Ray R. Brown

Dillon & Findley

510 L Street, Suite 603

Anchorage, AK 99501

(907)277-5400

IN THE UNITED STATES DISTRICT COURT

FOR THE STATE OF ALASKA

UNITED STATES OF AMERICA, )

Plaintiff, ) MEMORANDUM IN SUPPORT

) OF JOINT MOTION TO DISMISS

vs. ) OR ELECT ON GROUNDS

) OF DUPLICITY

xxxxxx, )

xxxxxx, and ) xxxxxxxxxx, )

Defendants. )

) Case No. A96-0096-2 CR (JWS)

"Duplicity" is the joining in a single count of two or more distinct and separate offenses. U.S. v. Licciardi, 30 F.3d 1127 (9th Cir. 1994). Where a single count in an indictment encompasses two or more distinct and separate offenses, counsel may move to dismiss the faulty count or may request that the trial court require the government to elect the count or offense on which it intends to present proof. See, e.g., U.S. v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225-26 (1952); U.S. v. Aguilar, 756 F.2d 1418 (9th Cir. 1985).

"The vices of duplicity arise from breaches of the defendant's Sixth Amendment right to knowledge of the charges against him, since conviction on a duplicitous count could be obtained without a unaminous verdict as to each of the offenses contained in the count." U.S. v. Aguilar, 756 F.2d 1418, 1424 n.2 (9th Cir. 1985); citing U.S. v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976). Duplicitous indictments can also "eviscerate the defendant's Fifth Amendment protection against double jeopardy, because of a lack of clarity concerning the offense for which he is charged or convicted." Id.; see also Abney v. U.S., 431 U.S. 651, 654, 97 S.Ct. 2034, 2037, 52 L.Ed.2d 651 (1977). Additional concerns include prejudicial evidentiary rulings at trial and prejudice in obtaining appellate review. U.S. v. Cooper, 966 F.2d 936, 939 n. 3 (5th Cir. 1992).

Often in cases involving a multi-defendant conspiracy, the government will allege one large conspiracy where in fact multiple separate conspiracies exist. The government has alleged in Count 1 of the Indictment in this case a conspiracy to conceal and transfer property from creditors in contemplation of bankruptcy, naming Mr. xxxxxx, Ms. xxxxx, and Mr. xxxxx as co-conspirators. Subsumed within Count 1, however, are allegations of multiple conspiracies involving defendant xxxxxx and parties other than defendants xxxxx and xxxxx, as well as overt acts in furtherance of the conspiracy occuring prior to and unrelated to defendants xxxxx's and xxxxx's alleged involvement.

The rationale for dismissing a single conspiracy count which, in fact, encompasses multiple conspiracies is based on the concept of impermissible variance of proof at trial. See Stirone v. U.S., 361 U.S. 212 (1960). Accordingly, to determine whether a single conspiracy charge is duplicitous, courts consider such factors as the nature of the scheme, the identities of the parties, and the commonality of the time and goals. U.S. v. Zemek, 634 F.2d 1159, 1168 (9th Cir. 1980), cert. denied, 450 U.S. 916 (1981). If the court establishes that a count is duplicitous, the court must, at a minimum, order the government to elect between the separate offenses joined in that count to avoid a variance of proof at trial. U.S. v. Droms, 566 F.2d 361, 363 n.1 (2nd Cir. 1977); Reno v. U.S., 317 F.2d 499, 502 (5th Cir.), cert. denied, 375 U.S. 828 (1963). Failure to order an election of offenses would in effect deny the defendant(s) a right to a unanimous verdict on each offense charged. U.S. v. Warmer, 428 F.2d 730, 735 (8th Cir. 1970), cert. denied, 400 U.S. 930 (1970).

The Nature of the Scheme

The scheme alleged in Count 1 is a conspiracy among multiple parties to conceal various bankruptcy property and assets from the trustee over largely unspecified periods of time. The government alleges that defendant xxxx and his former wife, xxxxx, filed a joint petition in bankruptcy on August 30, 1991, and that defendant xxxx conspired with defendants xxxxx and xxxxxx to conceal property from creditors in violation of 18 U.S.C. sec. 152(1), to transfer property in violation of 18 U.S.C. sec. 152(7), and to falsify records relating to defendant xxxxxx property or financial affairs in violation of 18 U.S.C. sec. 152(8). (Indictment, paras. 1, 11).

All of the substantive acts in furtherance of the conspiracy charge defendant xxxxxxx, acting alone or in concert with others. Under the government's theory, and in the light most favorable to the government, most of those acts would be foreseeable and attributable to defendants xxxxx and xxxxx as co-conspirators in the same large conspiracy. However, the following seven of the those substantive acts involve conduct comprising a different conspiracy unrelated to defendants xxxxx and xxxxx: Count 3 (trophy collection); Count 6 (bank account in Germany); Count 13 (Halibut Cove property transfer); Count 14 (elephant tusk); Count 15 (jewelry); Count 16 (furs); and Counts 17 and 18 (buried cash). None of these substantive acts involve or are related to the alleged acts of defendants xxxxx and xxxxx.

The Identities of the Parties

Numerous parties . . .

Commonality of Time and Goals

Time . . .

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