The opinion of the court was delivered by: ACKERMAN
On April 25, 1996, the defendants, Theodore G. Sourlis and Elaine Sourlis, were indicted with one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 371, and 10 counts of bank fraud in violation of 18 U.S.C. § 1344. On December 11, 1996, this court held a hearing to consider a number of pre-trial motions by both the defendant and the government.
2. disclosure of all Brady material in the possession of the government;
3. an order that the government produce "a written summary of expert testimony the government intends to use at trial, including a description of the witnesses' opinions, the bases and the reasons therefore, and the witnesses' qualifications" pursuant to Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure;
4. an order that the court amend its original order that the government premark exhibits and permit defense counsel to inspect and copy these exhibits from thirty days prior to commencement of trial to sixty days;
5. early disclosure of Jencks Act material; and
6. a bill of particulars.
The government moves for reciprocal discovery.
Defendants have argued that the indictment violates the prohibition against duplicitous pleading. In addition, the defendants have argued that this allegedly duplicitous pleading violates the joinder rules of Rule 8 of the Federal Rules of Criminal Procedure and the protections of the Ex Post Facto Clause as it applies to the United States Sentencing Guidelines.
"Duplicity is the joining in a single count of two or more distinct and separate offenses." United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975). An indictment with duplicitous counts implicates the following concerns: first, "a general verdict [from a duplicitous indictment] does not reveal exactly which crimes the jury found the defendant had committed," United States v. Gomberg, 715 F.2d 843, 845 (3d Cir. 1983), cert. denied, 465 U.S. 1078, 79 L. Ed. 2d 760, 104 S. Ct. 1439, 104 S. Ct. 1440 (1984); second, a duplicitous indictment may prejudice the defendant "with respect to evidentiary rulings during the trial, since evidence admissible on one offense might be inadmissible on the other," Starks, 515 F.2d at 116; and third, in a general verdict based upon two or more separate offenses joined in a single count, there is no way of knowing whether the jury was unanimous with respect to any of the offenses. Id. at 117. In order to avoid these problems with duplicity, courts will either dismiss the duplicitous counts of an indictment, or require the government to make an election between charging one, but not all of the offenses.
An indictment is not duplicitous in cases where the indictment does not charge different offenses in the same count, but instead charges different methods of completing the same offense. See, e.g., United States v. Goldberg, 913 F. Supp. 629, 636 (D. Mass. 1996). The Federal Rules of Criminal Procedure specifically authorize charging two different methods of committing a crime in a single count. See Fed R. Crim. P. 7(c)(1) ("It may be alleged in a single count that the means by which the defendant committed the offense are unknown or the defendant committed it by one or more specified means.)
When considering whether duplicity exists within an indictment, a court's review is limited because "the task is not to review the evidence . . . to determine whether it would support charging several crimes rather than just one, but rather solely to assess whether the indictment itself can be read to charge only one violation in each count." United States v. Mastelotto, 717 F.2d 1238, 1244 (9th Cir. 1983). "The question for review is simply whether the indictment may be read to allege a single unified scheme in each count." Id.
Although the defendants have attacked every count as duplicitous, their claim can be reduced to the assertion that the indictment is fatally flawed because it involves three schemes to defraud rather than one. In support of their motion, defendants have relied upon several cases which discuss the variance doctrine to support their argument. The defendants have not offered any reason and this court has not discovered any case law to suggest that this court should incorporate variance standards into its duplicity review. The variance doctrine compels a court to vacate a conviction where "there is a variance between the indictment and the proof which prejudices some substantial right of the defendant." United States v. Maker, 751 F.2d 614. In contrast to the limited form of review under duplicity analysis, a variance analysis requires that a court examine the evidence presented to discern the differences between the indictment and the proofs offered. For example, the indictment in Kotteakos v. United States, 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946), the seminal variance doctrine case, charged 32 people with one conspiracy where 8 independent groups of people had dealt independently with one agent in a pattern that was analogous to "separate spokes meeting at a common center . . . without the rim of the wheel to enclose the spokes." Kotteakos, 328 U.S. at 754-755. Based upon the evidence, the Court found that the jury "could not possibly have found . . . only one conspiracy." Id. at 769. Essentially, the defendants, at the hearing, warned the court of variance problems that they anticipate will develop at trial. However, now is not the appropriate procedural stage to consider a variance argument because I cannot consider any evidence. Even if this were the right time, this case can be distinguished from Kotteakos because in that case, several of the defendants had never had any dealings with each other. Here, the indictment alleges that both defendants were involved in the same conspiracy.
In the instant case, Count 1 alleges a conspiracy to defraud three financial institutions. Generally, "[a] conspiracy count may allege a purpose to commit multiple substantive offenses, and it is not duplicitous if it does so," United States v. Knox Coal Co., 347 F.2d 33, 39 (3d Cir.), cert. denied., 382 U.S. 904, 15 L. Ed. 2d 157, 86 S. Ct. 239 (1965) because "an agreement to commit several crimes is but one conspiracy." Gomberg, 715 F.2d at 846. Even if the conspiracy has many objectives, "the conspiracy is the crime . . . however diverse its objects." Gomberg, 715 F.2d at 846. In the instant case, the indictment can be read to charge only one conspiracy with several objectives which include the defrauding of three financial institutions between 1985 and 1989.
