United States v. Manafort
Decision Date | 25 May 2018 |
Docket Number | Crim. Action No. 17–0201–01 (ABJ) |
Citation | 313 F.Supp.3d 311 |
Parties | UNITED STATES of America, v. Paul J. MANAFORT, Jr., Defendant. |
Court | U.S. District Court — District of Columbia |
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.
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) (, )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:
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 ( ). 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...
To continue reading
Request your trial-
United States v. McHugh
... ... “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.” ... United States v. Manafort, 313 F.Supp.3d 311, 314 ... (D.D.C. 2018). Counts Seven and Nine also require that McHugh ... engaged in “disorderly or disruptive conduct,” ... which Count Five does not. See Indictment at 3-5 ... And Counts Seven and Nine differ in a few ways, including ... ...
-
United States v. Baez
... ... “[T]he test for ... multiplicity is not whether two counts are based on the same ... set of facts; rather, it is [the Blockburger test ... of] whether the statutory elements of the two offenses are ... the same.” United States v. Manafort , 313 ... F.Supp.3d 311, 314 (D.D.C. 2018) ... Applying ... the Blockburger test, the Court concludes that the ... offense charged in Count Two and the offense charged in Count ... Three each require proof of facts that the other does not ... ...
-
False Statements and False Claims
...reasonable interpretation of the certification [he signed] that the government has failed to rebut”). 93. United States v. Manafort, 313 F. Supp. 3d 311, 315 (D.D.C. 2018) (citing United States v. Safavian, 528 F.3d 957, 967 (D.C. Cir. 2008)); see also United States v. Kosth, 257 F.3d 712,......
-
FALSE STATEMENTS AND FALSE CLAIMS
...reasonable interpretation of the certification [he signed] that the government has failed to rebut”). 95. United States v. Manafort, 313 F. Supp. 3d 311, 315 (D.D.C. 2018) (citing United States v. Safavian, 528 F.3d 957, 967 (D.C. Cir. 2008)); see also United States v. Kosth, 257 F.3d 712,......
-
False statements and false claims
...reasonable interpretation of the certification [he signed] that the government has failed to rebut”). 89. United States v. Manafort, 313 F. Supp. 3d 311, 315 (D.D.C. 2018) (citing United States v. Safavian, 528 F.3d 957, 967 (D.C. Cir. 2008)); see also United States v. Kosth, 257 F.3d 712,......