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132. Sample Memorandum Re Multiplicity


Defendant XXXX X. XXXXX, joined by his four co-defendants, has moved to compel the government to elect between Counts Nine through Eleven (interstate shipment of adulterated food) and Counts Twelve through Fourteen (interstate shipment of misbranded food).[FN1] He alleges that these two groups of counts are multiplicitous -- i.e., they charge a single offense in more than one count.

FN1. The indictment does not charge defendants XXXXXX and XXXXX with any of the counts that XXXX is challenging. They therefore lack standing to join in his motion.

In enacting the Federal Food, Drug, and Cosmetic Act ("FDC Act"), Congress intended that conduct constituting the adulteration and misbranding of food give rise to separate offenses. In addition, in this case, proof of the adulteration counts will require different facts from proof of the misbranding counts. Accordingly, under longstanding precedent, the counts are not multiplicitous, and the Court should deny XXXXX's motion.



Determination of whether counts are multiplicitous is a two-step process. First, a court must decide whether Congress, in enacting the statutory provisions underlying the charges, intended to create separate offenses. If Congress' intent is unclear, the court should then apply the test that the Supreme Court created in Blockburger v. United States, 284 U.S. 299 (1932). United States v. Miller, 870 F.2d 1067, 1071 (6th Cir. 1989). See also United States v. Duncan, 850 F.2d 1104, 1108 n.4 (6th Cir. 1988); 1 C. Wright, Federal Practice and Procedure, § 142 at 476-78 (1982).

In Blockburger, the Supreme Court established the following test for multiplicity:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, 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.

284 U.S. at 304 (emphasis added). On numerous occasions, the Supreme Court has reconfirmed vitality of this standard. E.g., Ball v. United States, 470 U.S. 856, 861 (1985).

Counts Nine through Eleven and Counts Twelve through Fourteen all allege violations of Section 301 of the FDC Act, 21 U.S.C. § 331 (hereinafter "§ 331"). Section 331(a) makes unlawful the "introduction or delivery for introduction into interstate commerce of any food . . . that is adulterated or misbranded." 21 U.S.C. § 331(a). Counts Nine through Eleven charge that, on three separate dates, the XXXXX defendants caused the introduction into interstate commerce of honey that was adulterated within the meaning of 21 U.S.C. § 342(b)(2) because corn syrup had been partially substituted for honey, a valuable constituent of the food. See Indictment at p. 15. The same shipments underlie Counts Twelve through Fourteen. However, in those counts, the indictment charges that the food was also misbranded within the meaning of an entirely different section of the FDC Act, 21 U.S.C. § 343(a)(1), because its labeling was false and misleading. Id. at p. 16.

The Supreme Court has held that Congress intended § 331 to create two separate offenses for adulteration and misbranding. In United States v. Wiesenfeld Warehouse Co., 376 U.S. 86 (1964), the Court stated:

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

376 U.S. at 89.[FN2]

FN2. In Wiesenfeld, the Supreme Court was interpreting § 331(k). However, the difference between § 331(k) and § 331(a) does not affect the multiplicity analysis. Section 331(k) makes it unlawful to adulterate or misbrand food that is being held for sale after shipment in interstate commerce. 21 U.S.C. § 331(k). As noted above, § 331(a) makes it unlawful to ship interstate commerce food that already is adulterated or misbranded.

Thus, it is clear that the challenged counts cannot be multiplicitous. A Blockburger analysis leads to the same conclusion. In order to prevail on the adulteration counts, the government will have to show what honey is and prove that corn syrup is not one of its constituents. By contrast, to obtain convictions on the misbranding counts, the government will need to demonstrate how the honey was labeled and to convince the jury that such labeling was false and misleading. Each set of counts therefore involves proof of different facts.

