Opinion
CR 20-02706-008 TUC-RM (JR)
09-15-2022
United States of America, Plaintiff, v. Justin Sane, Defendant.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU UNITED STATES MAGISTRATE JUDGE.
This matter was referred to Magistrate Judge Rateau for pretrial matters. On August 31, 2022, Defendant Justin Sane (“Defendant”) filed a Motion to Dismiss Counts 1 & 4 (Doc. 166). The Government filed a response on September 13, 2022. (Doc. 172). Defendant did not reply and waived his right to reply at the hearing which was conducted on August 14, 2022. Defendant, who is out of custody, was present and represented by counsel at the hearing. Having considered the matter, the Magistrate Judge recommends that Defendant's motion be DENIED.
As no testimony or exhibits were presented at the hearing, the Court did not request that a transcript be prepared.
Trial is scheduled for December 5, 2022. (Doc. 150).
Indictment (Doc. 16)
Defendant is named in a four-count Indictment along with seven other codefendants. He is not charged in any of the substantive counts but only in the two conspiracy counts.
In Count 1, Defendant is charged with Conspiracy to Possess with Intent to Distribute Cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(ii)(II). The Government alleges that from a time unknown until on or about October 28, 2020, in the District of Arizona, the Eastern District of Michigan, and elsewhere, the Defendant and his co-defendants did knowingly and intentionally combine, conspire, confederate and agree with each other and other persons known and unknown to the grand jury, to possess with intent to distribute 5 kilograms or more of cocaine.
In Count 4, Defendant is charged with Conspiracy to Launder Monetary Instruments in violation of 18 U.S.C. §§ 1956(h), 1956(a)(1)(A)(i). The Government alleges that from a time unknown until on or about October 28, 2020, in the District of Arizona, the Eastern District of Michigan, and elsewhere, the Defendant and his co-defendants did knowingly and intentionally combine, conspire, confederate and agree with each other and other persons known and unknown to the grand jury, to knowingly conduct or attempt to conduct a financial transaction, to wit, mailing parcels containing narcotics through the U.S. Postal Service and purchasing U.S. Postal Service money orders, which involved the proceeds of a specified unlawful activity, that is drug trafficking, with the intent to promote the carrying on of specified unlawful activity, to wit drug trafficking, and that while conducting and attempting to conduct such financial transaction, knew that the property involved in the financial transaction represented the proceeds of some form of unlawful activity.
In the present motion, Defendant argues that Counts 1 and 4 are constitutionally insufficient because they omit a material element of the offense. He also argues that the Counts are multiplicitous.
At the hearing, Defendant agreed with the Government that the charged conspiracies do not require an overt act. Defendant also withdrew his argument that the counts were improperly joined and should be severed.
Discussion
I. Sufficiency
An indictment must provide the essential facts necessary to apprise a defendant of the crime charged but it need not specify the theories or evidence upon which the government will rely to prove those facts. United States v. Cochrane, 985 F.2d 1027, 1031 (9th Cir.1993). An indictment that does not set out all the essential elements of the offense charged is defective. United States v. Gonzalez, 686 F.3d 122, 127-128 (2d Cir. 2012). The statements of essential facts and statutory citation are separate requirements, and a deficiency in the factual allegations cannot be cured by a statutory citation in the same count. Gonzalez, 686 F.3d at 128.
The Federal Rules of Criminal Procedure require an indictment to contain both “a plain, concise, and definite written statement of the essential facts constituting the offense charged” and a citation to the “statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.” Fed.R.Crim.P. 7(c)(1).
A. Count 1
An indictment charging a conspiracy under 21 U.S.C. § 846 is sufficient if it alleges: a conspiracy to distribute drugs, the time during which the conspiracy was operative, and the statute allegedly violated. United States v. McCown, 711 F.2d 1441, 1450 (9th Cir.1983). Here, Count 1 states with sufficient specificity the time during which the conspiracy was operative (from a time unknown until on or about October 28, 2020), the purpose of the conspiracy (to possess with intent to distribute 5 kilograms or more of cocaine), the statutes allegedly violated (21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(ii)(II)), the approximate location of the conspiratorial activities (in the District of Arizona, the Eastern District of Michigan, and elsewhere), and the full names of the eight charged defendants.
B. Count 4
For similar reasons, the allegations charged in Count 4, conspiracy to commit or attempt to commit money laundering under 18 U.S.C. § 1956(h), are constitutionally sufficient and in compliance with Fed.R.Crim.P. 7(c)(1).
The unlawful activity of the conspiracy is conducting or attempting to conduct a financial transaction, specifically mailing parcels of narcotics through the U.S. Postal Service and purchasing U.S. Postal Service money orders from the proceeds of drug trafficking; the underlying conduct began from a time unknown until on or about October 28, 2020, in the District of Arizona, the Eastern District of Michigan, and elsewhere; eight defendants are charged by name in the indictment; and the Government alleges that they intended to promote drug trafficking, and while doing so, knew that the property involved in the financial transaction represented proceeds of some form of unlawful activity.
See United States v. Nunez, 419 F.Supp.2d 1258, 1272 (S.D. Cal. 2005) (An indictment charging a conspiracy to commit or attempt to commit money laundering is sufficient if it alleges that a defendant conducted transactions in proceeds from a prior, completed criminal activity; the prior criminal activity can include completed phases of an ongoing crime, if those phases have generated proceeds that could then be laundered in subsequent transactions.) See also United States v. Cuevas, 847 F.2d 1417, 1429 (9th Cir.1988) (no double jeopardy violation for conviction of conspiracy to distribute narcotics, 18 U.S.C. §§ 841, 846, and conviction of conspiracy to not report currency transactions, 18 U.S.C. § 371, despite fact that same act, removing money from United States, constituted actus reus of both crimes).
Counts 1 and 4 of the Indictment are constitutionally sufficient to apprise the Defendant of the charged conspiracies. At the early indictment stage, the Defendant is not entitled to know all of the evidence the Government plans to use to prove the charges against him.
II. Multiplicity
An indictment is multiplicitous when it charges multiple counts for a single offense, thereby resulting in two penalties for one crime and raising double jeopardy concerns. United States v. Mancuso, 718 F.3d 780, 790 (9th Cir. 2013). However, two counts within an indictment are not multiplicitous if each separately violated statutory provision requires proof of an additional fact which the other does not. United States v. Vargas-Castillo, 329 F.3d 715, 718-19 (9th Cir.2003). See also Blockburger v. United States, 284 U.S. 299, (1932) (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.)
Here, the conspiracy charged in Count 1 requires proof that there was drug trafficking, specifically the possession with intent to distribute 5 kilograms or more of cocaine. That is not an element of the money laundering conspiracy charged in Count 4. Likewise, the money laundering conspiracy charged in Count 4 requires proof of an intent to conduct or attempt to conduct a financial transaction knowing that its proceeds relate to drug trafficking or some other form of unlawful activity. Those are not elements of the drug conspiracy charged in Count 1.
Counts 1 and 4 are distinct offenses. As each count requires proof of a fact which the other does not, the charges are not multiplicitous.
Recommendation
Based on the foregoing and pursuant to 28 U.S.C. § 636(b) and Local Rule Civil 72.1, Rules of Practice of the United States District Court, District of Arizona, the Magistrate Judge recommends that the District Court, after an independent review of the record, DENY Defendant's Motion to Dismiss Counts 1 & 4. (Doc. 166).
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No replies are permitted without leave of court. If any objections are filed, this action should be designated case number: CR 20-02706-008 TUC-RM. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).