Opinion
4:01CR3047
July 16, 2001
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS FOR MULTIPLICITY
Before me is the defendant's motion to dismiss the indictment for multiplicity (filing 14). The defendant's motion shall be denied.
In an indictment filed on April 18, 2001, the defendant was charged with conspiring to distribute and possess with intent to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1), in violation of 21 U.S.C. § 846 (Count I); distributing methamphetamine on or about March 17, 2000, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1) (Count II); and distributing more than 50 grams of methamphetamine on or about April 12, 2000, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1) (Count III). The defendant argues that Counts II and III constitute overt acts in furtherance of the conspiracy charged in Count I, and that this in turn constitutes impermissible multiplicity. In other words, the defendant argues that Counts II and III charge the same offense that is charged in Count I of the indictment.
"An indictment which charges a single offense in multiple counts is multiplicitous." United States v. Rimell, 21 F.3d 281, 287 (8th Cir. 1994). Multiplicitous indictments are impermissible because they may suggest to the jury that the defendant committed more than one crime when he truly did not, and because they may result in multiple sentences for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment. United States v. Dixon, 921 F.2d 194, 196 (8th Cir. 1990);United States v. Jackson, 155 F.3d 942, 947-48 (8th Cir. 1998). In this case, however, it is clear that Counts I, II, and III do not set forth a single offense. "The test to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." United States v. Jackson, 155 F.3d at 947. The elements of a § 846 conspiracy are well established, as are the elements of the crime of distribution of a controlled substance in violation of § 841(a)(1). Compare United States v. Boone, 641 F.2d 609, 611 (8th Cir. 1981) ("The essence of a conspiracy is an agreement between two or more persons to commit an illegal act.") with United States v. Irby, 480 F.2d 1101, 1102 (8th Cir. 1973) ("The essential elements of [a distribution charge], each of which the government must prove beyond a reasonable doubt are: First: That the defendant . . . did distribute . . . a schedule one controlled substance; Second: That the defendant . . . did so knowingly and intentionally."). In this case, in order to prove the conspiracy in Count I, the government need not prove that the defendants distributed controlled substances as set forth in Counts II and III. In fact, the government is not required to prove that a conspirator committed any overt act in furtherance of a conspiracy under 21 U.S.C. § 846. United States v. Shabani, 513 U.S. 10, 11 (1994). Conversely, the government need not prove a conspiracy in order to prove the distribution charges set forth in Counts II and III. Moreover, the Supreme Court has repeatedly stated that "the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses." Callanan v. United States, 364 U.S. 587, 593 (1961) (quoting Pinkerton v. United States, 328 U.S. 640, 643 (1946). See also United States v. Johnson, 977 F.2d 1360, 1371 (10th Cir. 1992); United States v. Wylie, 625 F.2d 1371, 1375, 1379 (9th Cir. 1980). Therefore, I find that Counts I, II, and III of the indictment are not multiplicitious.
IT IS ORDERED that the defendant's motion to dismiss, filing 14, is denied.