As I have already noted, the defendants draw from variance theory to argue that the indictment is defective because Count 1 alleges three conspiracies. Even if this court were to find variance jurisprudence applicable or at least analogous, the case law would not compel this court to dismiss the indictment. Under Third Circuit case law, the factors for whether a single conspiracy are present are identical to those that determine whether a single scheme exists under a fraud statute. United States v. Maker, 751 F.2d 614, 625 n.35 (3d Cir. 1984) (citing United States v. Camiel, 689 F.2d 31, 36 (3d Cir. 1982), cert. denied, 472 U.S. 1017, 87 L. Ed. 2d 614, 105 S. Ct. 3479 (1985). The court of appeals has developed the following factors for variance cases to determine whether a single conspiracy exists:
1) whether there existed common or similar goals;
2) whether there existed common or similar methods; and
3) whether there existed an overlapping of participants.
United States v. Schurr, 775 F.2d 549, 556 (3d Cir. 1985); United States v. De Peri, 778 F.2d 963 (3d Cir. 1985); United States v. Maker, 751 F.2d 614 (3d Cir. 1984), cert. denied, 472 U.S. 1017, 105 S. Ct. 3479, 87 L. Ed. 2d 614 (1985). Sometimes, although not always, the court of appeals has considered a fourth factor: whether the agreement or scheme contemplated a continuity in purpose, performance, and result. United States v. Barr, 963 F.2d 641, 649 (3d Cir. 1991), cert. denied, 506 U.S. 1033, 121 L. Ed. 2d 684, 113 S. Ct. 811 (1992); Maker, 751 F.2d at 625 n.36; but see, Schurr, supra, (not mentioning this factor). In their brief, the defendants have conceded that Count 1 satisfies the first three factors, Defendants' Br. at 13, but they argue that it fails the fourth factor, characterized by the defendants as the "the crucial test employed by the Third Circuit." Id. at 14.
Because the Third Circuit has not always considered this fourth factor necessary, one cannot argue, as the defendants do, that this factor is some kind of litmus test for duplicity. It appears to be but one factor considered by courts in variance cases. Regardless of this factor's importance, I find that the indictment can be read to include continuity in purpose, performance, and result. Because there is no conspicuous discontinuity in the contemplated activity, defendants' argument is flawed as a matter of fact in addition to its deficiency as a matter of law. Therefore, even if the variance theory standards were applicable to this case, the court would not find Count 1 duplicitous.
Counts 2 through 11 allege 10 executions of bank fraud in violation of 18 U.S.C. § 1344. In a fraud case, the "central question in a duplicity review of any given count in an indictment . . . is . . . the breadth of the fraudulent activity alleged in the count, that is, whether it all falls within one unitary 'scheme to defraud,'" Mastelotto, 717 F.2d at 1244. Accordingly, if the "set of fraudulent transactions alleged in a [fraud] count is within the conceivable contemplation of a greedy mind, no duplicity has occurred." In the instant case, the defendants do not contest that each count alleges a separate and single transaction. Therefore, the defendants cannot avail themselves of the duplicity doctrine.
Because each count only alleges one execution of bank fraud in violation of 18 U.S.C. § 1344, it cannot be argued that any of the counts in the indictment charge more than "two or more distinct and separate offenses." United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975). The indictment does not implicate any of the concerns of the duplicity doctrine that I have discussed. For instance, because each alleged execution of the crime is specifically detailed in Counts 2 through 11, I do not believe that there exists the possibility that a jury could find the defendants guilty on a count without having reached a unanimous verdict on the commission of a particular offense. United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976), cert. denied, 430 U.S. 966, 52 L. Ed. 2d 357, 97 S. Ct. 1646 (1977).
At the heart of defendants' duplicity claim is their perception that the introduction to Counts 2 through 11 references one "scheme and artifice" set out in Count 1 (the conspiracy count), (Indictment at 13), and thereby, contaminates the ten counts because "it is apparent from the face of the Indictment that . . . three schemes are alleged and are duplicitously joined into one. " Defendant's Br. at 11. However, for the reasons detailed above, this argument is unpersuasive. Defendants' dissatisfaction with the indictment is not rooted within the realm of duplicity. The defendants have not cited any case law on duplicity and this court has not discovered any that would support their claim. Counts 2 through 11 are not duplicitous because the indictment does not raise the concerns of the duplicity doctrine and each count can be read to charge a separate, single, and distinct offense.
As with the conspiracy count, the defendant has cited several variance cases to argue that the government has alleged more than one unitary scheme. As I have stated, these cases are not pertinent and even if they were, the indictment can be read to allege one unitary scheme.
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. FED. R. CRIM. P. 8(b).
The indictment, defendant argues, "manifests at best a series of unconnected offenses which cannot be properly joined ...