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United States v. Powell

April 28, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
VICTOR POWELL, A/K/A MR. CREAM, DEFENDANT.



The opinion of the court was delivered by: Judge Blanche Manning

MEMORANDUM AND ORDER

Victor Powell has been charged in an 18-count superseding indictment with sex trafficking adult and minor females during 2003 and 2004. See 18 U.S.C. §§ 1591, 2422(a), and 2423(a). He has filed numerous pre-trial motions to dismiss various counts of his indictment, and to compel the government to elect between various counts. For the reasons that follow, all of the motions are denied.

Motion To Dismiss Counts 1, 8, 15, & 18 As Duplicitous

Duplicity is the "joining of two or more separate offenses in a single count of the indictment." United States v. Conley, 291 F.3d 464, 469 n.4 (7th Cir. 2002). Powell contends that counts 1, 8, 15 and 18-each of which alleges violations of 18 U.S.C. § 1591-are duplicitous because each fails to specify with which subsection Powell is charged, "thereby charg[ing] all subsections which renders said counts, individually and collectively, duplicitous since the government attempts to incorporate two or more separate and distinct crimes into each '18 U.S.C. 1591' count."

A defendant violates 18 U.S.C. § 1591 by causing a person to engage in a sex act for money when either (1) the person was under 18, or (2) the defendant used "force, fraud or coercion." Counts 1, 8, 15 and 18 involve one victim each. In counts 1 and 8, Powell is charged with violating § 1591 both because (1) the victims were underage, and (2) Powell allegedly used "force, fraud or coercion." In counts 15 and 18, Powell is charged only with using force, fraud or coercion.

Counts 15 and 18 are not duplicitous because each alleges only one offense-that Powell used force, fraud or coercion to cause someone to engage in sex for money. Counts 1 and 8 are also not duplicitous even though they allege both that the victim was under 18 as well as the use of force, fraud or coercion. These counts do not allege separate offenses, but rather alternative means of proving a single offense. Alternative means of committing a single offense may be alleged in a single count of an indictment. See Fed. R. Crim. P. 7(c)(1) ("A count may allege that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means."); United States v. Berardi, 675 F.2d 894, 897 (7th Cir. 1982) ("A count is not duplicitous, however, if it simply charges the commission of a single offense by different means."); see also United States v. Brandon, 298 F.3d 307, 314 (4th Cir. 2002) (same).

Nevertheless, Powell contends that grouping the two means of committing an offense under § 1591 into a single count will create "uncertainty as to whether the defendant's conviction is based on a unanimous jury decision." But as the Supreme Court has noted, jurors are not required to unanimously agree by which means a defendant committed a crime. Schad v. Arizona, 501 U.S. 624, 631 (1991) ("We have never suggested that in returning general verdicts in such cases jurors should be required to agree on a single means of commission.").

Accordingly, Powell's motion to dismiss counts 1, 8, 15, and 18 for being duplicitous is denied.

Motions To Compel The Government To Elect Between Multiplicitous Counts

Powell has filed three separate motions to compel the government to elect between various counts. In the first, Powell wants the government to elect between counts 1, 2, 3, 4, 5, 6, and 7, which all deal with the same alleged victim, Individual A. In the second, Powell wants the government to elect between counts 8, 9, 10, 11, 12, and 14, which all deal with Individual B. Finally, in the third motion Powell wants the government to elect between counts 15, 16, and 17, which all deal with Individual C.

A claim of multiplicity alleges that more than one count of an indictment charge the same criminal conduct, implicating the Double Jeopardy Clause. See McCloud v. Deppisch, 409 F.3d 869, 873 (7th Cir. 2005). The test whether counts are multiplicitous is the long-standing one set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932): "the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." As long as each statute requires proof of an additional fact that the others do not, then the fact that the statutes overlap somewhat does not violate the Double Jeopardy Clause. McCloud, 409 F.3d at 873 ("So long as the legislature has made sufficiently clear that multiple punishments are permissible, a court does not violate the Double Jeopardy Clause by imposing more than one punishment for the same offense.")

Counts 1 - 7 (Victim A)

The court will look first to those counts involving Individual A. Count 1 alleges that during the period December 2003 to September 2004 Powell violated 18 U.S.C. § 1591, which requires the government to prove sex trafficking of a minor by fraud, force or coercion affecting interstate commerce. Counts 2 and 3 involve an incident on December 30, 2003: count 2 alleges a violation of 18 U.S.C. § 2423(a), which requires the government to prove transportation of a minor across state lines to engage in criminal sexual activity, while count 3 alleges a violation of 18 U.S.C. § 2422(a), which requires the government to prove coercion to travel across state lines to engage in prostitution. Likewise, Counts 4 and 5 involve an incident on June 27, 2004 and allege violations of 18 U.S.C. § 2423(a) and 18 U.S.C. § 2422(a), respectively. Finally, Counts 5 and 6 involve an incident on August 16, 2004, again alleging violations of 18 U.S.C. § 2423(a) and 18 U.S.C. § 2422(a), respectively.

Although there is some overlap, each statute with which Powell has been charged requires proof of a fact that the others do not. For instance, § 2422(a) is unlike § 2423(a) because only the former requires proof of coercion, while only the latter requires proof that the victim was a minor. Section 1591 can also be distinguished because unlike § 2422(a) it requires that the victim be a minor, and unlike § 2423(a) it requires proof of coercion. Section 1591 is further distinguished from the other ...


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