Opinion
1:20-cr-00238-NE-SKO-1
07-28-2021
UNITED STATES OF AMERICA, Plaintiff, v. KENNETH BASH, Defendant.
ORDER DENYING DEFENDANT'S MOTIONS TO SUPPRESS AND TO DISMISS (DOC. NOS. 189, 195)
Presently before the court are defendant Kenneth Bash's motions to suppress evidence and dismiss multiplicitous conspiracy counts. (Doc. Nos. 189, 195.) A hearing on those motions was held on June 24, 2021, at which time the motions were taken under submission for decision. Assistant U.S. Attorney Stephanie Stokman appeared at the hearing on behalf of the United States and W. Scott Quinlan appeared on behalf of defendant. Having reviewed the parties' briefing and heard their arguments, for the reasons set forth below, defendant's motions will be denied.
BACKGROUND
Before and during the pendency of this action, defendant has been incarcerated at Salinas Valley State Prison. (Doc. No. 189 at 3.) On July 27, 2020, a California Department of Corrections and Rehabilitation (“CDCR”) officer observed defendant walking out of his cell with a black iPhone 7 in his hand and seized the cellphone. (Attach. 2, Quinlan Decl., Doc. No. 190-2 at 2.) A forensic download of the cellphone was subsequently conducted by a California Highway Patrol (“CHP”) officer assigned to the California Department of Justice, Fresno Regional Office, High Impact Investigation Team. (Id.)
On August 11, 2020, Special Agent Anthony Gonzales from the United States Bureau of Alcohol, Tobacco, Firearms and Explosives submitted an application for a federal warrant authorizing the search of the contents extracted from the cellphone. (Id. at 3; see also Attach. 1, Quinlan Decl., Doc. No. 190-1 (sealed).) In his affidavit in support of his search warrant application, Special Agent Gonzales stated that the forensic download was completed in good faith, he had not reviewed the contents of that download, and no references to those contents were made in his warrant application. (See Attach. 1, Quinlan Decl., Doc. No. 190-1 at 11 n.4 (sealed).) The reviewing magistrate judge signed the search warrant on the same day, identifying the that the item to be searched was the black iPhone 7 and authorizing the search of all records on that phone “that include evidence of the commission of the offense described below, contraband, the fruits of crime, and things otherwise criminally possessed and property designed or intended for use in, or which is or has been used as the means of committing, 21 U.S.C. §§ 846, 841 (Conspiracy to Possess with the Intent to Distribute Controlled Substances) and 18 U.S.C. § 1961(1) and § 1962 (RICO conspiracy) . . .” (Attach. 1, Quinlan Decl., Doc. No. 190-1 at 21-26 (sealed).) The USB drive containing the original forensic download of the cellphone was then forwarded to an investigative team and the contents of that download were searched and subsequently used in support of a wiretap application submitted to a judge of the Fresno County Superior Court as part of the overall investigation. (Attach. 2, Quinlan Decl., Doc. No. 190-2 at 3; Doc. No. 189 at 5; see also Attach. 3, Quinlan Decl., Doc. No. 190-3 (affidavit in support of wiretap application).)
On December 10, 2020, the grand jury for the Eastern District of California returned an indictment in this action charging defendant Bash with the following:
COUNT ONE: 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(A) - Conspiracy to Distribute and to Possess with Intent to Distribute Methamphetamine
The Grand Jury further charges: THAT
KENNETH BASH, STEPHANIE MADSEN, JAMES ARMSTRONG, AND SAMANTHA BOOTH,
defendants herein, between on or about September 1, 2020, and continuing through on or about October 1, 2020, in the County of Fresno, State and Eastern District of California, and elsewhere, did knowingly and intentionally conspire and agree with each other and with persons known and unknown to the Grand Jury to distribute and to possess with intent to distribute at least 50 grams of methamphetamine (actual), and 500 grams or more of a mixture or substance containing methamphetamine, a Schedule II Controlled Substance, in violation of Title 21, United States Code, Sections 846 and 841(a)(1) & (b)(1)(A).
. . .
