USA v. Dorceant

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. 	Criminal No. 10-cr-47-JD
Opinion No. 2010 DNH 142
Luckenson Dorceant
O R D E R
On April 7, 2010, a federal grand jury returned an
indictment charging Luckenson Dorceant with conspiracy to possess
with intent to distribute cocaine, in violation of 21 U.S.C. §§
846, 841(a)(1), and 841(b)(1)(B)(ii), and conspiracy to import
cocaine, in violation of 21 U.S.C. §§ 963, 952(a), 960(a)(1), and
960(b)(2)(B)(ii). 	Dorceant moves to dismiss the indictment,
alleging that it violates his rights under the Double Jeopardy
Clause and that it is defective. 	Dorceant also filed a notice of
his objection to the venue. 	The government objects to each of
Dorceant’s filings.
Discussion
I. 	Double Jeopardy
Dorceant moves to dismiss the indictment on the ground that
it violates his right under the Double Jeopardy Clause.
Specifically, he argues that the phrase “District of New
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Hampshire and elsewhere” requires dismissal of the indictment.
Dorceant further contends that he is suffering multiple
punishments for the same offense.
The government states that it is unaware of any other
jurisdiction that has prosecuted, or is currently prosecuting
Dorceant for the acts covered by the indictment. 	Furthermore,
the government contends, jeopardy attaches when a jury is
empaneled and sworn, and thus Dorceant’s Double Jeopardy right
has not been violated in this case.
“‘In the case of a jury trial, jeopardy attaches when a jury
is empaneled and sworn.’” 	United States v. Tobin, 552 F.3d 29,
32 (1st Cir. 2009) (citing Serfass v. United States, 420 U.S.
377, 388 (1975)). 	At this time, no jury has been empaneled or
sworn. 	Thus, jeopardy has not attached, and dismissal of the
indictment is not warranted.
II. 	Defective Indictment
Dorceant also moves for dismissal of the indictment on the
ground that it is insufficient to enable a jury to convict him
for the death of Mally Rodriguez. 	He alleges that each count’s
description of the offenses having occurred “in the District of
New Hampshire and elsewhere” is confusing and is insufficient to
inform Dorceant of the charges against him.
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The government objects, arguing that the indictment clearly
informs Dorceant of the charges against him. 	The government also
explains that the indictment charges Dorceant with conspiracy
with intent to distribute cocaine, and that the use of that
cocaine resulted in Rodriguez’s death. 	According to the
government, identifying Rodriguez by name gives Dorceant
sufficient notice of the charge against him.
“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.” 	United States v. Upton, 559 F.3d 3, 15
n.12 (1st Cir. 2009) (internal quotation marks, citation, and
alteration omitted). 	“‘It is generally sufficient that an
indictment set forth the offense in the words of the statute
itself, as long as those words of themselves fully, directly, and
expressly, without any uncertainty or ambiguity, set forth all
the elements necessary to constitute the offense intended to be
punished.’” 	United States v. Cianci, 378 F.3d 71, 81 (1st Cir.
2004) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)
(internal quotation marks omitted).
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Count One of the indictment alleges:
From on or about November 19, 2008, and continuing
through November 26, 2008, in the District of New
Hampshire and elsewhere, the defendant, Luckenson
Dorceant, did knowingly and willfully combine,
conspire, and agree with persons known and unknown to
the Grand Jury, to possess with the intent to
distribute more than 500 grams of a Schedule II
controlled substance, to wit, cocaine, the use of said
cocaine resulting in the death of Mally Rodriguez.
In violation of Title 21, United States Code, §§ 846,
841(a)(1), and 841(b)(1)(B)(ii).
Doc. no. 9, at 1. 	Section 841(a)(1) makes it unlawful “for any
person knowingly or intentionally to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance,” and section 841(b)(1)(B)(ii)
prescribes the penalty for a violation of subsection (a)
involving “500 grams or more of a mixture or substance containing
a detectable amount of . . . cocaine.” 	Section 846 provides that
“[a]ny person who attempts or conspires to commit any offense
defined in this subchapter shall be subject to the same penalties
as those prescribed for the offense, the commission of which was
the object of the attempt or conspiracy.” 	Count One tracks the
pertinent language of the statutes, identifies the time period
during which the criminal activity allegedly occurred, and gives
additional detail regarding the death resulting from the alleged
conspiracy. 	Count One is sufficient.
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Count Two of the indictment alleges:
From on or about November 19, 2008, and continuing
through November 26, 2008, in the District of New
Hampshire and elsewhere, the defendant, Luckenson
Dorceant, did knowingly and willfully combine,
conspire, and agree with persons known and unknown to
the Grand Jury, to import into the United States from a
place outside thereof, that is, the Dominican Republic,
more than 500 grams of a Schedule II controlled
substance, to wit, cocaine, the use of said cocaine
resulting in the death of Mally Rodriguez.
