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
FN1. The indictment does not charge defendants XXXXXX
XXXXX with any of the counts that XXXX is challenging. They
lack standing to join in his motion.
In enacting the Federal Food, Drug, and Cosmetic Act ("FDC
Congress intended that conduct constituting the adulteration and
misbranding of food give rise to separate offenses. In addition, in
case, proof of the adulteration counts will require different facts
proof of the misbranding counts. Accordingly, under longstanding
precedent, the counts are not multiplicitous, and the Court should
THE CHALLENGED COUNTS ARE NOT MULTIPLICITOUS
Determination of whether counts are multiplicitous is a
process. First, a court must decide whether Congress, in enacting
statutory provisions underlying the charges, intended to create
offenses. If Congress' intent is unclear, the court should then
the test that the Supreme Court created in Blockburger v. United
States, 284 U.S. 299 (1932). United States v. Miller,
F.2d 1067, 1071 (6th Cir. 1989). See also United
v. Duncan, 850 F.2d 1104, 1108 n.4 (6th Cir. 1988); 1 C.
Federal Practice and Procedure, § 142 at 476-78
In Blockburger, the Supreme Court established the
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
offenses or only one is whether each provision requires proof of
additional fact which the other does not.
284 U.S. at 304 (emphasis added). On numerous occasions, the
Court has reconfirmed vitality of this standard. E.g.,
United States, 470 U.S. 856, 861 (1985).
Counts Nine through Eleven and Counts Twelve through Fourteen
allege violations of Section 301 of the FDC Act, 21 U.S.C. §
(hereinafter "§ 331"). Section 331(a) makes unlawful the
"introduction or delivery for introduction into interstate commerce
any food . . . that is adulterated or misbranded." 21 U.S.C. §
331(a). Counts Nine through Eleven charge that, on three separate
the XXXXX defendants caused the introduction into interstate
honey that was adulterated within the meaning of 21 U.S.C. §
342(b)(2) because corn syrup had been partially substituted for
valuable constituent of the food. See Indictment at p. 15.
same shipments underlie Counts Twelve through Fourteen. However, in
those counts, the indictment charges that the food was also
within the meaning of an entirely different section of the FDC Act,
U.S.C. § 343(a)(1), because its labeling was false and
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
the Court stated:
The language of [§ 331] unambiguously defines two
distinct offenses with respect to food . . . . For the most part,
resulting in misbranding and acts resulting in adulteration are
376 U.S. at 89.[FN2]
FN2. In Wiesenfeld, the Supreme Court was
interpreting § 331(k). However, the difference between §
and § 331(a) does not affect the multiplicity analysis. Section
331(k) makes it unlawful to adulterate or misbrand food that is
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
not one of its constituents. By contrast, to obtain convictions on
misbranding counts, the government will need to demonstrate how the
honey was labeled and to convince the jury that such labeling was
and misleading. Each set of counts therefore involves proof of
Virtually every court that has considered the issue has
that an indictment is not multiplicitous if it charges adulteration
misbranding in violation of § 331 in separate counts. As XXXXX
concedes (XXXXX Memorandum ("Mem.") at 3), United States v.
Nutrition Corp., 659 F. Supp. 1487 (E.D.N.Y. 1987), "is on all
with the instant case." In Beech-Nut, the indictment
numerous shipments of allegedly phony apple juice. 659 F. Supp. at
For each shipment, the defendants, like the XXXXXs here, were
with an adulteration count and a separate misbranding count.
And, like the XXXXXs, they moved to compel an election between
The district court denied their motion. It first considered
legislative history behind the FDC Act, and, consistent with
Wiesenfeld, concluded as follows:
The food legislation was meant to protect the people
against unwholesome foods and (ii) against deception in the sale of
commodities. S.Rep. No. 301, 58th Cong., 2d Sess. 11, 14, 21, 22
The legislative history of 21 U.S.C. § 331(a) indicates that
single shipment of "misbranded AND adulterated" food may constitute
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
which is not required in proving the crime of introducing
foods into interstate commerce. The answer is yes. A food is
adulterated if it is diluted or depreciated in quality [or] if it
to come to the standards set by law as to ingredients . . . . On
other hand, a food is misbranded if its label is false or
These definitions clearly show that a product may be misbranded
necessarily being adulterated and vice versa.
Id. (citations omitted) (emphasis added).
Recently, Judge Bell in the Western District of Michigan also
to follow Beech-Nut in a case virtually identical to this
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
is attached as Exhibit 1). The indictment in Flavor Fresh
various participants for their roles in a scheme to defraud the
by selling a mixture of sugar and orange juice concentrate as
purportedly pure orange juice. Seven counts in the indictment
the defendants with interstate shipment of adulterated food;
seven counts alleged that the same shipments constituted the
shipment of misbranded food. Slip op. at 2. Although Judge Bell
Beech-Nut persuasive, he also did an independent
Blockburger analysis and determined that the indictment
the Blockburger test. Id. at 4, n.3.