COUNT THREE: 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(A), (b)(1)(B) - Conspiracy to Distribute and to Possess with Intent to Distribute Methamphetamine and Heroin
The Grand Jury further charges: THAT
KENNETH BASH, STEPHANIE MADSEN, TODD MORGAN, MARLON PALMER, AND JOSEPH MCWILLIAMS,
defendants herein, between on or about September 1, 2020, and continuing through on or about September 25, 2020, in the County of Fresno, State and Eastern District of California, and elsewhere, did knowingly and intentionally conspire and agree with each other and with persons known and unknown to the Grand Jury to distribute and to possess with intent to distribute at least 50 grams of methamphetamine (actual), and 500 grams or more of a mixture or substance containing methamphetamine, a Schedule II Controlled Substance, and at least 100 grams or more of a mixture or substance containing heroin, a Schedule I Controlled Substance, in violation of Title 21, United States Code, Sections 846 and 841(a)(1) & (b)(1)(A), (b)(1)(B).
. . .
COUNT TWELVE: 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(A) - Conspiracy to Distribute and to Possess with Intent to Distribute Methamphetamine
The Grand Jury further charges: THAT
KENNETH BASH, STEPHANIE MADSEN, TODD MORGAN, JACOB RENSHAW,
AMANDA GOURLEY, AND BROCK LARSON,
defendants herein, between on or about September 20, 2020, and continuing through on or about November 19, 2020, in the County of Fresno, State and Eastern District of California, Montana, and elsewhere, did knowingly and intentionally conspire and agree with each other and with persons known and unknown to the Grand Jury to distribute and to possess with intent to distribute at least 50 grams of methamphetamine (actual), and 500 grams or more of a mixture or substance containing methamphetamine, a Schedule II Controlled Substance, in violation of Title 21, United States Code, Sections 846 and 841(a)(1) & (b)(1)(A).
. . .
COUNT FOURTEEN: 21 U.S.C. §§ 846, 841(a)(1) - Conspiracy to Distribute and to Possess with Intent to Distribute Methamphetamine and Heroin
The Grand Jury further charges: THAT
KENNETH BASH, STEPHANIE MADSEN, TODD MORGAN, AND JAMES ARMSTRONG,
defendants herein, between on or about September 1, 2020, and continuing through on or about November 19, 2020, in the County of Fresno, State and Eastern District of California, and elsewhere, did knowingly and intentionally conspire and agree with each other and with persons known and unknown to the Grand Jury to distribute and to possess with intent to distribute a mixture or substance containing methamphetamine, a Schedule II Controlled Substance, and a mixture or substance containing heroin, a Schedule I Controlled Substance, in violation of Title 21, United States Code, Sections 846 and 841(a)(1).(Doc. No. 130 at 1-2, 2-3, 7, 8.) In his pending motions defendant Bash moves to suppress the evidence seized from his cellphone (i.e. the downloaded contents of that phone) and moves to require an election by the government and to dismiss what he contends are the multiplicitous conspiracy counts of the indictment brought against him. (Doc. Nos. 189, 190, 194, 195, 198.) The government has opposed both motions (Doc. Nos. 199, 200), and defendant has replied (Doc. Nos. 201, 208). Defendant also requests the court take judicial notice of two documents in support of his motion to suppress. (Doc. Nos. 203, 204.)
ANALYSIS
A. Motion to Suppress the Forensic Download of the Cellphone Contents
Defendant moves to suppress the forensic download of his cellphone's contents, arguing that law enforcement “had no right to search or seize the contents of that phone without a search warrant.” (Doc. No. 201 at 3.) In other words, defendant claims that the officers should not have downloaded any contents from the phone until a search warrant was issued or, alternatively, “the government, armed with a search warrant to search the cell phone, should have obtained a new forensic download, and searched that untainted download.” (Id. at 7.) Because the forensic download by was completed by a CHP officer before the issuance of the federal search warrant, defendant maintains that the download was tainted and thus any evidence obtained from that original download should be suppressed as fruit of the poisonous tree. (Doc. No. 189 at 6.)
