US v. Levine

750 F. Supp. 1433

UNITED STATES of America, Plaintiff, v. Marcee LEVINE, Gary Levine, William C. Schlapman, C.P.A., P.C., and William Schlapman, Defendants.

Crim. A. No. 90-CR-36.

United States District Court, D. Colorado.

October 23, 1990.

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Leonard Chesler, Denver, Colo., for Marcee Levine.

Jeffrey Springer, Denver, Colo., for Gary Levine.

Michael Bender, Denver, Colo., for William C. Schlapman and William C. Schlapman, C.P.A., P.C.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Before me are defense motions to dismiss counts, to require the government to make an election, to strike language from the Indictment, and for separate trials. Following hearing, I took the motions under advisement. Below is my ruling on those motions.

On January 26, 1990, twelve defendants in this case were indicted in the District of Colorado on fifty-three counts of criminal conduct, including conspiracy, mail fraud, interstate transportation of stolen property, pension kickback, embezzlement, bankruptcy fraud, and money laundering. Four of the original twelve defendants entered guilty pleas, two were convicted following jury trial, and two corporate defendants were severed from the remaining four defendants.

I. MOTIONS CONCERNING THE CONSPIRACY CHARGE OF COUNT ONE

A. Gary Levine's Motion to Dismiss Count One, and William C. Schlapman, C.P.A., P.C. and William Schlapman's Request to Compel the Government to Elect a Conspiracy Theory of Count One

Gary Levine moves to dismiss Count One contending that the count is duplicitous. The other defendants join in this motion. Defendants William C. Schlapman, C.P.A., P.C. and William Schlapman (collectively Schlapman) move for an election of offenses in the alternative.

Under Federal Rule of Criminal Procedure 8(a), each count must charge only one offense. Count One charges conspiracy under 18 U.S.C. § 371. That section provides for criminal penalties "if two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy. ..." 18 U.S.C. § 371 (emphasis added). In pertinent part, the Indictment alleges that the defendants

did knowingly, intentionally, willfully, and unlawfully conspire, combine, and agree to defraud the United States Bankruptcy Court in contemplation of, during, and in relation to the LEVINE bankruptcy cases, to defraud the Department of the Treasury by impeding, impairing, obstructing, and defeating the lawful functions of the Internal Revenue Service in the collection of income taxes, and to commit the following offenses against the United States:

(Emphasis added). The Indictment then alleges various violations of Title 18 U.S.C.

Gary Levine, relying on United States v. Thompson, 814 F.2d 1472 (10th Cir.), cert. denied, 484 U.S. 830, 108 S.Ct. 101, 98 L.Ed.2d 61 (1987), contends that this count charges two conspiracies; one to defraud the United States Bankruptcy Court and the Department of Treasury, and another to commit offenses against the United States. I disagree.

In Thompson, the defendant had pled guilty to an information charging conspiracy to commit offenses against the United States (mail fraud) and was later indicted for conspiring to defraud the government. The defendant challenged the indictment arguing that it should be dismissed on double jeopardy grounds because "jeopardy attached when he pled guilty to the information charging him with conspiracy to commit mail fraud under 18 U.S.C. § 371 (1982). He therefore would face double jeopardy if he is tried under the subsequent indictment...." Id. at 1475-76. The district court disagreed and denied the motion.

On interlocutory review, the Tenth Circuit compared the elements of the alleged conspiracy to commit offenses against the United States with the elements of the alleged conspiracy to defraud the United States to determine if the alleged conspiracies were identical for double jeopardy purposes. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The Tenth Circuit held they were not. Thompson, 814 F.2d at 1477.

The narrow issue in Thompson was double jeopardy under the Blockburger test. The Thompson court did not have the issue of duplicity before it. Consequently, Thompson is not controlling here.

The reasoning of the Ninth Circuit in United States v. Smith, 891 F.2d 703 (9th Cir.1989), cert. denied, ___ U.S. ___, 111 S.Ct. 47, 112 L.Ed.2d 23 (1990), which squarely addressed the duplicity issue, is compelling. In concluding that the defendants were properly charged in a single count with a conspiracy to defraud the United States and to commit offenses against the United States, the court stated that

it would be strange to infer that Congress intended to punish twice a conspiracy that violates both clauses. Where a single conspiracy statute prohibits alternative acts, courts should not infer the legislature's intent to impose multiple punishment. See Prince v. United States, 352 U.S. 322, 329 77 S.Ct. 403, 407, 1 L.Ed.2d 370 (1957). The clause "defraud the United States merely expands the scope of the offense by including another object of a conspiracy that might not otherwise be covered by the clause "any offense."

Id. at 712-13; see also Goldstein, Conspiracy to Defraud the United States, 68 Yale L.J. 405 (1959).

