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812. Duplicity and Multiplicity Issues

Duplicity occurs when more than one offense is alleged in the same charge. See this Manual at 919 for a general discussion of duplicity. Conversely, multiplicity occurs when two charges allege the same offense. Charges are not multiplicious if each offense requires proof of an additional fact that the other does not. See United States v. Matsinger, 191 F.2d 1014, 1018 (3d Cir. 1951)(when two checks are part of one transaction and one misapplication, it is not necessary to have separate counts for each check); United States v. Hale, 468 F.2d 435 (5th Cir. 1972)(when the defendant objected to being sentenced on each of six counts of misapplication, the court held that when each count required proof that the others did not, conviction and punishment on each count was proper).

The rule, in the absence of judicial determination to the contrary, appears to be that when a bank officer or employee is moved to embezzle, misapply or abstract bank funds or money, this impulse, even if it results in a series of transactions, constitutes a separate violation and should be charged in a separate count. Each successive impulse, no matter how much it is in common with previous ones, must be the subject of an individual count.

[cited in USAM 9-40.000]

Updated June 9, 2015