Opinion
No. 00 CR. 432 (DLC).
October 24, 2000.
Steven R. Glaser, Assistant United States Attorney Office of the United States Attorney Southern District of New York.
Robert J. Krakow, Attorney for Andres Martinez.
OPINION AND ORDER
Andres Martinez ("Martinez") moves for dismissal of Count One and/or Count Six of the indictment as either duplicitous or multiplicitous. Alternatively, he requests an order directing Government election and severance of the charges against him. For the reasons discussed below, this motion is denied.
BACKGROUND
On April 25, 2000, a federal Grand Jury sitting in the Southern District of New York returned an eight count indictment ("indictment") against Martinez and five other defendants. Martinez was named in Counts One and Six. Count One charges the six defendants with conspiracy to violate federal narcotics laws through the distribution of crack cocaine as well as heroin, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), and 846. Count Six charges Martinez and three co-defendants with distributing 3.5 grams of heroin within one thousand feet of a public elementary school, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), and 860. The conspiracy count covers the period March 10, 1999, until February 11, 2000; Count Six covers the period November 26 through December 8, 1999.
DISCUSSION
I. Duplicitous Joinder of Offenses
A duplicitous charge is one that joins several offenses in the same count. See United States v. Walsh, 194 F.3d 37, 45 (2d Cir. 1999) (internal citations omitted). Martinez contends that the conspiracy count is duplicitous because it contains dual objectives to distribute both cocaine and heroin and because the heroin distribution is "temporally isolated at the tail end of the overarching conspiracy and involves only a subgroup of four of the six charged conspirators." It is well established that "[t]he allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for the conspiracy is the crime, and that is one, however diverse its objects." Braverman v. United States, 317 U.S. 49, 54 (1942) (internal quotation omitted); see also United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992). In particular, it has been long established that a conspiracy to distribute two controlled substances is not duplicitous. See United States v. Murray, 618 F.2d 892, 898 n. 7 (2d Cir. 1980). Count One is properly pled because it charges only the offense of conspiracy.
While defendant offers Fifth Circuit precedent in support of his position, the Second Circuit has expressly "declined to accept the law of the Fifth Circuit" on this issue. Acari, 968 F.2d at 1518.
A single conspiracy exists where there is "mutual dependence among the participants, a common aim or purpose or a permissible inference from the nature and scope of the operation, that each actor was aware of his part in a larger organization where others performed similar roles equally important to the success of the venture." United States v. Williams, 205 F.3d 23, 33 (2d Cir. 2000). A single conspiracy does not become a multiple conspiracy by "lapse of time, change in membership, or a shifting emphasis on its locale of operations." Aracri, 968 F.2d at 1521 (internal citations omitted). Neither does it become a multiple conspiracy "merely by virtue of the fact that it may involve two or more phases or spheres of operation, so long as there is sufficient proof of mutual dependence and assistance." Id. (internal citations omitted). While Martinez alleges that his own agreement was "limited to the distribution of heroin and did not share the objectives of the overarching conspiracy," a single conspiracy does not require each conspirator's intentions to be "congruent," provided their intentions are "not at cross-purposes." United States v. Thompson, 76 F.3d 442, 454 (2d Cir. 1996) (internal citations omitted). Whether the evidence has established one conspiracy or multiple conspiracies is a question of fact properly left for a jury. See Williams, 205 F.3d at 32.
Martinez further asserts that Count Six is duplicitous because it "joins three distinct underlying crimes," that is, three separate sales of heroin. It is well established that "if the doctrine of duplicity is to be more than an exercise in mere formalism, it must be invoked only when an indictment affects the policy considerations" underlying the doctrine. United States v. Margiotta, 646 F.2d 729, 732-33 (2d Cir. 1981). Relevant policy considerations include
"avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any one of the crimes charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double jeopardy in a subsequent prosecution."Aracri, 968 F.2d at 1518 (quoting Margiotta, 646 F.2d at 733). A single count should be found duplicitous "only when failure to do so risks unfairness to the defendant" and not merely "whenever it contains several allegations that could have been stated as separate offenses."Margiotta, 646 F.2d at 733 (internal citations omitted). None of these policy considerations are invoked by the circumstances of this case; Count Six does not subject Martinez to any unfairness. The Government has provided Martinez with adequate notice by specifying in the indictment and through discovery a bounded time period, the number of acts, the approximate location of the acts, and the amount of heroin allegedly sold.
While it may be more customary in this district for a substantive drug sale count to reflect a single transaction, there is ample precedent for basing a single substantive count on a related set of crimes so long as those acts may be construed as "part of a single continuing scheme."Aracri, 968 F.2d at 1518 (applying this principle to a conspiracy count). In United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989), this Circuit approved charging two heroin sales in a substantive drug count that covered an eleven week period where the sales were part of a single continuing scheme. The Second Circuit has also approved a single count of mail fraud that rested on 50 mailings. See Margiotta, 646 F.2d at 733. It is also common practice to charge within a single count all instances of perjury occurring in the same appearance. See United States v. Berardi, 629 F.2d 723, 729 (2d Cir. 1980). Similarly, several discrete acts of money laundering may be charged within a single count where the acts are part of the "same alleged design" and thus part of a "continuing scheme." United States v. Gordon, 990 F. Supp. 171, 178 (E.D.N.Y. 1998). Based on this and similar precedent, the request to dismiss Count Six as duplicitous is denied.
II. Multiplicity
Martinez asserts that Counts One and Six are multiplicitous because the scheme to sell heroin alleged in Count Six is one of the two conspiracies alleged in Count One. A multiplicitous indictment violates the Double Jeopardy Clause by charging the same offense in separate counts. See United States v. Chacko, 169 F.3d 140, 146 (2d Cir. 1999). To assess whether two charges are multiplicitous, courts employ the "same elements" or "Blockburger" test, which looks not at whether the same conduct underlies each count but at whether each charged offense contains an element not contained in the other. If such additional elements exist, the offenses are not the same and both may be prosecuted. See United States v. Gallego, 191 F.3d 156, 170 (2d Cir. 1999); Chacko, 169 F.3d at 146; See also United States v. Dixon, 509 U.S. 688, 696 (1993) (reaffirming the Blockburger test). In particular, the Supreme Court has long applied the rule that the "substantive crime and a conspiracy to commit that crime are not the `same offense' for double jeopardy purposes." United States v. Felix, 503 U.S. 378, 389 (1992). As the Second Circuit has observed, "each requires an element that the other does not."United States v. Sessa, 125 F.3d 68, 71 (2d Cir. 1997)
III. Election and Severance
Pursuant to Rule 14, Fed.R.Crim.Pro., this Court may order an election or separate trials of counts if one party is prejudiced by a joinder of offenses. Rule 8(a), Fed.R.Crim.Pro., provides that two or more offenses may be charged in the same indictment in a separate count for each offense if the charged offenses are of "the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." For the reasons stated above, the indictment satisfies both rules. This Court finds no prejudice necessitating election or severance.
CONCLUSION
For the aforementioned reasons, defendant's motion to dismiss or for a severance is denied.
SO ORDERED: