United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. Bowman, United States Magistrate Judge.
District Court referred this case to the Magistrate Judge for
a hearing on the defendant's Motion to Dismiss Count 2 as
multiplicitous. The defendant, Mel Shriner Carter, argues
that the indictment (Doc. 16) is multiplicitous because it
charges two counts for a single offense and raises double
jeopardy questions because it produces two penalties for one
crime. (Doc. 69). The Court concludes the indictment is not
multiplicitous and Count Two should not be dismissed.
hearing was held on 10/13/16. No witnesses testified. No
exhibits were introduced.
defendant is charged by indictment with two counts of
transportation of illegal aliens for profit, in violation of
8 U.S.C. Â§' 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i). Count
One names Epiganio Nape-Santiago and Count Two names Marcos
Torres-Rodriguez, as the transported aliens.
no testimony was presented, the indictment charges that on
8/27/16, near Tombstone, Arizona, Mel Shriner Carter drove a
vehicle that contained Epiganio Nape-Santiago, named in Count
One, and Marcos Torres-Rodriguez, named in Count Two.
defendant argues that the government has violated his Fifth
Amendment right to due process, the Double Jeopardy Clause,
and Fed.R.Crim.P. 8(a), by charging him with two counts of
transportation of illegal aliens for profit, where the only
difference between the two counts is the name of the person
transported. Carter claims that by charging him in two
separate counts the government has two chances to prove the
same offense. In his reply, Carter clarifies that when a
single statutory violation is charged, the analysis turns on
whether there was a single act or multiple transactions.
government responds that an indictment is only multiplicitous
when it charges multiple counts for a single offense which
would produce two penalties for one crime, raising a question
of double jeopardy, citing U.S. v. Vargas-Castillo,
329 F.3d 715, 718-19 (9th Cir. 2003). (Doc. 75).
Both parties cite cases that stand for the proposition that
the test for multiplicity is whether “each separately
violated statutory provision requires proof of an additional
fact which the other does not.” U.S. v.
Stewart, 420 F.3d 1007, 1012 (9thCir. 2005;
U.S. v. McKittrick, 142 F.3d 1170 (9th
party cites U.S. v. Zalapa, 509 F.3d 1060
(9th Cir. 2007). In Zalapa, the Court
held that the indictment was multiplicitous where a defendant
was charged under the same statute in two separate counts
with possession of a single unregistered firearm. The
defendant relies on the case to support its argument that a
defendant should not be punished twice for a single event,
like transporting two undocumented aliens at the same time in
the present case. The government claims Zalapa is
distinguishable because in that case the two charges
pertained to one firearm and in the present case each charge
names a separate undocumented alien.
court must determine what unit of prosecution is allowed when
a defendant is convicted of multiple violations of the same
statute for a single act or transaction. U.S. v. Keen, 104
F.3d 1111, 1118 (9th Cir. 1997). The defendant
cited Bell v. U.S., 349 U.S. 81, 84 (1955) in his
motion and during the hearing, cited the Court to U.S. v.
Jewell, 827 F.2d 586 (9th Cir. 1987) and
U.S. v. Hurt, 795 F.2d 765 (9th Cir.
1986), to support his argument that the act of transportation
is the unit of conduct to be charged, not the number of
undocumented aliens transported.
discussing the Mann Act, the Supreme Court in Bell
held that “If Congress does not fix the punishment for
a federal offense clearly and without ambiguity, doubt will
be resolved against turning a single transaction into
multiple offenses…”. In Jewell, the
Ninth Circuit held that the indictment was multiplicitous
where the defendant was charged in 13 counts, one for each
time he signed an invoice for payment to his company, instead
of being charged once for the one contract as to which there
was a conflict of interest. The Ninth Circuit, in
Hurt, decided that when the defendant ordered three
obscene movies, mailed to him in several packages, the
statute's uncertainty regarding punishment required
holding that sending one order is a single offense.
cases, however, are inapposite in the current case because
the charging statute is not ambiguous regarding the unit of
prosecution or the punishment. Title 8 U.S.C. §§
1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i) state that any person
who is in knowing or reckless disregard of the fact that an
alien is in the United States in violation of the law and who
transports the alien within the United States, shall for
each alien (emphasis added) be fined and imprisoned for
not more than 5 years.