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IN THE UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICA
ALPHONSO MICHAEL ESPY,
Criminal No. 97-0335 (RMU)
UNITED STATES OPPOSITION AND INCORPORATED MEMORANDUM TO DEFENDANTS MOTION
TO DISMISS ALL COUNTS AS DUPLICITOUS
OFFICE OF INDEPENDENT COUNSEL
DONALD C. SMALTZ
In Re Alphonso Michael (Mike) Espy
103 Oronoco Street, Suite 200
Alexandria, Virginia 22314
Phone: (703) 706-0010
Fax: (703) 706-0076
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
I. INTRODUCTION 1
II. ARGUMENT 2
A. THE INCORPORATION OF THE BACKGROUND SECTION IN PARTS OF THE INDICTMENT IS ACCEPTED GRAND JURY PRACTICE IN FEDERAL COURTS 2
B. COUNT 35 IS NOT DUPLICITOUS WHEN INCORPORATING BY REFERENCE 10
C. COUNT 35 IS NOT DUPLICITOUS IN ITS CHARGING
D. THE PROPER REMEDY FOR A DUPLICITOUS COUNT IS A JURY INSTRUCTION 17
III. CONCLUSION 22
TABLE OF AUTHORITIES
Bins v. United States, 331 F.2d 390 (5th Cir. 1964) 12,18,20
Blockburger v. United States, 284 U.S. 299 (1932) 11
Parsons v. United States, 189 F.2d 252 (5th Cir. 1951) 7
Pinkerton v. United States, 328 U.S. 640 (1946) 8
United States v. Bruce, 89 F.3d 886 (D.C. Cir. 1996) 7,18,19
United States v. Burton, 871 F.2d 1566 (11th Cir. 1989) 17
United States v. Conley, 826 F. Supp. 1536 (W.D. Pa. 1993) 16
United States v. Dean, 969 F.2d 187 (6th Cir. 1992) 18
United States v. Droms, 566 F.2d 361 (2d Cir. 1977) 18
United States v. Drury, 964 F.2d 925 (5th Cir. 1982) 21
United States v. Edmond, 288 U.S. App. D.C. 17 (D.C. Cir.) 8
United States v. Floresca, 38 F.3d 706 (9th Cir. 1994) 15,16,17
United States v. Gordon, 253 F.2d 177 (7th Cir. 1958) 2,10
United States v. Hammen, 977 F.2d 379 (7th Cir. 1992) 7
United States v. Hardy, 762 F. Supp. 1403 (D. Haw. 1991) 20
United States v. Kearney, 444 F. Supp. 1290 (S.D.N.Y. 1978) 13,20
*United States v. Kimberlin, 781 F.2d 1247 (7th Cir. 1985) 16,20,21
United States v. McCann, 465 F.2d 147 (5th Cir. 1972) 11
United States v. Meyers, 266 F.2d 747 (5th Cir. 1959) 5,6
United States v. North, 708 F. Supp. 372 (D.D.C. 1988) 12
United States v. Poindexter, 725 F. Supp. 13 (D.D.C. 1989) 9
United States v. Purvis, 580 F.2d 853 (5th Cir. 1978) 2,7
United States v. Robinson, 651 F.2d 1188 (6th Cir. 1981) 20
United States v. Shorter, 608 F. Supp. 871 (D.D.C. 1985) 18,19,20
United States v. Todd, 964 F.2d 925 (9th Cir. 1992) 21
*United States v. Watt, 911 F. Supp. 538 (D.D.C. 1995) 3,8,9
United States v. Weinberger, No. 92-235, 1992 WL 294877 (D.D.C.
Sept. 29, 1992) 9
18 U.S.C. § 912 16
18 U.S.C. § 1512 11-17
18 U.S.C. § 1956 16
RULES OF CRIMINAL PROCEDURE
Fed. R. Crim. P. 7(c)(1) 3,8,10
Websters II New Riverside Dictionary (1994) 9
Defendant Espy makes three arguments in his Motion to Dismiss All Counts of the Indictment as Duplicitous: (1) the entire Indictment is duplicitous by the fact that the section entitled Background to All Counts, paragraphs 1-14 of the Indictment, charges him with substantive offenses and are in turn incorporated by reference in each of the 39 counts of the Indictment, therefore rendering each count duplicitous; (2) since Count 35 of the Indictment incorporates paragraphs 26 through 28 of the Indictment by reference, the paragraphs that constitute Count 34, it is duplicitous; and (3) because Count 35 charges more than one provision of the witness tampering statute, it is duplicitous on that separate ground.
