Response to Motions Concerning Multiplicity and Surplusage
Comes the United States of America, by counsel, and states as
follows in opposition to the three untitled and undated motions
defendant XXXXX X. XXXX and received by the government on March 18,
In these motions, XXX makes three unrelated claims. First, he
contends that the government violated his Sixth Amendment right to
counsel by having an informant, who was wearing a tape-recording
speak with him. Second, XXXX claims that Counts 14-21 and Counts
as well as Counts 30 and 31, and Counts 32 and 33, respectively,
multiplicitous. Finally, he alleges that the Indictment contains
surplusage that must be stricken.
XXXX' claims are untimely. They are also without merit.
Accordingly, they should be denied.
II. XXXX' CLAIMS ARE UNTIMELY
XXXX was indicted on May 15, 1992. XXXX has offered no reason
justify his delay in filing these motions, which arrived almost two
years after Indictment and within three weeks of trial. Two of the
motions challenge the form and structure of the Indictment, and
thus been available to XXXX since the date of Indictment. The third
challenges the government's evidence and has been available to XXXX
In light of this unconscionable delay, this Court should deny
III. NO SIXTH AMENDMENT VIOLATION OCCURRED
* * *
IV. THE INDICTMENT IS NOT MULTIPLICITOUS
XXXX contends that the Indictment impermissibly charges him
the same crimes in Counts 14-21 and Counts 22-29. Similarly, he
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
counts, and that the unselected series of counts must be stricken
the Indictment. (Motion, ¶ 5).
Counts 14 through 21 charge interstate shipment of
adulterated food in violation of 21 U.S.C. § 331(a).
30 and 32 charge adulteration of a food after shipment in
interstate commerce in violation of 21 U.S.C. § 331(k). The
are alleged to be adulterated within the meaning of two definitions
the Food, Drug, and Cosmetic Act: (1) because they contained
ingredients (21 U.S.C. § 342(b)(2)); and (2) because they
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.
By contrast, Counts 22 through 29 charges interstate shipment
misbranded food in violation of 21 U.S.C. § 331(a), and
Counts 31 and 33 charge the misbranding of a food after
in interstate commerce in violation of 21 U.S.C. § 331(k).
actual shipments and production batches charged for the misbranding
adulteration counts are the same, the foods are alleged to be
within the meaning of three entirely different definitions in the
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
by FDA for products labeled as orange juice from concentrate (21
It is therefore clear from the face of the Indictment that
the adulteration counts will involve evidence of different facts
the facts that will be necessary to establish the misbranding
This fact is sufficient to establish that there is no multiplicity
charges. See Blockburger v. United States, 284 U.S.
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
other does not"); see also Ball v. United
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
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
Corp., 659 F. Supp. 1487 (E.D.N.Y 1987) and in United States
Flavor Fresh Foods Corporation, No. 1:93-CR-21 (W.D. Mich.
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
a misbranding count for each shipment of product. In both cases,
courts rejected claims that such charges were impermissible:
A food is adulterated if it is diluted or depreciated
quality, if it fails to come to the standards set by law as to
ingredients or to which any foreign substance, wholesome or
is added. On the other hand, a food is misbranded if its label is
or misleading. These definitions clearly show that a product may be
misbranded without necessarily being adulterated and vice
659 F. Supp. at 1496.
FN1. Additionally, the Beech-Nut court found
legislative history supported the bringing of separate charges to
that a particular shipment was misbranded and adulterated:
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 a
single shipment of "misbranded AND adulterated" food may constitute
See Flavor Fresh Foods, slip op. at 4 (quoting
Beech-Nut Nutrition Corp., 659 F. Supp. at 1496). Other
have reached a similar conclusion. See, e.g.,
States v. Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d 532,
& n.26 (8th Cir. 1981) ("separate prosecutions for misbranding
adulterating drugs are consistent with the intent of Congress and
within the language of the statute"), cert. denied,
U.S. 1016 (1982); see also United States v.
Laboratories, Inc., 577 F. Supp. 1514, 1518-19 (E.D.N.Y.)
the Blockburger test to permit multiple counts of
and misbranding charges with respect to the same lots of devices),
aff'd mem., 751 F.2d 373 (2d Cir. 1984).[FN2]
FN2. This conclusion is consistent with United
Wiesenfeld Warehouse Co., 376 U.S. 86 (1964), in which the
Court stated that:
The language of [§ 331k] unambiguously defines two
distinct offenses with respect to food held for sale after
shipment . . . . For the most part, acts resulting in misbranding
acts resulting in adulteration are wholly distinct.
Id. at 89.
The Indictment here is not multiplicitous, and XXXX' claim to
contrary should be denied.[FN3]
FN3. Even if the various counts were multiplicitous,
proper time for remedying such a deficiency would be after
rather than before. "The principal danger in multiplicity is that
defendant will be given multiple sentences for the same offense."
