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230

Particular Allegations—Means

Fed. R. Crim. P. 7(c)(1), provides:

It may be alleged in a single count that the means by which the 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 essential to distinguish between separate means and separate offenses. A count charging a single continuing offense does not offend the rule against duplicity because more than one means, each of which could constitute an offense standing alone, is joined in a single count. See United States v. Berardi, 675 F.2d 894, 897 (7th Cir. 1982). See generally, C. Wright, Federal Practice and Procedure: Criminal § 142 at 470-72 (2d ed. 1982)(count of indictment not duplicitous when charged under a statute that create single offense with multiple ways of commission; count is duplicitous when charged under 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 numerous offenses is but a single offense. See United States v. Crummer, 151 F.2d 958 (10th Cir. 1945), cert. denied, 327 U.S. 785 (1946). "The 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, however diverse its objects." See Braverman v. United States, 317 U.S. 49, 54, (1942), quoting, Frohwerk v. United States, 249 U.S. 204, 210 (1919). See also United States v. Smith, 26 F.3d 739, 753 (7th Cir.), cert. denied, 115 S.Ct 680 (1994)(count of indictment charging distribution of controlled substance and intent to distribute not duplicitous because separate acts which violate same statute); United States v. Hixon, 987 F.2d 1261, 1265 (6th Cir. 1993)(count of indictment alleging different kinds of fraudulent conduct not duplicitous when based on submission of a single document); United States v. Cooper, 966 F.2d 936, 939 (5th Cir.), cert. denied, 506 U.S. 980 (1992)(count of indictment alleging conspiracy to distribute crack cocaine and to maintain crack house not duplicitous because "the conspiracy is the crime," quoting, Braverman v. United States, 317 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 underlying basis of the indictment is an allegedly consistent, long-term pattern of conduct directed at the evasion of taxes for these years." United States v. Shorter, 809 F.2d 54, 58 (D.C. Cir.), cert. denied, 484 U.S. 817 (1987). The court's rationale, supported by the language and legislative history of 26 U.S.C. § 7201, is based on the "nature of the proscribed conduct," namely that "each affirmative act of tax evasion [is] intended to evade payment of all taxes owed." Id. at 57.