[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
____________ ELEVENTH CIRCUIT
JANUARY 30, 2007
No. 06-15845 THOMAS K. KAHN
_____________ CLERK
D.C. Docket No. 04-60001-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ADHAM AMIN HASSOUN,
KIFAH WAEL JAYYOUSI,
a.k.a. Abu Mohamed,
JOSE PADILLA,
a.k.a. Ibrahim,
a.k.a. Abu Abdullah Al Mujahir,
a.k.a. Abu Abu Abdullah the Puerto Rican,
Defendants-Appellees.
______________
Appeal from the United States District Court
for the Southern District of Florida
_____________
(January 30, 2007)
Before EDMONDSON, Chief Judge, TJOFLAT and GIBSON,* Circuit Judges.
TJOFLAT, Circuit Judge:
The Government appeals the dismissal of Count One of a superseding
indictment that charges the defendants with various crimes arising from their
alleged participation in a “support cell” with the aim of “promot[ing] violent
jihad” as espoused by a “radical Islamic fundamentalist movement.” The district
court ruled that Count One was multiplicitous of Counts Two and Three – that is,
that the superseding indictment charged the same offense in all three counts in
violation of the defendants’ rights against double jeopardy under the Fifth
Amendment to the United States Constitution. For the reasons set forth below, we
reverse the decision of the district court.
I.
On November 15, 2005, a grand jury in the Southern District of Florida
returned an eleven-count superseding indictment against five individuals, three of
whom – Adham Amin Hassoun, Kifah Wael Jayyousi, and Jose Padilla – are the
respondents in this appeal. Counts One, Two, and Three are those relevant here,
and for convenience of discussion we summarize them each slightly out of
*
Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
2
numerical order. Count One charges the defendants with violating 18 U.S.C. §
956(a)(1),1 alleging that they conspired to commit acts of murder, kidnapping, and
maiming outside the United States and that they committed one or more overt acts
in the United States in furtherance thereof.2 Count Three charges the defendants
with violating 18 U.S.C. § 2339A(a) by providing material support and resources,3
1
18 U.S.C. § 956(a)(1) provides:
Whoever, within the jurisdiction of the United States, conspires with one or more
other persons, regardless of where such other person or persons are located, to
commit at any place outside the United States an act that would constitute the
offense of murder, kidnapping, or maiming if committed in the special maritime
and territorial jurisdiction of the United States shall, if any of the conspirators
commits an act within the jurisdiction of the United States to effect any object of
the conspiracy, be punished as provided in subsection (a)(2).
2
Count One also alleges that the defendants violated 18 U.S.C. § 2, which establishes
that one who “aids, abets, counsels, commands, induces or procures” the commission of an
offense, or “wilfully causes” another to perform an act that would be an offense if performed by
him, is punishable as a principal. The defendants argue that the inclusion of § 2 in the
superseding indictment is material to our analysis here, but we disagree.
Section 2 does not represent a distinct offense, but rather simply codifies an alternate
theory of liability inherent “in every count, whether explicit or implicit, and the rule is
well-established, both in this circuit and others, that one who has been indicted as a principal
may be convicted on evidence showing that he merely aided and abetted the commission of the
offense.” United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971). Furthermore, a defendant
can only be liable on an aiding-and-abetting theory if the Government proves that the substantive
offense, which the defendant allegedly aided and abetted, was actually committed by someone
else. See United States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984) (“One must . . . aid or
abet or procure someone else to commit a substantive offense. One cannot aid or abet himself.”).
As such, the proof required for criminal liability on an aiding-and-abetting theory requires no less
than the proof required for the principal offense itself. Accordingly, the indictment’s explicit
reference to § 2 does not alter the analysis under Blockburger v. United States, 284 U.S. 299, 52
S. Ct. 180, 76 L. Ed. 306 (1932), which controls this case. See infra part II. If the principal
offenses each require an element the other does not, the same will be true for counts alleging
liability for those offenses under an aiding-and-abetting theory.
