The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
Defendant David Olmsted, a/k/a Dale Cooper, Jr., is charged by a second superseding indictment (the "indictment") with 198 criminal offenses, two forfeiture allegations, and a money judgment allegation. (Docket 37). The criminal allegations are grouped as follows:
Count 1: On or about between December 27, 2008, and March 14, 2011, failure to register a money transmitting business in violation of 31 U.S.C. § 5330; Counts 2-37: On or about between February 7, 2011, to March 14, 2011, failing to report on exporting and importing monetary instruments in violation of 31 U.S.C. §§ 5316(a)(2) & (d) and 5312(a)(3); Counts 38-72: On or about between February 7, 2011, and March 14, 2011, failing to report on exporting and importing monetary instruments in violation of 31 U.S.C. § 5324(c)(3); Counts 73-122: On or about between February 7, 2011, and March 14, 2011, mail fraud in violation of 18 U.S.C. § 1341; and Counts 123-198: On or about between February 7, 2011, and March 14, 2011, wire fraud in violation of 18 U.S.C. § 1343.
Id. Defendant filed a number of motions which are summarized as follows: 1. Motion to dismiss counts 38-72 as multiplicitous (Docket 60); 2. Motion to dismiss counts 38-72 as unconstitutionally vague (Docket 68); 3. Motion to sever the grouped charges (Docket 70); and 4. Motion for a Daubert*fn1 hearing (Docket 88). The government objects to each of these motions. (Dockets 73, 84, 86 & 91). Following the completion of briefing, the motions are ripe for resolution. The court addresses each motion separately.
1. MOTION TO DISMISS COUNTS 38-72 AS MULTIPLICITOUS
The Double Jeopardy Clause of the Fifth Amendment prohibits the imposition of multiple punishments for the same crime. United States v. Two Elk, 536 F.3d 890, 898 (8th Cir. 2008). "An indictment is multiplicitous if it charges the same crime in two counts. The main difficulty with such an indictment is that the jury can convict the defendant on both counts, subjecting the defendant to two punishments for the same crime in violation of the double-jeopardy clause of the fifth amendment." United States v. Chipps, 410 F.3d 438, 447 (8th Cir. 2005) (internal citation omitted). To demonstrate that an indictment violates the double jeopardy clause, a defendant must show " 'that the two offenses charged are in law and fact the same offense.' " Two Elk, 536 F.3d at 898 (quoting United States v. Roy, 408 F.3d 484, 491 (8th Cir. 2005)).
To determine if multiple offenses charged " 'are in law and fact the same offense,' " courts "must scrutinize the statute in question to determine 'whether Congress intended the facts underlying each count to make up a separate unit of prosecution.' " Id. (quoting Roy, 408 F.3d at 491; Chipps, 410 F.3d at 447). "The unit of prosecution is the aspect of criminal activity that Congress intended to punish." Chipps, 410 F.3d at 448. Courts look to "the statutory language, legislative history, and statutory scheme to ascertain what Congress intended the unit of prosecution to be." Id. If Congress fails to clearly and unambiguously identify the unit of prosecution, courts "resolve doubt as to congressional intent in favor of lenity for the defendant." Id. (citing Bell v. United States, 349 U.S. 81, 83-84 (1955)).
Defendant argues counts 38-72 of the indictment are multiplicitous because "[t]he government claims that all off [sic] the money within Mr. Olmsted's account was the product of his unlicensed business. By analogy to Kushner*fn2 the multiple counts are one offense and should be consolidated into one count." (Docket 61 at p. 2).
In Kushner, the defendants were charged with "over 100 counts of 'structuring'*fn3 in violation of 31 U.S.C. § 5324." Kushner, 256 F. Supp. 2d at 112. The Defendants were "charged . . . with independent structuring counts for each day in which the Defendants attempted to avoid the federal reporting requirements." Id. The court found "Defendants did not 'structure' on a daily basis. . . . It is not the day . . . that is critical or even significant to the structuring here. All of the money within the Defendants' accounts was the product of the Defendants' unlicensed business, and it was the sum in its entirety that the Defendants sought to conceal. They achieved concealment by avoiding daily reporting requirements, but the amount of the daily withdrawals are irrelevant." Id. at 113 (emphasis in original). Each of the Kushner transactions involved "withdrawals from a bank--as opposed to deposits--thus making it more difficult to trace funds to particular sources." Id. at 113. "If the Government chooses to identify the various sources from which the money . . . was derived . . . the Government could . . . charge these transactions as separate structuring counts . . . ." Id. at 114. The Kushner court found the 100 counts were multiplicitous because "the structuring as alleged here was not conducted so as to withdraw discrete amounts of money daily to avoid the reporting requirements; it was structured so that the daily reporting requirements would reveal neither the overall scheme, nor the substantial amounts of cash the Defendants illegally received from various sources." The court concluded this rationale would not apply to the other counts of the indictment charging failing to file currency reports because for "each day in which a required [currency report] was not filed, the Defendants may be charged with a separate offense . . . ." Id. at n. 6.
The caption page of defendant's second superseding indictment, without referencing to which counts the designated offense category relates, identifies "UNLAWFUL STRUCTURE OF TRANSACTIONS TO EVADE REPORTING REQUIREMENTS (31 U.S.C. § 5324(c))." (Docket 37 at p. 1).
The general allegations section of the indictment introducing counts 38-72 contains the following language:
On or about between February 7, 2011, and March 14,2011, in the District of South Dakota and elsewhere, the defendant, David Olmsted, knowingly failed to file a report as required by 31 U.S.C. § 5613,*fn4 and caused and attempted to cause a person to fail to file such a report, for the purpose of evading the reporting requirements of 31 U.S.C. § 5613,*fn5 all in violation of 31 U.S.C. § 5324(c).
Id. at pp. 4-5. Section 5316 requires:
[A] person . . . shall file a report under subsection (b) of this section when the person . . . knowingly--
(1) transports, is about to transport, or has transported, monetary instruments of more than ...