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United States v. Kendrick

United States District Court, W.D. New York

February 5, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES KENDRICK, PABLO PLAZA (DOB 1972), and JANINE PLAZA PIERCE, Defendants.

DECISION & ORDER

FRANK P. GERACI, Jr., District Judge.

By Text Orders of Hon. Charles J. Siragusa, entered on July 8, 2010 and March 1, 2011, this case was referred to United States Magistrate Judge Jonathan W. Feldman, pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). ECF Nos. 17, 75. As part of a Second Superseding Indictment involving multiple defendants and alleging a drug conspiracy occurring from 1993 through March 2, 2011 (ECF No. 268), Defendant James Kendrick has been charged with Counts 1-10, 14 and 15 (to wit: Narcotics Conspiracy in violation of 21 U.S.C. § 846; Continuing Criminal Enterprise in violation of 21 U.S.C. § 848(a); Attempted Possession of Heroin with Intent to Distribute in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2; two counts of Possession of Heroin with Intent to Distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2; two counts of Using Premises for Drug Dealing in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 924(c)(1) and 2; Possession and Discharge of Firearms in Furtherance of Drug Crime in violation of 18 U.S.C. §§ 924(c)(1)(a)(iii) and 2; and two counts of Murder While Engaged in Drug Crime in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2); Defendant Pablo Plaza (DOB 1972) has been charged with Counts 1, 4-11 and 14 (to wit: Narcotics Conspiracy in violation of 21 U.S.C. § 846; two counts of Possession of Heroin with Intent to Distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2; two counts of Using Premises for Drug Dealing in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; two counts of Possession of Firearm in Furtherance of Drug Crimes in violation of 18 U.S.C. § 924(c)(1) and 2; Possession and Discharge of Firearms in Furtherance of Drug Crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2; Possession of Cocaine with Intent to Distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2; and Murder While Engaged in Drug Crime in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2); and Defendant Janine Plaza Pierce has been charged with Counts 1, 10 and 14 (to wit: Narcotics Conspiracy in violation of 21 U.S.C. § 846; Possession and Discharge of Firearms in Furtherance of Drug Crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2; and Murder While Engaged in Drug Crime in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2).

Defendants filed Pre-Trial Joint Motions (ECF No. 365), the government filed papers in opposition to these motions (ECF No. 444), and Defendants filed supplemental papers (ECF Nos. 449, 489). Hearings were held on June 27, 2013 (ECF No. 473) and August 5, 2013 (ECF No. 505), following which the Magistrate Judge reserved decision on several motions which are the subject of the instant Report and Recommendation filed on November 7, 2014 (ECF No. 616) which recommends that this Court deny Defendants' various motions seeking to dismiss Counts 14 and 15 on jurisdictional grounds; dismiss Counts 14 and 15 on grounds that general aider and abettor liability under 18 U.S.C. § 2 is inapplicable to murders charged under 21 U.S.C. § 848(e); dismiss Count 1 or, alternatively, to inspect the instructions given to the Grand Jury regarding drug quantity proof; dismiss Counts 4 and 7 as duplictous, unconstitutionally vague and multiplicitous; dismiss Counts 6 and 9 as multiplicitous; and order a Bill of Particulars.

On December 8, 2014, Defendants Kendrick and Plaza-Pierce filed Objections to the following specific conclusions of the Magistrate's Report and Recommendation, namely, that: (1) there is federal jurisdiction over Count 14 notwithstanding the fact that the crime charged in Count 14 was allegedly committed in Indian Country and involved only non-Indians; (2) there is federal jurisdiction over Counts 14 and 15 notwithstanding the fact that the crimes charged in Counts 14 and 15 were not drug-related (and therefore do not implicate interstate commerce); and (3) 18 U.S.C § 2 could be charged in relation to 21 U.S.C. § 848(e)(1)(A). ECF No. 627. On January 8, 2015, the government timely filed its Memorandum in Opposition to Objections by James Kendrick and Janine Plaza-Pierce to Judge Feldman's Report and Recommendation. ECF No. 640.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Magistrate Judge's Report and Recommendation to which objections have been made. Under this provision, "[a] judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. Upon a de novo review of the Report and Recommendation, and a review of Defendants' Objections to the Magistrate Judge's Report and Recommendation, the Government's Memorandum in Opposition to the Defendants' Objections, the digital recording of the oral arguments made during the motion hearings held on June 27, 2013 and August 5, 2013, the written submissions of the parties, as well as their motion papers, I find no basis to alter, modify or reject the Magistrate Judge's Report and Recommendation.

No Objections have been filed by or on behalf of Defendant Plaza (DOB '72). As to Defendant Plaza (DOB '72), upon reviewing all matters submitted, I find no basis to alter, modify, or reject any of the findings and conclusions set forth in the Report and Recommendation. The Magistrate Judge's recommendation to deny the motion to suppress reflects a well-reasoned analysis of the facts and application of the relevant law.