In violation of Title 21, United States Code, §§ 963,
952(a), 960(a)(1) and 960(b)(2)(B)(ii).
Doc. no. 9, at 1-2. 	Section 952(a) outlaws, with limited
exceptions, the importation into the United States “from any
place outside thereof[] any controlled substance in schedule I or
II of subchapter I of this chapter.” 1 	Section 960(a) provides
that “[a]ny person who[,] contrary to section 952 . . . of this
title, knowingly or intentionally imports or exports a controlled
substance . . . shall be punished as provided in subsection (b)
of this section.” 	Section 960(b)(2)(B)(ii), in turn, prescribes
the statutory minimum and maximum penalties for a violation of
subsection (a) involving “500 grams or more of a mixture or
substance containing a detectable amount of . . . cocaine.”
Section 963 provides that “[a]ny person who attempts or conspires
to commit any offense defined in this subchapter shall be subject
1Schedule II appears at 21 U.S.C. § 812(c) and includes
cocaine.
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to the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or conspiracy.”
Count Two tracks the pertinent language of the statutes,
identifies the time period during which the criminal activity
allegedly occurred, provides the country from which the cocaine
was imported, and gives additional detail regarding the death
resulting from the alleged conspiracy. 	Count Two is sufficient. 2
Because both counts of the indictment are sufficient, the
indictment will not be dismissed on this ground.
III. 	Venue
Dorceant filed a notice that he objects to the current
venue, the United States District Court for the District of New
Hampshire. 	He requests that the record reflect that he does not
waive his objection to any defects in venue apparent from the
face of the indictment.
Construing Dorceant’s notice as a motion, the government
argues that venue is proper in this court because the evidence at
trial will show that Dorceant and others conspired to possess
cocaine with intent to distribute, and that in furtherance of
2To the extent Dorceant intended to argue that the
indictment is insufficient to support a homicide conviction for
Rodriguez’s death, Dorceant is not charged with homicide.
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that conspiracy, Dorceant and others arranged for cocaine to be
imported into the United States. 	The government states that its
evidence will show that, in order to import the cocaine, Dorceant
had women ingest “fingers” of the drug, and that the women then
came to New Hampshire, where one of them died from acute cocaine
intoxication after one of the “fingers” burst inside her.
“Except as otherwise expressly provided by enactment of
Congress, any offense against the United States . . . committed
in more than one district[] may be inquired of and prosecuted in
any district in which such offense was begun, continued, or
completed.” 	18 U.S.C. § 3237(a). 	“[V]enue in a conspiracy case
depends upon whether an overt act in furtherance of the alleged
conspiracy occurred in the trial district.” 	United States v.
Josleyn, 99 F.3d 1182, 1191 (1st Cir. 1996). 	“The defendant need
not have been physically present in the trial district during the
conspiracy.” 	Id.
The government must establish, by a preponderance of the
evidence, that the venue is proper. 	United States v. Scott, 270
F.3d 30, 34 (1st Cir. 2001). 	“When a defendant moves to dismiss
an indictment prior to his or her trial, the court will accept as
true all of the factual allegations set forth in the indictment.”
United States v. Kaluanya, Criminal No. 09-cr-107-SM, 2009 WL
3255211, at *1 (D.N.H. Oct. 7, 2009) (citing United States v.
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Jensen, 93 F.3d 667, 669 (9th Cir. 1996), United States v.
Goldberg, 756 F.2d 949, 950 (2d Cir. 1985), United States v.
Mann, 517 F.2d 259, 267 (5th Cir. 1975)).
The indictment alleges that, “in the District of New
Hampshire and elsewhere, . . . Dorceant[] did knowingly and
willfuly combine, conspire, and agree . . . to possess with the
intent to distribute . . . cocaine.” 	The indictment also alleges
that Dorceant knowingly and willfully conspired, in the District
of New Hampshire and elsewhere, to import cocaine into the United
States. 	On its face, the indictment establishes that venue is
proper in the District of New Hampshire. 	To the extent Dorceant
intended to move for a change of venue or other relief based upon
his contention that venue is improper, the motion is denied.
Conclusion
For the foregoing reasons, Dorceant’s motions to dismiss
(doc. nos. 25 and 26) are denied. 	To the extent Dorceant
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intended his notice of his objection to the current venue (doc.
no. 27) to be a motion, it is denied.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
August 9, 2010
cc: 	Donald A. Feith, Esquire
James D. Gleason, Esquire
Debra M. Walsh, Esquire
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