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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

vs. 

 Mel Shriner Carter, 

Defendant. 

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CR -15-01713-TUC- RCC(LAB)

REPORT AND RECOMMENDATION

The District Court referred this case to the Magistrate Judge for a hearing on the 

defendant=s Motion to Dismiss Count 2 as multiplicitous. The defendant, Mel Shriner 

Carter, argues that the indictment (Doc. 16) is multiplicitous because it charges two counts 

for a single offense and raises double jeopardy questions because it produces two penalties 

for one crime. (Doc. 69). The Court concludes the indictment is not multiplicitous and 

Count Two should not be dismissed. 

A hearing was held on 10/13/16. No witnesses testified. No exhibits were introduced. 

Charge:

The defendant is charged by indictment with two counts of transportation of illegal 

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aliens for profit, in violation of 8 U.S.C. '' 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i). Count 

One names Epiganio Nape-Santiago and Count Two names Marcos Torres-Rodriguez, as 

the transported aliens. 

Discussion:

 Although no testimony was presented, the indictment charges that on 8/27/16, near 

Tombstone, Arizona, Mel Shriner Carter drove a vehicle that contained Epiganio 

Nape-Santiago, named in Count One, and Marcos Torres-Rodriguez, named in Count Two. 

The defendant argues that the government has violated his Fifth Amendment right to 

due process, the Double Jeopardy Clause, and Fed.R.Crim.P. 8(a), by charging him with 

two counts of transportation of illegal aliens for profit, where the only difference between 

the two counts is the name of the person transported. Carter claims that by charging him 

in two separate counts the government has two chances to prove the same offense. In his 

reply, Carter clarifies that when a single statutory violation is charged, the analysis turns on 

whether there was a single act or multiple transactions. (Doc. 78). 

The government responds that an indictment is only multiplicitous when it charges 

multiple counts for a single offense which would produce two penalties for one crime, 

raising a question of double jeopardy, citing U.S. v. Vargas-Castillo, 329 F.3d 715, 718-19 

(9th Cir. 2003). (Doc. 75). Both parties cite cases that stand for the proposition that the 

test for multiplicity is whether “each separately violated statutory provision requires proof 

of an additional fact which the other does not.” U.S. v. Stewart, 420 F.3d 1007, 1012 (9th

Cir. 2005; U.S. v. McKittrick, 142 F.3d 1170 (9th Cir. 1998). 

Each party cites U.S. v. Zalapa, 509 F.3d 1060 (9th Cir. 2007). In Zalapa, the Court 

held that the indictment was multiplicitous where a defendant was charged under the same 

statute in two separate counts with possession of a single unregistered firearm. The 

defendant relies on the case to support its argument that a defendant should not be punished 

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twice for a single event, like transporting two undocumented aliens at the same time in the 

present case. The government claims Zalapa is distinguishable because in that case the 

two charges pertained to one firearm and in the present case each charge names a separate 

undocumented alien. 

The court must determine what unit of prosecution is allowed when a defendant is 

convicted of multiple violations of the same statute for a single act or transaction. U.S. v. 

Keen, 104 F.3d 1111, 1118 (9th Cir. 1997). The defendant cited Bell v. U.S., 349 U.S. 81, 

84 (1955) in his motion and during the hearing, cited the Court to U.S. v. Jewell, 827 F.2d 

586 (9th Cir. 1987) and U.S. v. Hurt, 795 F.2d 765 (9th Cir. 1986), to support his argument 

that the act of transportation is the unit of conduct to be charged, not the number of 

undocumented aliens transported. 

In discussing the Mann Act, the Supreme Court in Bell held that “If Congress does not 

fix the punishment for a federal offense clearly and without ambiguity, doubt will be 

resolved against turning a single transaction into multiple offenses...”. In Jewell, the 

Ninth Circuit held that the indictment was multiplicitous where the defendant was charged 

in 13 counts, one for each time he signed an invoice for payment to his company, instead of 

being charged once for the one contract as to which there was a conflict of interest. The 

Ninth Circuit, in Hurt, decided that when the defendant ordered three obscene movies, 

mailed to him in several packages, the statute’s uncertainty regarding punishment required 

holding that sending one order is a single offense. 

Those cases, however, are inapposite in the current case because the charging statute is 

not ambiguous regarding the unit of prosecution or the punishment. Title 8 U.S.C. §§ 

1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i) state that any person who is in knowing or reckless 

disregard of the fact that an alien is in the United States in violation of the law and who 

transports the alien within the United States, shall for each alien (emphasis added) be 

fined and imprisoned for not more than 5 years. 

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RECOMMENDATION: 

In view of the foregoing, it is recommended that, after its independent review of the 

record, the District Court DENY the motion to dismiss Count 2. (Doc. 69) 

Defense counsel may serve and file written objections within 14 days. If objections are 

not timely filed, the party=s right to de novo review may be waived. No reply to objections 

shall be filed unless leave is granted from the District Court. 

The Clerk of the Court is directed to send a copy of this Report and Recommendation to 

all parties. 

DATED this 25th day of October, 2016. 

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