Virtually every court that has considered the issue has concluded that an indictment is not multiplicitous if it charges adulteration and misbranding in violation of § 331 in separate counts. As XXXXX concedes (XXXXX Memorandum ("Mem.") at 3), United States v. Beech-Nut Nutrition Corp., 659 F. Supp. 1487 (E.D.N.Y. 1987), "is on all fours with the instant case." In Beech-Nut, the indictment identified numerous shipments of allegedly phony apple juice. 659 F. Supp. at 1495. For each shipment, the defendants, like the XXXXXs here, were charged with an adulteration count and a separate misbranding count. Id. And, like the XXXXXs, they moved to compel an election between counts. Id.

The district court denied their motion. It first considered the legislative history behind the FDC Act, and, consistent with Wiesenfeld, concluded as follows:

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.

Id. at 1496 (emphasis added). It then applied the Blockburger test, and ruled:

The question here is whether the crime of introducing adulterated food into interstate commerce requires proof of an element which is not required in proving the crime of introducing misbranded foods into interstate commerce. The answer is yes. A food is adulterated if it is diluted or depreciated in quality [or] if it fails to come to the standards set by law as to ingredients . . . . 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.

Id. (citations omitted) (emphasis added).

Recently, Judge Bell in the Western District of Michigan also chose to follow Beech-Nut in a case virtually identical to this one. See United States v. Flavor Fresh Foods Corp., No. 1:93-CR-21, slip op. at 3-4 (W.D. Mich. August 5, 1993) (a copy of which is attached as Exhibit 1). The indictment in Flavor Fresh charged various participants for their roles in a scheme to defraud the public by selling a mixture of sugar and orange juice concentrate as purportedly pure orange juice. Seven counts in the indictment charged the defendants with interstate shipment of adulterated food; another seven counts alleged that the same shipments constituted the interstate shipment of misbranded food. Slip op. at 2. Although Judge Bell found Beech-Nut persuasive, he also did an independent Blockburger analysis and determined that the indictment satisfied the Blockburger test. Id. at 4, n.3.

Other courts, too, have interpreted § 331 as giving rise to separate offenses for adulteration and misbranding. In United States v. Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d 532 (8th Cir. 1981), cert. denied, 455 U.S. 1016 (1982), the Eighth Circuit held that an indictment that charged in separate counts that a single lot of drugs was adulterated and misbranded in violation of § 331(k) was not multiplicitous. 651 F.2d at 644-47. The court ruled:

Thus, it is clear that separate prosecutions for misbranding drugs and adulterating drugs are consistent with the intent of Congress and are within the language of the statute. Nor do Counts V and VI conflict with the rule of [Blockburger] . . . . These crimes are distinct, and different facts were proved to support conviction.

Id. at 546 (emphasis added). The Eighth Circuit also acknowledged that the principles enunciated above apply with equal force to prosecutions for adulterated and misbranded food. Id. at n.26. See also United States v. Torigian Laboratories, Inc., 577 F. Supp. 1514, 1518-19 (E.D.N.Y.), aff'd mem., 751 F.2d 373 (2d Cir. 1984) (applying the Blockburger test to permit multiple counts of adulteration and misbranding charges under § 331(a) with respect to shipments of the same lots of devices).

XXXXX argues that this Court should decline to follow Beech-Nut because that decision is inconsistent with an earlier opinion published by a different judge from the Eastern District of New York. XXXXX Mem. at 5-6. In United States v. Bel-Mar Laboratories, Inc., 284 F. Supp. 875, 885-86 (E.D.N.Y. 1968), the district court, in dicta, stated that separate counts charging the same shipments of drugs as both adulterated and misbranded in violation of § 331(a) were multiplicitous. However, as the Beech-Nut court demonstrated in rejecting Bel-Mar, the Bel-Mar judge did not "consider the legislative history of § 331(a) or apply the Blockburger test." Beech-Nut, 659 F. Supp. at 1496. Accordingly, Bel-Mar is not persuasive authority.

XXXXX also contends that the Blockburger analysis is inapplicable to § 331(a) because the alleged criminal conduct arises from a single statutory provision that defines alternative means of violation. XXXXX Mem. at 4-5. According to him, in order to avoid a finding of multiplicity under Blockburger, the challenged counts must arise under either different statutes or different sections of the same statute. Id. XXXXX cites no authority for his theory. The Sixth Circuit has rejected it.

