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]
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.