Indictments - Multiplicity

United States v. Bloch, 718 F.3d 638 (7th Cir. 2013)

The simultaneous possession of more than one firearm only supports one count of possession of a firearm by a convicted felon, even if more than one firearm is possessed and even if there is more than one prior conviction, or reason that the defendant is prohibited from possessing the firearm. Charging the defendant with two counts under 18 U.S.C. § 922(g) was multiplicitous.

United States v. Benjamin, 711 F.3d 371 (3rd Cir. 2013)

The defendant was twice found in possession of a firearm. He was a convicted felon. He was charged (and convicted) of two counts of possession of a firearm by a convicted felon The Third Circuit, joining the decisions of various other Circuits, held that possession of a firearm is a continuing offense and cannot be prosecuted in several counts, unless there is proof that the possession was not continuous, including constructively.

Robertson v. Klem, 580 F.3d 159 (3rd Cir. 2009)

The opposite of a multiple conspiracy problem is where a defendant is convicted of two conspiracy charges where there was but one agreement. In this case, the defendant was convicted of two counts of conspiracy to commit murder (there were two victims). Both victims were killed at the same time as the result of one conspiratorial agreement. Only one conspiracy existed and only one count of conviction could be sustained.

United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009)

The unit of prosecution for possession of child pornography is the defendant’s entire collection, not one count per image. For receipt prosecutions, however, the proper unit of prosecution is for each episode that images were received.

United States v. Zalapa, 509 F.3d 1060 (9th Cir. 2007)

The possession of a short-barreled machine gun violates two separate provisions of the registration act, 26 U.S.C. §5861. However, only one conviction and one sentence can be imposed for the possession of one weapon, regardless of the number of ways in which its possession is a violation of the registration law.

United States v. Parker, 508 F.3d 434 (7th Cir. 2007)

A defendant who possesses one firearm may not be convicted of both being a felon in possession of a firearm and being a drug user in possession of a firearm. Two convictions for this one offense are multiplicitous.

United States v. Hollis, 506 F.3d 415 (5th Cir. 2007)

A defendant may not be convicted of both being a felon in possession of a firearm and for being a fugitive in possession of a firearm. This would be multiplicitous.

United States v. Ankeny, 490 F.3d 744 (9th Cir. 2007)

The possession of several weapons by a convicted felon only amounts to one offense of possession of a weapon by a convicted felon unless the government proves that the weapons were acquired or stored at different times and places. The failure to prove this during the entry of the guilty plea required that the counts merged and all but one count should have been dismissed.

United States v. Buchanan, 485 F.3d 274 (5th Cir. 2007)

The defendant was convicted of several counts of receiving child pornography, but the evidence did not prove that there was more than one download with regard to the charged counts and even though there were several pictures, they were received as part of one transfer and, therefore, the defendant could only be convicted of one count of receiving child pornography.

United States v. Wallace, 447 F.3d 184 (2d Cir. 2006)

The defendant used a firearm to commit a drive-by shooting that was prompted by a dispute involving his drug empire. The government charged the defendant with two § 924(c) violations: using the gun in connection with the drive-by shooting and using the gun in connection with the drug conspiracy. The Second Circuit held that only one § 924(c) conviction could be sustained based on one use of the gun.

United States v. Stewart, 420 F.3d 1007 (9th Cir. 2005)

Repeating the same false statement to a law enforcement officer on two separate occasions does not constitute two separate crimes of violating § 1001, if the second false statement did not independently impair a government investigation.

United States v. Jones, 403 F.3d 604 (8th Cir. 2005)

Trial counsel was ineffective in failing to challenge the indictment as multiplicitous. The defendant was charged in one count of the indictment with being a felon in possession of a firearm in August and another count of being a felon in possession of the same firearm in October. The crime, however, outlaws the continued possession of the weapon and this cannot be multiplied by however many days, or hours, the gun is possessed as a separate crime.

Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005)

The state indictment included twenty identically worded rape allegations (over a period of several months) and twenty more identically worded sexual assaults (over the same period of months). There was no differentiation between the charges. The child victim testified that she was sexually abused by the defendant many times (i.e., twenty), but could not identify any particular date. Each count of the indictment supposedly referenced another non-specific, but separate incident. The Sixth Circuit granted habeas relief: this violated due process. There was insufficient notice of the charges and a failure to prevent the possibility of double jeopardy. The jury was not able to consider each count individually and was left with an “all or nothing” type of decision.

United States v. Walters, 351 F.3d 159 (5th Cir. 2003)

The defendant delivered a home-made bomb to a military base. Two counts of the indictment charged that he (1) used the bomb to assault a federal officer and (2) used a bomb to damage a federal building. At sentencing, the court relied on the second conviction to impose a mandatory life sentence. This was error. There was only one bomb, which detonated only once. Relying on United States v. Phipps, 319 F.3d 177 (5th Cir. 2003), the Fifth Circuit held that only one conviction could be sustained for this offense.

United States v. Leftenant, 341 F.3d 338 (4th Cir. 2003)

The defendant was arrested in possession of several counterfeit notes. This constitutes one offense, not separate offenses for each note. See also United States v. Bennafield, 287 F.3d 320 (4th Cir. 2002) (only one offense can be charged when defendant possesses several packages of cocaine); United States v. Dunford, 148 F.3d 385 (4th Cir. 1998) (one offense for possession of several guns).

United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997)

An indictment that charges the defendant with possession of a weapon in violation of 18 U.S.C. § 922(g)(1), possession by a convicted felon; and possession of the same weapon in violation of 18 U.S.C. § 922(g)(3), possession by a user of controlled substance, was multiplicitous. However, though the defendant could only be convicted and sentenced for one § 922(g) offense, the government was not necessarily required to "elect" which count to proceed on at trial. Whether to dismiss one of the counts pre-trial is left to the discretion of the trial court.

United States v. McIntosh, 124 F.3d 1330 (10th Cir. 1997)

One count in this indictment charged the defendant with concealing an asset. Another count charged him with filing a false report in the bankruptcy court. These counts were multiplicitous.

United States v. Stephens, 118 F.3d 479 (6th Cir. 1997)

The defendant possessed two separate quantities of cocaine on the same date, but at different locations. Even though the drugs were acquired at different times, this amounted to only one offense of possession with intent to distribute. Thus, the defendant could not receive a sentencing guideline gun enhancement pursuant to his possession of one cache of drugs (and a gun), and a § 942(c) sentence in connection with his possession of the other cache of drugs.

United States v. Lilly, 983 F.2d 300 (1st Cir. 1992)

In an effort to obtain one bank loan, the defendants submitted a number of fraudulent documents. This amounted to one scheme to defraud a bank under 18 U.S.C. §1344, not several schemes associated with each set of documents.

United States v. Seda, 978 F.2d 779 (2d Cir. 1992)

An indictment charging the defendant in two separate counts with bank fraud (18 U.S.C. §1344) and making a false statement to a bank in connection with a loan application (18 U.S.C. §1014) was multiplicitous. §1344 is a multi-faceted statute that is sufficiently broad to cover various types of misrepresentations and frauds. Here, the §1014 offense was simply a “species” of bank fraud. It is doubtful that this case survived the decision in United States v. Dixon, 509 U.S. 688 (1993), which held that the “modified Blockburger test” is not valid.

United States v. Coiro, 922 F.2d 1008 (2d Cir. 1991)

The defendant coached several witnesses, during one meeting, to falsify testimony. This only constitutes one offense of obstruction of justice.

United States v. Dunford, 148 F.3d 385 (4th Cir. 1998)

The defendant’s simultaneous possession of six guns and ammunition supported only one conviction under 18 U.S.C. §922(g) which prohibits possession of a firearm or ammunition by a person who is either a convicted felon or an illegal drug user.

