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United States of America v. Christopher Barret et al

December 27, 2011

UNITED STATES OF AMERICA
v.
CHRISTOPHER BARRET ET AL., DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

Defendant Omar Mitchell is one of eight defendants charged in a third superseding indictment (the "Superseding Indictment") filed on November 23, 2011. (See generally ECF No. 304, Superseding Indictment ("S-3").) In the motions pending before the court, Mitchell moves to dismiss Count Six of the Superseding Indictment, which charges him with using, carrying or possessing; brandishing; or discharging a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c) ("Section 924(c)"). (ECF Nos. 333-34, Motion to Dismiss and to File a Bill of Particulars by Omar Mitchell ("Mitchell Mem."), at 1-5.) In the alternative, Mitchell seeks a bill of particulars with respect to Count Six. (Id. at 5-6.) For the reasons set forth below, the court denies Mitchell's motions.

BACKGROUND*fn1

Mitchell is named in two of six counts in the Superseding Indictment. Count Two of the Superseding Indictment charges Mitchell and each of his co-defendants with conspiring to distribute and possess with intent to distribute more than 1000 kilograms of marijuana between November 2006 and December 2010, in violation of 21 U.S.C. §§ 841(b)(1)(A)(vii)*fn2 and 846,*fn3 and 18 U.S.C. § 3551 et seq.*fn4 (S-3 ¶ 22.) Count Six charges Mitchell and six of his co-defendants with using, carrying, possessing, brandishing and discharging a firearm in furtherance of drug-trafficking crimes between November 2006 and October 2010, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i),*fn5 924(c)(1)(A)(ii), 924(c)(1)(A)(iii), 2*fn6 and 3551 et seq. (Id. ¶ 26.)

DISCUSSION

I.Motion to Dismiss

Count Six is predicated on Section 924(c), which provides, in relevant part:

[A]ny person who, during and in relation to any . . . drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-(i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. §§ 924(c)(1)(A)(i)-(iii). Mitchell moves to dismiss Count Six on grounds that it is "impermissibly duplicitous" because it combines into one charge the three separate offenses of (1) using, carrying or possessing, (2) brandishing and (3) discharging a gun. (Mitchell Mem. at 2-3.)

Mitchell claims that the allegedly duplicitous nature of Count Six prejudices him because, inter alia, a "[guilty] verdict [as to Count Six] may not be unanimous as to the specific allegations combined within the single count." (Id. at 4.) In other words, he could be convicted of Count Six if all jurors believe that he violated some aspect of Section 924(c), even if they do not all agree on which particular aspect (using, carrying or possessing; brandishing; or discharging) he violated. Consequently, Mitchell asserts, a conviction under Count Six would form an improper basis for sentencing and would not protect him against double jeopardy because he would not know which of the three offenses the jury found him to have committed. (Id.)

In opposition, the government argues that Count Six is not duplicitous because it charges a continuing crime, and the appropriate unit of prosecution is the underlying drug-trafficking offense. (ECF No. 356, Government's Response to Mitchell's Motion to Dismiss and For a Bill of Particulars ("Gov't Opp'n") at 6.) The government further argues that even if Count Six is truly "impermissibly duplicitous," the less drastic remedy of reformulation is preferred over dismissal, particularly because the Second Circuit has found that duplicity "is only a pleading rule [that] would in no event be fatal to the count." (Id. at 5 (quoting United States v. Droms, 566 F.2d 361, 363 n.1 (2d Cir. 1977).)

A.Legal Standard

"[A]n indictment [is] duplicitous 'if it joins two or more distinct crimes in a single count.'" United States v. Sturdivant, 244 F.3d 71, 75 n.3 (2d Cir. 2001) (citing United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992)). "The rule against duplicity prohibits the Government from joining two or more distinct offenses in a single count, because if a jury were to return a general verdict on a duplicitous count, it would be unclear as to whether the defendant was found guilty of only one crime and not the other, or guilty of both." United States v. Coffey, 361 F. Supp. 2d 102, 109 (E.D.N.Y. 2005) (citing United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980)).

A single count that alleges commission by a defendant of a crime by several means is not duplicitous, however. Coffey, 361 F. Supp. 2d at 110 (citing Murray, 618 F.2d at 899 & n.7). Section 924(c) sets forth an offense that can be committed in three different ways: by (1) using, carrying or possessing; (2) brandishing; or (3) discharging a firearm in furtherance of a drug-trafficking crime. See 18 U.S.C. § 924(c)(1)(A)(i)-(iii). The Second Circuit has explained that "[w]here there are several ways to violate a criminal statute," as is the case with Section 924(c), "federal pleading requires . . . that an indictment charge [be] in the conjunctive to inform the accused fully of the charges." United States v. Mejia, 545 F.3d 179, 207 (2d Cir. 2008) (quoting United ...


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