Other courts, too, have interpreted § 331 as giving rise
separate offenses for adulteration and misbranding. In United
v. Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d 532 (8th
1981), cert. denied, 455 U.S. 1016 (1982), the Eighth
held that an indictment that charged in separate counts that a
lot of drugs was adulterated and misbranded in violation of §
was not multiplicitous. 651 F.2d at 644-47. The court ruled:
Thus, it is clear that separate prosecutions for
drugs and adulterating drugs are consistent with the intent of
and are within the language of the statute. Nor do Counts V and VI
conflict with the rule of [Blockburger] . . . . These
are distinct, and different facts were proved to support
Id. at 546 (emphasis added). The Eighth Circuit also
that the principles enunciated above apply with equal force to
prosecutions for adulterated and misbranded food. Id. at
See also United States v. Torigian Laboratories,
Inc., 577 F. Supp. 1514, 1518-19 (E.D.N.Y.), aff'd mem.,
F.2d 373 (2d Cir. 1984) (applying the Blockburger test to
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
opinion published by a different judge from the Eastern District of
York. XXXXX Mem. at 5-6. In United States v. Bel-Mar
Inc., 284 F. Supp. 875, 885-86 (E.D.N.Y. 1968), the district
in dicta, stated that separate counts charging the same shipments
drugs as both adulterated and misbranded in violation of §
were multiplicitous. However, as the Beech-Nut court
in rejecting Bel-Mar, the Bel-Mar judge did not
the legislative history of § 331(a) or apply the
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
from a single statutory provision that defines alternative means of
violation. XXXXX Mem. at 4-5. According to him, in order to avoid
finding of multiplicity under Blockburger, the challenged
must arise under either different statutes or different sections of
same statute. Id. XXXXX cites no authority for his theory.
Sixth Circuit has rejected it.
In Miller, supra, the defendant argued that it
improper for him to be charged with, convicted of, and punished for
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
any person knowingly or intentionally -- (1) to manufacture . . .
possess with intent to . . . distribute . . . a controlled
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
that he received, Miller, like XXXXX, contended that
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
Blockburger established a rule of statutory construction
not hinge on whether there was more than one source for the
multiplicitous charges. Id. In addition, the court of
focused on the language of the statute before it, and emphasized
Congress had expressly used the disjunctive in defining the illegal
conduct, thus demonstrating its intent to create more than one
Id. As XXXXX acknowledges (XXXXX Mem. at 2), Congress also
§ 331(a) in the disjunctive. According to the Miller
[A]lthough defendant places great weight on the fact
Congress placed the manufacturing and possession with intent to
distribute offenses into one subsection, defendant ignores the fact
these offenses are proscribed in the disjunctive ("manufacture . .
or possess with intent . . . to distribute"), thus
prosecution where either offense occurs. . . . The use of the
disjunctive here indicates that Congress intended to create
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 §
shows that Congress intended this provision to give rise to
crimes for both adulteration and misbranding. See
Wiesenfeld, 376 U.S. at 89; Beech-Nut, 659 F. Supp.
1496. The statute's use of the disjunctive underscores that
FN3. XXXXX also reads the indictment too narrowly in
claiming that the challenged counts arise under a single section of
FDC Act. In describing the manner in which the XXXXX defendants
adulterated honey, the indictment incorporates 21 U.S.C. §
(see Indictment at p. 15); in describing the manner in which
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
not -- compelling an election is not the only (or preferred)
"The principal danger in multiplicity is that the defendant will be
given multiple sentences for the same offense." 1 C. Wright,
Practice and Procedure, § 145 at 524-26 (1982). That can be
cured post-trial by merging the convictions and permitting only a
sentence for each merged count.[FN4] In Ball, supra,
Supreme Court recognized the propriety of allowing multiple counts
to trial and dealing with the issue of multiplicity post-trial:
If, upon trial, the district judge is satisfied that
is sufficient proof to go to the jury on both counts, he should
the jury as to the elements of each offense. Should the jury return
guilty verdicts, however, the district judge should enter judgment
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,
n.4 (6th Cir. 1991), the Sixth Circuit pointed out that, with the
of the Sentencing Guidelines, the danger of multiple sentences has
largely obviated. Here, because this is a fraud prosecution, the
of counts of conviction will not influence the length of any
other than setting the outer limit of the term of confinement.
See U.S.S.G. §§ 1B1.3, 2F1.1, and 5G1.2.
For the foregoing reasons, the Court should deny the Motion to
Compel Election by the Government of Multiplicitous Counts.
SAUL A. GREEN
United States Attorney
BLONDELL L. MOREY (P23396)
Assistant United States
211 W. Fort Street, Suite 2300
Detroit, Michigan 48226
JAY I. BRATT
ANGELA M. GUNTER
Office of Consumer Litigation
U.S. Department of Justice
P.O. Box 386
Washington, D.C. 20044
[cited in USAM 4-8.240]