United States District Court, E.D. Tennessee Knoxville
REPORT AND RECOMMENDATION
H. BRUCE GUYTON, Magistrate Judge.
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This case is before the Court on the Defendant's Motion to Dismiss Count for Multiplicity [Doc. 41], filed on September 24, 2014. The Defendant asks the Court to dismiss Count One and/or Count Two of the Second Superseding Indictment because these counts charge him with two conspiracies to manufacture methamphetamine during an overlapping time period. He argues that convictions on both counts would violate the Double Jeopardy clause of the Fifth Amendment by punishing him twice for the same offense. The Government responds [Doc. 48] that Counts One and Two are properly charged as two separate conspiracies, which involve methamphetamine laboratories in two different counties staffed by separate groups of coconspirators. Accordingly, the Government asserts that convictions on both counts would not offend the Constitution.
The parties appeared before the undersigned for a motion hearing on October 22, 2014. Assistant United States Attorney Tracy L. Stone appeared on behalf of the Government. Attorney Gerald L. Gulley, Jr., represented Defendant Carpenter, who was also present. The Court heard the arguments of the parties and took the matter under advisement. For the reasons discussed herein, the Court finds that the Second Superseding Indictment is not multiplicitous on its face. The Court recommends that the Defendant's Motion to Dismiss Count for Multiplicity [Doc. 41] be denied, at this time, but that the Defendant be permitted to renew his double jeopardy objection at trial, if he has cause to do so.
I. POSITIONS OF THE PARTIES
The Defendant is charged [Doc. 31] with conspiring to manufacture methamphetamine from August 1, 2012, to December 19, 2012 (Count One); conspiracy to manufacture methamphetamine from May 2, 2012, to July 11, 2013 (Count Two); possession of methamphetamine with intent to distribute on July 11, 2013 (Count Three), and three counts of tampering with a witness (Counts Four-Six). The Defendant argues that Counts One and Two violate his Fifth Amendment right to be free from double jeopardy because they charge a single criminal offense - conspiracy to manufacture methamphetamine - occurring during an overlapping time period. Thus, he contends that convictions on both counts would punish him twice for the same offense.
The Government responds that the Second Superseding Indictment properly charges two conspiracies. It contends that the proof at trial will show that the Defendant was a methamphetamine cook at two methamphetamine laboratories located in separate counties and staffed by two unique groups of coconspirators, known as "smurfers, " who gathered the necessary ingredients for methamphetamine, including pseudoephedrine. Accordingly, the Government asserts that the Defendant may be convicted of both Counts One and Two without implicating double jeopardy.
II. CHARGES AT ISSUE
Count One charges as follows:
The Grand Jury charges that between on or about August 1, 2012, through on or about December 19, 2012, in the Eastern District of Tennessee, defendant MALCOLM LYNN CARPENTER did combine, conspire, confederate, and agree with at least one other person to knowingly, intentionally, and without authority manufacture five-hundred (500) grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 846, 841(b)(1) and 841(b)(1)(A).
Count Two alleges that:
The Grand Jury further charges that between on or about May 2, 2012, through on or about July 11, 2013, in the Eastern District of Tennessee, defendant MALCOLM LYNN CARPENTER did combine, conspire, confederate, and agree with at least one other person to knowingly, intentionally, and without authority manufacture five-hundred (500) grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 846, 841(b)(1) and 841(b)(1)(A).
These charges are identical, with the exception of the time periods alleged.
The Defendant argues that Count One and Two of the Second Superseding Indictment violate the Double Jeopardy clause of the Fifth Amendment because they seek to punish the same offense multiple times. He also argues that these multiplicitous counts could confuse the jury and call into question the unanimity of any convictions. The Fifth Amendment's prohibition against twice placing a defendant in jeopardy for the same offense shields the defendant from three potential harms: A "second prosecution for an offense after initial acquittal, second prosecution for an offense after an initial conviction, and multiple punishments for the same offense.'" United States v. Gibbons, 994 F.2d 299, 301 (6th Cir.1993) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). A multiplicitous indictment charges a single offense in multiple counts thereby infringing upon the third category, multiple punishments for a single offense. See United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir.1981). Multiple, identically-worded counts raise the possibility of a conviction without the jurors' unanimous agreement on the facts for a particular count. See Valentine v. Konteh, 395 F.3d 626, 636 (6th 2005). Multiplicity in the indictment may also "unfairly suggest that more than one crime has been committed." United States v. Swafford, 512 F.3d 833, 844 (6th Cir. 2008). The question before the Court is whether the Government has properly alleged that the Defendant participated in two conspiracies to manufacture methamphetamine, rather than a single conspiracy that took place at multiple locations. A conviction for a drug conspiracy under 18 U.S.C. § 846 requires proof of "the existence of an agreement to violate the drug laws and that each ...