United States v. Varela
| Decision Date | 17 June 2022 |
| Docket Number | CR-21-00955-TUC-JCH (EJM) |
| Parties | United States of America, Plaintiff, v. Jared Isiah Varela, Defendant. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION
Pending before the Court is Defendant Jared Isiah Varela's (“Varela”) Motion to Cure Duplicitous Indictment. (Doc. 38). The defendant contends that Count Two of the indictment impermissibly charges two separate criminal offenses in one count: strangling and attempting to strangle. The Court finds that 18 U.S.C. § 113(a)(8) proscribes two separate offenses, assault by strangling or suffocating and assault by attempting to strangle or suffocate. The Court therefore finds that Count Two of the indictment is duplicitous because it charges both completed conduct and attempted conduct in the same count. The Court further finds that the appropriate remedy is to give an unanimity instruction at trial requiring all jurors to agree as to which of the charged offenses the defendant committed. Accordingly, for the reasons set forth below, the Court finds that the defendant's Motion should be granted.
On May 5, 2021 a federal grand jury sitting in Tucson, Arizona returned an Indictment against Varela charging him with three felony offenses relating to domestic violence. (Doc. 3). Count One charges Varela with intentionally, knowingly, and recklessly assaulting an intimate partner and dating partner, resulting in substantial bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(7). Count Two charges Varela with intentionally and knowingly assaulting an intimate partner and dating partner by strangling and attempting to strangle her, in violation of 18 U.S.C. §§ 1153 and 113(a)(8). Count Three charged Varela with domestic assault by a habitual offender, in violation of 18 U.S.C. § 117, but was later dismissed by the District Court. See Docs. 49 and 50.
On March 4, 2022 the defendant filed the motion at issue here.
On May 5, 2022 the Court held oral arguments on the defendant's motion.
The defendant argues that the indictment impermissibly charges two offenses in a single count and is therefore duplicitous. Specifically, Count Two charges the defendant with completed conduct and attempted conduct-strangling and attempting to strangle. Relying on Ninth Circuit case law on alien smuggling[1] and illegal entry[2] statutes wherein the court concluded that Congress intended “attempt” to incorporate common law attempt, the defendant argues that the inclusion of “attempt” in a criminal statute usually means that the statute punishes two separate offenses-completed offenses and attempted offenses-each with a different mental state. Further, because completed offenses and attempted offenses have different mens rea requirements there are certain defenses that are only available for specific intent crimes. The defendant thus reasons that the Court should conclude that “attempt to strangle” incorporates common law attempt and requires specific intent. The defendant requests that the Court order the government to amend the indictment to specify what offense conduct is alleged, or, alternatively, that the Court provide the jury with a specific unanimity instruction.
The government argues that an indictment is not duplicitous merely because it alleges multiple different acts that are different ways of committing the same offense. Thus, there is a sharp distinction between alternative elements, which create separate crimes, and alternative means, which create alternate ways of committing one crime. Here, the government contends that § 113(a)(8) charges the offense of assault and that the statute then lists several alternative means of committing the assault: strangling, suffocating, or attempting to strangle or suffocate. As such, it is an indivisible statute and the government may properly charge the defendant in the conjunctive where the means are listened disjunctively in the statute. The government further argues that the Ninth Circuit has held that the definition of “assault” includes attempts, that § 113 incorporates the common law definition of assault as a willful attempt to inflict injury, and that § 113(a)(8) is a general intent crime. Finally, the government contends that even if the Court finds Count Two duplicitous, it is not required to elect a theory prior to trial and the appropriate remedy is an unanimity instruction.
“Duplicity is the joining in a single count of two or more distinct and separate offenses.” United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976). A duplicitous indictment raises multiple concerns:
The vices of duplicity arise from breaches of the defendant's Sixth Amendment right to knowledge of the charges against him, since conviction on a duplicitous count could be obtained without a unanimous verdict as to each of the offenses contained in the count. A duplicitous indictment also could eviscerate the defendant's Fifth Amendment protection against double jeopardy, because of a lack of clarity concerning the offense for which he is charged or convicted.
