Multiplicity, Duplicity, Single Document Policy
ISSUE: In situations in which the alleged criminal conduct
a series of activities, should the indictment allege one count encompassing
of the acts or one count for each act?|
The issue has been framed in two judicial concepts: duplicity and
multiplicity, terms that are often confused. Duplicity is the joining in a
single count of two or more distinct and separate offenses; multiplicity is
charging of a single offense in several counts. See 1 C. Wright,
Federal Practice and Procedure, § 142 at 469 (1982); United
v. Burton, 871 F.2d 1566, 1573 (11th Cir. 1989)(indictment not
if it charges conjunctive allegations under a statute that provides for
alternative ways of violating the statute). Duplicity is generally not
the indictment (United States v. Droms, 566 F.2d 361, 3633 n.1 (2d
1977)(duplicity only a pleading rule and would in no event be fatal to
but in some cases a duplicitous indictment may obscure the specific charges
violate the defendant's constitutional right to notice of the allegations.
United States v. Duncan, 850 F.2d 1104, 1108 n.4 (6th Cir. 1988),
denied, 493 U.S. 1025 (1990).
The issue presented is the proper unit of prosecution. The tests
commonly used are: (1) identical proof and (2) legislative intent. The
test simply involves the determination of whether each offense requires
an additional fact that the other does not. See United States v.
Blockburger, 284 U.S. 299 (1931); United States v. Albrecht, 273
1 (1927). The test is designed to guard against the possibility that
as to the basis of the verdict may subject the defendant to double jeopardy.
second test is legislative intent. This test often involves the
of whether the Congress intended to prohibit each individual act or a course
conduct composed of a series of acts. United States v. Universal C.I.T.
Credit Corp., 344 U.S. 218 (1952); Ebeling v. Morgan, 237 U.S.
A defendant violates 18 U.S.C. § 1001 each time a false
is made. If a document contains numerous false statements, the government
only prove one of the statements was false to obtain conviction.
v. United States, 312 U.S. 342 (1941); United States v. UCO Oil
Company, 546 F.2d 833, 838 (9th Cir. 1976), cert. denied, 430
(1977); United States v. Edmondson, 410 F.2d 670, 673 (5th Cir.),
denied, 396 U.S. 966 (1969). If the false statements are contained in
document, however, it is preferable to indict only one count for the entire
document. This preferred course of action is in response to expressed
displeasure on multi-count indictments based on one document. United
v. Fisher, 231 F.2d 99, 103 (9th Cir. 1956). Further, little is to be
by multi-count charges in such cases, because in most cases the United
Sentencing Guidelines will embrace and punish all relevant conduct. This
limitation does not apply to false testimonial statements or perjury before
grand jury but only in those cases in which the false statements are
in one document. If the same or different false statements appear in more
one document, multiple counts are warranted. Further, separate but similar
applications are punishable as separate offenses.
In Section 1001 cases in which there are multiple false statements
a single document, care should be taken regarding the jury instructions. In
cases the instructions should make clear that the jury's decision must be
unanimous regarding which statement, or statements, are false. See
United States v. Boutte, 13 F.3d 855 (5th Cir.), cert. denied,
S.Ct. 71 (1994); United States v. Holley, 942 F.2d 916, 925-29 (5th
1991), cert. denied, 114 S.Ct. 77 (1993)(a jury charge of this nature
passes muster in perjury cases in which several false statements are charged
a single count).
[cited in Criminal Resource Manual 738; Criminal Resource Manual 812; USAM 9-42.001]