Opinion
CR-21-03197-001-TUC-JCH (DTF)
04-14-2022
United States of America, Plaintiff, v. Abraham Garcia, Defendant.
REPORT AND RECOMMENDATION
Hon. D. Thomas Ferraro, United States Magistrate Judge
Before the Court is Defendant Abraham Garcia's Motion to Dismiss Indictment or, in the Alternative, to Require the Government to Elect Between Charges based on duplicity. (Doc. 21.) Defendant is charged with both completed and attempted conduct in Count One. (Doc. 10.) The Government elects the attempt offense. (Doc. 24 at 4-5.) Additionally, the Government intends to request a jury instruction that includes the fourth element for attempt. Id. at 5. This remedies any potential duplicity issue. This case has been assigned to the undersigned for report and recommendation pursuant to LRCrim 5.1. Magistrate Judge Ferraro recommends the District Court, after its independent review, granting Defendant's alternative motion to require election of charges and denying the motion to dismiss.
An indictment should charge only one violation per count and is duplicitous when two or more distinct and separate offenses are joined into a single count. United States v. Mancuso, 718 F.3d 780, 792 (9th Cir. 2013). Duplicity may be corrected in multiple ways: "(1) the government elects between the charges in the offending count, or (2) the court provides an instruction requiring all members of the jury to agree as to which of the distinct charges the defendant actually committed." United States v. Ramirez-Martinez, 273 F.3d 903, 915 (9th Cir. 2001), overruled on other grounds by United States v. Lopez, 484 F.3d 1186, 1192 (9th Cir. 2007).
Here, Defendant is charged with both completed and attempted conduct in Count One. (Doc. 10.) The Government elects the offense and states it will present evidence at trial that Defendant "attempted to export and send from the United States . . . one Glock model 43X 9mm pistol, one Glock model 17 9mm pistol, and one Glock model 19 9mm pistol, knowing the same to be intended for exportation contrary to any law or regulation of the United States." (Doc. 24 at 4-5 (alteration in original).) Additionally, the Government intends to request a jury instruction that includes the fourth element for attempt. Id. at 5. This remedies any duplicity issue and is a permissible amendment. Hence, the Court recommends accepting the Government's election and dismissing the surplus language, denying Defendant's motion to the extent it requests further relief.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Judge accept the Government's election and dismiss the surplus language, granting Defendant's alternative motion to require election of charges and denying the motion to dismiss.
Pursuant to 28 U.S.C. § 636(b) and Rule 59(b)(2) of the Federal Rules of Criminal Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. No reply shall be filed unless leave is granted from the District Court. Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right of review.