US v. Goldberg

Decision Date26 January 1996
Docket NumberCrim. A. No. 95-10223-RCL.
PartiesUNITED STATES of America, Plaintiff, v. Richard D. GOLDBERG, Defendant.
CourtU.S. District Court — District of Massachusetts

Morris M. Goldings, David R. Kerrigan, Mahoney, Hawkes & Goldings, Boston, MA, for defendant.

Michael Kendall, United States Attorney's Office, Boston, MA, for U.S.


LINDSAY, District Judge.

The defendant Richard Goldberg is charged with five counts of mail fraud (18 U.S.C. § 1341), two counts of wire fraud (18 U.S.C. § 1343), seven counts of use of the mails and facilities in interstate commerce to promote bribery (18 U.S.C. § 1952(a)(3), the "Travel Act"), and one count of conspiracy to violate all of the above (18 U.S.C. § 371). He has moved to dismiss the indictment for multiplicity, or, in the alternative, for duplicity. He argues that the mail and wire fraud counts, Counts 2 through 8, are multiplicitous because the violations of law they allege are preempted by the bribery counts, Counts 9 through 15. He also claims that the mail and wire fraud counts are duplicitous. For the reasons stated below the motion is DENIED.


The relevant sections of the statutes under which Goldberg has been charged provide as follows.

Mail Fraud:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, ... for the purpose of executing such scheme or artifice or attempting to do so, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or ... takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail ... any such matter or thing ... shall be criminally punished.

18 U.S.C. § 1341 (1995).

Wire Fraud:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, ... shall be criminally punished.

18 U.S.C. § 1343 (1995).

Travel Act:

(a) whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to—
. . . . .
(3) ... promote ..., carry on, or facilitate the promotion, ... or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform—
(A) an act described in paragraph ... (3) shall be criminally punished.
(b) As used in this section (i) "unlawful activity" means ... (2) ... bribery, ... in violation of the laws of the State in which committed ....

18 U.S.C. § 1952 (1995).

Scheme or Artifice to Defraud Defined:

For the purposes of this chapter, the term `scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services.

18 U.S.C. § 1346 (1995).

Offenses Against the United States Defined:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

18 U.S.C. § 2 (1995).

The mail and wire fraud counts are premised upon an alleged scheme by Goldberg involving five alleged uses of the mails and two alleged uses of telephones to arrange for the rental and payment of other expenses for a vacation house allegedly used by Massachusetts legislators during a period in which Goldberg had a direct monetary interest in overturning a gubernatorial veto of legislation regarding an eminent domain proceeding. The Travel Act counts are based upon the same seven alleged communications. The conspiracy count is not implicated by this motion.

Three of the mail fraud counts are alleged to involve the placing of a check into the mails; the other four, as well as the wire fraud counts, are alleged to involve only the exchange of lease information. The indictment is silent as to whether the checks subsequently entered the mails or other facilities of interstate commerce. The indictment alleges no false statements or other misrepresentations by Goldberg or anyone else. The mail and wire fraud counts allege a scheme by Goldberg to defraud the Commonwealth of Massachusetts and its citizens of the honest services of the legislators and a scheme by him to obtain money or property by false or fraudulent pretenses, representations, or promises. They do not allege a scheme by him or artifice to defraud anyone of money or property. Each mail and wire fraud count also includes a reference to violation of 18 U.S.C. § 1346 and a violation of 18 U.S.C. § 2.

A. Multiplicity
1. Multiplicity Defined

"An indictment is multiplicitous and in violation of the Fifth Amendment's Double Jeopardy Clause if it charges a single offense in more than one count." United States v. Brandon, 17 F.3d 409, 422 (1st Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 80, 81, 130 L.Ed.2d 34 (1994), citing United States v. Serino, 835 F.2d 924, 930 (1st Cir.1987). The dangers posed by a multiplicitous indictment are that a defendant may suffer multiple punishments for the same offense, and that the jury may be prejudiced by the appearance that the defendant has committed more crimes than the evidence supports. 1 Charles A. Wright, Federal Practice and Procedure, § 142, at 475-76 (1982); United States v. Reed, 639 F.2d 896 (2d Cir.1981) (mail fraud charges not multiplicitous of securities fraud charges). "The test of whether an indictment is multiplicitous is straightforward," Serino at 930. That test was first announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932):

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 at 304, 52 S.Ct. at 182. The Blockburger test is primarily a test of legislative intent; because Congress can impose lengthy or multiple punishments under a single statute, it may similarly divide the same punishment into discrete offenses. See Whalen v. United States, 445 U.S. 684, 688-89, 100 S.Ct. 1432, 1435-36, 63 L.Ed.2d 715 (1980) (Double Jeopardy Clause at least bars federal courts from imposing consecutive sentences where not authorized by Congress); Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975) (Blockburger test serves function of identifying legislative intent); Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1142-43, 67 L.Ed.2d 275 (1981) (Blockburger test a rule of statutory construction which governs unless overcome by a clear indication of contrary legislative intent; Double Jeopardy inquiry solely one of congressional intent).1

Because authority to determine the extent to which criminal statutes may overlap rests with Congress, the Blockburger test focuses on the elements required to be proved under the statute, not on the factual allegations in the indictment. See United States v. Parrilla-Tirado, 22 F.3d 368, 372 (1st Cir.1994) (Blockburger permits multiple offenses arising from the same conduct, so long as statutory elements are distinguishable). The court must examine the statute as cited in one count of the indictment to determine if it states an offense which is distinguishable from offenses alleged in other counts. Cf., United States v. Mena, 933 F.2d 19, 29 (1st Cir.1991) (separate charges under separate provisions of same statute compared by reference to elements charged). Narrowing the view of the statute to the sections cited in the indictment is necessary to ensure that the charge is sufficiently clear to permit the defendant to prepare a defense and to plead double jeopardy. Cf., Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974) (establishing test for sufficiency); United States v. Fusaro, 708 F.2d 17, 23 (1st Cir.), cert. denied, 464 U.S. 1007, 104 S.Ct. 524, 78 L.Ed.2d 708 (1983). Because the primary concern underlying the construction of the cited statute is notice to the defendant, however, the court should take a practical view to the language of the indictment. See United States v. Doherty, 867 F.2d 47, 55-56 (1st Cir.) (Breyer, Circuit Judge) (where mail fraud indictment invalidly charged scheme to defraud intangible rights and listed money as further object of conspiracy to defraud, valid offense stated with constitutionally sufficient clarity), cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989). A separate problem entirely is raised if the jury is instructed that it may convict the defendant for some offense not charged by the grand jury in the indictment. See Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887) (Fifth Amendment Grand Jury Clause violated by conviction of defendant for offense other than that alleged in indictment). Because the parties are not yet in a position to raise this issue of variance, however, this discussion will be limited to the statutory charges.

It is important at this point to note a distinction which recurs throughout these doctrines. The Blockburger test speaks of different "offenses," and requires that two offenses be distinct to be charged in different counts. Conversely, under the test for duplicity, if two offenses are distinct, they may not be alleged in a single count. Yet a statute will often list, in the disjunctive, multiple ways...

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