particulars the precise method she allegedly used to obstruct justice for both Counts Two and Three. In support, she argues:

[T]hese charges are duplicitous because they charge multiple separate individual acts as a singular course of conduct rather than the individual crimes that they represent. While a single course of conduct may be charged in some circumstances under either statute, those circumstances are not present when the allegation relates to separate and distinct acts of destruction across a wide variety of platforms, rather than a singular act accomplished by multiple means. Utilizing a single course of conduct under these circumstances will not reveal whether the jury unanimously found the defendant guilty of any particular alleged criminal conduct, or guilty of one crime and not guilty of the others.

Additionally, Counts Two and Three's courses of conduct are duplicitous with each other. The courses of conduct charged by Counts Two and Three overlap in both time and factual allegations, creating the potential that the same facts used to convict the defendant of Count Two could also be used to convict the defendant of Count Three in violation of the Due Process and Double Jeopardy Clauses of the Fifth Amendment.

(Doc. No. 112 at 2).

As already noted, duplicity occurs when two or more crimes are alleged in one count, but "[i]t is not duplicitous to allege in one count that multiple means have been used to commit a single offense." United States v. Damrah, 412 F.3d 618, 622 (6th Cir. 2005). That is precisely what is alleged in both Counts Two and Three. Count Two alleges that Giampietro used multiple means to obstruct an FBI investigation by altering or destroying social media accounts, text messages, chat conversations, and other electronic communications. Similarly, Count Three alleges that Giampietro used multiple means to obstruct a grand jury investigation by concealing, altering, or destroying contact information, text messages, electronic messages, and a cellphone. See United States v. Kamalu, 298 F. App'x 251, 254 (4th Cir. 2008) ("Where the indictment fairly interpreted alleges a continuing course of conduct, during a discrete period of time, the indictment is not prejudicially duplicitous."); United States v. Klat, 156 F.3d 1258, 1266 (D.C. Cir. 1998) ("[S]everal acts may be charged in a single count if the acts represent a single, continuing scheme that occurred within a short period of time and that involved the same defendant.") (internal quotation marks and...