09-4765-cr
USA v. Jenkins (Chaux)

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 8th day of February, two thousand eleven.

Present:   JOHN M. WALKER, JR.,
           CHESTER J. STRAUB,
           ROBERT A. KATZMANN,
                           Circuit Judges.

____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           - v. -                        No. 09-4765-cr

PAUL ALLEN JENKINS, JUAN RIOS, also known as
JUAN CHO, SHANNON FORRESTER,

                           Defendants,

ANA JULIET CHAUX,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                         LAWRENCE GERZOG, New York, NY
For Appellee:                                     WILLIAM D. SARRATT, Assistant United States
                                                  Attorney (Peter A. Norling, Assistant United
                                                  States Attorney, on the brief), for Loretta E.
                                                  Lynch, United States Attorney for the Eastern
                                                  District of New York, Brooklyn, NY


      Appeal from the United States District Court for the Eastern District of New York
(Korman, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Ana Juliet Chaux (“Chaux”) appeals from a judgment of conviction

in the United States District Court for the Eastern District of New York (Korman, J.), entered

October 29, 2009, following a jury trial, for conspiracy to import heroin, in violation of 21

U.S.C. § 963; importation of heroin, in violation of 21 U.S.C. § 952(a); and conspiracy to

distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846. The

district court sentenced her principally to 108 months of imprisonment. On appeal, Chaux

argues that the indictment was impermissibly duplicitous because there was insufficient evidence

that one instance of heroin importation in 2003 and another in 2007 were part of a single

conspiracy, as charged in the indictment. We assume the parties’ familiarity with the facts and

procedural history of the case.

       “An indictment is impermissibly duplicitous where: 1) it combines two or more distinct

crimes into one count in contravention of Fed. R. Crim. P. 8(a)’s requirement that there be ‘a

separate count for each offense,’ and 2) the defendant is prejudiced thereby.” United States v.

Sturdivant, 244 F.3d 71, 75 (2d Cir. 2001). Policy considerations underlying the doctrine of

impermissible duplicity are


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       uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one
       crime and a finding of not guilty as to another, avoiding the risk that the jurors may not
       have been unanimous as to any one of the crimes charged, assuring the defendant
       adequate notice, providing the basis for appropriate sentencing, and protecting against
       double jeopardy in a subsequent prosecution.

United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981).

       The Government carries the burden of establishing the conspiracy as charged in the

indictment, and, on appeal, this Court’s “task . . . is to determine . . . whether, viewing the proof

in the light most favorable to the Government, there was sufficient evidence to permit the jury to

find the single conspiracy alleged.” United States v. Taylor, 562 F.2d 1345, 1351 (2d Cir. 1977).

In this Circuit, “acts that could be charged as separate counts of an indictment may instead be

charged in a single count if those acts could be characterized as part of a single continuing

scheme.” United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989). Thus, “[a]s long as the

essence of the alleged crime is carrying out a single scheme to defraud,” then there is no harm in

aggregating the offenses in a single count. Id. A “single conspiracy is not transformed into

multiple conspiracies merely by virtue of the fact that it might involve two or more phases or

spheres of operation.” United States v. Berger, 224 F.3d 107, 114-15 (2d Cir. 2000) (internal

quotation marks omitted).

       After a careful review of the record, we conclude that, when viewed in the light most

favorable to the Government, the evidence introduced at trial is sufficient to establish a single

conspiracy, and thus Chaux cannot show that the indictment was duplicitous. Even assuming,

arguendo, the evidence was insufficient, we find no risk that the jury may not have been

unanimous in their finding of guilt as to Chaux’s participation in 2007 in the charged conspiracy.

See Margiotta, 646 F.2d at 733. Nor was Chaux prejudiced by the district court’s admission of


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evidence of the heroin importation in 2003 under Federal Rule of Evidence 403, because the

same evidence would also have been admissible under Federal Rule of Evidence 404(b) to

demonstrate “proof of motive, opportunity, intent, preparation, plan, knowledge, [or] identity.”

FED. R. EVID. 404(b). Therefore, the district court did not err in denying Chaux’s motion to

dismiss on grounds of duplicity.

       We have considered Chaux’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.


                                                     FOR THE COURT:
                                                     CATHERINE O’HAGAN WOLFE,
CLERK




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