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Civil Resource Manual

166. Sample Response To Motions To Dismiss Due To Alleged Multiplicity

Arguing that the indictment is multiplicitous, defendants XXXXXXX and XXXXXX have each moved, pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure, to dismiss the indictment. In the alternative, the defendants seek an order "requiring the government to elect the statute under which it will proceed." Defendants' motions should be denied.

In the present indictment, events relating to the sale of 6 cars form the basis of 15 substantive counts--counts 2 through 6 charge the possession of counterfeited and forged securities with intent to deceive under 18 U.S.C. § 513; counts 7 through 11 charge mail fraud under 18 U.S.C. § 1341; and counts 12 through 16 charge false odometer certification under 15 U.S.C. §§ 1988 and 1990c. See attached Exhibit 1 (a chart that indicates which cars form the basis of which substantive counts of the indictment). However, an indictment is multiplicitous (and thus violates the double jeopardy clause of the Fifth Amendment) only if it charges a single "offense" in more than one count, and as stated in Blockburger v. United States, 284 U.S. 299, 304 (1932), multiple counts do not charge the same offense where each count "requires proof of an additional fact which the other does not." See also Ball v. United States, 470 U.S. 856, 861 (1985); United States v. Blyden, 930 F.2d 323, 328 (3d Cir. 1991); United States v. Thomas, 686 F. Supp. 1078, 1088 (M.D. Pa.) aff'd mem., 866 F.2d 1414 (3d Cir. 1988), cert. denied, 490 U.S. 1048 (1989).

Here, the fact that certain counts are based on events surrounding the sale of the same car does not render those counts multiplicitous. I.e., each type of count requires proof of facts that the other types of counts do not. First, in proving the securities counts (18 U.S.C. § 513), the government is required to prove that the defendants possessed, or caused to be possessed, a counterfeited or forged security of a State or organization, and also that the defendants did so with the requisite intent to deceive. Second, in establishing the mail fraud counts (18 U.S.C. § 1341), the government must establish both a "scheme or artifice" to defraud and a mailing in furtherance of the fraudulent scheme. Third, while neither the securities counts nor the mail fraud counts require the government to prove either that someone was actually deceived or that the scheme was actually accomplished, the same cannot be said about the false odometer certification counts (15 U.S.C. §§ 1988 and 1990c). In establishing those counts, the government must prove that a car was sold and that, in connection with that sale, the "transferor" (seller) made a false statement to the "transferee" (buyer) in making the written mileage disclosure required by federal law (see 15 U.S.C. § 1988 and 49 C.F.R. Part 580). Finally, the venue requirement for each of the three crimes is different.[FN1]

FN1. While the Blockburger test is not applicable where "there is a clear indication of contrary legislative intent," Albernaz v. United States, 450 U.S. 333, 340 (1981), defendants have not claimed that there exists any indication in the legislative history of the pertinent statutes to indicate that separate punishment is prohibited where someone has violated two or more statutes in connection with the sale of one car. Indeed, because it can be presumed that Congress understood the mail fraud statute when it enacted the odometer law, and also that it understood both the mail fraud statute and the odometer law when it enacted the securities possession statute, Congress's silence on this point is strong indication that separate punishment is permissible under the statutes. As the Court stated in Albernaz, "if anything is to be presumed from the congressional silence on this point, it is that Congress was aware of the Blockburger rule and legislated with it in mind." Id. at 342-43.
Moreover, the case law that has developed in odometer-tampering prosecutions supports the government's position here. First, in Schmuck v. United States, 489 U.S. 705 (1989), the Supreme Court dealt with a very similar issue, and expressly held that odometer tampering is not a lesser included offense of mail fraud involving odometer tampering:
[W]e agree with the Court of Appeals that the elements of the offense of odometer tampering are not a subset of the elements of the crime of mail fraud. 840 F.2d, at 386. There are two elements in mail fraud: (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme or specified fraudulent acts). The offense of odometer tampering includes the element of knowingly and willfully causing an odometer to be altered. This element is not a subset of any element of mail fraud. Knowingly and willfully tampering with an odometer is not identical to devising or intending to devise a fraudulent scheme. Compare 18 U.S.C. § 1341 with 15 U.S.C. §§ 1984 and 1990c(a).
Id. at 721-23. Second, in United States v. Oldfield, 859 F.2d 392, 398-99 (6th Cir. 1988), the Sixth Circuit rejected the argument that Congress, in passing the federal odometer law, 15 U.S.C. §§ 1981-1991, intended that law to be the sole criminal charge to be brought against persons involved in odometer fraud. Anticipating the Supreme Court's decision in Schmuck, the Sixth Circuit noted that odometer tampering requires different proof than does mail fraud:
[E]very occurrence of odometer tampering is not automatically an occurrence of mail fraud. If one engages in odometer tampering alone, then he cannot be charged with mail fraud. If, on the other hand, he also engages the mails to carry out the fraudulent scheme of odometer tampering, then the mail fraud statute should be available to the government.

859 F.2d at 398. Additionally, the court noted that the decision of what charges to bring falls within the discretion of the prosecutor. Id. Finally, the court reviewed the legislative history surrounding the federal odometer law and concluded that Congress did not intend for the odometer-tampering legislation to be the sole means of prosecuting individuals engaged in odometer tampering. Id. at 399.