E.D. Missouri Discusses Circuit Split Re: Multiplicity Under Double Jeopardy Clause

Per United States v. Binns, 2007 WL 120706 (E.D. Mo. Jan. 11, 2007):

Both Defendants contend that the indictment should be dismissed on grounds of multiplicity, asserting that Counts I and II charge a single offense in two counts. The Double Jeopardy Clause protects a defendant from "multiple punishments for the same criminal offense." United States v. Bennett, 44 F.3d 1364, 1368 (8th Cir.1995); accord United States v. Roy, 408 F.3d 484, 491 (8th Cir.2005) ("An indictment is multiplicitous if it charges a single offense in multiple counts.").

"To show a violation of the Double Jeopardy Clause, 'a defendant must prove that the offenses for which he is prosecuted and punished are the same offense in both law and fact.' " United States v. Kehoe, 310 F.3d 579, 587 (8th Cir.2002) (quoting Bennett, 44 F .3d at 1368). The Eighth Circuit has adopted a two-part test for making this determination: First, a court must ask whether Congress "intended that each violation be a separate offense." ... If it did not, there is no statutory basis for the two prosecutions, and the double jeopardy inquiry is at an end.... Second, if Congress intended separate prosecutions, a court must then determine whether the relevant offenses constitute the "same offense" within the meaning of the Double Jeopardy Clause. United States v. Christner, 66 F.3d 922, 928 (8th Cir.1995) (citing Bennett, 44 F.3d at 1373); accord United States v. Allen, 247 F.3d 741, 768 (8th Cir.2001) (ultimately, dispositive question is "whether Congress clearly intended to impose cumulative sentences for simultaneous violations of each of the statutes"), vacated and remanded for reconsideration on other grounds, 536 U .S. 953 (2002).

The issue posed by Defendants' motions is a close and difficult one that has led to a split in the circuits. On wholly analogous facts, when faced with the question of whether multiplicity arises from charging a single act under more than one subsection of 18 U.S.C. § 152, the First and Tenth Circuits have found the counts to be multiplicitous, while the Fifth Circuit has found no multiplicity problem. Compare United States v. Montilla Ambrosiani, 610 F.2d 65, 69 (1st Cir.1979) (finding multiplicity), and United States v. McIntosh, 124 F.3d 1330, 1336-37 (10th Cir.1997) (finding multiplicity), with United States v. Cluck, 143 F.3d 174, 179 (5th Cir.1998) (finding no multiplicity). The Eighth Circuit addressed the very issue posed by Defendants' motions in Christner. Its holding and reasoning, unfortunately, do not make the analysis much simpler, and not surprisingly, it is cited by both the government and Defendants.

. . .

The facts of this case are indistinguishable from the facts in Montilla Ambrosiani. Here, too, the government seeks to assert separate charges for concealment and false statements based on the failure to make disclosures in a single document. The jury in this case will be asked to determine, in Count I, whether Defendants concealed the enumerated assets by not disclosing them in Schedule B, filed with the bankruptcy court on December 11, 2003. With respect to Count II, the jury will be asked to determine essentially the same thing: whether Defendants made false statements under penalty of perjury by not disclosing the same assets in Schedule B, filed with the bankruptcy court on December 11, 2003. As the court aptly noted in Montilla Ambrosiani, "This is but another name for the same rose." Montilla Ambrosiani, 610 F.2d at 68. Though not free from doubt, the undersigned believes that the language and reasoning of Christner directs a finding that Congress did not intend to permit separate charges under the same statute where, as here, the government relies on a single nondisclosure in a document filed with the bankruptcy court to support both a charge of concealment under § 152(1) and a charge of false statement under § 152(3). . . . In accordance with the reasoning of Christner, the undersigned recommends that the Court find Counts I and II of the indictment to be multiplicitous.