MEMORANDUM OPINION AND ORDER
AMY
BERMAN JACKSON UNITED STATES DISTRICT JUDGE.
Defendant
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 (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) (multiplicitous charges
may suggest to a jury “that a defendant has committed
not one but several crimes”), 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:
On or
about November 23, 2016, and February 10, 2017, . . .
defendant PAUL J. MANAFORT, JR., knowingly and willfully
caused to be made a false statement of a material fact, and
omitted a material fact necessary to make the statements
therein not misleading, in a document filed with and
furnished to the Attorney General . . . to wit, the
underlined statements:
• “[DMI]'s efforts on behalf of the Party
of Regions and Opposition Bloc did not include meetings or
outreach within the U.S.”
• “[N]either [DMI] nor Messrs. Manafort or
Gates had any agreement with the [Centre] to provide
services.”
• “[DMI] did provide the [Centre], at the
request of members of the Party of Regions, with a list of
potential U.S.-based consultants-including [Company A and
Company B]-for the [Centre]'s reference and further
consideration. [The Centre] then contracted directly with
[Company A and Company B] to provide services within the
United States for which these entities registered under the
Lobbying Disclosure Act.”
• “Although Gates recalls interacting with
[the Centre]'s consultants regarding efforts in the
Ukraine and Europe, neither Gates nor Mr. Manafort recall
meeting with or conducting outreach to U.S. government
officials or U.S. media outlets on behalf of the [the
Centre], nor do they recall being party to, arranging, or
facilitating any such communications. Rather, it is the
recollection and understanding of Messrs. Gates and Manafort
that such communications would have been facilitated and
conducted by the [Centre]'s U.S. consultants, as directed
by the [Centre], pursuant to the agreement reached between
those parties (to which [DMI] was not a party).”
• “[A] search has been conducted for
correspondence containing additional information related to
the matters described in [the government's] Letters.
However, as a result of [DMI's] Email Retention Policy,
which does not retain communications beyond thirty days, the
search has returned no responsive communications.”
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
(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
(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 (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 ...