Wright, Federal Practice and Procedure § 145 at 524-26
(1982). That can be remedied post-trial by merging the convictions
permitting only a single sentence for each merged count. See
Ball, 470 U.S. at 865 ("If, upon trial, the district judge
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
Cir. 1991) (noting that, with the advent of the Sentencing
the dangers of multiple sentences has been largely obviated).
V. THE INDICTMENT CONTAINS NO SURPLUSAGE
XXXX claims in his third motion that the last two sentences of
paragraph 12, as well as paragraphs 18 and 19 of Count 1 of the
Indictment should be stricken as impermissible surplusage.
A motion to strike allegations in an indictment as surplusage
should be granted only where it is clear that the allegations are
relevant to the charge made and contain inflammatory and
matter. See United States v. Davis, 714 F. Supp. 853,
(S.D. Ohio 1988). "'[I]f the language in the indictment is
which the government hopes to properly prove at trial, it cannot be
considered surplusage no matter how prejudicial it may be
course, it is legally relevant).'" United States v. Thomas,
F.2d 559, 563 (6th Cir. 1989) (quoting United States v.
Inc., 482 F. Supp. 376, 391 (N.D. Ill. 1979), aff'd
sub nom. United States v. Reliable Sheet Metal
Inc., 705 F.2d 461 (7th Cir.), cert. denied, 462
1134 (1983)), cert. denied, 493 U.S. 867 (1989). The
standard for striking language in the indictment "has been strictly
construed against striking surplusage," United States v.
503 F.2d 327, 329 (6th Cir. 1974), cert. denied, 419
1124 (1975), and "only rarely has surplusage been ordered
Davis, 714 F. Supp. at 866 (quoting 1 Wright, Federal
and Procedure § 127, at 426 (2d ed. 982)).
One need go no further than review the last paragraph that
seeks to strike to assess the paucity of XXXX' assertions.
of the Indictment lists 20 overt acts that were taken in
the conspiracy. An essential element of a conspiracy in violation
U.S.C. § 371 is the allegation and proof of at least one overt
in furtherance of that conspiracy. See, e.g.,
States v. Carr, 5 F.3d 986, 990 (6th Cir. 1993); United
Meyers, 646 F.2d 1142, 1143-44 (6th Cir. 1981). As such, there
be no question that inclusion of this paragraph is proper.
Thomas, 875 F.2d at 562 n.2 (affirming district court's
to strike overt act allegations).
XXXX' other objections fare no better. He complains that
18 of the Indictment, entitled "Means and Manners," is unnecessary
because it goes into "great detail" as to issues previously
"generalized statements." (Motion, at ¶ 3). Inclusion of a
and Manners" section in an indictment is an entirely permissible
of explaining the structure of the conspiracy and the roles of each
defendant within the organization. United States v. Jiminez,
F. Supp. 351, 370 (S.D.N.Y. 1993) (refusing to strike "Means and
Methods" portion of conspiracy charge). As courts have
The determinative question in a motion to strike
is not the potential prejudice, but rather the relevance of the
allegation to the crime charged in the indictment. If the evidence
the allegation is admissible and relevant to the charge, then
prejudice, the language will not be stricken.
Id. (quoting United States v. Napolitano, 552 F.
465, 480 (S.D.N.Y. 1982).
XXXX specifically objects to the allegation in paragraph 18
alleges that XXXX and his co-conspirators "caused Moon Down and
entities acquire over 20,000,000 pounds of sugar (including liquid
sugar), the vast majority of which was mixed with, and thereafter
as though it were in fact, orange concentrate, thereby defrauding
Down's customers, others, and the consuming public of in excess of
$20,000,000." (Indictment, ¶ 18(a)). XXXX complains that this
allegation is improper because it "infers to the jurors that the
Defendants must explain what happened to the 20 million pounds of
sugar." (Motion, ¶ 5). In making this argument, XXXX ignores
fact that it is the government that must bear the burden of proving
indictment's allegations. The government is more than prepared to
While XXXX might prefer that the jury not be apprised as to the
magnitude of his fraudulent activities, that information is clearly
admissible and relevant. See United States v. Charles
Co., 217 F. Supp. 199, 201 (S.D.N.Y. 1963) ("if evidence of the
allegation is admissible and relevant to the charge, then
how prejudicial the language, it may not be stricken"); see
also United States v. Krasnoff, 480 F. Supp. 723, 730
(S.D.N.Y. 1979) (refusing to strike allegation of "massive amounts"
prescriptions, noting that it is indicative that prescriptions were
other than legitimate medical purposes). Accordingly, this
should not be stricken.
XXXX further objects to the use of the phrase "secret room" in
paragraph 18(f) of the Indictment. Use of the word "secret" aptly
describes the defendants' use of hidden area to store sugar that
later surreptitiously added to concentrated orange juice products.
described in an overt act, one of these rooms "was hidden from view
accessible only through a fake electrical control panel . . . ."
