USA v. STROTHER, et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA
V .
OLIVIA CARR,
Defendant
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1:19-CR-00171-LEW-14
ORDER ON DEFENDANT OLIVIA CARR’S MOTION TO DISMISS
INDICTMENT AND MOTION TO DISMISS FORFEITURE ALLEGATION
Defendant Olivia Carr contends the Indictment impermissibly groups two classes of
defendants under the same drug distribution conspiracy count, despite asserting different
drug quantity elements for each group, and she argues that this approach to drafting an
indictment is unlawful because the resulting charge is an amalgamation of separate
offenses, duplicitous, and vague. 	In the event the Indictment is not dismissed, Carr
advances alternative arguments for dismissal of a forfeiture claim. 	Defendant Carr’s
Motion to Dismiss Indictment (ECF No. 354); Defendant Carr’s Motion to Dismiss
Forfeiture Allegation (ECF No. 355).
The Indictment
The Grand Jury indicted Defendant Olivia Carr and sixteen other defendants for
alleged participation in a conspiracy to distribute and to possess with intent to distribute 50
grams or more of methamphetamine and 500 grams or more of a mixture or substance
containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846,
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841(a)(1), and 841(b)(1)(A)(viii). 	Indictment Count I.1 	The Indictment relates that the
conspiracy charge concerns activity between July 1, 2018, and May 19, 2019. 	Under a
separate subheading in Count I, the Indictment particularizes drug quantities, asserting that
seven of the alleged conspirators, not including Carr, are complicit in a conspiracy (based
on their conduct and foreseeable conduct of other conspirators) extending to the entire drug
quantity 	stated 	in 	Count 	I, 	thereby, 	implicating 	the 	penalties 	provision 	found 	in
§ 841(b)(1)(A)(viii) 	(specifying 	a 	ten-year 	minimum 	and 	“life” 	maximum). 	The
Indictment then states “[w]ith regard to the remaining defendants[,]” that they are complicit
in a conspiracy (based on their conduct and foreseeable conduct of other conspirators) that,
as to drug quantity, evidently may or may not reach so far, but in any event reaches far
enough to implicate the sentencing provision in § 841(b)(1)(C) (specifying a twenty-year
maximum).
Olivia Carr moves to dismiss the Indictment. Carr contends the Grand Jury did not
charge her with any actual offense, but rather charged an amalgamation of distinct offenses;
that the Grand Jury returned a duplicitous 	Indictment; and that 	the Indictment is
impermissibly vague. 	The Government says Carr’s arguments are misguided, that the
Indictment clearly informs Carr that she is to be prosecuted for the distinct offense of
joining a methamphetamine distribution conspiracy within a particular timeframe, and that
Carr should appreciate that the drug quantity language of the Indictment has limited her
maximum sentence to 20 years and spared her the hazard of a mandatory minimum.
1 Carr is not named in the second count charging money laundering.
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Rule 7(c)(1) states that the indictment “must be a plain, concise, and definite written
statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1).
Moreover, “[f]or each count, the indictment … must give the official or customary citation
of the statute, rule, regulation, or other provision of law that the defendant is alleged to
have violated.” 	Id. 	An indictment “is sufficient if it, first, contains the elements of the
offense charged and fairly informs a defendant of the charge against which he must defend,
and, second, enables him to plead an acquittal or conviction in bar of future prosecutions
for the same offense.” 	Hamling v. United States, 418 U.S. 87, 117 (1974). 	While an
indictment may “parrot” the language of the criminal provision at issue, “it must also be
accompanied by such a statement of facts and circumstances as to inform the accused of
the specific offense with which he is charged.’” United States v. Parigian, 824 F.3d 5, 9
(1st Cir. 2016) (quoting United States v. Savarese, 686 F.3d 1, 6 (1st Cir. 2012)). See also
United States v. Vega-Martinez, 949 F.3d 43, 49 (1st Cir. 2020).
Here, the Indictment is sufficiently particularized as to Carr because it informs her
that she is charged for alleged participation in a drug distribution conspiracy during a
particular timeframe, involving particular co-defendants, in the District of Maine. 	Carr
knows the charge against which she must defend, and she knows the penalty provisions the
Government seeks to impose in the event of her conviction. 	There can be no doubt,
furthermore, that an acquittal or conviction on the charge would enable Carr to plead in bar
of any future prosecutions for the same offense.