United States v. Aguilar, 756 F.2d 1418, 1420 n.2 (9th Cir. 1985). On the other hand, an indictment is not duplicitous where one count “merely state[s] multiple ways of committing the same offense.” United States v. Arreola, 467 F.3d 1153, 1161 (9th Cir. 2006). This is because “[s]ome crimes can be committed by several alternative means[, and i]t is proper for the government to charge different means of a crime connected by conjunctions in the indictment when the means are listed disjunctively in the statute.” United States v. Renteria, 557 F.3d 1003, 1008 (9th Cir. 2009).
To determine whether a statute “creates separate offenses, or simply describes alternative means to commit the same crime, [the court] employ[s] the analytical framework established in UCO Oil . . .: (1) ‘language of the statute itself,' (2) ‘the legislative history and statutory context,' (3) the type of conduct proscribed, and (4) the ‘appropriateness of multiple punishment for the conduct charged in the indictment.'” Arreola, 467 F.3d at 1157 (quoting UCO Oil, 546 F.2d at 836-38).
“Once it is determined that [a] statute defines but a single offense, it becomes proper to charge the different means, denounced disjunctively in the statute, conjunctively in each count of the indictment.” UCO Oil, 546 F.2d at 838. “Proof of any one of the allegations will sustain a conviction, but a judgment of guilty will bar any further prosecution with respect to any of the prohibited means embraced within the count.” Id. Further, “[i]t is not a valid objection that the government has not disclosed its theory of proof in the indictment, nor that the jury, in arriving at a unanimous verdict, may not agree on the particular means by which the offense was committed.” Id.
However, where the indictment is duplicitous, a defendant “may [still] be properly prosecuted and convicted if either (1) the government elects between the charges in the offending count, or (2) the court provides an instruction requiring all members of the jury to agree as to which of the distinct charges the defendant actually committed.” Ramirez-Martinez, 273 F.3d at 915. The Ninth Circuit has also stated that in lieu of election or dismissal of the duplicitous indictment, the court may require the government to prove both offenses as charged. See Aguilar, 756 F.2d at 1424 n.4.
To determine whether § 113(a)(8) “creates separate offenses, or simply describes alternative means to commit the same crime, ” the Court considers the factors set forth in UCO Oil: “(1) [the] ‘language of the statute itself,' (2) ‘the legislative history and statutory context,' (3) the type of conduct proscribed, and (4) the ‘appropriateness of multiple punishment for the conduct charged in the indictment.'” Arreola, 467 F.3d at 1157 (quoting UCO Oil, 546 F.2d at 836-38). While the undersigned appreciates the government's efforts to persuade the Court that § 113(a)(8) proscribes a single, general intent offense that may be committed by several alternative means, the law of this circuit is clear that attempt crimes require specific intent. As such, for the reasons explained below, the Court finds that Count Two of the indictment is duplicitous because it charges both a completed offense and an attempted offense in the same count.
The Court first looks to the text of the statute itself. Section 113(a) sets forth punishments for assaults within the maritime and territorial jurisdiction of the United States, stating that “[w]hoever . . . is guilty of an assault shall be punished as follows[.]” Pursuant to § 113(a)(8), “[a]ssault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate” is punishable by a fine and/or imprisonment for up to 10 years. “As a matter of grammatical construction, the use of the disjunctive indicates that Congress was addressing [] separate acts.” Arreola, 467 F.3d at 1157. However, “[w]hile it is clear that the statute proscribes [] distinct acts, it is not clear from the statutory language that each act is a separate offense.” Id.
In Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014), the court applied the Supreme Court's decision in Descamps v. United States, 570 U.S. 254 (2013), to determine whether a statute written in the disjunctive was divisible or indivisible. The Ninth Circuit noted that “[t]he critical distinction is that while indivisible statutes may contain multiple, alternative means of committing the crime, only divisible statutes contain multiple, alternative elements of functionally...
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