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