The government first argues that defendant lacks standing to seek suppression of evidence based on an alleged violation of the Fourth Amendment because he has no reasonable expectation of privacy in the cellphone's contents given that defendant was incarcerated in state prison and prohibited from possessing a cellphone due to that status. (Doc. No. 199 at 4.) Alternatively, the government asserts that a valid federal search warrant was in fact issued for the cellphone's contents. As for the CHP officer downloading those contents from the phone before a search warrant was issued, the government argues that “[t]he download of the phone prior to the warrant being sought is inconsequential to the contents of the phone, which remain the same whether downloaded one day or two weeks after the phone was recovered.” (Id. at 6-7.)
1. Standing
A defendant bears the burden of establishing that he had a reasonable expectation of privacy in the place being searched in order to establish standing to challenge a search or seizure under the Fourth Amendment. See United States v. Reyes-Bosque, 596 F.3d 1017, 1026 (9th Cir. 2010); United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005); see also Minn. v. Olson, 495 U.S. 91, 95-96 (1990) (“[I]t has been the law that ‘capacity to claim protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.'”) (quoting Rakas v. Ill., 439 U.S. 128, 143 (1978)). Likewise, a defendant “can prevail on a ‘fruit of the poisonous tree' claim only if he has standing regarding the violation which constitutes the poisonous tree.” 6 W. LaFave, Search and Seizure § 11.4 (6th ed. 2020); see also United States v. Baker, 256 F.3d 855, 863 (9th Cir. 2001) (rejecting a defendant's challenge to the validity of a search warrant on the basis that evidence tainted by the unlawful search of his companion's purse was included in the affidavit supporting the issuance of the warrant based upon the defendant's lack of standing).
Moreover, “[i]t is well settled that prisoners have no reasonable expectation of privacy in the belongings they keep with them.” United States v. Huart, 735 F.3d 972, 975 (7th Cir. 2013); see also Hudson v. Palmer, 468 U.S. 517, 526 (1984) (“[T]he Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.”). California prisoners are prohibited from possessing a cellphone and thus defendant Bash cannot claim to have had a reasonable expectation of privacy in the contents of the contraband cellphone which he possessed in violation of the law. See Cal. Penal Code § 4576; Hayes v. Cal. Dep't of Corr. & Rehab., No. 2:19-cv-09513-SVW (SK), 2020 WL 3963882, at *2 (C.D. Cal. Apr. 28, 2020) (“Plaintiff has no Fourth Amendment right to prevent a prison search of the contents of his contraband phone without a warrant.”) (citing Hudson, 468 U.S. at 524). Because defendant Bash lacks standing to challenge the search of his contraband cellphone under the Fourth Amendment, his motion to suppress the fruits of the search of the cellphone's contents must be denied. In the undersigned's view, this straightforward analysis is dispositive of the pending motion to suppress evidence. Nonetheless, the court will address the remaining arguments advanced by defendant Bash in support of that motion below.
2. Search Warrant
Defendant Bash contends that “while law enforcement had the right to seize his cell phone from him because he was a prisoner, they had no right to search or seize the contents of that phone without a search warrant.” (Doc. No. 201 at 3.) In making this argument, he relies, in part, on the Supreme Court's decision in Riley v. California, 573 U.S. 373 (2014), in which the court held that a search warrant is generally required before officers can conduct a search of a cellphone's contents. Id. at 401 (“Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.”). However, the holding in Riley does not support defendant's motion to suppress here because it involved a warrantless search incident to arrest, not the search of a prisoner's contraband cellphone. See United States v. Bare, 806 F.3d 1011, 1018 n.4 (9th Cir. 2015) (rejecting the defendant's reliance on Riley on grounds that a defendant on supervised release “does not warrant the same level of protection as arrestees because-as a convicted federal prisoner still serving a portion of his sentence-his Fourth Amendment rights are diminished.”) (citing Hudson, 468 U.S. at 524); see also Hayes, 2020 WL 3963882 at *2 (“Plaintiff cannot rely on Riley [citation omitted], because Riley has nothing to do with prisoners having contraband phones.”).