I turn, now, to the objections filed by Defendants Kendrick and Plaza Pierce. Objecting first to the Magistrate Judge's finding of federal jurisdiction over Count 14, Murder While Engaged in Drug Crime (21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2), which alleges that while engaged in an offense punishable under Title 21 U.S.C. § 841(b)(1)(A), i.e., a conspiracy to possess with intent to distribute and to distribute large quantities of drugs, they, along with named codefendants, intentionally killed or caused the intentional killing of Francisco Santos and such killing resulted, Defendants Kendrick and Plaza Pierce argue that because the crime charged in Count 14 was allegedly committed in Indian Country and involved only non-Indians, the New York state courts have exclusive jurisdiction pursuant to the holding of United States v. McBratney, 104 U.S. 621 (1881) and, thus, federal subject matter jurisdiction is lacking.

Defendants take care to make clear that they do not disagree with the Magistrate Judge's assessment that neither the Indian Country Crimes Act, 18 U.S.C. § 1152 ("situs of the crime is an element of the offense"), nor the Indian Major Crimes Act, 18 U.S.C. § 1153 ("Indian on Indian" major crime), was applicable in the circumstances presented in this case, or impacted federal court's jurisdiction over Count 14. See United States v. Markiewicz, 978 F.2d 786 (2d Cir. 1992). Instead, Defendants take exception to the Magistrate Judge's finding that the McBratney ruling did not serve to divest federal court of jurisdiction because Defendants are charged with violating 21 U.S.C. § 848(e)(1)(A), a criminal statute alleging a general federal crime, i.e., a federal law of general applicability that makes certain actions criminal regardless of where they are committed. In McBratney, the Supreme Court answered in the negative the question of "whether the Circuit Court of the United States for the District of Colorado has jurisdiction of the crime of murder committed by a white man upon a white man within the Ute Reservation, and within the limits of the State of Colorado." Id. at 624. The Court said,

The act of March 3, 1875 [the enabling act, which provided for the admission of the state of Colorado] necessarily repeals the provisions of any prior statute, or of any existing treaty, which are clearly inconsistent therewith. The Cherokee Tobacco, 11 Wall. 616. Whenever, upon the admission of a State into the Union, Congress has intended to except out of it an Indian reservation, or the sole exclusive jurisdiction over that reservation, it has done so by express words.

Id. at 623-24.

The Court reasoned that by its admission into the Union by Congress upon an equal footing in all respects with the original states, without any exception as had been made in the treaty and the act establishing a territorial government, the State of Colorado "acquired criminal jurisdiction over its own citizens and other white persons throughout the whole of the territory within its limits, including the Ute Reservation, and that Reservation is no longer within the sole and exclusive jurisdiction of the United States." Id. at 624. It followed, therefore, from the Court's reasoning that the Circuit Court of the United States for the District of Colorado had no jurisdiction and was required to deliver up the prisoner to the State of Colorado authorities to be dealt with according to law. Id.

The government takes the position that Count 14 charges murder committed while engaged in a drug conspiracy in violation of 21 U.S.C. § 848(e)(1)(A), an offense involving a federal crime of general applicability, one not dependent on where the crime occurred as in McBratney. As did the Magistrate Judge, I agree that in McBratney, the crime involved a federal enclave law, i.e., "the charge of murder within the boundaries of the Ute Reservation, " and consequently, find unpersuasive Defendants' argument that nothing in McBratney or its progeny distinguishes between federal laws of general applicability and federal laws where the situs of the crime is an element of the offense. Clearly, in this case, the government need not prove any fact regarding the situs of the charged crime as an element of Count 14, notwithstanding that the fact that Santos' death allegedly occurred on Indian lands. Subject matter jurisdiction properly rests with this Court.

Next, objecting to the Magistrate Judge's finding of federal jurisdiction over Counts 14 and 15, Defendants argue that the crimes charged therein are not drug-related and, therefore, do not implicate interstate commerce. Both Defendants Kendrick and Plaza Pierce are charged in Count 14, which, as stated earlier herein, alleges that while engaged in an offense punishable under Title 21 U.S.C. § 841(b)(1)(A), i.e., a conspiracy to possess with intent to distribute and to distribute large quantities of drugs, they, along with named Codefendants, intentionally killed or caused the intentional killing of Francisco Santos, and such killing resulted. Of these two Defendants, only Defendant Kendrick is charged in Count 15 with Murder While Engaged in Drug Crime (21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2), which alleges that while engaged in an offense punishable under Title 21 U.S.C. § 841(b)(1)(A), i.e., a conspiracy to possess with intent to distribute and to distribute large quantities of drugs, he and a codefendant intentionally killed or caused the intentional killing of Ryan Cooper, and such killing resulted.

The arguments for both Defendants are the same: since, based on the government's proffer at the detention hearing, the government cannot prove a "substantive connection" between the murders of Francisco Santos and Ryan Cooper and a drug conspiracy, as required in United States v. Aguilar, 585 F.3d 652, 658 (2d Cir. 2009), these counts must be dismissed. Undoubtedly, "a substantive, and not merely temporal connection is required in order to sustain a conviction under § 848(e)(1)(A)." Aguilar, 585 F.3d at 660. To secure a conviction under § 848(e)(1)(A), "the government has no burden to establish that a drug-related motive was the sole purpose, the primary purpose or even that it was equally as important as any non-drug-related purpose, as long as it was ...


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