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131. Sample Memorandum Re Multiplicity


XXX contends that the Indictment impermissibly charges him with the same crimes in Counts 14-21 and Counts 22-29. Similarly, he asserts that Counts 30 and 31, and Counts 32 and 33, respectively, also impermissibly allege violations of the same offense. He concludes, therefore, that the government must elect between the various sets of counts, and that the unselected series of counts must be stricken from the Indictment. (Motion, ¶ 5).

Counts 14 through 21 charge interstate shipment of adulterated food in violation of 21 U.S.C. § 331(a). Counts 30 and 32 charge adulteration of a food after shipment in interstate commerce in violation of 21 U.S.C. § 331(k). The foods are alleged to be adulterated within the meaning of two definitions in the Food, Drug, and Cosmetic Act: (1) because they contained substitute ingredients (21 U.S.C. § 342(b)(2)); and (2) because they contained added ingredients whose purpose was to make the foods appear to be better and of greater value than they actually were (21 U.S.C. § 342(b)(4)).

By contrast, Counts 22 through 29 charges interstate shipment of misbranded food in violation of 21 U.S.C. § 331(a), and Counts 31 and 33 charge the misbranding of a food after shipment in interstate commerce in violation of 21 U.S.C. § 331(k). While the actual shipments and production batches charged for the misbranding and adulteration counts are the same, the foods are alleged to be misbranded within the meaning of three entirely different definitions in the Food, Drug, and Cosmetic Act from those definitions that apply to the adulteration counts. The Indictment alleges that the foods were misbranded (1) because their labeling was false and misleading (21 U.S.C. § 343(a)(1)); (2) because the food offered for sale was labeled under the name of another (21 U.S.C. § 343(b); and (3) because they failed to conform to the standard of identity promulgated by FDA for products labeled as orange juice from concentrate (21 U.S.C. § 343(g)).

It is therefore clear from the face of the Indictment that proof of the adulteration counts will involve evidence of different facts from the facts that will be necessary to establish the misbranding claims. This fact is sufficient to establish that there is no multiplicity of charges. See Blockburger v. United States, 284 U.S. 299, 304 (1932) (in evaluating a claim of multiplicity, "the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not"); see also Ball v. United States, 470 U.S. 856, 861 (1985); United States v. Louisville Edible Oil Products, Inc., 926 F.2d 584, 588 (6th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 177 (1991).

Other courts when confronted with indictments charging adulteration and misbranding counts that arise out of the same shipments or production lots have agreed that such charges pose no problem of multiplicity. For example, in United States v. Beech-Nut Nutrition Corp., 659 F. Supp. 1487 (E.D.N.Y 1987) and in United States v. Flavor Fresh Foods Corporation, No. 1:93-CR-21 (W.D. Mich. August 5, 1993) (copy attached) -- both of which involved allegations of the illegal addition of sugar to juice products -- district courts were confronted with indictments that charged both an adulteration count and a misbranding count for each shipment of product. In both cases, the courts rejected claims that such charges were impermissible:

A food is adulterated if it is diluted or depreciated in quality, if it fails to come to the standards set by law as to ingredients or to which any foreign substance, wholesome or unwholesome, is added. On the other hand, a food is misbranded if its label is false or misleading. These definitions clearly show that a product may be misbranded without necessarily being adulterated and vice versa.[FN1]

See Flavor Fresh Foods, slip op. at 4 (quoting Beech-Nut Nutrition Corp., 659 F. Supp. at 1496). Other courts have reached a similar conclusion. See, e.g., United States v. Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d 532, 546 & n.26 (8th Cir. 1981) ("separate prosecutions for misbranding drugs and adulterating drugs are consistent with the intent of Congress and are within the language of the statute"), cert. denied, 455 U.S. 1016 (1982); see also United States v. Torigian Laboratories, Inc., 577 F. Supp. 1514, 1518-19 (E.D.N.Y.) (applying the Blockburger test to permit multiple counts of adulteration and misbranding charges with respect to the same lots of devices), aff'd mem., 751 F.2d 373 (2d Cir. 1984).[FN2]

FN1. Additionally, the Beech-Nut court found that the legislative history supported the bringing of separate charges to allege that a particular shipment was misbranded and adulterated:

The food legislation was meant to protect the people (i) against unwholesome foods and (ii) against deception in the sale of commodities. S.Rep. No. 301, 58th Cong., 2d Sess. 11, 14, 21, 22 (1906). The legislative history of 21 U.S.C. § 331(a) indicates that a single shipment of "misbranded AND adulterated" food may constitute separate offenses.

659 F. Supp. at 1496.

FN2. This conclusion is consistent with United States v. Wiesenfeld Warehouse Co., 376 U.S. 86 (1964), in which the Supreme Court stated that:

The language of [§ 331k] unambiguously defines two distinct offenses with respect to food held for sale after interstate shipment . . . . For the most part, acts resulting in misbranding and acts resulting in adulteration are wholly distinct.

Id. at 89.

The Indictment here is not multiplicitous, and XXXX' claim to the contrary should be denied.[FN3]

FN3. Even if the various counts were multiplicitous, the proper time for remedying such a deficiency would be after conviction rather than before. "The principal danger in multiplicity is that the defendant will be given multiple sentences for the same offense." 1 C. Wright, Federal Practice and Procedure § 145 at 524-26 (1982). That can be remedied post-trial by merging the convictions and permitting only a single sentence for each merged count. See Ball, 470 U.S. at 865 ("If, upon trial, the district judge is satisfied that there is sufficient proof to go to the jury on both counts, he should instruct the as to the elements of each offense. Should the jury return guilty verdicts, however, the district judge should enter judgment on only one of the statutory offenses."); cf. United States v. Barrett, 933 F.2d 355, 361 n.4 (6th Cir. 1991) (noting that, with the advent of the Sentencing Guidelines, the dangers of multiple sentences has been largely obviated).

[cited in USAM 4-8.240]

Updated June 5, 2015