United States v. Goble
| Decision Date | 08 November 2021 |
| Docket Number | Criminal Action 3:21-CR-00006-GFVT-EBA |
| Parties | UNITED STATES OF AMERICA, PLAINTIFF, v. JOHN P. GOBLE, et al., DEFENDANTS. |
| Court | U.S. District Court — Eastern District of Kentucky |
REPORT AND RECOMMENDATION
John P Goble and Michael P. Crawford were indicted by a grand jury on March 18, 2021 on two counts of defrauding the United States under 18 U.S.C. § 371. [R. 1 pg. 2-5]. The charges involve the theft and transport of Kentucky State Police (KSP)-owned ammunition (Count 1) and the theft and transport of KSP-owned firearms (Count 2).
Defendants contend the indictment is multiplicitous because Counts 1 and 2 recite near-identical charges of conspiracy to violate 18 U.S.C. § 666(a)(1)(A) and is thus violative of the Fifth Amendment and the Double Jeopardy Clause.[1] [R. 49-1, 51 The United States maintains that the motions are premature, and that an assessment of double jeopardy would be properly made after trial, in the event Defendants are actually convicted on both Counts of the indictment. [R. 52 at pg. 4]. In the alternative, if the Court finds that the motion is ripe for review, the United States requests an evidentiary hearing to develop a factual record. [R. 52 at pg. 8-9].
The Defendants move to dismiss the indictment in this action as being impermissibly multiplicitous, in that it charges the same alleged conspiracy as two separate offenses. [R. 49, 51]. Multiplicity involves the charging of a single offense in more than one count of an indictment, United States v. Swafford, 512 F.3d 833, 844 (6th Cir. 2008) (citing United States v. Lemons, 941 F.2d 309, 317 (5th Cir. 1991)), and may implicate the Double Jeopardy Clause when a multiplicitous indictment leads to the defendant being punished for the same crime twice or suggests to the trier of fact that the defendant committed more than one crime. United States v. Swafford, 512 F.3d 833, 844 (6th Cir. 2008) (citing United States v. Brandon, 17 F.3d 409 (1st Cir. 1994); United States v. Dixon, 921 F.2d 194 (8th Cir. 1990)). The Double Jeopardy Clause also prohibits the infliction of “multiple punishments for the same offense imposed in a single proceeding.” Jones v. Harry, 405 Fed.Appx. 23, 28 (6th Cir. 2010) (quoting Jones v. Thomas, 491 U.S. 376, 381 (1989)).
When a double jeopardy claim involves multiple conspiracies, as in this case, courts must examine whether the conspiracies charged are, in fact, separate. For the purposes of this examination, the agreement is the “nucleus of the offense.” United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir. 1983). United States v. Broce, 488 U.S. 563, 570-71 (1989).
Germane to Defendants' motions are Counts 1 and 2 of the instant indictment, both of which allege Goble and Crawford conspired (along with an unindicted co-conspirator, Mitch Harris) to violate 18 U.S.C. § 371. However, the overt acts underlying each alleged conspiracy differ in that Count 1 concerns a conspiracy to misappropriate “various calibers and gauges of ammunition, ” [R. 1 at pg. 3], while Count 2 concerns a conspiracy to misappropriate rifles and shotguns, [Id. at pg. 5]. In addition, while the time periods of the conspiracies overlap, the indictment does not allege that each conspiracy occurred over an identical period. Apart from the differing time periods and indictment's distinction between ammunition and weapons, each Count alleges that the respective conspiracies involved the same parties (Goble, Crawford, Harris) and that the conspiracies occurred in the same geographic location (Scott, Franklin, Anderson, and Shelby Counties). [R. 1].
Defendants contend that the similarities between Count 1 and Count 2 amount to multiplicity and, therefore, the indictment should be dismissed or, alternatively, that the Court should direct the United States to elect a conspiracy to prosecute. Either remedy would be proper if the Defendants were, in fact, charged with committing a single offense in more than one count of an indictment. See Swafford, 512 F.3d at 644. To determine whether two conspiracies actually constitute a single conspiracy (and, thus, a single offense in multiple counts of the indictment), the Sixth Circuit has developed a “totality of circumstances” test which examines five factors to determine whether a defendant “engaged in one overarching conspiracy or separate conspiracies.” United States v. Kennedy, 743 Fed. App'x 649, 653 (6th Cir. 2018). The factors include:
1) time; 2) persons acting as co-conspirators; 3) the statutory offenses charged in the indictments; 4) the overt acts charged by the government or any other description of the offenses charged which indicates the nature and scope of the activity which the government sought to punish in each case; and 5) places where the events alleged as part of the conspiracy took place.