3
18 U.S.C. § 2339A(b) defines “material support or resources” as:
any property, tangible or intangible, or service, including currency or monetary
3
and concealing and disguising the nature thereof, all with the knowledge and
intent that the material support and resources be used in preparation for and
carrying out a violation of § 956 (i.e., a conspiracy to murder, kidnap, or maim on
foreign soil).4 Count Two states a charge under 18 U.S.C. § 371, which generally
criminalizes conspiracies to commit offenses against the United States;5
specifically, that count charges that the defendants conspired to violate § 2339A(a)
by providing material support and resources in preparation for and carrying out a
violation of § 956. In other words, Count Two charges the defendants with
conspiring to commit the substantive offense alleged in Count Three, which in
instruments or financial securities, financial services, lodging, training, expert
advice or assistance, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances, explosives,
personnel (1 or more individuals who may be or include oneself), and
transportation, except medicine or religious materials.
4
18 U.S.C. § 2339A(a) provides, in relevant part:
Whoever provides material support or resources or conceals or disguises the
nature, location, source, or ownership of material support or resources, knowing
or intending that they are to be used in preparation for, or in carrying out, a
violation of [one of a number of listed sections, including § 956] . . . shall be
[punished as provided therein].
Like Count One, Count Three of the indictment also alleged a violation of 18 U.S.C. § 2.
For the same reason as we explained in note 2, supra, we find the inclusion of § 2 in Count Three
to be immaterial to our analysis here.
5
18 U.S.C. § 371 provides, in relevant part:
If two or more persons conspire either to commit any offense against the United
States, or to defraud the United States, or any agency thereof in any manner or for
any purpose, and one or more of such persons do any act to effect the object of the
conspiracy, each shall be fined under this title or imprisoned not more than five
years, or both.
4
turn has as its object the offense alleged in Count One.
Defendant Padilla moved to dismiss Count One as multiplicitous of Counts
Two and Three, and defendants Hassoun and Jayyousi joined in the motion. The
defendants argued that the three counts essentially seek to punish them thrice for
the same offense by alleging the same set of facts to prove what are, in their
estimation, three indistinct charges. By its Omnibus Order of August 18, 2006,
the district court granted the motion. The district court additionally denied the
Government’s motion for reconsideration on September 20, 2006, and the
Government timely noticed its appeal.6 We review de novo the dismissal of a
count of an indictment on multiplicity grounds. See United States v. Sirang, 70
F.3d 588, 595 (11th Cir. 1995) (Gibson, J.).
II.
This appeal turns on the proper application of the familiar rule established
in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed.
6
In addition to challenging the district court’s multiplicity ruling on the merits, the
Government also contests the remedy imposed by the district court in dismissing Count One of
the superseding indictment. The Government argues that, even if the district court correctly
determined that Count One was improperly multiplicitous, the court should have allowed Count
One to stand and simply refrained from entering judgment on one of the multiplicitous counts if
the jury ultimately returned guilty verdicts on all those counts. Because we find that the
multiplicity ruling was erroneous on the merits and reverse with an instruction that the district
court reinstate Count One, we need not address the Government’s alternative argument as to the
proper remedy.
5
306 (1932), that “where the same act or transaction constitutes a violation of two
distinct statutory provisions,” cumulative punishment may not be imposed unless
“each provision requires proof of an additional fact which the other does not.” Id.
The rule is one of statutory construction, applied in order to gauge Congress’s
intent “that two statutory offenses be punished cumulatively.” Albernaz v. United
States, 450 U.S. 333, 337, 101 S. Ct. 1137, 1141, 67 L. Ed. 2d 275 (1981). We
apply the test with a “focus[] on the statutory elements of the offense. If each
requires proof of a fact that the other does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to establish the crimes.”
Id. at 338, 101 S. Ct. at 1142 (quoting Iannelli v. United States, 420 U.S. 770, 785
n.17, 95 S. Ct. 1284, 1293 n.17, 43 L. Ed. 2d 616 (1975)); see also United States
v. Boldin, 772 F.2d 719, 729 (11th Cir. 1985).