The Background section of the Indictment is not a charging provision and, therefore, has no duplicity implications when incorporated, by reference, into other counts. Moreover, referencing other allegations in a count of an indictment is specifically permitted by the Federal Rules, while charging provisions of an indictment in the conjunctive, which a statute provides in the disjunctive, is a well-established pleading technique which is explained to jurors in final instructions. Thus, each of defendants contentions is completely without merit.
A. THE INCORPORATION OF THE BACKGROUND SECTION IN PARTS OF THE INDICTMENT IS ACCEPTED GRAND JURY PRACTICE IN FEDERAL COURTS
Defendants arguments have many flaws. Defendant Espys initial allegation of duplicity based on the Background section of the Indictment being incorporated by reference in the thirty-nine counts of the Indictment is an overly technical and unsupported analysis that ignores the Federal Rules of Criminal Procedure and general federal practice. This argument should be swiftly rejected.
Initially, the court should look at the charging document that the defendant alleges is flawed. Although each allegation in an indictment must be first judged on its own, either those made directly or by reference, United States v. Gordon, 253 F.2d 177, 180 (7th Cir. 1958), the validity of any indictment is determined by reading it as a whole, United States v. Purvis, 580 F.2d 853, 856 (5th Cir. 1978). The instant Indictment recognizes this maxim, and reflects a document intended to be considered in its entirety. By incorporating by reference the Background section, the Indictment merely reminds the jury of this truism. Nevertheless, the Indictments structure clearly allows consideration of each of the counts on its own allegations without fear of confusion by the jury.
The Indictment returned by the grand jury on August 27, 1997 is a fifty-one page charging document, with page two of the Indictment headed: The Grand Jury Charges: Background To All Counts. The Indictment then states [A]t all times relevant to this Indictment: . . . and proceeds through a recitation of allegations necessary for the background of the Indictment, followed by substantive charges starting with Count 1 on page twenty-three. Pages 2 through 22 contain paragraphs 1 through 14. This backdrop puts the charges in context for the jury. The Indictment introduces defendant Espy and then describes the nature of the circumstances that brought on the criminal investigation. Because the nature of the prosecution involved the deprivation of the citizens right to honest services, and violations of those rights with false statement and obstruction of justice type charges, a description of those rights and how they were violated by the defendant is included in this section. Unlike other crimes that may have tangible rights and objects violated, the intangible right to honest services required a detailing of where those rights are found and how they were violated. See United States v. Watt, 911 F. Supp. 538, 554 (D.D.C. 1995).
By design, Paragraph 14, the last paragraph in the Background section, does not end with an allegation that the these facts violated any provision of the federal criminal code as set forth in Fed. R. Crim. P. 7(c)(1) ("The indictment . . . shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated."). Paragraph 5 alleges that the recitation of the Background section was part of defendants scheme and artifice to defraud the citizens. Again, in a case involving the deprivation of honest services with such a scheme and artifice, those facts that describe it must be made known to the jury to make any sense of the substantive crimes. Thus, on page 6, the Indictment describes the acts that violated the duties incumbent on the Secretary of Agriculture and the parties who participated in the acts and how they participated. The Indictment on page 13 then describes activities attributed to the scheme and artifice. Each of these categories is titled to let the jury know how they are part of the scheme and artifice, followed by a plain, concise and definite description of the essential facts. With that recitation, the Indictment continues with its plain, concise and definite written statement of the actual offenses charged.
Page 23 then announces the beginning of the substantive charges with the heading Counts One through Seven [--] Wire Fraud. This natural break begins with the announcement that the background sets out the specifics of the facts and duties and are incorporated by reference, and ends with the pronouncement that the recited allegations violate the specified provisions of the United States Code. There is also a full page break between the substantive counts and the Background section, with the counts starting on a new page two emphasize the change. These 39 counts of the Indictment are catalogued on the first page of the Indictment, while the Background section is not.
