ISSUE: In situations in which the alleged criminal conduct involves a series of activities, should the indictment allege one count encompassing all of the acts or one count for each act?
The issue has been framed in two judicial concepts: duplicity and multiplicity, terms that are often confused. Duplicity is the joining in a single count of two or more distinct and separate offenses; multiplicity is the charging of a single offense in several counts. See 1 C. Wright, Federal Practice and Procedure, § 142 at 469 (1982); United States v. Burton, 871 F.2d 1566, 1573 (11th Cir. 1989)(indictment not duplicitous if it charges conjunctive allegations under a statute that provides for alternative ways of violating the statute). Duplicity is generally not fatal to the indictment (United States v. Droms, 566 F.2d 361, 3633 n.1 (2d Cir. 1977)(duplicity only a pleading rule and would in no event be fatal to count)), but in some cases a duplicitous indictment may obscure the specific charges and violate the defendant's constitutional right to notice of the allegations. United States v. Duncan, 850 F.2d 1104, 1108 n.4 (6th Cir. 1988), cert. denied, 493 U.S. 1025 (1990).
The issue presented is the proper unit of prosecution. The tests commonly used are: (1) identical proof and (2) legislative intent. The first test simply involves the determination of whether each offense requires proof of an additional fact that the other does not. See United States v. Blockburger, 284 U.S. 299 (1931); United States v. Albrecht, 273 U.S. 1 (1927). The test is designed to guard against the possibility that confusion as to the basis of the verdict may subject the defendant to double jeopardy. The second test is legislative intent. This test often involves the determination of whether the Congress intended to prohibit each individual act or a course of conduct composed of a series of acts. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218 (1952); Ebeling v. Morgan, 237 U.S. 625 (1915).
A defendant violates 18 U.S.C. § 1001 each time a false statement is made. If a document contains numerous false statements, the government need only prove one of the statements was false to obtain conviction. Warszower v. United States, 312 U.S. 342 (1941); United States v. UCO Oil Company, 546 F.2d 833, 838 (9th Cir. 1976), cert. denied, 430 U.S. 966 (1977); United States v. Edmondson, 410 F.2d 670, 673 (5th Cir.), cert. denied, 396 U.S. 966 (1969). If the false statements are contained in one document, however, it is preferable to indict only one count for the entire document. This preferred course of action is in response to expressed judicial displeasure on multi-count indictments based on one document. United States v. Fisher, 231 F.2d 99, 103 (9th Cir. 1956). Further, little is to be gained by multi-count charges in such cases, because in most cases the United States Sentencing Guidelines will embrace and punish all relevant conduct. This limitation does not apply to false testimonial statements or perjury before a grand jury but only in those cases in which the false statements are contained in one document. If the same or different false statements appear in more than one document, multiple counts are warranted. Further, separate but similar false applications are punishable as separate offenses.
In Section 1001 cases in which there are multiple false statements in a single document, care should be taken regarding the jury instructions. In such cases the instructions should make clear that the jury's decision must be unanimous regarding which statement, or statements, are false. See United States v. Boutte, 13 F.3d 855 (5th Cir.), cert. denied, 115 S.Ct. 71 (1994); United States v. Holley, 942 F.2d 916, 925-29 (5th Cir. 1991), cert. denied, 114 S.Ct. 77 (1993)(a jury charge of this nature passes muster in perjury cases in which several false statements are charged in a single count).