As a preliminary matter, we note that the Blockburger elemental analysis
gives rise to only a presumption of congressional intent to authorize cumulative
punishments. United States v. Lanier, 920 F.2d 887, 894 (11th Cir. 1991); Boldin,
772 F.2d at 729. Our precedent instructs us that if other evidence, such as the
legislative history of the relevant statutory provisions, contradicts the
presumption, we are to respect Congress’s express intent. See Lanier, 920 F.2d at
894; Boldin, 772 F.2d at 729. Here, both the Government and the defendants aver
6
that legislative history weighs in their respective favors, but we find that none of
the language to which they refer provides “the clear indication of contrary
legislative intent necessary” to obviate the Blockburger analysis. Lanier, 920 F.2d
at 894–95 (internal quotations omitted). For example, both the Government and
the defendants point to language from the legislative debate on § 2339A that
suggests Congress intended that section to create criminal liability for those who
provide material support to terrorist activities but who might not otherwise
technically be liable under criminal conspiracy or aiding-and-abetting principles.
The defendants interpret that language to mean that § 2339A was intended to serve
essentially as a facilitation statute, drawing those who would materially support an
object offense (such as a conspiracy to murder, kidnap, or maim) “into the net” of
liability for the primary offense. The defendants’ argument, however, “read[s]
much into nothing.” See Albernaz, 450 U.S. at 341, 101 S. Ct. at 1143. Aside
from the obvious – that the plain language of § 2339A stands alone from its
various enumerated object offenses and creates criminal liability apart from those
object offenses – the congressional debate can just as easily be read to support the
Government’s position that § 2339A was intended to create a wholly independent
new offense. Moreover, one cannot logically conclude that, because Congress
arguably enacted § 2339A to create new liability for some individuals who may
7
not otherwise be guilty of an object offense, it necessarily follows that Congress
intended that those individuals could not be guilty of both offenses as a result of
the same acts.
With no clear legislative intent to guide us, we turn to the Blockburger
analysis and examine the elements of each of the counts that the defendants claim
is multiplicitous. The heart of the parties’ dispute in this appeal is how the test is
properly to be applied in this case. The defendants urge us to undertake a
searching analysis of the substance of the counts, taking into consideration the
facts alleged in support of those counts in the superseding indictment. They claim
that, in essence, the Government has “merely reiterated, in each count, the single
conspiracy to violate § 956(a),” founding each count upon “the same factual
premise.” Accordingly, they suggest, the court must “determine whether, in
substance as well as form, the indictment charged separate violations.” (first
emphasis added).
The defendants misapprehend the proper application of the Blockburger
analysis to the superseding indictment against them. Our precedent establishes
that when comparing charges under different statutory provisions – such as the
contested counts here – we examine only the elements themselves; if an offense
requires proof of an element that the other offense does not, we need look no
8
further in determining that the prosecution of both offenses does not offend the
Fifth Amendment. See, e.g., United States v. Adams, 1 F.3d 1566, 1574 (11th Cir.
1993); Lanier, 920 F.2d at 893; Boldin, 772 F.2d at 726. Specifically, we need not
examine the facts alleged in the indictment to support the counts nor the “practical
significance” of the theories alleged for each count. Lanier, 920 F.2d at 894; see
also Adams, 1 F.3d at 1574 (holding that the analysis is “applied to the statutory
elements underlying each indictment, or count, not to the averments that go
beyond the statutory elements”); Boldin, 772 F.2d at 726 (“[A] substantial overlap
in the proof offered to establish the crimes is not a double jeopardy bar.”); United
States v. Mulherin, 710 F.2d 731, 740 (11th Cir. 1983) (“That much of the same
evidence served ‘double duty’ in proving the two [conspiracy] offenses charged is
of no consequence”).