United States v. Kimbrough, 69 F.3d 723 (5th Cir. 1995)

The rule against multiplicity stems from the 5th Amendment to the Constitution which forbids placing a defendant twice in jeopardy for one offense. Here, the defendant was charged with possession of various items of pornography. In one count he was charged with possessing several items which had been shipped in interstate commerce. In the other count, he was charged with possessing several items which were produced with materials which had been transported in interstate commerce. These counts were multiplicitous. Each count charged that the defendant possessed “three or more” such items (and this is what the statute outlawed). Though one count charged that the items traveled in interstate commerce, and the other count charged that the items were produced with materials which had traveled in interstate commerce, this distinction was artificial. Because Congress outlawed possessing three or more items, the possession of many such items could not be broken down into several counts each of which included at least three items.

United States v. Heath, 970 F.2d 1397 (5th Cir. 1992)

Even if the defendant endeavors to secure two different loans, if there is only one victim bank, there is only one scheme to defraud and there can only be one count charging this offense.

United States v. Lemons, 941 F.2d 309 (5th Cir. 1991)

One scheme to defraud a bank which involves several separate acts only constitutes one offense of bank fraud under 18 U.S.C. §1344. The statute only imposes punishment for each execution of the scheme, not each act in furtherance of the scheme.

United States v. Evans, 854 F.2d 56 (5th Cir. 1988)

The defendant furnished false identification in order to obtain both a firearm and ammunition. Though the false identification was used for two purposes, this constitutes only one offense.

United States v. Forester, 836 F.2d 856 (5th Cir. 1988)

A defendant may not be prosecuted for both attempting to manufacture methamphetamine and possessing a precursor, P2P. Possession of P2P is an interim and indispensable step in the process of manufacturing methamphetamine.

United States v. Powell, 894 F.2d 895 (7th Cir. 1990)

The indictment charged the defendant with being a member of a conspiracy to distribute cocaine, and in a separate count, charged him with a conspiracy to distribute methamphetamine. This is a multiplicitous indictment because what was in fact one conspiracy was charged in two separate counts.

United States v. Podell, 869 F.2d 328 (7th Cir. 1989)

The defendant was charged with tampering with or altering VINs. The charges related to two stolen automobiles. The indictment was multiplicitous. The statute does not create distinct offenses, one for removing and tampering a VIN and a separate offense for altering the same VIN.

United States v. Graham, 60 F.3d 463 (8th Cir. 1995)

Repeating the same false statement several times during a bankruptcy proceeding only gives rise to one false statement conviction pursuant to 18 U.S.C. §152.

United States v. Dixon, 921 F.2d 194 (8th Cir. 1991)

Defendant’s possession of numerous packets of cocaine under the bed of his hotel room and in his pocket was only one offense. The packet in his pocket was a “specimen” of the larger quantity of drugs found in the room.

United States v. Molinaro, 11 F.3d 853 (9th Cir. 1993)

Each act in furtherance of a scheme to defraud cannot be prosecuted separately; rather, the proper unit of prosecution is each execution of the scheme. Thus, the preparation of several false documents in a scheme to defraud does not constitute different offenses under the bank fraud statute.

United States v. Ravel, 930 F.2d 721 (9th Cir. 1991)

Defendant’s simultaneous possession of several stolen items was only one offense, even though he attempted to sell the goods at different times. His possession of the items could not be fragmented into separate units of prosecution coinciding with his selling the items.

United States v. Sanchez-Vargas, 878 F.2d 1163 (9th Cir. 1989)

The defendant was charged in two counts with bringing an undocumented alien into the country and transporting the alien within the country. The convictions arose from the same act. This constitutes a multiplicitous indictment and only one conviction may be authorized for the illegal conduct.

United States v. Olsowy, 836 F.2d 439 (9th Cir. 1987)

The defendant repeated a false statement to the identical question posed by a Secret Service agent on a number of occasions. He may not be prosecuted more than once for making this same false statement repeatedly.

United States v. Jewell, 827 F.2d 586 (9th Cir. 1987)

The defendant was charged with thirteen counts of having a personal interest in a government contract. The Ninth Circuit holds that he can only be indicted once for having a conflict of interest in connection with multiple signings of authorizations of payment.