In Miller, supra, the defendant argued that it was improper for him to be charged with, convicted of, and punished for two counts of violating the same statutory section, 21 U.S.C. § 841(a)(1). 870 F.2d at 1068-69. That provision makes it "unlawful for any person knowingly or intentionally -- (1) to manufacture . . . or possess with intent to . . . distribute . . . a controlled substance." 21 U.S.C. § 841(a)(1). Miller had been charged both with manufacturing marihuana and possessing marihuana with the intent to distribute it. 870 F.2d at 1068. In attacking the consecutive sentences that he received, Miller, like XXXXX, contended that Blockburger did not apply because only a single statutory section defined his crimes. Id. at 1071.

The Sixth Circuit found no merit in Miller's argument. It held that Blockburger established a rule of statutory construction that did not hinge on whether there was more than one source for the allegedly multiplicitous charges. Id. In addition, the court of appeals focused on the language of the statute before it, and emphasized that Congress had expressly used the disjunctive in defining the illegal conduct, thus demonstrating its intent to create more than one offense. Id. As XXXXX acknowledges (XXXXX Mem. at 2), Congress also wrote § 331(a) in the disjunctive. According to the Miller court:

[A]lthough defendant places great weight on the fact that Congress placed the manufacturing and possession with intent to distribute offenses into one subsection, defendant ignores the fact that these offenses are proscribed in the disjunctive ("manufacture . . . or possess with intent . . . to distribute"), thus permitting prosecution where either offense occurs. . . . The use of the disjunctive here indicates that Congress intended to create different offenses, and thus the statutory organization is not controlling.

Id. at 1071-72 (emphasis in the original).Here, as demonstrated above, the legislative history of § 331 shows that Congress intended this provision to give rise to separate crimes for both adulteration and misbranding. See Wiesenfeld, 376 U.S. at 89; Beech-Nut, 659 F. Supp. at 1496. The statute's use of the disjunctive underscores that intent.[FN3]

FN3. XXXXX also reads the indictment too narrowly in claiming that the challenged counts arise under a single section of the FDC Act. In describing the manner in which the XXXXX defendants adulterated honey, the indictment incorporates 21 U.S.C. § 342(b)(2) (see Indictment at p. 15); in describing the manner in which they engaged in misbranding, the indictment incorporates 21 U.S.C. § 343(a)(1). See Indictment at p. 16.

Even if the challenged counts were multiplicitous -- which they are not -- compelling an election is not the only (or preferred) remedy. "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 cured post-trial by merging the convictions and permitting only a single sentence for each merged count.[FN4] In Ball, supra, the Supreme Court recognized the propriety of allowing multiple counts to go to trial and dealing with the issue of multiplicity post-trial:

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 jury 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.

470 U.S. at 865. A similar procedure could be followed here.

FN4. In United States v. Barrett, 933 F.2d 355, 361 n.4 (6th Cir. 1991), the Sixth Circuit pointed out that, with the advent of the Sentencing Guidelines, the danger of multiple sentences has been largely obviated. Here, because this is a fraud prosecution, the number of counts of conviction will not influence the length of any sentence, other than setting the outer limit of the term of confinement. See U.S.S.G. §§ 1B1.3, 2F1.1, and 5G1.2.

CONCLUSIONFor the foregoing reasons, the Court should deny the Motion to Compel Election by the Government of Multiplicitous Counts.

Respectfully submitted,

SAUL A. GREEN United States Attorney

BLONDELL L. MOREY (P23396) Assistant United States Attorney 211 W. Fort Street, Suite 2300 Detroit, Michigan 48226 (313) 226-9666

______________________________ JAY I. BRATT ANGELA M. GUNTER Attorneys Office of Consumer Litigation U.S. Department of Justice P.O. Box 386 Washington, D.C. 20044 (202) 307-04144

[cited in USAM 4-8.240]

Updated June 5, 2015