The strictly elemental analysis applies even where we are presented with an
indictment that charges two conspiracy counts, each under a separate statutory
provision, but both based on the same factual conspiracy as alleged. In United
States v. Lanier, this court, presented with a multiplicity challenge to two such
conspiracy counts – one under 18 U.S.C. § 371 (the general conspiracy statute)
and one under a specific conspiracy statute aimed at false claims against the
government – upheld the defendants’ convictions on both counts. 920 F.2d at
9
893–95. The court recognized the “substantial overlap” in the wording of the two
statutes and acknowledged that the circumstances in which a defendant might be
guilty of one of the offenses and not the other “are far more likely to reside in the
realm of imagination than in the real world in which defendants are prosecuted.”
Id. at 893. Nevertheless, because each offense required proof of an element the
other did not, the Blockburger test mandated the result. Id. at 893–94.
We acknowledge that there may remain a few specific circumstances in
which we are required to look beyond the elements of the offenses in order to
assess potential multiplicity problems, such as in a “continuing criminal
enterprise” prosecution where a drug conspiracy is separately charged, or in cases
where two counts are charged under the same statutory provision. See, e.g.,
United States v. Harvey, 78 F.3d 501, 505 (11th Cir. 1996) (holding that a drug
conspiracy under 21 U.S.C. § 846 is a lesser-included offense that merges into
“continuing criminal enterprise” charge under 21 U.S.C. § 848 when “the two
conspiracies alleged . . . were, in fact, the same conspiracy” (emphasis added));
United States v. Anderson, 872 F.2d 1508, 1520 (11th Cir. 1989) (“Where . . .
each count charges a violation of the same general conspiracy statute, and the
proof reveals a single ongoing conspiratorial agreement, only a single penalty . . .
can be imposed.”). But we need not consider these cases here, as the
10
circumstances are not present to merit a fact-based inquiry going beyond the
elements of the offenses charged in the superseding indictment.7 Each of the three
contested counts charges a separate statutory violation – § 956, § 371, and §
2339A, respectively – and, as we will discuss below, none of the charges could
merge into another as a lesser-included offense.
Having established the appropriate scope of the Blockburger test, we need
simply apply it here and compare the elements of the offense charged in Count
One with those charged in Counts Two and Three. The first and most obvious
element of Count One – the charge of conspiracy to murder, kidnap, and maim
7
The district court, in its Omnibus Order dismissing Count One on multiplicity grounds,
implicitly relied on authority applying a fact-based “same evidence” test, which in the past has
been applied to prosecutions of multiple conspiracy counts in order to determine “whether there
was more than one agreement.” United States v. Marable, 578 F.2d 151, 153 (5th Cir. 1978),
abrogated by United States v. Rodriguez, 612 F.2d 906, 919 (5th Cir. 1980) (en banc), as
recognized in United States v. Fisher, 106 F.3d 622, 633 n.11 (5th Cir. 1997); see Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all
decisions of the Fifth Circuit handed down prior to October 1, 1981). In so doing, the district
court’s opinion turned on its conclusion that the superseding indictment alleged only one
conspiracy in fact. As we hope to make clear in this opinion, the district court’s fact-based
analysis is inapplicable here; our precedent has since distinguished Marable, limiting its holding
to, at most, cases in which two counts are charged under the same conspiracy statute. See
Anderson, 872 F.2d at 1520; Mulherin, 710 F.2d at 739. Although we need not now decide, we
think it questionable whether Marable retains any precedential value in this circuit at all in light
of the former Fifth Circuit’s decision in Rodriguez. See United States v. Fisher, 106 F.3d 622,
633 n.11 (5th Cir. 1997), abrogated on other grounds, Ohler v. United States, 529 U.S. 753,
758–59, 120 S. Ct. 1851, 1854–55, 146 L. Ed. 2d 826 (2000). Moreover, the Supreme Court
overruled its own earlier precedent that established a fact-based double jeopardy analysis, opting
instead to return to the Blockburger rule, which “has deep historical roots and has been accepted
in numerous precedents of this Court.” United States v. Dixon, 509 U.S. 688, 704, 113 S. Ct.
2849, 2860, 125 L. Ed. 2d 556 (1993).
