United States District Court, D. South Dakota, Western Division
AMENDED PRETRIAL ORDER
JEFFREY L. VIKEN CHIEF JUDGE.
ANALYSIS
On
January 26, 2016, a grand jury returned a multi-count
indictment charging the defendant Daniel Newman with
embezzlement of mail by an officer or employee of the United
States Postal Service in violation of 18 U.S.C. § 1709;
and theft of mail by an officer or employee of the United
States Postal Service in violation of § 1709. (Docket
2). Counts I-V charged embezzlement of mail entrusted to the
defendant and addressed to the following alleged victims:
-
Count
|
Date
|
Addressee
|
Address
|
I
|
01/21/15
|
Tami Korb
|
St. Louis Park, MN
|
II
|
01/21/15
|
Robert Dempsey
|
Birmingham, AL
|
III
|
03/04/15
|
Su Yin Chow
|
Rapid City, SD
|
IV
|
03/04/15
|
M. Johnsonette
|
Rapid City, SD
|
V
|
02/10/15
|
Sarah Johnson
|
Rapid City, SD
|
Id. at pp. 1-2.
Counts
6-11 charged theft of mail as the defendant “did steal,
abstract, and remove” from the letters and other
articles “U.S. currency, gift cards, and other items of
value . . . with the intent to convert such items to his own
use”:
-
Count
|
Date
|
Addressee
|
Address
|
VI
|
01/21/15
|
Tami Korb
|
St. Louis Park, MN
|
VII
|
01/21/15
|
Robert Dempsey
|
Birmingham, AL
|
VIII
|
03/04/15
|
Su Yin Chow
|
Rapid City, SD
|
IX
|
03/04/15
|
M. Johnsonette
|
Rapid City, SD
|
X
|
02/10/15
|
Sarah Johnson
|
Rapid City, SD
|
XI
|
02/2015
|
Breck Buer
|
Worland, WY
|
Id. at pp. 2-3. Defendant filed a number of pretrial
motions which were the subject of a motions hearing on
October 27, 2016. Each of defendant's motions will be
separately addressed.
MOTION
TO DISMISS COUNTS VI-XI AS DUPLICITOUS
Mr.
Newman seeks dismiss of counts VI-XI alleging they “are
internally duplicitous in that they require different intents
thereby constituting separate charges, though pled in a
single count.” (Docket 23 at p. 1). Mr. Newman argues
these counts are internally duplicitous because “[a]s
criminal acts, ‘stealing, abstracting and removing'
require different degrees of
intent―‘stealing' requires specific intent
whereas ‘abstracting or removing' requires only
general intent.” (Docket 24 at p. 2). Mr. Newman claims
“stealing” requires a “specific felonious
intent to convert the property stolen to one's own
use.” Id. at p. 4. He argues the government
need only prove “general intent” to
“abstract” or “remove” items from the
letters or packages being mailed. Id. at p. 2.
“Duplicity
is the joining in a single count of two or more distinct and
separate offenses. . . . The principal vice of a duplicitous
indictment is that the jury may convict a defendant without
unanimous agreement on the defendant's guilt with respect
to a particular offense. . . . The risk inherent in a
duplicitous count, however, may be cured by a limiting
instruction requiring the jury to unanimously find the
defendant guilty of at least one distinct act.”
United States v. Nattier, 127 F.3d 655, 657 (8th
Cir. 1997) (internal citations omitted).
Counts
VI-XI specifically allege Mr. Newman “did steal,
abstract, and remove” items from the mail “with
intent to convert such items to his own use . . . .”
(Docket 1 at p. 2). Without needing to resolve Mr.
Newman's “intent” argument, based on the
specific language of the indictment, the government must
prove in counts VI-XI that the defendant specifically
intended to convert the items taken out of the mail to his
own use. Because of this conclusion, counts VI-XI do not
create a duplicity issue as they charge only one offense
which can be accomplished in one of three different
methods―“steal[ing], abstract[ing] or
remov[ing].” 18 U.S.C. § 1709.
Defendant's
motion (Docket 23) is denied.
MOTION
TO DISMISS INDICTMENT OR CONSOLIDATE COUNTS I-V AND COUNTS
VI-XI
Mr.
Newman seeks dismissal of the indictment for being
multiplicitous or, in the alternative, to consolidate counts
I-V into a single count and counts VI-XI into a second count.
(Docket 25 at p. 1). He claims the indictment is
multiplicitous because “it charges a single offense in
several counts. . . . [and] may lead to multiple sentences
for the same offense.” (Docket 26 at p. 4). Mr. Newman
argues the “unit of prosecution” should determine
whether “the facts underlying each count . . . make . .
. a separate unit of prosecution.” Id. at p. 5
(referencing United States v. Chipps, 410 F.3d 438,
447-49 (8th Cir. 2005) and Bell v. United States,
349 U.S. 81, 83-84 (1955)). Mr. Newman asserts that
“[t]o determine how many courses of conduct [he]
undertook, the . . . ‘impulse test' is
applied.” Id. at p. 6 (referencing
Chipps, 410 F.3d at 449). He argues that
“[u]nder the impulse test, all violations arising from
‘that singleness of thought, purpose or action, which
may be deemed a single “impulse” ' are
treated as just one offense.” Id. (citing
Chipps, 410 F.3d at 449).
Applying
these theories to § 1709, Mr. Newman claims his conduct
“encompass[es] a single offense [because] all acts of
embezzlement or theft occurring over a short, continuous
period of time as a single offense undertaken as a single
impulse constitute[s] a distinct, individual unit of
prosecution . . . .” Id. at p. 7. Because each
act of embezzlement or theft is separately charged in counts
I-V, embezzlement, and VI-XI, theft, the defendant argues the
indictment violates the “unit of classification”
rule and the multiple counts are multiplicitous. Id.
at pp. 7-8. To avoid violation of the “unit of
...