United States v. Manafort

313 F.Supp.3d 311

UNITED STATES of America,

v.Paul J. MANAFORT, Jr., Defendant.

Crim. Action No. 17–0201–01 (ABJ)

United States District Court, District of Columbia.

Signed May 25, 2018

Andrew Weissmann, Greg Donald Andres, Kyle Renee Freeny, Scott A.C. Meisler, Adam C. Jed, Elizabeth Barchas Prelogar, Michael Richard Dreeben, U.S. Department of Justice Special Counsel's Office, Washington, DC, for United States of America.

Kevin M. Downing, Law Office of Kevin M. Downing, Richard William Westling, Epstein Becker & Green, P.C., Thomas Edward Zehnle, Law Office of Thomas E. Zehnle, Thomas C. Green, Sidley Austin LLP, David Walker Bos, Federal Public Defender for the District of Columbia, Shanlon Wu, Wu, Grohovsky & Whipple, PLLC, Washington, DC, Annemarie McAvoy, Pro Hac Vice, McAVoy Consulting, LLC, Jamaica, NY, Walter Mack, Pro Hac Vice, Doar Rieck DeVita Kaley & Mack, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

AMY BERMAN JACKSON, United States District JudgeDefendant Paul J. Manafort, Jr. has moved to dismiss either Count Four or Count Five of the Superseding Indictment [Dkt. # 202] on the grounds that the counts are multiplicitous. Def.'s Mot. to Dismiss One of Two Multiplicitous Counts [Dkt. # 236] ("Def.'s Mot."). He argues that since the two counts both charge the same offense, dual convictions would violate the Double Jeopardy Clause of the U.S. Constitution. Id. at 1. He also maintains that the unnecessary multiplication of counts will prejudice a jury against him. Id. The government opposed the motion, Gov't Resp. to Def.'s Mot. [Dkt. # 249] ("Gov't Opp."), the motion is fully briefed, see Def.'s Reply to the Gov't Opp. [Dkt. # 270] ("Def.'s Reply"), and the Court heard argument on April 19, 2018. For the reasons set forth below, the Court will deny defendant's motion without prejudice to its being renewed after trial.

Multiplicity arises when "an indictment charges the same offense in more than one count." United States v. Mahdi , 598 F.3d 883, 887 (D.C. Cir. 2010), quoting United States v. Weathers , 186 F.3d 948, 951 (D.C. Cir. 1999). The Double Jeopardy Clause of the Constitution protects against "multiple punishments for the same offense." Weathers , 186 F.3d at 951, cert. denied , 529 U.S. 1005, 120 S.Ct. 1272, 146 L.Ed.2d 221 (2000) ; U.S. Const. amend. V, cl. 2. Also, courts have recognized that charging the same offense in multiple counts can "unfairly increas[e] a defendant's exposure to criminal sanctions" because a jury may conclude that given the number of charges, the defendant must be guilty of something. United States v. Clarke , 24 F.3d 257, 261 (D.C. Cir. 1994), quoting United States v. Harris , 959 F.2d 246, 250 (D.C. Cir. 1992), abrogated on other grounds, United States v. Stewart , 246 F.3d 728 (D.C. Cir. 2001) ; see also United States v. Morrow , 102 F.Supp.3d 232, 246 (D.D.C. 2015) (multiplicitous charges may suggest to a jury "that a defendant has committed not one but several crimes"), quoting United States v. Reed , 639 F.2d 896, 904 (2d Cir. 1981).

Defendant asserts that Counts Four and Five of the Superseding Indictment in this case charge the same offense. Court Four alleges that defendant made misleading statements in two letters to the Department of Justice in violation of the Foreign Agents Registration Act ("FARA"), 22 U.S.C. §§ 612, 618(a)(2) ; 18 U.S.C. §§ 2, 3551, and paragraph 45 of that count identifies the statements at issue:

On or about November 23, 2016, and February 10, 2017, ... defendant PAUL J. MANAFORT, JR., knowingly and willfully caused to be made a false statement of a material fact, and omitted a material fact necessary to make the statements therein not misleading, in a document filed with and furnished to the Attorney General ... to wit, the underlined statements:

• "[DMI]'s efforts on behalf of the Party of Regions and Opposition Bloc did not include meetings or outreach within the U.S."

• "[N]either [DMI] nor Messrs. Manafort or Gates had any agreement with the [Centre] to provide services."

