USA v. CANDELARIO, et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
)
v. 	) 2:21-cr-00015-JDL-1
) 2:21-cr-00015-JDL-2
) 2:21-cr-00015-JDL-4
JASON CANDELARIO, et al., 	)
)
Defendants. 	)
ORDER ON DEFENDANTS DAPRATO, CANDELARIO, AND CARPIO’S
MOTION TO DISMISS COUNT THREE OR FOUR OF THE INDICTMENT
The 	indictment 	in 	this 	case 	(ECF 	No. 	115) 	charges 	Defendants 	Jason
Candelario, Luis Carpio, and Derek Daprato (the “Moving Defendants”) with, among
other crimes, discharging a firearm during a crime of violence (Count Three), see 18
U.S.C.A. 	§ 924(c)(1)(A)(iii) 	(West 	2022), 	and, 	separately, 	brandishing 	a 	second
firearm during a crime of violence (Count Four), see id. § 924(c)(1)(A)(ii).1 	Daprato
moves (ECF No. 223) for the immediate dismissal of either count, arguing that the
Government should be forced to elect between the counts now because they are
multiplicitous in violation of the Double Jeopardy Clause of the Fifth Amendment.
See United States v. Gordon, 875 F.3d 26, 32 (1st Cir. 2017) (“As relevant here,
‘multiplicity’ means that a single crime (or ‘unit of prosecution’) has been charged as
1 Count One charges the Moving Defendants (and a fourth codefendant who is not a party to the
instant motion) with conspiring to commit Hobbs Act robbery. See 18 U.S.C.A. § 1951(a) (West 2022).
Count Two charges the Moving Defendants with interfering with commerce by violence and aiding and
abetting the same. See id. Count Three charges the Moving Defendants with discharging a firearm
during a crime of violence and aiding and abetting the same. See id. § 924(c)(1)(A)(iii). Count Four
charges the Moving Defendants with brandishing a firearm during a crime of violence and aiding and
abetting the same. 	See id. § 924(c)(1)(A)(ii). 	Count Five charges Candelario with being a felon in
possession of firearms and ammunition. See id. § 922(g)(1) (West 2022). Count Six charges Carpio
with being a felon in possession of firearms and ammunition. See id.
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multiple crimes . . . .”). 	I granted (ECF Nos. 255, 261) motions by Candelario and
Carpio (ECF Nos. 252, 260) to join Daprato’s motion to dismiss.
At the hearing on May 23, 2022, the Government conceded that a double
jeopardy violation would occur if any of the Moving Defendants were sentenced on
both the discharging and the brandishing counts because the two counts arise out of
the same alleged predicate crime of violence. See United States v. King, 554 F.3d 177,
179 n.1 (1st Cir. 2009) (observing that the First Circuit has “ruled that two section
924(c) gun charges based on the same predicate offense constituted one unit of
prosecution” (citing United States v. Peña-Lora, 225 F.3d 17, 32 (1st Cir. 2000))).
However, the Government contends that immediate election between the two counts
is unnecessary because the jury might not convict any of the Moving Defendants on
both counts and, even if this does occur, the Court can vacate the brandishing
conviction, which carries the lesser sentence. 	See 18 U.S.C.A. § 924(c)(1)(A)(ii)-(iii).
The 	Government 	also 	suggests 	that 	the 	jury 	could 	be 	instructed 	to 	skip 	the
brandishing count for any of the Moving Defendants who are convicted on the
discharging count. 	Finally, the Government indicates that if a defendant were
convicted on both counts, it could dismiss one of the counts after trial and before
sentencing.
The Moving Defendants concede that the Court has discretion as to whether to
require the Government to elect between the counts prior to trial. Nonetheless, the
Moving Defendants advocate for pretrial dismissal of either count because submitting
both to the jury may give a false and prejudicial impression of how much criminal
activity may have occurred. They also argue that the risk of a compromise verdict is
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exacerbated here because the jury will need to evaluate a combination of principal
and vicarious theories of liability for six counts and three defendants.
“There is no inflexible rule that the exclusive remedy for multiplicitous counts
is election between them.” 	United States v. Pires, 642 F.3d 1, 16 (1st Cir. 2011).
“[T]he Double Jeopardy Clause does not protect against simultaneous prosecutions
for the same offense, so long as no more than one punishment is eventually imposed.”
Id. (quoting United States v. Josephberg, 459 F.3d 350, 355 (2d Cir. 2006) (per
curiam)). 	As such, double jeopardy concerns “evaporate[]” if a jury convicts on only
one of the multiplicitous counts. 	Id. 	And, if a jury does convict on multiplicitous
counts, the court may “simply vacate both the conviction and the sentence as to all
but one count, essentially merging the offending counts.” Id.; accord United States v.
Widi, 697 F. Supp. 2d 140, 145 (D. Me. 2010) (“[T]he Court has discretion to either
require the Government to elect on which count it will proceed or to allow both counts
to proceed to trial and dismiss one prior to sentencing.”).
Additionally, while forcing the Government to elect among multiplicitous
counts before trial may sometimes be the better option, the First Circuit concluded,
under similar circumstances to those that exist here, that “the government was
entitled to present both gun scenarios to the jury.” King, 554 F.3d at 180. In King,
the defendant bringing the multiplicity challenge had been charged with six counts,
including one count of brandishing his own gun during a crime of violence and, under
a theory of vicarious liability, one count for his coconspirator’s possession of a
different gun during the same crime of violence. 	Id. at 179; see 18 U.S.C.A.
§ 924(c)(1)(A)(i)-(ii).
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In keeping with King, I reject the Moving Defendants’ request that I require
the Government to elect now between the discharging and brandishing counts. The
Government should be allowed to present both of its scenarios at trial because, for
each of the Moving Defendants, the jury may accept one theory of liability but not the
other. See United States v. Johnson, 130 F.3d 1420, 1426 (10th Cir. 1997) (concluding
that a district court had not abused its discretion when it denied a pretrial motion to
dismiss a multiplicitous count because “the possibility (albeit slim) existed that [the
defendant] could be convicted on one count and acquitted on the other”). 	I also
conclude that the risk of prejudice to the Moving Defendants from submitting both
counts to the jury is low. 	This is not a case in which a great number of alleged
violations constituting only one crime have been charged separately; here, the current
six-count indictment alleges only marginally more criminal activity than if one of the
counts were dismissed.2 	And the jury’s task—evaluating six counts across three
defendants—will be neither inherently confusing nor overly complex. 	Finally,
submitting both counts to the jury, as opposed to only one, will allow the jury to
render a verdict on both § 924(c)(1)(A) theories, thus providing a clear trial record for
purposes of appellate review and promoting judicial economy.
Accordingly, the Moving Defendants’ Motion to Dismiss Count Three or Four
of the Indictment (ECF No. 223) is DENIED. The Court will resolve the multiplicity
2 With respect to Candelario and Carpio, forcing the Government to elect between the discharging
and brandishing counts would result in four counts being submitted to the jury instead of five. For
Daprato, dismissing a count now would lead to three counts being submitted to the jury instead of
four.
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issue either through jury instructions or, if any of the Moving Defendants are
convicted on both counts, by vacating those defendants’ brandishing convictions.
SO ORDERED.
Dated: June 29, 2022
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE
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