Opinion
04-CR-260A(F).
February 15, 2005
MICHAEL A. BATTLE, UNITED STATES ATTORNEY, FREDERICK J. PLATEK, ASSISTANT UNITED STATES ATTORNEY, of Counsel, Buffalo, New York, Attorney for the Government.
JOSEPH B. MISTRETT, FEDERAL PUBLIC DEFENDER, KIMBERLY A. SCHECHTER, ASSISTANT FEDERAL PUBLIC DEFENDER, of Counsel, Buffalo, New York, Attorney for Defendant.
REPORT and RECOMMENDATION
JURISDICTION
This matter was referred to the undersigned by the Hon. Richard J. Arcara for disposition of all pretrial motions pursuant to 28 U.S.C. § 636(b)(1)(A) and for report and recommendation pursuant to § 636(b)(1)(B). It is presently before the court on the Defendant's motion to dismiss either Count 1 or Count 3 of the Indictment on the grounds of duplicity (Docket No. 12).
BACKGROUND
The Defendant was charged, in a three-count Indictment dated October 7, 2004, with violations of Title 21 U.S.C. §§ 841(a)(1) and 952(a), and Title 18 U.S.C. § 545 (Docket No. 7). Specifically, he is charged with unlawful importation of a controlled substance, marijuana (Count 1), unlawful possession of a controlled substance (Count 2), and fraudulent importation of merchandise into the United States in violation of the requirements to declare and unload the merchandise (Count 3).Defendant filed a motion on December 3, 2004, seeking the suppression of an incriminating statement by Defendant, the striking of sentencing allegations from the Indictment, and dismissal of Count 1 or 3 of the Indictment on the grounds of duplicity (Docket No. 10). The Government filed its response on December 22, 2004, in which it conceded that the statement at issue should be suppressed (Docket No. 13 at 3). At oral argument on January 6, 2005, Defendant withdrew the motion to suppress as moot. At that time, the court asked for further submissions regarding the motion to strike sentencing allegations. On January 13, 2005, Defendant withdrew the motion to strike sentencing allegations from the Indictment (Docket No. 15). Accordingly, the only remaining issue is the Defendant's motion to dismiss Count 1 or 3. For the reasons that follow, the motion to dismiss should be DENIED.
FACTS
In Count 1 of the Indictment, the Government alleges that on August 15, 2004, Defendant "did knowingly, intentionally and unlawfully import into the United States from a place outside thereof, that is Canada, a quantity of a mixture and substance containing marijuana, a Schedule I controlled substance; all in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1)." In Count 3, it is alleged that Defendant "did fraudulently and knowingly import and bring into the United States certain merchandise, that is, a quantity of a mixture and substance containing marijuana, a Schedule I controlled substance, contrary to law, that is, the requirements . . . to declare and unload merchandise imported or brought into the United States. . . ."
It is undisputed that the all three counts of the Indictment arise from the same facts. On August 15, 2004, Defendant attempted to enter the United States from Canada at the Lewiston Bridge in Lewiston, New York. Defendant was directed to a secondary inspection, where a search of his truck revealed two "hockey" style bags in the sleeper berth of the truck covered by a blanket. The hockey bags held several vacuum sealed plastic bags containing a green leafy substance which tested positive for marijuana.
These facts are taken from the affidavit in support of the criminal complaint, Exhibit A to Defendant's Motion (Docket No. 10).
DISCUSSION
Defendant contends that either Count 1 or Count 3 of the Indictment must be dismissed because the two counts are duplicitous and merely restate the same offense under two different theories. The Government opposes the motion, arguing that the elements of the counts are different."A single offense may not be charged in more than one count of an indictment, lest multiple punishments attach to the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment." United States v. Sugar, 606 F.Supp. 1134, 1144 (S.D.N.Y. 1985); see also Bell v. United States, 349 U.S. 81, 82 (1955). However, "if Congress has defined the offenses charged as distinct and separable offenses, defendants may be charged for these offenses separately." United States v. Sugar, 606 F.Supp. at 1144. The test to be applied to determine whether there are two offenses or only one offense charged is "whether each provision in the count requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932); United States v. Sugar, 606 F.Supp. at 1145.
Count 1 of the Indictment alleges the violation of 21 U.S.C. §§ 952(a) and 960(a)(1) in that Defendant intentionally and unlawfully imported a quantity of marijuana into the United States from Canada. Section 960(a) prohibits the knowing and intentional importation or exportation of a controlled substance, contrary to § 952 of that title. Section 952(a) provides that "[i]t shall be unlawful . . . to import into the United States from any place outside thereof, any controlled substance in schedule I. . . ." Count 3 of the Indictment alleges a violation of 18 U.S.C. § 545 in that Defendant unlawfully brought merchandise into the United States. Title 18 U.S.C. § 545 provides that it is unlawful to bring into the United States "any merchandise contrary to law. . . ."
Marijuana is considered "merchandise," for purposes of the smuggling statute. See United States v. Garcia-Paz, 282 F.3d 1212, 1214-15 (9th Cir. 2002). Title 19 U.S.C. § 1401(c) defines "merchandise" as "goods, wares, and chattels of every description and includes merchandise the importation of which is prohibited. . . ." This definition has been applied to § 545. See United States v. Garcia-Paz, Olais-Castro v. United States, 416 F.2d 1155, 1158 n. 7 (9th Cir. 1969); Steiner v. United States, 229 F.2d 745, 747 (9th Cir. 1956). The court's research has revealed no Second Circuit authority on point.
To prove a violation of § 545, the government must establish that the defendant (1) fraudulently or knowingly (2) imported or brought into the United States (3) any merchandise (4) contrary to law. See Olais-Castro v. United States, 416 F.2d 1155, 1158 (9th Cir. 1969). In the context of a smuggling violation under § 545, "contrary to law" refers to the defendant's failure to unload and declare the merchandise at United States customs. See Olais-Castro, 416 F.2d at 1158 n. 8. In contrast, a violation of § 952 is complete when the contraband is brought into the United States, regardless of whether an attempt is made to pass through customs. See United States v. Muench, 694 F.2d 28, 32 (2d Cir. 1982). The failure to declare, as here, renders the act of importation unlawful and is an additional element of § 545 not present under § 952. Similarly, "merchandise," under § 545, need not be a controlled substance, as it must under § 952. Accordingly, as each offense requires proof of a fact not required by the other, the Indictment is not duplicitous, and the motion to dismiss either Count 1 or Count 3 should be DENIED.
In United States v. Jerome-Oboh, 883 F.Supp. 917 (W.D.N.Y. 1995), this court was faced with the same duplicity argument. The defendant was charged under both § 545 and § 952 with smuggling and the importation of a controlled substance for the unlawful importation of heroin into the United States. Under the Blockburger analysis, the court found that the two statutes required proof of different facts. Additionally, the court found the two statutes at issue "have different origins in time and design." United States v. Jerome-Oboh, 88 F.Supp. at 926. As there was "neither an express nor implied congressional intent to punish only one of [Defendant's] offenses," the court concluded that the defendant should be prosecuted for both. Id. (citing Gore v. United States, 357 U.S. 386, at 390-91 (1958)). Similarly here, Defendant may be prosecuted under both statutes, Count 1 and Count 3 are not duplicitous, and neither count of the Indictment should be dismissed.
CONCLUSION
Based on the foregoing, the motion to dismiss either Count 1 or 3 of the Indictment should be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Government and the Defendant.
SO ORDERED.