Opinion
CR 18-01695-018-TUC-JAS (EJM)
04-01-2022
United States of America, Plaintiff, v. Dezirae Alexandria Monteen, Defendant.
REPORT AND RECOMMENDATION
Eric J. Markovichh, United States Magistrate Judge
Pending before the Court is defendant Dezirae Alexandria Monteen's Motion to Dismiss Count One (the RICO conspiracy) of the Second Superseding Indictment, or in the alternative, dismiss Count 24 (Conspiracy to Distribute Cocaine) and Count 33 (Conspiracy to Distribute Marijuana) of the Second Superseding Indictment on the grounds of multiplicity [Doc. 1048]. Specifically, the defense argues that the allegations in Counts 24 and 33 are identical to the allegations set forth in Count One, thus violating the rule against multiplicity. For the reasons discussed below, it is recommended that the Motion to Dismiss be denied.
FACTUAL BACKGROUND
On October 20, 2021, a federal grand jury sitting in Tucson, Arizona returned a Second Superseding Indictment against Monteen and eighteen other individuals. The offenses charged in the Second Superseding Indictment pertain to an alleged criminal enterprise operated by a gang known as the Western Hills Bloods (“WHB”). Monteen is charged with the following eight felony offenses in the Second Superseding Indictment. Count One charges Monteen with participating in a RICO conspiracy, in violation of 18 U.S.C. §§ 1962(d) and 1963(a), the objects of which are: (a) acts involving murder (18 U.S.C. §§ 1959(b)(1) and 1961(1)); (b) offenses involving drug trafficking (21 U.S.C. §§ 846 and 841); and (c) acts involving the obstruction of justice (18 U.S.C. § 1512). Counts 14 and 17 charge Monteen and Michael Anthony Williams with Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. Count 24 charges Monteen (and Williams and other co-defendants) with Conspiracy to Possess with Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 846 and 841. Count 33 charges Monteen (and Williams) with Conspiracy to Possess with Intent to Distribute Marijuana, in violation of 21 U.S.C. §§ 846 and 841. Counts 34 and 37 charge Monteen (and Williams) with Possession with Intent to Distribute Marijuana, in violation of 21 U.S.C. § 841. Count 38 charges Monteen (and Williams) with Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841.
On February 1, 2022, Monteen filed a Motion to Dismiss Count One (the RICO conspiracy) of the Second Superseding Indictment, or in the alternative, dismiss Counts 24 (Conspiracy to Distribute Cocaine) and 33 (Conspiracy to Distribute Marijuana) of the Second Superseding Indictment. In support of her motion, the defendant argues that the rule of multiplicity has been violated because the allegations in Counts 24 and 33 are identical to the allegations in Count One. In its Response, the government argues the counts at issue are not multiplicitous because they have different elements and each conspiracy is separate and distinct. In her Reply, the defendant argues that because the allegations in the counts encompass the same acts and date ranges, "there is no way to tell if the jury in a single trial involving all the charges is convicting her on Count I, the RICO conspiracy for the exact same evidence relied on for any conviction on the conspiracy counts as well as the substantive counts." [Doc. 1157 at 1.]
DISCUSSION
"An indictment is multiplicitous when it charges multiple counts for a single offense, producing two penalties for one crime and thus raising double jeopardy questions." United States v. Stewart, 420 F.3d 1007, 1012 (9th Cir. 2005). However, the rule against multiplicity is not violated where counts within an indictment "each separately violated statutory provision requires proof of an additional fact which the other does not." Stewart, 420 F.3d at 1012 (quoting United States v. Vargas-Castillo, 329 F.3d 715, 718-719 (9th Cir. 2003); see also Blockburger v. United States, 284 U.S. 299, 304 (1932) (offenses are not multiplicitous if they require proof of an element that the other does not); United States v. Stearns, 550 F.2d 1167, 1172 (9th Cir. 1977) ("Congress has the power to establish that a single act constitutes more than one offense, at least as long as each offense requires proof of a fact the other does not.").
In support of her multiplicity argument, the defendant relies on the Seventh Circuit's decision in United States v. Powell, 894 F.2d 895 (7th Cir. 1990). In that case, one count in an indictment charged the defendant with a conspiracy to distribute cocaine, while another count charged the defendant with a conspiracy to distribute methamphetamine. Powell, 894 F.2d at 897. The defendant argued that these counts were multiplicitous because they divided one conspiracy into two conspiracies. Id. at 898.
The Seventh Circuit first noted that to determine if a conspiracy has been subdivided arbitrarily, the court looks to both the indictment and the evidence to consider factors such as "whether the conspiracies involve the same time period, alleged co-conspirators and places, overt acts, and whether the two conspiracies depend upon each other for success." Id. at 898 (quoting United States v. Castro, 629 F.2d 456, 461 (7th Cir. 1980)). The court found that the two conspiracy counts were multiplicitous because: (1) the time periods in the indictment overlapped completely (one count alleged a conspiracy from May 1, 1987 to May 26, 1988, and the other count alleged a conspiracy from August 1987 to May 26, 1988); (2) both conspiracies named the same three conspirators; (3) both conspiracies involved agreements to violate 21 U.S.C. § 841; (4) the nature and scope of the conspiracies were identical; specifically, the red toolbox that one defendant delivered to the other two defendants on May 26, 1988 (the end date of both conspiracies) contained both cocaine and methamphetamine, and notes seized by the government from one defendant and at a residence referred to both cocaine and methamphetamine. Id. at 898.