United States v. Sinito, 723 F.2d at 1256.
The defendant bears the burden to demonstrate that a single conspiracy exists. In re Grand Jury Proceedings, 797 F.2d 1377, 1380 (6th Cir. 1986). A defendant's burden is satisfied by advancing a nonfrivolous or prima facie showing of a single conspiracy. Id. (citing United States v. Jabara, 644 F.2d 574, 576-77 (6th Cir. 1981). Making a prima facie claim “requires more than a showing of mere possibility; it means that if no rebuttal evidence is submitted, the proponent has met his burden of proof and is entitled to prevail.” Air Line Pilots Ass'n, Int'l v. DOT, 880 F.2d 491 (1989); see generally, Prima Facie Case, Black's Law Dictionary (11th ed. 2019) (defining prima facie case as “[t]he establishment of a legally required rebuttable presumption.”). Once the defendant makes his prima facie claim, the burden shifts to the government to show by a preponderance of the evidence that the conspiracies are, in fact, separate. United States v. Vichitvongsa, 819 F.3d 260, 273 (6th Cir. 2016) (citing In re Grand Jury Proceedings, 797 F.2d at 1380). This requires the United States, during a a pretrial proceeding, to develop the record in the event of an interlocutory appeal. Jabara, 644 F.2d at 576 .
Therefore, the Court considers the following in order to determine whether Defendants have made a prima facie showing that a single conspiracy exists.
Regarding the first factor, time, the Defendants contend that the acts underlying Counts 1 and 2 of the indictment took place during the same period, from 2014 to early 2017. [R. 49-1 at pg. 5]. As the indictment is written, this is clearly not the case. Count 1 alleges that the conspiracy to misappropriate ammunition occurred “[f]rom on or about a date in late 2014, and continuing on or about a date in early 2018, ” [R. 1 at pg. 2], while Count 2 alleges the conspiracy to misappropriate firearms occurred “[f]rom on or about a date in late 2016, and continuing until on or about a date in early 2017, ” [Id. at pg. 4]. Further, the United States proffers that its theory is that two agreements occurred at two distinct times: first, the Defendants and the unindicted co-conspirator agreed to misappropriate ammunition in the possession of KSP; and, several years after the initial agreement, the Defendants and their unindicted co-conspirator agreed to the misappropriation of weapons in the possession of KSP. [R. 52 at pg. 7]. Other than Crawford's objection to the government splitting up the conspiracies because they overlap, [R. 49-1 at ¶ 5], neither Defendant makes a prima facie showing that each alleged conspiracy took place during the same time period.
The second factor examines the persons acting as co-conspirators. According to the indictment and the parties' briefing on this matter, it is undisputed the persons involved in the alleged conspiracy are the same: Defendants Goble and Crawford, along with Mitch Harris, the unindicted co-conspirator. It is well-established that “two distinct conspiracies can be found ‘even though they may involve some of the same participants[.]'” United States v. Goff, 400 Fed.Appx. 1, 9 (6th Cir. 2010) (quoting Sinito, 723 F.2d at 1257). Nonetheless, both Defendants have made a prima facie showing that each Count of the indictment involves the same set of co-conspirators.
Here, the Court notes that Defendants are charged with the same statutory violation in both Count 1 and Count 2. While each Count alleges a conspiracy pursuant to 18 U.S.C. § 371, and that each Defendant conspired to violate 18 U.S.C. §666(a)(1)(a), it should be noted that Count 1 specifically refers to KSP-owned ammunition, while Count 2 refers to KSP-owned firearms. Although “one can certainly enter two conspiracies to commit the same type of crime, ” United States v. Wheeler, 535 F.3d 446, 456 (6th Cir. 2008) (quoting United States v. Ledon, 49 F.3d 457, 460 (8th Cir. 1995)), the Defendants need only make a prima facie showing that both Counts of the indictment allege violations of the same statutory offense. Here, the Defendants have made the necessary showing that Counts 1 and 2 of the indictment allege violations of the same statutory offense.
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