United States v. Arbelaez, 812 F.2d 530 (9th Cir. 1987)

Based on a single act, a defendant may not be convicted of aiding and abetting in the distribution of cocaine and aiding and abetting the possession of cocaine with intent to distribute.

United States v. Hurt, 795 F.2d 765 (9th Cir. 1986)

The defendant’s use of the mails to place an order for three pornographic films was only one offense of using the mails for delivery of obscene materials, not three separate offenses. It is irrelevant that the films were delivered to the defendant in separate packages.

Mansfield v. Champion, 992 F.2d 1098 (10th Cir. 1993)

The defendant robbed a liquor store, taking cash from the cash register, liquor from the shelf and money from the clerk. He was prosecuted for two counts of robbery, one count dealing with the clerk’s money and the other count relating to the store’s property. This violated the double jeopardy clause. The defendant was being punished twice for the same act of robbery.

United States v. Dashney, 937 F.2d 532 (10th Cir. 1991)

The defendant split up one cash “hoard” in order to structure deposits in such a way that the bank would not file a CTR report. The government improperly charged the defendant with separate structuring offenses for each deposit. Only one offense is committed by the act of structuring transactions.

United States v. Jones, 841 F.2d 1022 (10th Cir. 1988)

A defendant may not be convicted separately for the unlawful receipt of firearms by a convicted felon as well as unlawful possession of firearms by a convicted felon.

United States v. Langford, 946 F.2d 798 (11th Cir. 1991)

In connection with the fraudulent sale of stock, the defendant made numerous mailings. Each such mailing should not have been listed as separate counts of securities fraud. A separate count should only be set forth for each separate sale or purchase of securities.

United States v. Bonavia, 927 F.2d 565 (11th Cir. 1991)

The simultaneous undifferentiated possession of multiple firearms constitutes only one offense under 18 U.S.C. App. §1202(a). Only one offense is charged under the terms of §1202(a) regardless of the number of firearms involved absent a showing that the firearms were stored or acquired at different times or places. However, if the government presents evidence at trial that the defendant, at some point in the period covered by the indictment, separated one of the weapons charged in the indictment and possessed that weapon separately – that is, at a different location – the government may treat that weapon as a separate unit of prosecution, even though that gun was seized at the same time and in the same location as other weapons charged in the indictment and had been received by defendant at the same time as the other weapons.

United States v. Winchester, 916 F.2d 601 (11th Cir. 1990)

The defendant was a fugitive from justice and a convicted felon. He was arrested in possession of a firearm. He could not be sentenced for two offenses – possession of a weapon by a fugitive and possession of a weapon by a convicted felon – on the basis of the possession of the one gun.

United States v. Eaves, 877 F.2d 943 (11th Cir. 1989)

The defendant was charged with violating the Hobbs Act by accepting payments for certain votes as a county commissioner. He was convicted on three counts, two of which related to two separate payments which were part of one bribe. The Eleventh Circuit holds that this constitutes but one offense and cannot be the subject of separate convictions and sentences.

United States v. Anderson, 872 F.2d 1508 (11th Cir. 1989)

The defendant was charged with multiple conspiracy counts alleging that he conspired to possess an unregistered firearm, conspired to transfer an unregistered firearm, and conspired to sell, convert or dispose of property of the United States. The indictment was multiplicitous in this regard. Actually, there was only one conspiracy with several objects. Since there was only one agreement, there could be only one conviction.

United States v. Anderson, 59 F.3d 1323 (D.C.Cir. 1995)

The government established that on four occasions, the defendant possessed a gun in connection with his drug conspiracy activities. Each of the alleged §924(c) violations was tied to the same drug conspiracy. This could only give rise to one §924(c) conviction.

United States v. Johnson, 909 F.2d 1517 (D.C.Cir. 1990)

The defendant was prosecuted for his possession of liquid PCP as well as PCP mixed with marijuana and packaged in small foil packets for sale. This constitutes only one act of possession of PCP.