Despite the clear physical layout of the Indictment, with no formal pleading of a violation of a criminal statute, the defendant comes to the remarkable result that [t]here can be no question that the background section of the indictment charges [defendant] Espy with multiple substantive offenses. (Mot. to Dismiss All Counts, at 2). A district court that agreed with an analysis similar to the one proposed by the defendant, was reversed by the Fifth Circuit which found that:
[t]he district court construed that paragraph as importing into each of the substantive counts the entire first count of the indictment. If that were the meaning then there was no purpose in particularizing paragraphs 1 through 14. Clearly, the Grand Jury meant to reallege something less than all of the first count of the indictment.
United States v. Meyers, 266 F.2d 747, 756 (5th Cir. 1959). The Fifth Circuit agreed with the government which argued:
In view of the physical arrangement of the text of count one and the whole indictment, the indentation of paragraphs, the double spacing between paragraphs, the interjection of the familiar phrase the Grand Jury further charges which separates paragraphs 14 and the paragraphs which follow it, the obvious difference in thought content and subject matter between paragraph 14 and the charging paragraphs below, it is difficult to follow the reasoning of the Court below that the reiteration in each of the subsequent counts of Paragraphs 1-14 of Count one had the force and effect of tacking on to each of the remaining twenty counts the conspiracy count set forth in count one. The reiteration of preliminary facts or allegations in subsequent counts of an indictment, as occurred here, is standard practice; it encourages brevity and clarity; it aids in focusing attention on the main thrust of the separate count or cause of action. Such was the intent in the use of this technique in counts two through twenty-one of this indictment. . . . To hold that the numbered paragraph 14 of count one must of necessity incorporate all of the remaining unnumbered paragraphs of the count ignores the physical arrangements of the pleading, the settled meaning of the word paragraph, and the effect of the statement The Grand Jury further charges which separates paragraphs 1-14 from the remaining content in count one. At best the fact that the paragraphs of count one beyond paragraph 14 were not numbered, can only be considered as a technical point. And the strict technical requirements of pleading have been replaced by a liberality of construction permitted by the Federal Rules of Criminal Procedure. . . . Moreover, the adequacy and sufficiency of indictments can in modern times be considered on the basis of practical, as opposed to technical considerations.
Id. at n.8 [Citations omitted].
Moreover, the defendants confusion over the nature of the Indictment, despite its layout, has been considered by courts before, and summarily rejected. As Judge Wald of the District of Columbia Circuit opined in denying a motion dismiss for duplicity:
The allegations tending to demonstrate the existence of the scheme appear to be allegations that, if worded and structured differently, might constitute additional executions [of the scheme]. This is hardly surprising; the actions that tend to prove the existence of the scheme will often be the actions actually taken to execute the scheme.
United States v. Bruce, 89 F.3d 886, 889-90 (D.C. Cir. 1996) (quoting United States v. Hammen, 977 F.2d 379, 383 (7th Cir. 1992)).
Defendants argument of convenience deliberately ignores the plain language and structure of the Indictment. Indictments must be viewed in a common sense fashion and not picked apart on technicalities. Purvis, 580 F.2d at 857.
The cynically technical approach which formerly enshrouded the consideration of even the plainest and simplest indictments, and, in many instances, made a mockery of simple justice, no longer governs their consideration. On the contrary, the trial court and this court are enjoined to, and do, examine into, and determine, the validity of attacks upon indictments, especially of this kind, from the broad and enlightened standpoint of common sense and right reason rather than from the narrow standpoint of petty preciosity, pettifogging, technicality or hair splitting fault finding.
Id. (quoting Parsons v. United States, 189 F.2d 252, 253 (5th Cir. 1951)).
