Fed. R. Crim. P. 7(c)(1), provides:|
It may be alleged in a single count that the means by
defendant committed the offense are unknown or that he committed it
by one or
more specified means.
This provision is intended to eliminate the use of multiple
counts for the
purpose of alleging the commission of the offense by different
means or in
different ways. Although it is permissible to allege several means
in a single
count, indictments charging two or more distinct offenses in a
single count are
duplicitous. See Fed. R. Crim. P. 8(a). It is therefore
distinguish between separate means and separate offenses. A count
single continuing offense does not offend the rule against
duplicity because more
than one means, each of which could constitute an offense standing
joined in a single count. See United States v.
Berardi, 675 F.2d
894, 897 (7th Cir. 1982). See generally, C. Wright,
and Procedure: Criminal § 142 at 470-72 (2d ed.
indictment not duplicitous when charged under a statute that create
offense with multiple ways of commission; count is duplicitous when
statute which includes several offenses and prosecutor includes two
or more in
a single count).
A single conspiracy having as its object the commission of
offenses is but a single offense. See United States v.
151 F.2d 958 (10th Cir. 1945), cert. denied, 327 U.S. 785
allegation in a single count, of a conspiracy to commit several
crimes is not
duplicitous, for the conspiracy is the crime, and this is one,
its objects." See Braverman v. United States, 317
U.S. 49, 54,
(1942), quoting, Frohwerk v. United States, 249 U.S.
(1919). See also United States v. Smith, 26 F.3d
739, 753 (7th
Cir.), cert. denied, 115 S.Ct 680 (1994)(count of indictment
distribution of controlled substance and intent to distribute not
because separate acts which violate same statute); United States
987 F.2d 1261, 1265 (6th Cir. 1993)(count of indictment alleging
of fraudulent conduct not duplicitous when based on submission of
document); United States v. Cooper, 966 F.2d 936, 939 (5th
denied, 506 U.S. 980 (1992)(count of indictment alleging
distribute crack cocaine and to maintain crack house not
duplicitous because "the
conspiracy is the crime," quoting, Braverman v. United
U.S. 49, 54 (1942)).
The D.C. Circuit has ruled that "tax evasion covering several
years may be
charged in a single count as a course of conduct . . . where the
of the indictment is an allegedly consistent, long-term pattern of
directed at the evasion of taxes for these years." United
Shorter, 809 F.2d 54, 58 (D.C. Cir.), cert. denied, 484
(1987). The court's rationale, supported by the language and
of 26 U.S.C. § 7201, is based on the "nature of the proscribed
namely that "each affirmative act of tax evasion [is] intended to
of all taxes owed." Id. at 57.