Opinion
No. CR-19-01468-001-TUC-CKJ (MSA)
12-08-2020
United States of America, Plaintiff, v. Sergio Guerrero, Defendant.
REPORT AND RECOMMENDATION
Pending before the Court is Defendant Sergio Guerrero's motion to dismiss the indictment, or, in the alternative, to require the Government to elect between charges. (Doc. 55.) Defendant is charged with violating the following statutory provision:
Whoever fraudulently or knowingly exports or sends from the United States, or attempts to export or send from the United States, any merchandise, article, or object contrary to any law or regulation of the United States, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States, shall be fined under this title, imprisoned not more than 10 years, or both.18 U.S.C. § 554(a).
According to Defendant, this provision creates two offenses: (1) attempting to export merchandise illegally and (2) receiving, concealing, buying, selling, or transporting merchandise knowing that such merchandise is intended to be exported illegally. Defendant argues that the one-count indictment is duplicitous because it tracks the statutory language and therefore charges both crimes. He requests that the indictment be dismissed. Alternatively, he requests that the Government be ordered to elect one of the charged offenses, or that a specific unanimity instruction be given at trial.
The Government disagrees that the indictment is duplicitous. Nevertheless, it has agreed to "elect" the second clause of 18 U.S.C. § 554(a). That is, the Government will proceed at trial on the theory that Defendant "concealed, bought, . . . and in any manner facilitated the transportation [of ammunition] knowing the same to be intended for exportation contrary to any law or regulation of the United States." (Doc. 1.) During a motion hearing held on December 8, 2020, counsel for both parties agreed that the Government's representation makes it appropriate to grant Defendant's motion in part to the extent he seeks alternative relief in the form of an election. See also United States v. Aguilar, 756 F.2d 1418, 1422-23 (9th Cir. 1985) (holding that the practice of election is an acceptable alternative to dismissal of a duplicitous indictment). The Court consequently declines to address whether the indictment is indeed duplicitous.
IT IS RECOMMENDED that Defendant Sergio Guerrero's motion to dismiss the indictment (Doc. 55) be granted in part to the extent he requests that the Government be ordered to make an election, and that the motion be denied in all other respects.
Dated this 8th day of December, 2020.
/s/_________
Honorable Maria S. Aguilera
United States Magistrate Judge