In alleging the inappropriateness of the Indictments Background section, defendant cites United States v. Edmond for the proposition each count of the indictment subsumes all of the alleged substantive offenses and is duplicitous. 924 F.2d 261, 269 (D.C. Cir. 1991) (a double-jeopardy case interpreting the District of Columbias aiding and abetting law, D.C. Code 1981, § 22-105). Yet, Edmond provides no such guidance to the courts. Edmond noted that despite the common use made by the government of speaking indictments there was still no obligation to explain, on the face of the indictment, the governments theory of the defendants criminal liability. Id. The instant indictment follows the requirements of Fed. R. Crim. P. 7(c)(1) by providing the essential facts constituting the offenses charged in a plain, concise and definite manner.
The Background section of the Indictment serves a crucial function by providing the necessary context and scope for the jury on the defendants activities. Watt, 911 F. Supp. at 554. Watt held that when an Independent Counsels indictment of a former Cabinet Secretary on multiple counts that implicate a wide range of the defendants professional activities . . . background information is undoubtedly helpful. Id. Explaining the duties owed to the public by Cabinet officials is a key to a jurys understanding of these counts. The simple fact that many of these details are mentioned again in the charging sections of the indictment does not make the indictment duplicitous. By definition, the term background means attendant circumstances and events. Websters II New Riverside Dictionary (1994). Attendant circumstances and events will necessarily have some nexus to the charged counts that they explain.
The Court in Watt reminds us that background information is particularly useful in cases involving perjury, false statements, and obstruction of justice. 911 F. Supp. at 554. Six of the counts listed in the Governments indictment involve obstruction (witness tampering) and false statements. In United States v. Poindexter, 725 F. Supp 13 (D.D.C. 1989), Judge Greene reasoned that it would be difficult, if not impossible for the jury to understand the defendants allegedly false statements and obstruction without [such] background. Id. at 37. Judge Hogan expressed a similar sentiment in United States v. Weinberger, noting that the Office of Independent Counsel had a legitimate need to place the defendants actions in context and to establish the defendants state of mind, intent and motives. Watt, 911 F. Supp. at 554 (quoting United States v. Weinberger, No. 92-235, 1992 WL 294877 (D.D.C. Sept. 29, 1992)).
The Background section serves no other purpose than to provide context and information for the charges in the Indictment. It does not charge defendant with any crimes, or purport to charge him with crimes. Defendants argument is unsupported by the document or the case law and, therefore, his motion to dismiss all counts because of duplicity based on incorporation of the Background section into the other counts should be denied.
B. COUNT 35 IS NOT DUPLICITOUS WHEN INCORPORATING BY REFERENCE
Count 35, by incorporating paragraphs 26 and 28 of the Indictment by reference, is not duplicitous. Again, defendant ignores the plain reading of the federal rules, which state [a]llegations made in one count may be incorporated by reference in another count. Fed. R. Crim. P. 7(c)(1); United States v. Gordon, 253 F.2d 177, 180 (7th Cir. 1958). The purpose of the rule is to avoid the repetition that is typical in cases such as the instant one. In the Indictment at bar, Count 34 describes an agency of the United States Department of Agriculture in paragraph 26, then, in paragraph 27, sets a meeting between the agency and the defendant in context. After describing defendant's intent in paragraph in paragraph 28, the Indictment recites the critical events of the meeting between the defendant and USDA Office of Inspector General agents that led to defendant violating the identified statute. Those factual events also formed the basis for the separate charge in Count 35. Repeating the paragraphs of Count 34 in Count 35 would be inefficient and unnecessarily repetitious. It is clear from the structure of Count 35 that the allegations are to be considered separate and apart from any other paragraphs. In any event, the remedy for any potential confusion that may occur from duplicity is the use of jury instructions and not dismissal of the count.
C. COUNT 35 IS NOT DUPLICITOUS IN ITS CHARGING SCHEME
Defendant also argues that Count 35 is duplicitous because it charges three provisions of 18 U.S.C. § 1512(b) in one count. The defendant has, again, misinterpreted the case on which he relies, and puts forward a strained and unsupportable reading of the statute.
When a statute specifies several alternative ways in which an offense may be committed, the indictment may allege the several ways in the conjunctive; this fact neither makes the indictment bad for duplicity nor precludes a conviction if only one of several allegations linked in the conjunctive in the indictment is proven. United States v. McCann, 465 F.2d 147, 162 (5th Cir. 1972). Defendant does not quarrel with this proposition. (Mot. To Dismiss All Counts, at 14).
