United States v. Newman

          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 ...