Conjunctive and Disjunctive Elements
If the criminal statute provides that it can be violated in
then plead in the conjunctive, but instruct in the disjunctive.
v. Haymes, 610 F.2d 309 (5th Cir. 1980). To avoid uncertainty
an offense in which the statute enumerates several different acts
alternative, the practice is to plead the offense by substituting
"and" for the disjunctive "or."|
When a statute specifies several alternative ways in which an
offense may be
committed, the indictment may allege the several ways in the
this fact neither renders the indictment bad for duplicity nor
conviction if only one of the several allegations linked in the
the indictment is proven.
United States v. McCann, 465 F.2d 147, 162 (5th Cir.),
denied, 412 U.S. 927 (1972); see United States v.
F.2d 1132, 1135 (8th Cir.), cert. denied, 469 U.S. 843
statute specifies two or more ways in which an offense may be
all may be alleged in the conjunctive in one count of the
indictment, and proof
of any one of the acts conjunctively charged may establish
Thus, when the statute punishes taking, carrying away, or
indictment properly charged taking, carrying away, and concealing.
United States v. Gunter, 546 F. 2d 861 (10th Cir. 1976),
denied, 430 U.S. 947 (1977). Likewise, where the statute reads
or debauchery," the indictment should be phrased, "prostitution and
See Bayless v. United States, 365 F.2d 694 (10th
United States v. Uco Oil Co., 546 F.2d 833 (9th Cir. 1976),
denied, 430 U.S. 966 (1977).
The exception is when the alternative means of committing an
into "two conceptual groupings" which are mutually exclusive and
could result in
an obviously non-unanimous verdict. United States v.
Gipson, 553 F.2d 453
(5th Cir. 1977). The consequence of charging in the alternative
may lead to
rendering the indictment insufficient for uncertainty, as in
United States v.
MacKenzie, 170 F. Supp. 797, 799 (D.Me. 1959).
It is equally well settled, however that an indictment which
several acts constituting the statutory offense in the disjunctive
lacks the necessary certainty and is wholly insufficient.
See also United States v. Hicks, 619 F.2d 752
(8th Cir. 1980);
United States v. Klein, 850 F.2d 404, 406 (8th Cir.),
488 U.S. 867 (1988)("Federal pleading requires that an indictment
charge in the
conjunctive to inform the accused fully . . . . ").