It is a well recognized rule of criminal pleading that crimes charged in the conjunctive may be proved in the disjunctive. See Blockburger v. United States, 284 U.S. 299, 304 (1932); Bins v. United States, 331 F.2d 390, 393 (5th Cir. 1964); United States v. North, 708 F. Supp. 372, n.5 (D.D.C. 1988). Such conjunctive allegations contained in a single count do not render the count duplicitous. The evidence for each of the provisions alleged in Count 35 will be the same. It is the governments position that the evidence that will be provided will demonstrate a violation of Sections 1512(b)(2)(A), (B) and 1512(b)(3). None of the sections will require proof beyond what is required to sustain a conviction of the other sections.
The proof will be that during an April 1, 1994 meeting between the defendant and agents of the USDA Inspector Generals Office, the agents asked the defendant to produce an itinerary to which he was referring while discussing his travel to Dallas, Texas and a professional football game that he attended there. Defendant agreed to produce the document. On April 8, 1994, defendant directed a member of his staff to remove from the itinerary, certain information which he had referred to in his interview with the agents. Defendant did not tell the individual that he had referred to some of this information while being interviewed by the agents on April 1, 1994. He provided another reason to the individual for the removal of the information. This individual then went to a second member of defendant's staff and relayed the instructions and defendants reasons for the instructions. The itinerary was altered, returned to the first individual, who showed the altered document to defendant. The document was delivered to the agents on April 8, 1997, at defendants direction. It is the governments position, and the evidence will show, that this conduct and activity violated each of the provisions alleged in Count 35. No other proof will be needed to demonstrate a violation of any of the three provisions charged. As such, the count is not duplicitous. A jury instruction will provide the jury the proper guidance on how to proceed when deliberating.
When making an inquiry into a claim of duplicity, one begins with an analysis of the statute to determine what the laws, by their very nature, contemplate. United States v. Kearney, 444 F. Supp. 1290, 1293 (S.D.N.Y. 1978). The statute here proscribes tampering with a witness. Section 1512(b) reads:
(b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to ----
The statute then sets out the proscribed activity in Sections (1), (2) with subsections (A) through (D), and (3). Defendant Espy was charged with violations of Sections (2)(A), (B) and Section (3), which, following Section (b) above, read:
(2) cause or induce any person to ---
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the objects integrity or availability for use in an official proceeding;
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States information relating to the commission or possible commission of a Federal offense or a violation for conditions of probation, parole, or release, pending judicial proceedings;
shall be fined under this title or imprisoned . . ., or both. [emphasis added]
The statutory construction shows Congress clearly designed the provisions to show alternative ways of violating them. The or, which actually follows both sections (C) and (D) of the statute, shows that the statute may be violated in a number of ways. The introductory clause in (b) demonstrates that the same level of intent is required for any of the proscribed activities. As demonstrated hereinabove, it is well recognized in the law that such conjunctively-pled sections in an indictment are allowable when the statute provides the sections disjunctively and the proof for violation of one section is the same as others. Such is the case here.
Defendant argues that the Fourth Circuit in United States v. Floresca, 38 F.3d 706 (9th Cir. 1994) expressly held that each of the subsections under 18 U.S.C. § 1512(b) constitute distinct and separate offenses, thus preventing a pleading of these provisions in the conjunctive. (Mot. to Dismiss All Counts, at 13.) The government charged the defendant in Floresca with violating 18 U.S.C. § 1512(b)(1) which generally proscribes tampering with a witness in a federal investigation or subsequent proceeding with the intent to influence, delay or prevent the testimony of the witness. The district court, at trial, read to the jury, during its instructions, the applicable language of Section 1512(b)(1), which was alleged in the indictment. However, instead of reading the jury instructions for that section, at the governments request, without objection, the court instructed the jury on the elements of 18 U.S.C. § 1512(b)(3), a section on which the defendant had not been indicted. As a result, the Fourth Circuit found that the defendant had been convicted of an offense for which he had not been indicted by the reading of the instructions from a different provision. This was, in effect, a constructive amendment and improper broadening of the charges considered by the Grand Jury. 38 F.3d at 709-712. However, unlike defendants suggestion of outright dismissal, the Fourth Circuit found that, even with a more egregious outcome than duplicity, the proper remedy was reversal of the conviction and a remand to the district court. Id. at 714. Floresca simply does not stand for the proposition for which defendant cites it.
