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IN THE UNITED STATES DISTRICT COURT UNITED STATES
OF AMERICA
v. ALPHONSO
MICHAEL ESPY, Defendant 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 Page No. 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
SCHEME
11
D.
THE PROPER REMEDY FOR A DUPLICITOUS COUNT IS A JURY INSTRUCTION
17 III. CONCLUSION 22 TABLE OF AUTHORITIES Page No. CASES 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 STATUTES 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 OTHER
MATERIALS Websters
II New Riverside Dictionary (1994) 9 I. INTRODUCTION
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.
II. ARGUMENT 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.[1] 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;
or (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.)[2] 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).[3]
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. III. CONCLUSION
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
[1] 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. [2] Defendant gives no page cite in Floresca
for this proposition. [3] 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).
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