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U.S. v. SIERRA-GARCIA

March 18, 1991

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.



The opinion of the court was delivered by: Glasser, District Judge:

    MEMORANDUM AND ORDER

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 '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 establishing a

  [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
  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, 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).

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.

The defendant's attack upon § 1956 as being unconstitutionally vague falls considerably short of its mark. To pass constitutional muster a penal statute must define the offense definitely enough so that an ordinary person can understand what he may not do and must define it in a way that discourages arbitrary and discriminatory enforcement. An additional requirement or what is perhaps an elaboration of what has already been stated, is that in enacting a penal statute, the legislature establishes minimal guidelines to govern law enforcement. Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983).

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); United ...


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