Defendants citation to United States v. Conley, 826 F. Supp. 1536 (W.D. Pa. 1993) for the proposition that Count 35 does not merely charge alternative means of violating a single statutory offense is misplaced. (Mot. to Dismiss, at 15). The court in Conley found that 18 U.S.C. § 1956 (Laundering of Monetary Instruments), defined the allowable unit of prosecution for monetary instrument transactions within the statute itself. Any pleading in an indictment which involved monetary instruments of more than $10,000 exceeded the prosecutable unit and was, therefore, by statutory definition, duplicitous. Id. at 1543. Section 1512(b) does not have such a prosecutable unit definition, and, therefore, does not fall under the analysis of Conley.
The defendant has made the same mistake with its analysis of United States v. Kimberlin, 781 F.2d 1247 (7th Cir. 1985). Kimberlin involved a 18 U.S.C. § 912 which, by case law, has been found to constitute two separate offenses: 1) the false impersonation of a federal official coupled with an overt act in conformity with the pretense and 2) the false impersonation of a federal official coupled with the demanding or obtaining of an item. This case holds that where a statute has been found to constitute two separate offenses, the offenses must be plead in separate counts. Here, with Section 1512(b), there has been no such finding by the courts. As argued hereinabove, defendants reliance on Floresca is misplaced.
A duplicitous indictment charges two or more separate and distinct crimes in a single count. United States v. Burton, 871 F.2d 1566, 1573 (11th Cir. 1989). However, where a criminal statute allows several alternative ways in which the statute may be violated and each is subject to the same punishment, the indictment may charge any or all of the acts conjunctively, in a single count, as constituting the same offense, and the government may satisfy its burden by proving that the defendant, by committing any one of the alleged acts, violated the statute. Id. That is the situation in Count 35 of the Indictment. It is not duplicitous.
D. THE PROPER REMEDY FOR A DUPLICITOUS COUNT IS A JURY INSTRUCTION
Finally, even assuming arguendo that some part of the governments indictment is deemed duplicitous, the defendant incorrectly identifies the proper remedy. The defendant argues that the only remedy for duplicity in this situation is nothing short of dismissal. Duplicity is not fatal to an indictment. United States v. Droms, 566 F.2d 361, 363 n.1 (2d Cir. 1977) (duplicity and multiplicity effects only pleading rules and thus are not fatal to an indictment, but may be cured by reformulation). Bins, the case that the defendant cites for the proposition that dismissal is the only remedy, actually held that there is only reversible error when the duplicitous count is not remedied by the trial judge at some point before conviction. See Id. 331 F.2d at 390. Bins holds that [t]he failure to correct the duplicitous nature of the indictment in some manner was error. Id. at 393.
Courts must weigh any alleged duplicity in an indictment against the purposes of the prohibition against duplicity. United States v. Bruce, 89 F.3d 886, 890 (D.C. Cir. 1996); United States v. Shorter, 608 F. Supp. 871, 879 (D.D.C. 1985). Those purposes are generally held to be: 1) prevention of double jeopardy; 2) assurance of adequate notice to the defendant; 3) the provision of a basis for appropriate sentencing; and 4) the danger of that a conviction was produced by a verdict that may not have been unanimous as to any of the crimes charged. Bruce, 89 F.3d at 890; see also, Shorter, 608 F. Supp. at 879. In the instant case no such fears exist. Defendant has not seriously complained of any of the concerns save the fear of the non-unanimous verdict. (Mot. To Dismiss All Counts, at 5). The danger posed by the threat of double jeopardy is almost non-existent in the present case because defendants duplicity objection to Count 35 involves only one statute and/or one discreet event on a date certain. The objection to the other counts is equally non-compelling since they center around the receipt of items from listed sources over listed periods of time. Whether convicted or acquitted of the charges, the defendant will be able to protect himself from a second prosecution.
