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United States v. Capone

United States District Court, M.D. Pennsylvania

April 5, 2018

UNITED STATES OF AMERICA
v.
JORDAN CAPONE, Defendant

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE

         Before the court is defendant Jordan Capone's counseled motion to dismiss four Counts in the Second Superceding Indictment against her due to multiplicity. (Doc. 593). Defendant Capone claims that Counts 8-11 of the Second Superseding Indictment should be dismissed as multiplicitous because they charge a single offense, namely, conspiracy, in multiple counts. For the reasons set forth below, the court will DENY the motion.

         I. BACKGROUND

         By way of relevant background, on January 30, 2018, Capone, a/k/a “Angel”, along with others, were indicted and charged in a Second Superseding Indictment with: conspiracy to distribute in excess of 100 grams of heroin, crack cocaine, molly, Percocet, and marijuana, 21 U.S.C. §846; possession with intent to distribute molly, 21 U.S.C. §841(a)(1); conspiracy to commit sex trafficking by force, fraud, and coercion, 18 U.S.C. §1594(c); and four substantive counts of sex trafficking by force, fraud, and coercion, 18 U.S.C. §1591(a) and (b)(1) and 2. Specifically, Capone is charged with conspiracy to commit sex trafficking by force, fraud, and coercion in Count 7. Count 7 also contains a section that specifies 15 overt acts which were allegedly committed in furtherance of the conspiracy as well as the relevant dates that the overt acts were committed. In Counts 8-11, Capone is charged with substantive offenses of sex trafficking by force, fraud and coercion against the individual victims. (Doc. 504).

         On January 31, 2018, Capone was arraigned and pled not guilty to all counts of the Second Superseding Indictment against her. (Doc. 514). The defendant was then detained, (Doc. 522).

         On March 8, 2016, Capone filed a nunc pro tunc Motion to Dismiss Counts 8-11 of the Second Superseding Indictment based on Multiplicity, (Doc. 593), and her brief in support of her motion, (Doc. 594). Capone claims that the allegations contained in Counts 8, 9, 10, and 11 of the Indictment are duplicative and that the government has impermissibly charged a single criminal offense, namely, that “she acted in concert and agreement with other co-defendants to commit sex trafficking offenses against all of the same victims”, which offense is contained in Count 7, Conspiracy to Commit Sex Trafficking, in multiple counts, i.e., Counts 8-11. Capone requests the court to dismiss Counts 8-11 as multiplicitous and to order the government to proceed on the single count of conspiracy charged in Count 7.

         The government filed its briefs in opposition to Capone's motion on March 19, 2018. (Doc. 601).

         Capone did not file a reply brief regarding her motion and the time within which to do so has expired pursuant to MDPA LR 7.7.

         II. DISCUSSION

         “In deciding a motion to dismiss, [the court] must accept factual allegations [in the Indictment as true] and disregard legal conclusions to determine whether the alleged facts constitute a crime.” U.S. v. Harder, 168 F.Supp.3d 732, 737 (E.D.Pa. 2016)(citing U.S. v. Zauber, 857 F.2d 137, 144 (3d Cir. 1988)). Also, the court “must dismiss counts based on a statutory misinterpretation.” Id. at 738 (citing U.S. v. Enmons, 410 U.S. 396, 93 S.Ct. 1007 (1973) (“dismissing indictment when statute does not proscribe the conduct charged”); U.S. v. Ferriero, 2015 WL 225806, *5 (D.N.J. Jan. 15, 2015)(“a district court must find that ‘a charging document fails to state an offense if the specific facts alleged in the charging document fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation.'”)(citations omitted). “A motion to dismiss is ‘not a permissible vehicle for addressing the sufficiency of the government's evidence.'” Id. (quoting U.S. v. DeLaurentis, 230 F.3d 659, 660 (3d Cir. 2000)).

         In U.S. v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989), the Third Circuit stated, “[a]n indictment is generally deemed sufficient if it: (1) contains the elements of the offense intended to be charged; (2) sufficiently apprises the defendant of what he must be prepared to meet; and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.” (internal quotations and citations omitted).” See also Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (citation omitted); United States v. Olatunji, 872 F.2d 1161, 1168 (3d Cir. 1989). The court in Rankin also stated that “no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.” Id. (citations omitted).

         The court now addresses Capone's motion to dismiss Counts 8-11 of the Second Superseding Indictment as multiplicitous. In her motion, Capone argues that Counts 8-11 should be dismissed because they join four substantive counts of sex trafficking offenses as objects of the same conspiracy to commit sex trafficking which was charged in Count 7 under 18 U.S.C. §1594(c). Capone claims that the objects alleged by the conspiracy count (Count 7) included the allegations of sex trafficking contained in Counts 8-11. She contends that the government should only be allowed to proceed on Count 7 since Counts 8-11 are based on the same allegations and require the same proof and, thus are multiplicitous.

         The court in United States v. Tartaglione, 228 F.Supp.3d 455, 459 (E.D.Pa. 2017), explained multiplicity as follows:

Multiplicity is the charging of the same offense in two or more counts of an indictment. United States v. Kennedy,682 F.3d 244, 254-55 (3d Cir. 2012). A multiplicitous indictment “may lead to multiple sentences for a single violation.” United States v. Carter, 576 F.2d 1061, 1064 (3d Cir. 1978). Multiple sentences for a single violation are prohibited by the Double Jeopardy Clause. United States v. Stanfa, 685 F.2d 85, 87 (3d Cir. 1982) (citing North Carolina v. Pearce,395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). The purpose of the constitutional protection against duplicative punishment is “to ensure that the sentencing discretion of the courts is confined to the limits established by the legislature.” Kennedy, 682 F.3d at 255. “Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. When Congress intended ... to impose multiple punishments, imposition of such sentences does not violate ...

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