Defendant also heavily relies on a recent Ninth Circuit decision in which that court affirmed the denial of a parolee's motion to suppress evidence seized during a search of the forensic images from his cell phones. United States v. Peterson, 995 F.3d 1061, 1063, 1068-69 (9th Cir. 2021). In that case the parolee, as a condition of his release, had “consent[ed] to announced or unannounced examination and/or search of electronic devices to which [he had] access for the limited purpose of detecting content prohibited by [the] conditions of parole.” Peterson, 995 F.3d at 1063 (alterations in original). The assigned parole agent on two separate occasions had discovered cellphones in the parolee's possession, seized those phones, and “delivered them to federal agents at Homeland Security Investigations (HSI) to conduct forensic searches of images on the phones.” Id. After each warrantless parole search, but before the forensic searches of the cellphones were conducted, the parolee's parole was revoked. Id. The parolee “moved to suppress the evidence found during the forensic searches of the phones, ” which the government did not oppose because a CDCR officer had interpreted Policy No. 81034.5 of the CDCR's operation manual to provide that “once parole was revoked, a warrant was required to search items seized during a warrantless parole search.” Id. Accordingly, the district court suppressed the evidence obtained by HSI from the cellphone searches. Id. at 1064. Subsequently, the government applied for a warrant to search both cellphones supported by an affidavit that “specifically informed the court of the prior forensic search of the phones and affirmed that no information from that search was used in the application.” Id. The district court issued the search warrant and, afterwards, the cellphones were “reanalyzed utilizing previously captured forensic images.” Id. The parolee again moved to suppress the contents obtained from his cellphones, “argu[ing] that his parole conditions did not ‘unambiguously encompass' cell phones” and “that the illegal seizure of cell phones during the parole searches required suppression of evidence obtained from the parole searches and evidence obtained from HSI's forensic searches pursuant to the warrant.” Id. This time, however, the district court denied the motion to suppress. Id.
On appeal, the parolee argued, in part, that “the warrantless seizure of his cell phones during the parole searches required suppression of the forensic evidence subsequently obtained by warrant.” Id. at 1068. Recognizing that the parolee had diminished privacy interests and that he had consented to searches of his electronic devices, the Ninth Circuit concluded that the parole searches were constitutionally permissible. Id. To the extent the parolee argued that the government should have made new forensic images from the cellphone after the issuance of the search warrant or that the previously captured forensic images had been suppressed in light of the government's non-opposition to his motion to suppress, the Ninth Circuit found that the parolee had waived this argument by failing to raise it before the district court. Id.
Defendant Bash argues that based on the decision in Peterson, the contents of his cellphone could not be either forensically downloaded or searched without a warrant. (Doc. No. 201 at 7.) The undersigned is not persuaded by this argument because Peterson is not directly on point. First, unlike defendant Bash, who was incarcerated in state prison at the time of the search and was specifically prohibited from possessing the contraband cellphone in question, the parolee in Peterson was allowed to possess electronic devices subject to search conditions. See Peterson, 995 F.3d at 1068 (“‘[S]tatus as a parolee significantly diminishes one's privacy interests' and that parolees ‘hold the most limited privacy interests among people convicted of a crime but [who] are not actually imprisoned.'”) (quoting United States v. Johnson, 875 F.3d 1265, 1273, 1275 (9th Cir. 2017)).
Second, defendant Bash focuses on the government's non-opposition to the parolee's first motion to suppress in Peterson, which non-opposition was based on a CDCR indication that a search warrant was likely needed to search the parolee's cellphones if the search was to be conducted after his parole was revoked under CDCR policy. (See Doc. No. 201 at 7.) However, as in the present case, in Peterson the government subsequently applied for and the court issued a warrant to search the contents of the cellphones. As defendant recognizes, the Ninth Circuit in Peterson did not reach the issue of whether the forensic images should have been download anew prior to the search because that argument had not been presented below and had thus been waived. Peterson, 995 F.3d at 1068. Nonetheless, the Ninth Circuit did observe that “[a]ny illegality in the initial seizure of forensic images from [the parolee's] cell phones was cured by the subsequent issuance of a warrant to search the forensic images from cell phones that were legally seized from [the parolee] as the result of valid parole searches.” Id. at 1068-69. Finally, the affidavits in support of the search warrant applications in Peterson and in this case both informed the court that a prior forensic download of the cellphones' contents had been completed and that no information from those downloads was referenced in the warrant applications.