11
outside the United States in violation of § 956(a)(1) – requires proof that the
defendant agreed with at least one person to commit acts constituting murder,
kidnapping, and maiming. United States v. Wharton, 320 F.3d 526, 537–38 (5th
Cir. 2003). By contrast, the first element of Count Two – the charge of conspiracy
to provide material support in violation of § 371 – requires proof that the
defendant agreed with at least one other person “to try to accomplish a common
and unlawful plan, as charged in the indictment.” Eleventh Cir. Pattern Jury
Instructions: Criminal § 13.1 (2003) (listing the elements of a § 371 charge). In
this case, the “common and unlawful plan, as charged in the indictment” is that the
defendants conspired to provide material support in violation of § 2339A, so that
is the element that the Government must prove. Section 956 does not require
proof of an agreement to provide material support, and § 371 does not require
proof of an agreement to murder, kidnap, or maim. Accordingly, these two counts
are not multiplicitous. Count Three charges the substantive offense of § 2339A,
i.e., providing material support or resources with the knowledge or intent that the
support will be used “in preparation for, or in carrying out” one of the object
offenses listed in the statute. The most apparent element of this offense is that the
defendant has provided “material support or resources,” which are specifically
defined in § 2339A(b). Count One does not require proof that the defendant
12
provided material support or resources, nor does Count Three require any
agreement to murder, kidnap, or maim. As such, these counts are also not
multiplicitous.
In light of the distinct elements of each count, the Blockburger test is
satisfied and none of the contested counts is multiplicitous of the others.
III.
Our analysis could stop there, but in light of the rather abstract nature of the
elemental analysis, we think it wise to elaborate briefly on the concept in practical
terms. It appears that the trouble in this appeal stems from the interrelatedness of
the three counts at issue. As we have noted, § 956 (the charge in Count One)
serves as an object offense for § 2339A (the charge in Count Three), which serves
as an object offense for § 371 (the charge in Count Two). But while these three
charges are interrelated, they are not interdependent. The object offenses on
which Counts Two and Three are premised are not themselves elements of those
counts. In other words, to use Count Three as an example, the Government need
not prove all the elements of § 956, the object offense, in order to satisfy the
elements of the substantive § 2339A charge. By its elements, § 2339A
criminalizes material support given “in preparation for” the object offense –
clearly, the object offense need not even have been completed yet, let alone proven
13
as an element of the material support offense. To meet its burden under § 2339A,
the Government must at least prove that the defendants provided material support
or resources knowing that they be used in preparation for the § 956 conspiracy, in
which case the defendants could not be guilty of the § 956 conspiracy itself
(assuming that, under this scenario, the § 956 conspiracy had not yet come to
exist). Should it have stronger evidence, the Government might instead present a
case that the defendants provided material support intending that it be used in
carrying out the § 956 conspiracy, in which case the defendants might or might not
also be liable for the § 956 offense itself. But the mere possibility of the second
scenario does not change our analysis. Similarly, the Government need not prove
every element of the § 2339A offense, which is the object offense of Count Two,
in order to prove that the defendants conspired in violation of § 371. Although
they may appear to be nested within one another, each charge stands alone from
the others and requires proof of independent elements. By definition, none of the
offenses is a lesser-included offense of another, because, “[a]s is invariably true of
a greater and lesser included offense, the lesser offense . . . requires no proof
beyond that which is required for conviction of the greater.” Harvey, 78 F.3d at
504 (quoting Brown v. Ohio, 432 U.S. 161, 168, 97 S. Ct. 2221, 2226–27, 53 L.
Ed. 2d 187 (1977)).
14
Moreover, it bears repeating that double jeopardy is not implicated simply
because a factual situation might exist where a defendant could commit one act
that satisfies the elements of two distinct offenses. As Blockburger counsels, the
rub is whether Congress intended that one act be twice subject to punishment. As
such, the question we must ask is whether the defendant’s one act must necessarily
satisfy the elements of both offenses. In other words, does a scenario exist where
the hypothetical defendant might violate one section without violating the other?
If the answer is yes, as we find it to be in this appeal, the cumulative punishments
are constitutional. Accordingly, we REVERSE the district court and REMAND
with instructions to reinstate Count One of the superseding indictment.
SO ORDERED.
15