• "[DMI] did provide the [Centre], at the request of members of the Party of Regions, with a list of potential U.S.-based consultants—including [Company A and Company B]—for the [Centre]'s reference and further consideration. [The Centre] then contracted directly with [Company A and Company B] to provide services within the United States for which these entities registered under the Lobbying Disclosure Act."

• "Although Gates recalls interacting with [the Centre]'s consultants regarding efforts in the Ukraine and Europe, neither Gates nor Mr. Manafort recall meeting with or conducting outreach to U.S. government officials or U.S. media outlets on behalf of the [the Centre], nor do they recall being party to, arranging, or facilitating any such communications. Rather, it is the recollection and understanding of Messrs. Gates and Manafort that such communications would have been facilitated and conducted by the [Centre]'s U.S. consultants, as directed by the [Centre], pursuant to the agreement reached between those parties (to which [DMI] was not a party)."

• "[A] search has been conducted for correspondence containing additional information related to the matters described in [the government's] Letters. However, as a result of [DMI's] Email Retention Policy, which does not retain communications beyond thirty days, the search has returned no responsive communications."

Superseding Indictment ¶ 45. Count Five alleges that the same statements, made in the same two letters, also violated 18 U.S.C. § 1001(a). Superseding Indictment ¶ 47. Indeed, Count Five specifically references "the statements in the November 23, 2016, and February 10, 2017, submissions to the Department of Justice quoted in paragraph 45" as the actionable statements for purposes of the § 1001 count. Superseding Indictment ¶ 47. So there is no question that the two counts are based upon the exact same set of facts and circumstances.¹

But the test for multiplicity is not whether two counts are based on the same set of facts; rather, it is whether the statutory elements of the two offenses are the same. "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This exercise "focuses exclusively on the statutory elements of the offenses," Weathers , 186 F.3d at 951, 954, and "not on the proof offered in a given case." United States v. McLaughlin , 164 F.3d 1, 8 (D.C. Cir. 1998), citing Iannelli v. United States , 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).

Courts typically apply the Blockburger test unless the statutes "plainly express[ ]" Congressional intent to impose separate punishments for the same alleged conduct. Mahdi , 598 F.3d at 888–89, citing Garrett v. United States , 471 U.S. 773, 779, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). At bottom, "whether defendant has in fact been punished twice for the same offense ... depends upon what ‘the legislature intended.’ " Mahdi , 598 F.3d at 887 quoting Weathers , 186 F.3d at 951.

Defendant correctly observes that one could prove the alleged section 1001 violation without proving any facts that are not necessary to the FARA count, and that the alleged false statements or misrepresentations in the two charges are identical. Def.'s Mot. at 6, 8. But as the authority set forth above provides, the inquiry is not tied to the particular facts of the case, and it does not turn on whether the proof satisfying one charge can satisfy the other, but whether proof of one of "necessarily includes proof of" the other. Ball v. United States , 470 U.S. 856, 862, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985) (emphasis in original).

The Supreme Court's application of the test in United States v. Woodward demonstrates this distinction. 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985) (per curiam). In that case, the defendant falsely answered "no" to the question of whether he was carrying more than $5000 in currency when he entered the country. Id. at 106–07, 105 S.Ct. 611. He was charged with both making a false statement in violation of section 1001 and willfully failing to report that he was carrying in excess of $5,000 into the United States in violation of 31 U.S.C. § 1058. Id. at 106, 105 S.Ct. 611. In rejecting the defendant's claim that the obviously overlapping counts were multiplicitous, the Court stated:

Section 1001 proscribes the nondisclosure of a material fact only if the fact is "conceal[ed] ... by any trick, scheme, or device, " (Emphasis added.) A person could, without employing a "trick, scheme, or device," simply and willfully fail to file a currency disclosure report. A traveler who enters the country and passes through Customs prepared to answer questions truthfully, but is never asked whether he is carrying over $5,000 in currency, might nonetheless be subject to conviction under 31 U.S.C. § 1058 (1976 ed.) for willfully transporting money without filing the required currency report. However, because he did not conceal a material fact by means of a "trick, scheme, or device," (and did not make any false statement) his conduct would not fall within 18 U.S.C. § 1001.

469 U.S. at 108, 105 S.Ct. 611 (footnotes omitted); see also id. n.5 (noting that a violation of section 1001 requires an "affirmative act by which means a material fact is concealed"). So the question is whether one offense would always entail proof of the other, and that is an issue of first impression in this Circuit.

Manafort compares the elements of a section 1001 false statement violation with those needed to prove a FARA violation, and he asserts that a prosecution that "proves the elements of making a false FARA statement ... will necessarily have...