In affirming the denial of the defendant's motion to suppress the Ninth Circuit also noted that “[h]ad Peterson raised this argument below, the district court could have ruled on this factual dispute in the first instance, and if necessary, the asserted error could have been corrected by obtaining new forensic images of the phones.” Peterson, 995 F.3d at 1068.
Finally, although defendant recognizes that California state prison inmates do not have a reasonable expectation of privacy in their contraband items, he nevertheless argues that California has enacted statutes and regulations requiring the issuance of a search warrant authorizing the search of the contents of a prisoner's contraband cellphone. In this regard, defendant cites California Penal Code § 4756(e), which provides that “[t]he department [CDCR] shall not access data or communications that have been captured using available technology from unauthorized use of a wireless communication device except after obtaining a valid search warrant.” However, this provision of California law does not support defendant's motion to suppress since federal agents in this case did in fact obtain a search warrant prior to reviewing the forensic download of the contraband cellphone's contents. Defendant Bash has not cited any court decision that has required a new forensic download of a seized contraband cellphone's contents after a search warrant is issued.
Defendant requests the court take judicial notice of two separate policies set forth in the CDCR Operations Manual. (Doc. Nos. 203, 204.) First, defendant cites policy number 81035.5, which discusses parole searches of electronic devices. (Attach. 1, Doc. No. 203-1 at 7.) However, defendant is incarcerated and as such is not allowed to possess a cellphone, and thus this policy does not apply to him. Second, defendant cites CDCR policy number 54030.12.2 for the proposition that “California prison inmates retain property interests in unauthorized personal property, which includes their cell phones.” (Doc. No. 204 at 2; see Attach. 1, Doc. No. 204-1 at 2.) The policy cited by defendant in this regard discusses disposal of unauthorized inmate personal property. Although California state prison inmates may indicate or agree as to how that unauthorized property will be disposed of, the policy has nothing to do with the searching of that property by prison officials nor does it confer any possessory interest on the part of inmates in contraband property. Thus, while the court will take notice of the CDCR policies cited by defendant, it concludes they are irrelevant in resolving the pending motion.
In short, because he was incarcerated in state prison and not allowed to possess a contraband cellphone, defendant has failed to establish that he had a reasonable expectation of privacy in the contents of that contraband cellphone. Regardless of his lack of standing to challenge the search of the contraband cellphone, federal agents obtained a valid warrant to search the contents of the cellphone, which cured any taint even if the initial download of that phone's contents by state law enforcement officers were to be found unlawful. Accordingly, defendant Bash's motion to suppress the fruits of that search must be denied.
In light of this conclusion, the court finds it unnecessary to address the government's separate argument that it is permitted under California Penal Code § 1546.1(c)(8) to access electronic device information from contraband cellphones possessed by inmates without a warrant. (See Doc. No. 199 at 5-6.)
B. Franks Hearing
Next, defendant moves for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), in order to establish: (1) the nature and extent of the forensic download conducted on the contraband cellphone prior to the search warrant application being submitted and (2) that Special Agent Gonzales knew at the time he submitted his application for the issuance of a search warrant that a warrant was required before the cellphone's contents where downloaded. (Doc. No. 201 at 12.) Additionally, defendant contends that, although Agent Gonzales represented to the issuing magistrate judge that he did not review the cellphone's contents and that the forensic download of the cellphone was done in good faith, Agent Gonzales “deliberately or recklessly concealed” from the magistrate judge that he would not perform a new download of the cellphone's contents and instead intended to search what defendant contends was the “already tainted” original download. (Id.)
The government opposes defendant's Franks hearing request on grounds that “[d]efendant has not provided any specific statements that were omitted or misstated as to mislead the Magistrate Judge from authorizing the search warrant, ” nor has he “provide[d] information that these statements were made intentionally or recklessly.” (Doc. No. 199 at 7.) The court agrees with the government.
