United States v. Mamber

• Citation: 127 F. Supp. 925
• Decision Date: 13 January 1955
• Docket Number: Cr. No. 54-270.
• Parties: UNITED STATES of America v. Philip MAMBER.
• Court: U.S. District Court — District of Massachusetts

127 F. Supp. 925

UNITED STATES of America v. Philip MAMBER.

Cr. No. 54-270.

United States District Court, D. Massachusetts.

January 13, 1955.

Anthony Julian, U. S. Atty., James P. Lynch, Jr., Asst. U. S. Atty., Boston, Mass., for plaintiff.

Frederick Cohen, Boston, Mass., for defendant.

WYZANSKI, District Judge.

Defendant moves to dismiss the indictment on grounds which may fairly be re-stated as follows: (1) the nine counts are multiplicitous; (2) the indictment does not charge any offense under 18 U.S.C. § 1001 or any other section of the criminal code inasmuch as Congress has provided that the conduct described in the indictment shall be punishable solely by court-martial; (3) the indictment is so lacking in certainty as to deny due process of law under the Fifth Amendment to the Constitution; and (4) the indictment is defective because nowhere is defendant charged with a fraudulent or other improper motive.

Each of the 9 counts of the indictment returned by the grand jury begins with allegations that defendant "did in a matter within the jurisdiction of the Department of the Navy * * * a department of the United States willfully and knowingly make a false * * * representation * * * in that on * * * the 11th day of September 1951 * * * he did execute and present to the Department of the Navy through the United States Marine Corps, a component thereof, a Loyalty Certificate for Personnel of the Armed Forces, being Form DD-98, which form was * * * part of the application for enlistment with the said Marine Corps." Thereafter the 9 counts go separate ways. The first count alleges that when on this form he gave the answer "None" he falsely represented that he had not been a member of the Communist Party, USA, an organization listed on Form DD 98 a, attached to said Form DD-98. The second count alleges that when on Form DD-98 he gave the answer "None" he falsely represented that he had not been a member of the Labor Youth League, another organization listed on attached Form DD 98a. The third count alleges that when on Form DD-98 he gave the answer "None" he falsely represented that he had not been a member of the American Youth for Democracy, another organization listed on attached Form DD 98a. The fourth count alleges that when on Form DD-98 he gave the answer "None" he falsely represented he had never attended any formal or informal meetings or gatherings of the Communist Party, USA. The fifth and sixth counts parallel the fourth except that the organizations referred to are respectively the Labor Youth League and American Youth for Democracy. The seventh count alleges that when on Form DD-98 defendant gave the answer "None" he falsely represented that he had never attended activities sponsored by the Communist Party, USA. The eighth and ninth counts parallel the seventh except that the organizations referred to are respectively the Labor Youth League and American Youth for Democracy.

The government concedes that in each of the nine counts the grand jury's allegations are based, and the prosecution's proof at the trial will be based, upon defendant's asserted act of writing just once on page 2 of Form DD-98 the word "None". The government claims that defendant wrote this word a single time in a table which appears below a printed recital to this effect:

"I have entered in the table below the name(s) of the organization(s) shown on the attached list with which I am or have been associated in any of the following respects. (a) I am or have been a member * * * (c) I have attended or been present at formal or informal meetings or gatherings. (d) I have attended, been present at, or engaged in, organizational or social activities or activities which they sponsored".

Defendant's initial contention is that he is entitled to have the indictment dismissed because the nine counts are multiplicitous. No reasonable person can deny that the counts are multiplicitous — indeed the government concedes that all nine are laid under one statute and refer to a single false utterance of one word. Yet this concession does not lead to a conclusion that defendant is entitled to the remedy he seeks. There is, so far as this Court knows, no authority for dismissing all the counts merely because they repeat each other. Nor is there any reason for so drastic a remedy. The real issue is whether this Court should require the prosecution to elect among these counts one or more on which defendant shall be tried.

It is well recognized that a trial court has discretion whether to require the prosecution to elect among multiplicitous counts when the court finds that the multiplicity is prejudicial to the defendant or the orderly and fair trial of the case. Pointer v. United States, 151 U.S. 396, 402-403, 14 S.Ct. 410, 38 L.Ed. 208; Pierce v. United States, 160 U.S. 355, 16 S.Ct. 321, 40 L.Ed. 454; Guy v. United States, 71 App.D.C. 89, 107 F.2d 288, 291; Seymour v. United States, 8 Cir., 77 F.2d 577, 581, 99 A.L.R. 880. But the cases show that this power is sparingly exercised. Dealy v. United States, 152 U.S. 539, 14 S.Ct. 680, 38 L.Ed. 545; United States v. Bent, 8 Cir., 175 F.2d 397, 400; Sisson v. United States, 54 App.D.C. 189, 295 F. 1010, 1011; Steinhardt Bros. & Co. v. United States, 2 Cir., 191 F. 798; and United States v. General Electric Co., D.C.S.D.N.Y., 40 F.Supp. 627, 632. As Mr. Justice Brewer wrote in Dealy v. United States, 152 U.S. 539, 542, 14 S.Ct. 680, 681, 38 L.Ed. 545 "it is familiar law that separate counts are united in one indictment, either because entirely separate and distinct offenses are intended to be charged, or because the pleader, having in mind but a single offense, varies the statement in the several counts as to the manner or means of its commission in order to avoid at the trial an acquittal by reason of any unforeseen lack of harmony between the allegations and the proofs". Following this principle, in the Steinhardt case where the offense was shipping a misbranded article, the pleader was allowed in one count to call that article a drug and in another count a drink, although there was only one statutory section referring to drugs and drinks, and there was only one article shipped. And in the Sisson case where there was only one assault with one weapon, one count described the weapon as a piece of metal pipe, and the other as a blunt instrument.

In this case there are some factors supporting an exercise of the Court's discretionary power to compel an election. First, there has been a flagrant disregard of the mandate of Rule 7(c) of...