United States District Court, D. Arizona
JAMES A. SOTO, District Judge.
Pending before the Court are three Report and Recommendations issued by United States Magistrate Judge Bowman. Two of those Reports (Docs. 55 and 56) were not objected to by either party. After reviewing those Reports for clear error and finding none, the Court agrees with and adopts both Reports in their entirety. Therefore, the Defendant's Motion to Suppress Statements (Doc. 17) is GRANTED IN PART AND DENIED IN PART - the relevant statements will not be allowed in the Government's case-in-chief, but will be available for impeachment. Additionally, the Defendant's Motion to Suppress Evidence (Doc. 18) is DENIED.
The Defendant objected to the third Report (Doc. 59), which recommended denying Defendant's Motion to Dismiss the Second Superseding Indictment (Doc. 19); therefore, the Court will review that Report de novo.
The Court adopts the relevant facts as laid out in the Report:
The defendant was initially charged in a two-count indictment with aiding and abetting possession with intent to distribute and conspiracy to possess with intent to distribute a Schedule I or Schedule II controlled substance. (Doc. 5). On 9/30/15 the defendant was charged in a two-count superseding indictment with the same offenses but the word "or" between the phrases "Schedule I" and "Schedule II" was replaced with the word "and." (Doc. 23). On 10/7/15 the defendant was charged in a second superseding indictment with the same two counts, with the addition of the phrase "a detectable amount" in each charge, inserted before the phrase "of a Schedule I and Schedule II controlled substance." In all three indictments the first counts allege that the defendant violated Title 18 U.S.C. § 2 and Title 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). All Count Twos cite Title 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
Defendant argues that the Second Superseding Indictment ("Indictment") violates the Fifth and Sixth Amendments to the United States Constitution, Federal Rule of Criminal Procedure 7(c)(1), and Apprendi v. New Jersey, 530 U.S. 466 (2000), which, according to Defendant, require that "any fact that increases the mandatory minimum or maximum penalty from the prescribed penalty requires the drug type and drug quantity be charged in the indictment." Because the Indictment does not specify a drug type or quantity - listing only a detectable amount of a Schedule I and Schedule II drug - Defendant argues that it does not provide sufficient notice of the penalty he faces if convicted. The Court agrees that in this case a drug type was not sufficiently identified in the Indictment.
In this Circuit, "[w]e honor the intent of Congress and the requirements of due process by treating drug quantity and type, which fix the maximum sentence for a conviction, as we would any other material fact in a criminal prosecution: it must be charged in the indictment, submitted to the jury, subject to the rules of evidence, and proved beyond a reasonable doubt." United States v. Buckland, 289 F.3d 558, 568 (9th Cir. 2002). Indeed, the Government admits as such in its Response to Defendant's Objection to the Magistrate Judge's Report and Recommendation (Doc. 66).
The Government argues, however, that "detectable amount" is sufficient as a drug quantity and "Schedule I and Schedule II drug" is sufficient as a drug type, because it places Defendant on notice that he is subject to a twenty-year maximum prison sentence. In the Government's view, Apprendi and its progeny only require a fact to be alleged in the indictment if it increases the penalty that the defendant may face.
The Government points to United States v. Thomas, 355 F.3d 1191 (9th Cir. 2004), for the proposition that drug quantity and type are not "elements of the offense, " and that, therefore, the Government need not include them in an indictment. The Government is correct that drug quantity and type are not elements of the offense that a defendant necessarily admits when pleading guilty to an indictment; however, it does not follow that they need not be included in the indictment. In Thomas itself, the Court noted that "even where due process requires that a drug quantity allegation be pleaded in the indictment and proved to a jury beyond a reasonable doubt, a defendant can plead guilty to the elements of the offense without admitting the drug quantity allegation." Id. at 1197. Indeed, the Thomas court took it for granted that it is a "requirement of due process that drug quantity be pleaded in the indictment, submitted to a jury, and proved beyond a reasonable doubt." Id. at 1195. The only question to answer in that case was whether that underlying fact converted drug quantity into an element of the offense that was necessarily admitted as a result of a guilty plea, which was answered in the negative.
The Ninth Circuit explained the relevant difference between elements of an offense and material elements as follows:
A guilty plea constitutes an admission to the formal elements of an offense. We have held, however, that drug quantity and type are not formal elements of the offenses set out in 21 U.S.C.§ 841. Therefore, even though due process requires that drug type be charged in the indictment and proved beyond a reasonable doubt, a defendant can plead guilty to 21 U.S.C. § 841(a) without admitting the type of drug.
United States v. Hunt,
656 F.3d 906, 912 (9th Cir. 2011). Hunt makes clear that elements of an offense are not the touchstone for what is required to be alleged in the indictment. Rather, in drug cases, the drug type and quantity are material facts because they fix the punishment to which the defendant is ...