Powell is clearly distinguishable from the case at hand in several important respects. However, before turning to those distinctions, the Court sets forth the specific allegations in the counts at issue in the instant motion.
Count One charges a RICO conspiracy against Monteen and eight other individuals. The objects of the alleged conspiracy are that the defendants engaged in a criminal enterprise, the objects of which were to commit murder, traffic drugs, and obstruct justice. It is further alleged that this conspiracy spanned from 2012 to the date of the Second Superseding Indictment (October 20, 2021).
Count 24 charges Monteen and thirteen individuals with Conspiracy to Possess with Intent to Distribute Cocaine. The majority of the overt acts alleged in this conspiracy are also alleged in Count One. This conspiracy is alleged to have occurred between a time unknown to August 30, 2018.
Count 33 charges Monteen and Michael Anthony Williams with Conspiracy to Possess with Intent to Distribute Marijuana. This conspiracy allegedly spanned from a time unknown to March 9, 2018.
It is evident that the time periods in the indictments do not completely overlap like in Powell. The RICO conspiracy (Count One) is alleged to have begun in 2012 and continued to the date of the Second Superseding Indictment (October 20, 2021). The cocaine conspiracy (Count 24) is alleged to have begun on a date unknown to August 30, 2018. And the marijuana conspiracy (Count 33) is alleged to have occurred between a date unknown to March 9, 2018. Thus, the different time periods alleged in the three counts at issue weighs against a finding that the counts are multiplicitous.
The Court is not clear on how the RICO conspiracy has continued until that date given that the last overt act alleged occurred on August 30, 2018. Presumably, the government has evidence of acts committed after August 30, 2018 that it plans to introduce at trial.
Additionally, and again unlike Powell, the conspiracies do not involve identical co-conspirators. Only Monteen and Michael Anthony Williams are charged in the marijuana conspiracy (Count 33). Again, the RICO conspiracy (Count One) charges Monteen and eight co-defendants, and the cocaine conspiracy (Count 24) charges Monteen and thirteen co-defendants. Three of the defendants charged in the RICO conspiracy are not charged in the cocaine conspiracy; and eight of the defendants charged in the cocaine conspiracy are not charged in the RICO conspiracy. Thus, the fact that the conspiracies do not involve the same conspirators also weighs against a finding of multiplicity.
The cocaine conspiracy and the marijuana conspiracy involve agreements to violate the same criminal statute - 21 U.S.C. § 841. The RICO conspiracy involves an agreement to violate a different criminal statute - 18 U.S.C. § 1962(d) - and the objects of that conspiracy are not limited to drug trafficking like Counts 24 and 33. Thus, the different criminal statutes at issue weigh against a finding of multiplicity.
Relatedly, the nature and scope of the conspiracies are not identical. The nature and scope of the RICO conspiracy is vast in that it involves murder, crimes of violence, drug trafficking, the possession and use of firearms to commit those acts, and obstruction of justice. The scope of the cocaine conspiracy is narrower in that it only involves trafficking in cocaine. And the scope of the marijuana conspiracy is even narrower in that it only involves Monteen and Michael Anthony Williams, and the alleged end date of the conspiracy is March 9, 2018, whereas the alleged end date of the cocaine conspiracy is August 30, 2018. And, as the government points out, the marijuana conspiracy primarily stems from a discrete act that occurred on March 9, 2018 - the seizure of marijuana at a residence where Monteen and Michael Williams were residing. Thus, the difference in nature and scope of the conspiracies weigh against a finding of multiplicity.
With that factual background regarding the alleged conspiracies at issue, the Court turns to whether the elements of the RICO conspiracy require proof of an element that the drug conspiracies do not. As the government points out, the elements of a RICO conspiracy are: (1) an agreement between two or more people to commit a substantive RICO offense; and (2) knowledge of, and agreement to, the overall objects of the offense. Salinas v. United States, 522 U.S. 52, 64-66 (1997). Moreover, a RICO violation requires the government to prove a “pattern of racketeering activity, ” which is not an element of the drug conspiracies. A “[p]attern of racketeering activity” requires at least two acts of racketeering activity, which have come to be known as predicate acts. Salinas, 522 U.S. at 62. Thus, in order to be convicted of the RICO conspiracy, the defendant and/or a coconspirator must have committed two predicate acts, which here, are alleged to be murder, acts of violence, drug trafficking, possession and use of firearms to commit those offenses, and obstruction of justice. As a result, the RICO conspiracy requires an additional element that is not required by the drug conspiracies; that is, two predicate acts, which could include, but does not have to include, drug trafficking. Therefore, the RICO conspiracy count and the drug conspiracy counts are not multiplicitous.
CONCLUSION
For the reasons discussed above, the Court concludes that the RICO conspiracy and the drug conspiracies are not multiplicitous because the RICO conspiracy requires proof of at least one element that the drug conspiracies do not, the time period in the conspiracies do not overlap completely, the conspiracies name different conspirators, and the nature and scope of the conspiracies are different. It is therefore recommended that the Motion to Dismiss be denied.
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No. reply brief shall be filed on objections unless leave is granted by the district court. If any objections are filed, this action should be designated case number: CR 18-01695-TUC-JAS. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).