The opinion of the court was delivered by: HAIGHT
Counsel for defendant Blackmon has written to the Court under date of September 24, 1986, following conviction but prior to sentence. Blackmon's contentions, if sound, apply in significant part to all defendants, and would impact upon the Court's sentencing power. The Government has written in opposition, letter of October 2, and defense counsel has replied, letter of October 3.
For the reasons which follow, I conclude that Blackmon's contentions are without merit.
Counts 6 through 20 of the third superseding indictment charged all defendants with entering into a single scheme to commit bank fraud, in violation of 18 U.S.C. § 1344. Each count alleged a separate, fraudulently induced withdrawal from a federally insured bank in furtherance of that scheme. The jury convicted all defendants on all counts in which they were named.
Counsel for Blackmon now contends, in Point I, that counts 6 through 20 are multiplicitous; and that in consequence he can be sentenced on only one of those counts.
An indictment is "multiplicitous" when it charges one offense in several counts. United States v. Lartey, 716 F.2d 955, 967 (2d Cir. 1983). An indictment is "duplicitous" when it charges numerous crimes in a single count. Id. at 968.
The Government, relying on Rule 12, F.R.Crim.P., contends that Blackmon and all defendants have waived this objection by failing to raise it before trial. Rule 12(b)(2) requires that "[d]efenses and objections based on defects in the indictment be raised prior to trial." Rule 12(f) then provides:
"Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver."
The policy underlying waiver is stated in Davis v. United States, 411 U.S. 233, 241, 36 L. Ed. 2d 216, 93 S. Ct. 1577 (1973):
"The waiver provisions of Rule 12(b)(2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult."
While Davis arose out of a post-sentence collateral attack asserting discrimination in the composition of the grand jury, its rationale applies -- perhaps even a fortiori -- to pleading defects which, if they exist at all, usually appear on the face of the indictment the grand jury returns.
In the case at bar, it is common ground that no defendant raised prior to trial those objections and contentions counsel for Blackmon now advances, post-conviction and pre-sentencing.
At least in respect of a defendant's objection that an indictment is duplicitous, our circuit has now made it clear that the objection is waived if not made before trial. Lartey, supra, at 968 and cases cited. At one time the court suggested that an objection of duplicitous counts would be timely if "raised before trial or, at the least, before verdict." United States v. Droms, 566 F.2d 361, 363 (2d Cir. 1977) (per curiam); United States v. Galgano, 281 F.2d 908, 911 (2d Cir. 1960), cert. denied, 366 U.S. 967, 6 L. Ed. 2d 1257, 81 S. Ct. 1929 (1961). More recently, however, the Second Circuit said in United States v. Murray, 618 F.2d 892, 899 n.8 (1980):
"Particularly in view of the holding in Davis v. United States, supra, 411 U.S. at 243, 93 S. Ct. at 1583, we would be slow to conclude that a Rule 12(b)(2) motion based upon duplicity not made until just prior to submission to the jury is timely."
Waiver is not so clearly applicable to multiplicity, either under Second Circuit authority, or in the nature of the beast: "[m]ultiplicity problems may appear in various forms and may not be apparent until after the government presents evidence at ...