Nonetheless, 	the 	Indictment 	may 	have 	a 	fatal 	flaw, 	as 	to 	Carr, 	because 	it
demonstrates the Grand Jury did not have probable cause to believe that Carr should be
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punished based on the aggravated drug quantity recited in Count I (the 50/500 grams
specified in the charge). 	Recent binding precedent has made it plain that “each of the
subsections of 21 U.S.C. § 841(b)(1), with its associated drug quantities and sentencing
ranges, is a separate crime.” 	United States v. Pizarro, 772 F.3d 284, 292 (1st Cir. 2014)
(citing Burrage v. United States, 571 U.S. 204, 210 n.3 (2014); Alleyne v. United States,
570 U.S. 99 (2013); Apprendi v. New Jersey, 530 U.S. 466 (2000)). See also United States
v. Soto, No. 2:17-CR-00157-JAW, 2019 WL 1782120, at *6 (D. Me. Apr. 23, 2019). Carr
builds her attack against the Indictment on these cases, and reasons that there is no good
reason why they should not apply fully in the context of a drug distribution conspiracy
charge.
When the Government institutes a criminal prosecution by means of a grand jury
indictment, the grand jury performs a critical fact-finding function to ensure a prosecution
for a given crime is supported by probable cause. 	Kaley v. United States, 571 U.S. 320,
328-29 (2014) (“The grand jury gets to say—without any review, oversight, or second-
guessing—whether probable cause exists to think that a person committed a crime.”);
United States v. DeVincent, 632 F.2d 147, 155 (1st Cir. 1980) (“A grand jury is not charged
with a final adjudication of guilt or innocence; ‘[r]ather, it is an ex parte investigation to
determine whether a crime has been committed and whether criminal proceedings should
be instituted against any person.’” (quoting United States v. Calandra, 414 U.S. 338, 343-
44 (1974)).
[A]n indictment, ‘fair upon its face,’ and returned by a ‘properly constituted
grand jury,’ conclusively determines the existence of probable cause ….
Ex parte United States, 287 U.S. 241, 250 (1932). See also Giordenello v.
United States, 357 U.S. 480, 487 (1958). The willingness to let a grand jury’s
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judgment 	substitute 	for 	that 	of 	a 	neutral 	and 	detached 	magistrate 	is
attributable to the grand jury’s relationship to the courts and its historical role
of protecting individuals from unjust prosecution.
Gerstein v. Pugh, 420 U.S. 103, 118 n.19 (1975).
The Court of Appeals for the Eleventh Circuit has succinctly summarized that these
standards are designed to meet “the Fifth Amendment’s assurance that a grand jury will
return an indictment only when it finds probable cause for all elements of the crime.”
United States v. Wayerski, 624 F.3d 1342, 1349 (11th Cir. 2010). 	Similarly, the Sixth
Circuit observes that a “penalty enhancement [that] increases the statutory maximum
penalty, … must be charged in the indictment.” 	United States v. Jeffries, No. 18-4081,
2020 WL 2299626 (6th Cir. May 8, 2020) (citing Alleyne v. United States, 570 U.S. 99,
107-108 (2013); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). 	These authorities
and the precedent they rely on demonstrate that the grand jury’s role includes the
assessment of the Government’s evidence to determine whether it demonstrates the
existence of probable cause to believe a defendant has committed a crime subject to a given
punishment, and to issue an indictment charging only the crime and punishment supported
by its probable cause findings, if any. 2
Evidently uncertain of the need to charge aggravated drug quantity facts in a
conspiracy indictment, 	the 	Government 	has 	crafted 	an 	indictment 	that 	informs 	all
defendants of the potential penalty that Congress affixed to their aggravated, overarching
2 See Alleyne, 570 U.S. at 109-10 (“From … widely recognized principles follow[s] a well-established
practice of including in the indictment, and submitting to the jury, every fact that [is] a basis for imposing
or increasing punishment.”), 112 (noting the accused’s right “to know, ex ante, the contours of the penalty
the legislature affixed to the crime”); Apprendi, 530 U.S. at 478 (“The defendant’s ability to predict with
certainty the judgment from the face of the felony indictment flowed from the invariable linkage of
punishment with crime.”).
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criminal conspiracy. But the Grand Jury also took care to specify that the Government’s
showing did not demonstrate probable cause as to Carr (and some others) for the
aggravated drug quantity. Carr contends this renders the Indictment not merely dissonant,
but defective.3
If the rationale of Alleyne, Apprendi, and Pizarro extends to conspiracy charges,
then Carr is onto something. But on this point the Government has a decisive argument.
