US v. Sierra-Garcia

• Decision Date: 18 March 1991
• Docket Number: No. CR-90-0891.,CR-90-0891.
• Citation: 760 F. Supp. 252
• Parties: UNITED STATES of America, Plaintiff, v. Edwin Jesus SIERRA-GARCIA, also known as "Eddie Gomez," Anna Patricia Alvarez, Nestor Cardona, Maria Del Carmen Rodriguez-Alonso, and Caesar Ruiz, Defendants.
• Court: U.S. District Court — Eastern District of New York

760 F. Supp. 252

UNITED STATES of America, Plaintiff, v. Edwin Jesus SIERRA-GARCIA, also known as "Eddie Gomez," Anna Patricia Alvarez, Nestor Cardona, Maria Del Carmen Rodriguez-Alonso, and Caesar Ruiz, Defendants.

No. CR-90-0891.

United States District Court, E.D. New York.

March 18, 1991.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Loretta Lynch, Asst. U.S. Atty., Brooklyn, N.Y., for plaintiff.

José M. Quinon, Quinon & Strafer, Miami, Fla., for Edwin Jesus Sierra-Garcia.

Carlos A. Velasquez, Montero, Finizio & Velasquez, Fort Lauderdale, Fla., for Nestor Cardona-Grajales.

Charles D. Adler, Goltzer & Adler, New York City, for Caesar Ruiz.

Robert Blossner, New York City, for Anna Patricia Alvarez.

Albert Talero, Law Offices of Byron Lassin, Jackson Heights, N.Y., for Maria Del Carmen Rodriguez-Alonso.

MEMORANDUM AND ORDER

GLASSER, District Judge:

The defendant Sierra-Garcia moves pursuant to Rule 12(b), Fed.R.Crim.P., and pursuant to the Due Process and Double Jeopardy clauses of the Fifth Amendment, for an order dismissing the indictment on the following grounds: (1) Counts 2-4 and 6-8 are multiplicitous; (2) Counts 5 and 9 are multiplicitous; (3) Counts 1-4 and 6-8 fail to state cognizable offenses, and (4) 18 U.S.C. § 1956 is unconstitutionally vague.

The essence of his claim that Counts 2-4 and 6-8 are multiplicitous can be clearly understood with the provisions of 18 U.S.C. § 1956 in mind. The relevant portions of that statute provide as follows:

§ 1956. Laundering of monetary instruments

(a)(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity —

(A)(i) with the intent to promote the carrying on of specified unlawful activity; or

(ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986; or

(B) knowing that the transaction is designed in whole or in part —

(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(ii) to avoid a transaction reporting requirement under State or Federal law,

shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both.

Count 2 of the indictment alleges that this defendant and the others named violated § 1956(a)(1)(A)(i) on October 5, 1990. Count 3 alleges that they violated § 1956(a)(1)(B)(i) on that date and Count 4 alleges that they violated § 1956(a)(1)(B)(ii) on that date. Counts 6-8 mirror Counts 2-4 except that the defendants are charged with violating the statutory provision on October 9, 1990.

Multiplicity is the charging of a single offense in more than one count. United States v. Israelski, 597 F.2d 22, 24 (2d Cir.1979). "The multiplicity doctrine is based upon the double jeopardy clause of the Fifth Amendment which `assures that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.'" Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). The test for determining whether an indictment is multiplicitous was clearly stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) as follows:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.... A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Citing United States v. Albernaz, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) and United States v. Marrale, 695 F.2d 658 (2d Cir.1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1434, 75 L.Ed.2d 793 (1983), the court in United States v. Nakashian, 820 F.2d 549 (2d Cir.), cert. denied, 484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 392 (1987) pointed to those cases as establishing a

Three-step inquiry to determine whether Congress intended to authorize multiple punishments for conduct that violates two statutory provisions. 1) If the offenses charged are set forth in different statutes or in distinct sections of a statute, and each section unambiguously authorizes punishment for a violation of its terms, it is ordinarily to be inferred that Congress intended to authorize punishment under each provision. 2) It must next be determined whether the two offenses are sufficiently distinguishable from one another that the inference that Congress intended to authorize multiple punishments is a reasonable one.... 3) If Blockburger is satisfied, the final step is to test the tentative conclusion that multiple punishments are authorized against the legislative history of the statutory provisions to discover whether a contrary Congressional intention is disclosed. If the legislative history either reveals an intent to authorize cumulation of punishments or is silent on the subject, the court should conclude that Congress intended to authorize multiple punishments.

