How often does one see a multiplicity victory? Not that often. Gary Cooper (per Judge Henderson, “not that one”), was convicted on a five-count indictment for his role in a scheme to steal from a labor union. On appeal, he successfully argued that the two charges (18 U.S.C. were in effect one and the same and therefore multiplicitous. Because his sentence rested on an erroneous application of a U.S.S.G. § 2E5.1(b)(1) enhancement, Mr. Cooper pointed out that it was further marred. And finally, Mr. Cooper added that his 68-month sentences exceeded the statutory maximum provided for the conspiracy, wire fraud and honest services fraud counts (18 U.S.C. §§ 371, 1343, 1346)
In agreeing with Mr. Cooper, the panel (Henderson, Tatel and Williams, JJ) first examined the standard of review. Brushing aside the Government’s insistence that the multiplicity argument was forfeited, Judge Henderson found that the defense’s pretrial motion to dismiss (Rule 12(b), FED. R. CRIM. P.) preserved the issue . (Slip. Op. at 8-9).
Moving on, and applying a de novo standard of review, Judge Henderson examined the two conspiracy counts to determine whether two counts of the same indictment charged a violation of the general conspiracy statute, 18 U.S.C. § 371? “The question is, then, whether the counts charge ‘the same act or transaction”—i.e., the same conspiracy—at all. (Slip. Op. at 10) (quoting and citing Blockburger v. United States, 284 U.S. 299, 304 (1932); Braverman v. United States, 317 U.S. 49, 52,54 (1942) (conspiracy counts are multiplicitous if they charge same agreement under same conspiracy statute); Ward v. United States, 694 F.2d 654, 661 (11th Cir. 1983) (same, citing additional cases)). Referring to United States v. Gatling, 96 F.3d 1151, 1152 (D.C. Cir. 1996), and applying the test used for double jeopardy case, viz., allegations of “common purpose, overlaps of participants and time, location where acts occurred, and interdependence,” the Circuit found that “[h]ere, all the factors point in the same direction: Counts One and Two charged the same conspiracy.” (Slip Op. at 11).