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U.S. v. JACKSON

United States District Court, S.D. New York


November 9, 2005.

UNITED STATES OF AMERICA,
v.
FREDERICK JACKSON and CLEON ROWE, Defendants.

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

MEMORANDUM AND ORDER

The tenth superseding indictment in the above case, on which defendants were arraigned on October 11, 2005, adds, to what is now Count Four — charging defendant Jackson with the use and carriage, and with aiding and abetting the use and carriage, of a firearm during and in relation to a drug trafficking crime (the drug distribution conspiracy charged in Count One), and that Jackson "in the course of that crime, caused the death of a person through the use of a firearm, which killing is murder as defined in Title 18, United States Code, Section 1111, in that JACKSON provided a firearm to another person and directed that person to kill Ilar Chester with the firearm, resulting in Chester's murder," in violation of 18 U.S.C. §§ 924 (j) (1) and 2 (Count Four) — a new count, Count Five, alleging that, in violation of 21 U.S.C. § 848 (e) (1) (A):

On or about May 30, 2002, in the Southern District of New York, FREDERICK JACKSON, a/k/a "Fred Rowe," the defendant, while engaging in an offense punishable under Title 21, United States Code, Section 841 (b) (1) (A), to wit, the conspiracy to distribute narcotics charged in Count One of this Indictment, unlawfully, intentionally and knowingly did kill, counsel, command, induce, procure, and cause the intentional killing of Ilar Chester.
(Count Five.)

Defendant Jackson moves, pursuant to Fed.R. Cr. P. 12 (b) (3), for dismissal of either Count Four or Count Five on the ground that those counts are multiplicitous.

  2.

  Much of the relevant law was set forth in United States v. Chacko, 169 F.3d 140 (2d Cir. 1999).

 

An indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when, in law and fact, only one crime has been committed. This violates the Double Jeopardy Clause of the Fifth Amendment, subjecting a person to punishment for the same crime more than once.
Id. at 145 (citations and footnote omitted).

 

In assessing whether a defendant is impermissibly charged with essentially the same offense more than once in violation of the Double Jeopardy Clause of the Constitution, the touchstone is whether Congress intended to authorize separate punishments for the offensive conduct under separate statutes. It is not determinative whether the same conduct underlies the counts; rather, it is critical whether the "offense" — in the legal sense, as defined by Congress — complained of in one count is the same as that charged in another.
Id. at 146 (citations omitted).

 

To assess whether the two offenses charged separately in the indictment are really one offense charged twice, the "same elements" test or the "Blockburger" test is applied. The Blockburger test examines whether each charged offense contains an element not contained in the other charged offense. If there is an element in each offense that is not contained in the other, they are not the same offense for purposes of double jeopardy, and they can both be prosecuted.
Id. (citing Blockburger v. United States, 284 U.S. 299 (1932) (other citations omitted).

  Count Four alleges the violation of 18 U.S.C. § 924 (j) (1). In order to obtain a conviction of that count, the government will have to prove: (1) that defendant Jackson committed a federal crime of violence or drug trafficking; (2) that he used or carried a firearm during and in relation to that crime or possessed a firearm in furtherance of that crime; (3) that he caused the death of a person by the use of the firearm; and (4) that the death was caused by murder as defined in 18 U.S.C. § 1111 (murder there being defined as "the unlawful killing of a human being with malice aforethought," id.).

  Count Five alleges the violation of 21 U.S.C. § 848 (e) (1) (A). In order to obtain a conviction of that count, the government will have to prove: "that (1) [Jackson] was guilty of the narcotics conspiracy as charged in Count [One]; (2) the drug conspiracy involved at least . . . fifty grams of crack cocaine; (3) while engaging in the drug conspiracy involving the specified quantity of drugs, [Jackson] either intentionally killed or counseled, demanded, induced, procured, or caused the intentional killing of [Ilar Chester]; and (4) that the killing of [Chester] actually resulted from [Jackson's] actions." United States v. Walker, 142 F.3d 103, 113 (2d Cir. 1998) (citation omitted).

  As the government points out, in order to obtain a conviction of Count Four, it must prove that defendant "Jackson knowingly used or carried a firearm" and that "during the course of using and carrying that firearm, Jackson caused Chester's murder" (Gov't Letter Br., Oct. 31, 2005, at 3), "while Count Five does not specify any particular type of weapon used in the murder." (Id.) With respect to Count Five, the government acknowledges that it must prove "that the narcotics conspiracy involved more than 50 grams of crack cocaine" (id.); proof that the conspiracy did involve more than 50 grams of crack cocaine is not an element of Count Four, however.

  Thus, each of Counts Four and Five require proof of an element that need not be proved in the case of the other count, so that defendant has not satisfied the Blockburger test.

  Where there is a showing of Congressional intent not to authorize multiple punishment under two statutes for conduct that violates both of them, then, even if the Blockburger test is not satisfied, the Court will act accordingly. United States v. Marrale, 695 F.2d 658, 662 (2d Cir. 1982). That is not the case here, however. Neither side has cited, nor is the Court aware of, any evidence of such a congressional intent in the case of the violations alleged in Counts Four and Five.

  Any danger of jury confusion can be prevented by appropriate jury instructions.

  * * *

  For the foregoing reasons, defendant's motion is denied.

  SO ORDERED.

20051109

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