820 F.2d at 551.

An application of that test compels the conclusion that the indictment is not multiplicitous. As to the first step of the inquiry, the offenses charged are set forth in distinct sections of § 1956, each stated in the disjunctive. That is to say, the statute makes it unlawful to knowingly conduct a financial transaction which in fact involves the proceeds of an unlawful activity with the intent to promote the carrying on of the unlawful activity § 1956(a)(1)(A)(i); or knowing that the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of the unlawful activity § 1956(a)(1)(B)(i); or to avoid a transaction reporting requirement under State or Federal law § 1956(a)(1)(B)(ii). The statute also makes it plain that a violation of each section of the statute is punishable as prescribed.

As to the second step of the inquiry, the offenses are sufficiently distinguishable from one another to warrant the reasonable inference that Congress intended to authorize multiple punishments. That is to say a violation of § 1956(a)(1)(A)(i) requires proof that the defendant intended to promote the carrying on of a specified unlawful activity. A violation of § 1956(a)(1)(B)(i) requires proof that the defendant conducted a financial transaction knowing that it was designed in whole or in part to conceal or disguise one of the stated aspects of the proceeds of the specified unlawful activity. And finally, a violation of § 1956(a)(1)(B)(ii) requires proof that the defendant conducted a financial transaction knowing that it was designed in whole or in part to avoid a transaction reporting requirement. It is plain that "each provision requires proof of a fact which the other does not" within the meaning of Blockburger.

As to step three of the analysis, the defendant makes no reference to any portion of the legislative history reflecting a Congressional intent to preclude multiple punishment. Where the offenses are set forth in distinct sections of a statute which unambiguously sets forth a punishment for the violation of each distinct section as is the case here, and each offense requires proof of a fact that the other does not as is also the case here, then a court is warranted in presuming that the Congress intended to authorize multiple punishments. See United States v. Gugino, 860 F.2d 546, 549-50 (2d Cir.1988). The defendant's motion to dismiss Counts 2-4 and 6-8 as multiplicitous is, therefore, denied.

The defendant asserts that Counts 5 and 9 charge essentially the same offense as 18 U.S.C. § 1956(a)(2)(B)(ii) and must be dismissed as "lesser included offenses" of Counts 4 and 8. Count 5 alleges a violation of 31 U.S.C. §§ 5316(a) and (b) and 5322(b) on or about October 5, 1990. Count 9 alleges a violation of the same statutes on or about October 9, 1990. Those statutes make it unlawful to fail to file a report when knowingly transporting or about to transport out of the United States more than $10,000 at one time. 18 U.S.C. § 1956(a)(2)(B)(ii) makes it unlawful to transport a monetary instrument or funds out of the United States knowing that the monetary instruments or funds involved represent the proceeds of some form of unlawful activity and knowing that such transportation is designed in whole or in part to avoid a transaction reporting requirement under State or Federal law. It should be noted at the outset that Counts 4 and 8 do not charge the defendants with violating § 1956(a)(2)(B)(ii) and therefore Counts 5 and 9 do not charge a lesser included offense of that statute.

A discussion of "lesser included offenses" invariably arises in the context of whether a court's instructions to a jury regarding the law applicable to a specific offense should also include an instruction that the jury may return a verdict of guilt on a lesser included offense. Rule 31(c), Fed.R.Crim.P., provides, in that regard, that "The defendant may be found guilty of an offense necessarily included in the offense charged...." In Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734, reh'g denied, 490 U.S. 1076, 109 S.Ct. 2091, 104 L.Ed.2d 654 (1989) the Supreme Court resolved the conflict among the Circuits as to whether the "inherent relationship" approach or the traditional or "elements" approach should be applied to Rule 31(c). Compare, e.g., United States v. Whitaker, 447 F.2d 314,...