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United States v. Martinez

United States District Court, D. New Mexico

September 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH MARTINEZ, Defendant.

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Defendant's Motion to Dismiss Count 4 of the Superseding Indictment and Objection to the Government's Jury Instructions as to Count 4 [Doc. 65], filed July 25, 2019. Having reviewed and considered the parties' briefs, the relevant law, and being otherwise fully informed, for the reasons stated below, Defendant's motion is GRANTED.

         BACKGROUND

         On June 27, 2019, a Superseding Indictment was returned against Defendant with five counts. Doc. 53. Count 4 charged the Defendant with, “during and in relation to a drug trafficking crime for which the defendant may be prosecuted in a court of the United States… knowingly using and carrying a firearm and, in furtherance of such crime, possessing said firearm” in violation of 18 U.S.C. § 924(c). Id.

         On July 25, 2019, Defendant filed the subject motion arguing that “the language of [Count 4 of the superseding indictment] alleges two distinct and separate offenses under 18 U.S.C. § 924(c), thereby resulting in duplicity and as such said count must be dismissed.” Doc. 65 at 1-2. The Defendant therefore requests that the Court “dismiss count 4 of the superseding indictment.” Id. at 4.

         On August 5, 2019, the government filed a Response to the Defendant's motion. The government argues that the indictment is not duplicitous, but requests that the Court not reach a decision on that issue as the government is proceeding to trial on one theory only: possession of a firearm in furtherance of a drug trafficking crime. Doc. 91 at 7. The government therefore moves to strike the language “knowingly used and carried a firearm” from the indictment and replace it with “knowingly possessed a firearm in furtherance of such crime.” Id. at 8.

         The Defendant did not file a Reply to the Government's Response.

         DISCUSSION

         I. The Law

         Duplicity is defined as the joinder of two or more distinct and separate offenses in the same count of an indictment. United States v. Miller, 891 F.3d 1220, 1229 (10th Cir. 2018). Multiple charges in one count present a danger that the jury could convict a defendant without reaching a unanimous agreement on precisely which charge is the basis for the conviction. United States v. Schneider, 594 F.3d 1219, 1228 (10th Cir. 2010).

         This Court holds that 18 U.S.C. § 924(c) criminalizes two separate offenses, and therefore an indictment that lists both offenses in the same count is duplicitous. Section 924(c) provides that “any person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm” shall be subject to certain minimum sentences. 18 U.S.C. § 924(c)(1)(A). In United States v. Combs, 369 F.3d 925, (6th Cir. 2004), the Sixth Circuit held that 18 U.S.C. § 924(c) criminalizes two separate offenses. The Eighth Circuit has likewise held that 18 U.S.C. § 924(c) creates two separate crimes. See United States v. Gamboa, 439 F.3d 796, 810 (8th Cir. 2006) (holding that there was no Double Jeopardy violation where a defendant was convicted under two separate counts for violations of 18 U.S.C. § 924(c), one count for violating the “used and carried” clause and one for violating the “possessed” clause, since each count required an element not required by the other). However, In United States v. Arreola, 467 F.3d 1153 (9th Cir. 2006), the Ninth Circuit rejected the logic in Combs and ruled instead that 924(c) defines only one offense, not two. The Tenth Circuit has not yet ruled on the issue.

         In Combs, the Sixth Circuit held that 18 U.S.C.§ 924 (c) criminalizes two separate offenses: (1) using or carrying a firearm during and in relation to a drug trafficking crime, and (2) possessing a firearm in furtherance of a drug trafficking crime. Combs at 931-33. The Sixth Circuit reasoned that because the two prongs of the statute are separated by the disjunctive “or, ” and because the statutory language structures the prohibited acts into distinct dependent clauses with different modifiers, the second prohibited act is distinct from the first. Id. at 931. The Combs court also considers the legislative history of 18 USC § 924 (c), noting that Congress enacted the current version of the statute in 1998, in response to the Supreme Court's holding in Bailey v. United States, 516 U.S. 137 (1995). Bailey held that in an earlier version of the statute, which prohibited only “using or carrying a firearm during and in relation to” drug trafficking, 18 U.S.C. § 924(c)(1) (1994), the word “use” must mean more than mere possession. Combs at 932. It was in response to the Bailey holding that Congress added “possession” as a prohibited act, and required a higher standard of participation (“in furtherance of”) in order to charge a defendant with that act, thus creating two separate and distinct offenses with different standards of proof. Combs at 932-33.

         However, in United States v. Arreola, the Ninth Circuit held that § 924(c) defines only one offense, not two. 467 F.3d 1153 (9th Cir. 2006). With regard to the use of the disjunctive “or” in the statute, the Arreola court reasoned that while it is clear that the statute prohibits two distinct acts, it is not clear that each act is a separate offense, since Congress chose to place the “uses or carries” and “possesses” provisions in the same sentence, rather than creating sub-parts. Id. at 1157. The court further noted that the punishment does not vary according to whether the defendant violated the “uses or carries” or “possesses” clause. Id. The Arreola court rejected the Combs analysis of the legislative history, concluding that although the legislative history does “suggest[] that Congress intended to differentiate a defendant who ‘possesses' a firearm in ‘furtherance of' a crime from one who ‘uses or carries' a firearm ‘during and relation to' a crime, it is far from clear that Congress intended to create separate offenses, ” and noting that Congress chose not to adopt the House bill, which explicitly proscribed separate offenses. Id. at 1159. The Arreola court further reasoned that the two types of conduct that § 924(c) proscribes are difficult to distinguish conceptually. Id. at 1160. Finally, it reasoned that it would seem absurd to permit multiple punishment of a defendant who violates both the “uses or carries” clause and the “possesses” clause. Id. The Arreola court therefore held that the statute defines only one offense. Id. at 1161.

         The Tenth Circuit has not explicitly ruled on the issue of duplicity, but has treated § 924 (c) as creating two separate criminal offenses. In United States v. Avery, 295 ...


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