(Indictment, ¶ 19(g)). Moreover, as will be shown at trial, the
defendants' purpose for concealing the rooms where sugar was stored
to keep their usage of sugar a secret from government regulators.
the circumstances, use of the adjective "secret" to describe the
can hardly be deemed unfairly prejudicial. See, e.g.,
United States v. Gressett, 773 F. Supp. 270, 275 (D. Kan.
(references to "concealed" and "concealment" permissible where
government's proof will be that defendants accomplished fraud
concealment of transactions); United States v. Napolitano,
Supp. at 480 (reference to "the Bonanno Family of La Cosa Nostra"
because explanatory of structure of criminal association);
States v. Persico, 621 F. Supp. 842, 860 (S.D.N.Y. 1985)
references to "organized crime," "anti-bugging" equipment, and the
of such aliases as "the Beast" and "the Snake"); United States
Richter, 610 F. Supp. 480, 496 n.25-26 (N.D.Ill. 1985)
references to "laundering," which the indictment defined as
secreting" cash), aff'd mem. sub nom.,
United States v. Mangovski, 785 F.2d 312 (7th Cir.),
mem. sub nom., United States v.
Konstantinov, 793 F.2d 1296 (7th Cir.), cert.
479 U.S. 855 (1986).
Similarly, the allegation that the defendants caused "Moon
do business with various entities to provide a plausible basis for
explanations in the event defendants were ever questioned about
that Moon Down was acquiring and in fact mixing with products later
by Moon Down as unsweetened orange concentrate products,"
¶ 18(i)), is neither unfairly prejudicial nor inflammatory.
this paragraph will assist the jury in understanding nature of the
defendants' fraudulent scheme, and should therefore not be
See, e.g., United States v. Sciandra, 529 F.
320, 322 (E.D.N.Y. 1982) (permitting allegations of "false,
and fraudulent" invoices and "sham" transactions); United States
Chaverra-Cardona, 667 F. Supp. 609, 611 (N.D. Ill. 1987)
properly gave background information concerning defendant's
incarceration for narcotics offenses to prevent parts of the
from being "unintelligible to a jury"); United States v.
691 F. Supp. 1077, 1081-82 (N.D. Ill. 1988) (refusing to strike
allegations that the funding for narcotics transactions came from
illicit sources because it was relevant to the charges in the
indictment), aff'd in part, 876 F.2d 1297 (7th
1989); see also United States v. Wecker, 620
Supp. 1002, 1006 (D.Del. 1985) (refusing to strike allegations that
"while not essential to the charges, are certainly in a general
relevant to the overall scheme . . . charged").
XXXX' last challenge is directed at the last two sentences in
paragraph 12 of the Indictment which "consists of a recitation of
success of Moon Down in increasing its sales." (Motion at ¶ 3).
argues that "these recitations may infer to jurors that in order to
success, criminality is a necessary accompaniment." (Motion at
This contention is nonsensical. It can hardly be said that
individuals believe that success in business can only be realized
through criminal behavior. Nor is that the point of paragraph 12 of
Paragraph 12 discusses that an "object and goal of the
[was] to increase the sales and profits of Moon Down
. . . by concealing the fact that substantially less expensive
other ingredients were substituted for some of the orange
products defendants were falsely representing to be unsweetened
concentrated orange juice products." Through this activity, the
Indictment alleges, "defendants were able to sell products at
fraudulently inflated prices," and that, "[a]s a direct consequence
defendants' misrepresentations and unlawful acts," Moon Down's
were increased substantially.
These allegations are relevant and will assist the jury in
understanding the defendants' motives, as well as the conduct
this case. See United States v. Fishbach & Moore,
576 F. Supp. 1384, 1398 (W.D. Pa. 1983) (refusing to strike
relating to defendant corporations' size and amounts of sales);
Charles Pfizer & Co., 217 F. Supp. at 210 (refusing to
charge that the conspiracy sought to exact "unreasonably high
rev'd on other grounds, 426 F.2d 32 (2d
1970); Climatemp, Inc., 482 F. Supp. at 391-92 (refusing to
strike allegations that "give background about the sheet metal
in general and in Chicago in particular" because such matters "are
relevant to forming an understanding about the nature of this
see also Persico, 621 F. Supp. at 860 ("An
indictment may properly set forth background information relevant
defendant's motive and intent").
XXXX' claims are all without merit. Accordingly, his various
motions to dismiss should be denied.
Dated: March __, 1994 Respectfully submitted,
United States Attorney
William F. Campbell
Assistant United States Attorney
510 West Broadway, 10th Floor
Louisville, Kentucky 40202
Kenneth L. Jost
James E. Arnold
Office of Consumer Litigation
U.S. Department of Justice
P.O. Box 386
Washington, D.C. 20044
(202) 307-0048/(202) 307-00488
[cited in USAM 4-8.240]