Furthermore, § 371 creates a single offense but specifies alternative means to commit the offense. In such a case, "an indictment may charge the commission of such offense by all the means mentioned, using the conjunctive `and' wherever the statute uses the word `or,' without being duplicitous." Travis v. United States, 247 F.2d 130, 134 (10th Cir.1957), rev'd on other grounds, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961); see United States v. Herbert, 502 F.2d 890, 893-94 (10th Cir. 1974), cert. denied, 420 U.S. 931, 95 S.Ct. 1134, 43 L.Ed.2d 403 (1975); Kitchens v. United States, 272 F.2d 757, 761 (10th Cir. 1959), cert. denied, 362 U.S. 942, 80 S.Ct. 809, 4 L.Ed.2d 772 (1960); McDonough v. United States, 227 F.2d 402, 404 (10th Cir. 1955). As persuasively interpreted in Smith, § 371 creates alternative ways to commit a single offense.

Smith represents the majority rule. See, e.g., United States v. Persico, 520 F.Supp. 96, 102 (E.D.N.Y.1981) (and cases cited therein). The only decision that may be contrary to this view is United States v. Haga, 821 F.2d 1036, 1043 (5th Cir.1987). The better reasoned rule is stated in Smith. Accordingly, I conclude that Count One is not duplicitous.

Even if the Thompson-analysis applied to render the count duplicitous, however, dismissal would not be warranted in this case. The remedies of dismissal or election are inappropriate where, as here, the duplicity is harmless and the ideals underlying the rule against duplicity remain secure. See, e.g., United States v. Alsobrook, 620 F.2d 139, 143 (6th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980); United States v. Margiotta, 646 F.2d 729, 732-33 (1981); see also United States v. Gambino, 729 F.Supp. 954, 971-72 (S.D.N.Y.1990) ("a count of an indictment should only be ruled impermissibly duplicitous when the policy goals underlying the doctrine are offended...."); United States v. Finley, 705 F.Supp. 1272, 1295 (N.D.Ill.1988); United States v. Sugar, 606 F.Supp. 1134, 1146 (S.D.N.Y.1985) (same); United States v. Mott, 603 F.Supp. 1322, 1325 (S.D.N.Y.1985) ("Rule 8, Fed.R. Crim.P., which requires separate offenses to be charged separately, can be relaxed in appropriate circumstances. Citation omitted. The important inquiry is whether combining the offenses creates a risk of the type of unfairness against which the rule was meant to guard."); United States v. Berardi, 675 F.2d 894, 897-99 (7th Cir. 1982) (same); United States v. Robin, 693 F.2d 376, 378-79 (5th Cir.1982) (same); see also United States v. Bowline, 593 F.2d 944, 947 (10th Cir.1979).

My review of Count One leads me to conclude that: (1) with proper jury instruction, a conviction could not be obtained without a unanimous verdict as to each of the objects of the conspiracy charged in the count; (2) the specificity of Count One protects defendants' Sixth Amendment right to notice of the charges; and (3) because it is clear that Count One charges multiple objects of a single conspiracy, United States v. Law Firm of Zimmerman and Schwartz, P.C., 738 F.Supp. 407, 416 (D.Colo.1990), defendants are secured their Fifth Amendment protection against double jeopardy. See United States v. Duncan, 850 F.2d 1104, 1108-09 & n. 4 (6th Cir.1988); United States v. Shorter, 809 F.2d 54, 58 & n. 1 (D.C.Cir.), cert. denied, 484 U.S. 817, 108 S.Ct. 71, 98 L.Ed.2d 35 (1987); United States v. Kimberlin, 781 F.2d 1247, 1250 (7th Cir.1985), cert. denied, 479 U.S. 938, 107 S.Ct. 419, 93 L.Ed.2d 370 (1986); United States v. Aguilar, 756 F.2d 1418, 1419 n. 2 (9th Cir.1985); Robin, 693 F.2d at 378; Berardi, 675 F.2d at 899; Margiotta, 646 F.2d at 733; Alsobrook, 620 F.2d at 142; United States v. Wright, No. 89-CR-1093, 1990 WL 78035 (N.D.Ill. May 31, 1990) (LEXIS, Genfed library, Courts file); United States v. Zolp, 659 F.Supp. 692, 725 (D.N.J.1987). These policy goals underlying the rule against duplicity are not offended in this case.

B. Zimmerman's Motion to Dismiss Count One

The defendants have adopted a motion filed earlier by Zimmerman, a defendant in this case who was convicted in a previous trial. The motion was based on the theory that Count One charged multiple conspiracies because it alleged multiple illegal objectives. I rejected that motion in Zimmerman, 738 F.Supp. at 416, and I reject it again here. A single conspiracy may encompass multiple illegal objectives. United States v. Peveto, 881 F.2d 844, 854-55 (10th Cir.), cert....