“A defendant is entitled to an evidentiary hearing if he ‘makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.'” United States v. Craighead, 539 F.3d 1073, 1080- 81 (9th Cir. 2008) (quoting Franks, 438 U.S. at 155-56); see also United States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011); United States v. Bennett, 219 F.3d 1117, 1124 (9th Cir. 2000); United States v. Johns, 851 F.2d 1131, 1133 (9th Cir. 1988). Therefore, in order to be entitled to an evidentiary hearing, a defendant must come forward with specific allegations, allege a deliberate falsehood or reckless disregard for the truth, and support that claim with a sufficient offer of proof. Craighead, 539 F.3d at 1080 (citing United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983)). Where such a substantial preliminary showing is made, “the court must hold a hearing to determine if any false statements deliberately or recklessly included in the affidavit were material to the magistrate's finding of probable cause.” Johns, 851 F.2d at 1133 (quoting United States v. Burnes, 816 F.2d 1354, 1357 (9th Cir. 1987)); see also United States v. Stanert, 762 F.2d 775, 780 (9th Cir. 1985), as amended, 769 F.2d 1410 (9th Cir. 1985).
Affirmative misrepresentations in a search warrant affidavit are material if probable cause is lacking absent consideration of the misrepresented facts. Crowe v. Cnty. of San Diego, 608 F.3d 406, 435 (9th Cir. 2010) (citing Franks, 438 U.S. at 171-72). A misrepresentation based on an omission is material where the inclusion of the omitted facts would “cast doubt on the existence of probable cause.” Id. (quoting United States v. Garza, 980 F.2d 546, 551 (9th Cir. 1992)).
Here, defendant has not identified any false statement in or omission of material information from the federal search warrant affidavit. Indeed, the court pressed defense counsel at the hearing as to where in the search warrant application the allegedly false statement appeared or where that affidavit omitted material information, but counsel was unable to identify anything concrete or specific in response to that inquiry. Instead, defendant Bash merely asserts that the search warrant affidavit was misleading because it failed to state that a search warrant was required before the cellphone's contents could be downloaded and it did not say the original download of the cellphone's contents was what federal agents would search pursuant to the warrant. (Doc. No. 201 at 12.) However, the magistrate judge was clearly informed by the affidavit that a forensic download of the cellphone's contents had already been completed and Agent Gonzales reported in the affidavit that he had not yet reviewed the contents of that download nor did he make any reference to those contents in his warrant application. Ultimately, defendant has simply failed to make any showing that the search warrant affidavit included false statements or omitted facts, let alone any substantial preliminary showing that any such false statements or omissions were material to the probable cause determination.
Having been informed by the affiant that the forensic download of the contents of the cellphone had already been completed (Doc. No. 190-1 at 11 and n.4), had the reviewing magistrate perceived any conceivable issue with the search of that download, the magistrate could have specified that a download of the contents been done anew and that the authorized search be conducted on that download. See fn. 1, above. The reviewing magistrate judge did not do so and instead authorized the search of the cellphone as requested in the application.
Having failed to make the substantial preliminary showing required by Franks, defendant is not entitled to an evidentiary hearing, nor has he established that any evidence obtained as a result of the forensic download of the contraband cellphone's contents should be suppressed on this basis. See United States v. Meling, 47 F.3d 1546, 1553-56 (9th Cir. 1995); see also United States v. Yepiz, 673 F. App'x. 691, 703 (9th Cir. 2016) (affirming the denial of an evidentiary hearing under Franks do to the failure to make a substantial preliminary showing in support of the motion). Accordingly, defendant Bash's request for a Franks hearing will be denied as will his motion to suppress evidence on that ground.
Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b).
C. Motion to Dismiss Multiplicitous Conspiracy Counts
Defendant also moves the court for “an order compelling an election of Count 14 among conspiracy charges filed against him and dismissing all multiplicitous conspiracy charges [Counts 1, 3, 12] to the elected conspiracy charge.” (Doc. No. 195 at 1.) He argues that all four conspiracy counts alleged in the indictment involve overlapping time periods, take place in Fresno County and elsewhere, and involve a conspiracy to violate the same statutes, all of which is encompassed within the conspiracy charged in Count 14 of the indictment. (Id. at 2, 5.) The government opposes the motion for election, contending that despite some potential overlap, each of the four conspiracies charged in the indictment at least involves different co-conspirators and separate time periods. (Doc. No. 200 at 5-6.) Furthermore, the government argues that “despite methamphetamine being the main controlled substance that defendant was conspiring to distribute, there are separate and distinct quantities of methamphetamine in each count, and in two of the four counts, separate and distinct quantities of heroin, obtained from different sources during separate time periods.” (Id. at 6.)
