United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
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.
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).
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).
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.
government filed its briefs in opposition to Capone's
motion on March 19, 2018. (Doc. 601).
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.
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)).
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).
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.
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