The Government observes that it charged a conspiracy, and that by doing so it made any
concern about the Grand Jury’s lack of an aggravated drug quantity finding as to Carr
immaterial to the validity of the Indictment. Opposition at 10.
In United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014), the First Circuit
vacated a drug distribution conspiracy sentence because the trial record did not demonstrate
that the jury made drug quantity findings beyond a reasonable doubt. 	Id. at 188-90.
However, the First Circuit declined to vacate the underlying conviction based on a line of
precedent holding that drug quantity is not a formal element of the “core offense” of
conspiracy. 	Id. at 190-91. 	While it may strike some as inconsistent to say that drug
quantity is an “element” for purposes of the petit jury’s deliberation, but not for purposes
of its conviction on a conspiracy “core offense,” based on Alleyne and Apprendi and the
need (albeit stated in dicta) to indict on elements essential to the penalty, see footnote 2
supra, Delgado-Marrero is binding on this Court. I am not at liberty to disregard a clear
3 To summarize the problem: 	In Count I, the Grand Jury alleges that Carr was part of a conspiracy to
distribute the 50 / 500 grams described in Count I, an express reference to a quantity of controlled
substances that gives rise to a mandatory minimum and lifetime maximum sentence. But under the same
Count, the Grand Jury conceded it did not have probable cause to believe Carr committed the aggravated
crime. The Grand Jury’s concession is reflected in its statement, as to Carr, that the available drug quantity
showing only exposes Carr to the penalty provision of 21 U.S.C. § 841(b)(1)(C). Indictment (ECF No. 3).
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pronouncement by the First Circuit that drug quantities are not elements required for
conviction on a distribution conspiracy charge. Based on Delgado-Marrero, Carr is
charged in this case through an indictment that contains the elements of the “core offense”
of conspiracy to distribute and fairly informs her of the charge against which she must
defend. 	Without question, she will be able to plead an acquittal or conviction in bar of
future prosecutions for the same offense. That means the drug quantity statements in the
Indictment do not give rise to a fatal defect in the Indictment, and that Carr’s interests can
be safeguarded in this Court during the proceedings, including through any instructions I
may deliver to the petit jury.
Carr’s remaining arguments are more readily dismissed. Count 1 is not duplicitous
because it charges only one conspiracy under 21 U.S.C. § 846 and Carr is adequately
informed as to the charge for which she will prepare her defense. Nor does the Indictment
profess her innocent of a charge of conspiring to distribute controlled substances, even to
the extent of aggravated drug quantities; it, at most, flags the Grand Jury’s failure to make
a probable cause finding, as to Carr, concerning the aggravated drug quantity. This does
not exonerate Carr, if the Indictment’s statements about drug quantities are not elements of
the “core offense” of conspiracy to distribute, per Delgado-Marraro. Nor is the Indictment
insufficiently specific for reasons already outlined.
Forfeiture Allegations
Separately, Carr challenges the Indictment’s forfeiture allegations, arguing she
cannot be subject to forfeiture because the Indictment does not identify any property in
which she has a possessory interest that is potentially subject to forfeiture. 	The
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Government observes that Carr’s challenge relies on decisional law pertaining to an earlier
version of the Federal Rules of Criminal Procedure, and that the forfeiture allegations
comply with current Rules and standards.
The Government’s assessment is correct. 	See United States v. Galestro, No. 06-
CR-285, 2008 WL 2783360, at *10 (E.D.N.Y. July 15, 2008) (discussing Advisory
Committee Notes to the 2000 enactment of Rule 32.2, and noting the Committee’s adoption
of the approach stated in United States v. DeFries, 129 F.3d 1293, 1315 n.17 (D.C. Cir.
1998) (collecting cases)).
As courts have held, subdivision (a) is not intended to require that an itemized
list of the property to be forfeited appear in the indictment or information
itself. The subdivision reflects the trend in caselaw interpreting present Rule
7(c). Under the most recent cases, Rule 7(c) sets forth a requirement that the
government give the defendant notice that it will be seeking forfeiture in
accordance with the applicable statute. 	It does not require a substantive
allegation in which the property subject to forfeiture, or the defendant's
interest in the property, must be described in detail.
Fed. R. Crim. P. 32.2(a) advisory committee note (2000).
CONCLUSION
Defendant Carr’s Motion to Dismiss Indictment (ECF No. 354) is DENIED.
Defendant Carr’s Motion to Dismiss Forfeiture Allegation (ECF No. 355) is DENIED.
Dated this 13th day of July, 2020.
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE
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