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U.S. v. SIERRA-GARCIA
March 18, 1991
UNITED STATES OF AMERICA, PLAINTIFF,
EDWIN JESUS SIERRA-GARCIA, ALSO KNOWN AS "EDDIE GOMEZ," ANNA PATRICIA ALVAREZ, NESTOR CARDONA, MARIA DEL CARMEN RODRIGUEZ-ALONSO, AND CAESAR RUIZ, DEFENDANTS.
The opinion of the court was delivered by: 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
(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 'assur[es] 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
[T]hree-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
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 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, 319 (D.C.Cir. 1971) (inherent
relationship test) with United States v. Campbell,
652 F.2d 760, 761-762 (8th Cir. 1981) (elements test). Under the
"elements test" "one offense is not 'necessarily included' in
another unless the elements of the lesser offense are a subset
of the elements of the charged offense. Where the lesser
offense requires an element not required for the greater
offense, no instruction is to be given under Rule 31(c)."
Schmuck, 489 U.S. at 716, 109 S.Ct. at 1450. The court is not
aware of any authority, nor has the defendant cited any, which
prohibits charging as separate counts in an indictment, a
greater and a lesser offense. The court's instruction to the
jury would, in the normal course, require them to consider each
count separately and may require such other instruction as may
be appropriate. See, e.g., United States v. DiGeronimo,
598 F.2d 746, 751 (2d Cir.), cert. denied, 444 U.S. 886, 100 S.Ct.
180, 62 L.Ed.2d 117 (1979).
An analysis of the statutes involved, however, reveals that
the elements of 31 U.S.C. § 5316 are not a subset of the
elements of 18 U.S.C. § 1956(a)(1)(A)(i) or (a)(1)(B)(i) or
(a)(1)(B)(ii) because the lesser offense (§ 5316) requires an
element not required for the greater offense (§ 1956).
The lesser offense is committed when a person knowingly
"transports, is about to transport or has transported" more
than $10,000 outside the United States and fails to file a
report as required by the statute. "Transportation," past,
present or imminent, is a necessary element of this offense.
"Transportation" is not an element of § 1956(a)(1)(A)(i),
(a)(1)(B)(i) or (a)(1)(B)(ii). A Nakashian or Blockburger
analysis would compel the same conclusion. The defendant's
motion to dismiss Counts 5 and 9 is, therefore, denied.
The defendant next contends that the indictment should be
dismissed as to Counts 1-4 and 6-9 for the reasons that (1) it
fails to state a violation of 18 U.S.C. § 1956 in that
"specified unlawful activities" in terms of discrete acts or
indictable offenses are not pleaded as required by
18 U.S.C. § 1956(c)(7); (2) Counts 6-9 fail to allege sufficient facts to
establish that an attempt to engage in a financial transaction
occurred on October 9, 1990; and (3) Count I fails to state an
offense because 18 U.S.C. § 371 does not prohibit conspiracies
to attempt to commit other offenses.
Rule 7(c)(1), Fed.R.Crim.P., requires that an "indictment
shall be a plain, concise and definite written statement of the
essential facts constituting the offense charged." The
essential pre-requisites of a sufficient indictment are that it
informs the accused of the charges against him so that he can
prepare his defense and avoid double jeopardy. United States v.
D'Anna, 450 F.2d 1201, 1204 (2d Cir. 1971). A reading of this
indictment in its entirety and with a modicum of common sense
can leave the defendant with no doubt as to the offenses with
which he is being charged so as to enable him to prepare his
defense and successfully invoke the prohibition against double
jeopardy should he be indicted again for the same offenses.
The defendant's assertion that "conspiracy to attempt" is not
a crime has no merit. Count 1 charges the defendants with
knowingly and wilfully conspiring to violate 18 U.S.C. § 1956
and 31 U.S.C. § 5316. He relies upon United States v. Meacham,
626 F.2d 503 (5th Cir. 1980) in making that assertion. Meacham
was explicitly distinguished in United States v. Mowad,
641 F.2d 1067, 1074 (2d Cir.), cert. denied, 454 U.S. 817, 102
S.Ct. 94, 70 L.Ed.2d 86 (1981) in which the court held that
combining the general conspiracy statute (18 U.S.C. § 371) with
a specific statutory provision describing an offense against
the United States is sufficient to state an offense. See also,
United States v. Clay, 495 F.2d 700 (7th Cir.), cert. denied,
419 U.S. 937, 95 S.Ct. 207, 42 L.Ed.2d 164 (1974).
The defendant's assertions addressed to the insufficiency of
the other counts of the indictment similarly have no merit. The
attack upon the sufficiency of the indictment cannot be
supported by a claim that it fails to inform him of the
offenses with which he is charged so that he can defend against
them. Rather, it is an attack upon the failure of the
government to plead in detail the evidence it intends to elicit
to prove those charges. In Counts 1-4, 6-8, the defendant is
informed that the "specified unlawful activity" to which § 1956
makes reference, is "narcotics distribution." § 1956(c)(7), in
defining "specified unlawful activity" incorporates
18 U.S.C. § 1961(1) which explicitly includes "the felonious manufacture,
importation, receiving, concealment, buying, selling or
otherwise dealing in narcotic or other dangerous drugs,
punishable under any law of the United States."
21 U.S.C. § 841(a)(1) makes it unlawful to distribute controlled
substances. The term "financial transaction" as used in §
1956(a) is defined in § 1956(c)(4) and when read in the context
of the indictment in its entirety adequately informs the
defendant of the nature of the charge against him to permit the
preparation of his defense.
With that standard as a benchmark, would an ordinary person
understand what § 1956 forbids? A plain reading of it compels
the conclusion that he would understand that he can not conduct
a financial transaction with what he knows are the proceeds of
some form of unlawful activity with the intention of promoting
specified unlawful activity; or with knowledge that the
financial transaction is designed to hide the nature, source or
control of the proceeds of the specified unlawful activity; or
with knowledge that the transaction is designed to avoid a
reporting requirement under State or Federal law. The statute
defines in some detail the meaning of the words "knowing,"
"conducts," "transaction," "financial transaction" and
"specified unlawful activity."
In discharging his burden to establish that the statute is
unconstitutionally vague, the defendant must hurdle the
presumption that duly enacted legislation is constitutional and
that the legislature intended that interpretation which is
constitutionally permissible if the statute is susceptible to
more than one interpretation. United States v. Salerno,
481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987);