Notice is not an issue in this case. Defendant has had the charges fully amplified by the Rule 16 discovery provided to him. The Indictment provides him with a full and precise version of the matters, and his motions demonstrate him to be fully familiar with them all. Indeed, his motions argue that there is too much information in the Indictment, requiring parts to be stricken. The problem of sentencing, the third issue, is actually a subset of the fourth issue, fear of a non-unanimous verdict. However, the proper method of dealing with this problem is not dismissal of the indictment.
The case law overwhelmingly supports the proposition that appropriate jury instructions will cure most potential problems of duplicity. Bruce, 89 F.3d at 890 (the judge carefully instructed the jury that they must unanimously agree on the overall scheme and at least one of the specified acts in furtherance of the scheme thus eliminating any possible problems with duplicity in the count); Shorter, 608 F. Supp. at 881-2; Kimberlin, 781 F.2d at 1251 (the district courts instruction to the jury clearly limited the jurys inquiry to the elements constituting a violation . . . . The cases acknowledge that such limiting instructions guard against the possibility of conviction by a nonunanimous verdict.); United States v. Robinson, 651 F.2d 1188, 1195 (6th Cir. 1981) (Contrary to the defendants [Robinsons] argument, dismissal of the indictment is not the proper remedy for duplicity.); Bins, 331 F.2d at 393 (the district court [in a case the court was distinguishing], through its instruction to the jury, limited the trial strictly to a single charge. This limitation was repeated several times. No such limiting instruction was given in the instant case); Kearney, 444 F. Supp. at 1295; but see United States v. Hardy, 762 F. Supp. 1403, 1410 (D. Haw. 1991) (trial held pursuant to an indictment with a conspiracy count that contained, as an overt act, a discreet and completely separate conspiracy with different conspirators; the court ruled that this pleading violated the defendants Fifth and Sixth Amendment rights; however, the court did rule that jury instructions would not cure the problem but noted that a duplicity objection can easily be made before trial because a duplicity claim is directed at the face of indictment and not the evidence made at trial.). A proper jury instruction would eliminate the third and fourth concerns on duplicity, thus making the count proper as provided.
Moreover, dismissal is inappropriate where a defendant has anticipated the governments proof. United States v. Todd, 964 F.2d 925, 928 (9th Cir. 1992) (Even if the . . . indictment were technically duplicitous, we would not reverse on that ground unless [the defendant] was misled and thereby prejudiced); Kimberlin, 781 F.2d at 1250-1251 ([a]lthough the defendant did request a bill of particulars . . . [the] request did not indicate that defendant was confused as to [which prong of the statute the government would proceed]); United States v. Drury, 964 F.2d 925, 928 (5th Cir. 1982) (despite an allegation of duplicity, defendant anticipated the prosecutions proof and thus defendant received sufficient notice of the charges against him; therefore, even if the indictment was technically duplicitous, it was not prejudicially so.). Here, defendant has demonstrated that he is very familiar with the facts and specifics of the Indictment. He is on notice as to the charges and is able to prepare his defense. Dismissal is not an option in this situation.
The counts of the Indictment do not pose the problem of duplicity. The defendants arguments are based on strained and unsupported reasoning. Appropriate jury instructions will insure that any potential duplicity issues are addressed and properly resolved. For the reasons stated, defendants motions to dismiss all counts based on duplicity should be denied.
Date: November 20, 1997 Respectfully submitted,
OFFICE OF INDEPENDENT COUNSEL
In Re Alphonso Michael (Mike) Espy
Donald C. Smaltz, Independent Counsel
William F. Fahey
Roscoe C. Howard, Jr.
Nathan J. Muyskens
103 Oronoco Street, Suite 200
Alexandria, Virginia 22314
Tel: (703) 706-0010
Fax: (703) 706-0076
 The government need not have its theory of liability under Pinkerton v. United States, 328 U.S. 640 (1946), explained in the charging documents. Edmond, at 269.
 Defendant gives no page cite in Floresca for this proposition.
 Courts considering the issue have held that a trial courts refusal to dismiss a duplicitous indictment constitutes harmless error when there is no doubt that the jury verdict was unanimous or when Congress intended two separate offenses. See United States v. Dean, 969 F.2d 187, 195 (6th Cir. 1992).