“An indictment is multiplicitous if it charges a single offense in more than one count.” United States v. Awad, 551 F.3d 930, 937 (9th Cir. 2009) (citation omitted). For example, multiplicity can occur if a single criminal conspiracy is divided into multiple violations of one conspiracy statute. See United States v. Smith, 424 F.3d 992, 1000 (2005). The Ninth Circuit “has adopted a ‘factor analysis' to determine whether [the] conspiracy counts charging violation of the same statute charge the same offense and so place the defendant in double jeopardy.” United States v. Guzman, 852, 1117, 1120 (9th Cir. 1988). The five factors to be considered are: “(1) the differences in the periods of time covered by the alleged conspiracies; (2) the places where the conspiracies were alleged to occur; (3) the persons charged as coconspirators; (4) the overt acts alleged to have been committed; and (5) the statutes alleged to have been violated.” Smith, 424 F.3d at 1000 (citing Arnold v. United States, 336 F.2d 347, 350 (9th Cir. 1964); United States v. Stoddard, 111 F.3d 1450, 1454 (9th Cir. 1997)). It is important to recognize that multiplicity is not fatal and does not require dismissal of the indictment. 1A Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 146 (5th ed. 2021). Instead, “[w]here counts of an indictment are found to be multiplicitous, the court in its discretion may require election either before trial or after trial before imposition of sentence.” United States v. Mohsen, No. CR. 03-0095 WBS, 2005 WL 8160186, at *2 (N.D. Cal. Dec. 22, 2005); see also United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir. 1981) (stating that a defendant may move to require the prosecution to elect between the charges in a particular count or may seek an appropriate jury instruction).
Based on the allegations of the indictment in this case, the court cannot make a final determination at this time as to whether Counts 1, 3, 12, and 14 charge the same conspiracy or four different conspiracies. Although each of those counts alleges a different time period and charges different co-conspirators, the statutes alleged to have been violated are the same, there are overlapping time periods among the counts, and the locations of each conspiracy are largely the same. See, e.g., United States v. Cutting, Nos. 14-cr-00139-SI-1, 17-cr-00137 SI, 2017 WL 3394167, at *1-2 (N.D. Cal. Aug. 8, 2017) (denying a defendant's motion to dismiss multiplicitous conspiracy counts without prejudice on grounds that “the Court cannot determine solely based upon the allegations of the indictments that Counts 1 and 10 charge the same conspiracy.”). Accordingly, the court denies defendant's motion to dismiss without prejudice to its renewal based upon a more complete record developed at trial or otherwise.
To the extent defendant challenges the sufficiency of the indictment (see Doc. No. 208 at 2), the Ninth Circuit has held that “[a]n indictment under 21 U.S.C. § 846 . . . is sufficient if it alleges: a conspiracy to distribute drugs, the time during which the conspiracy was operative and the statute allegedly violated, even if it fails to allege or prove any specific overt act in furtherance of the conspiracy.” United States v. Forrester, 616 F.3d 929, 940 (9th Cir. 2010) (citation omitted and alterations in original). Here, the indictment provides the requisite information and because the government is not required to prove overt acts, the indictment is thus sufficient. See United States v. Shabani, 513 U.S. 10, 15 (1994); see also United States v. Ortiz, No. 15-CR-00594-RS-1, 2016 WL 4239370, at *4 (N.D. Cal. Aug. 11, 2016) (“[A]s the Government need not prove the commission of any overt acts in furtherance of the conspiracy to convict [defendant] of violating 21 U.S.C. § 846, it need not include overt acts in the indictment.”) (internal quotation marks omitted).
CONCLUSION
For the foregoing reasons,
1. Defendant's motion to suppress (Doc. No. 189) is DENIED;
2. Defendant's request for an evidentiary hearing and to suppress evidence under Franks v. Delaware (Doc. No. 189) is DENIED;
3. Defendant's motion to dismiss multiplicitous conspiracy counts (Doc. No. 195) is DENIED without prejudice; and
4. The case remains scheduled for status conference before the assigned magistrate judge on October 20, 2021 at 1:00 p.m. in Courtroom 7.
IT IS SO ORDERED.