The opinion of the court was delivered by: MICHAEL A. TELESCA
The defendant, Gordon Urlacher, is charged in two separate indictments with conspiring to violate Title 18, United States Code § 666(a)(1)(A), and also with substantive violations of that section. Defendant now moves to dismiss the second indictment, CR-91-190T, on the grounds that it is multiplicitous.
Multiplicity occurs when a single crime has been arbitrarily divided or separated into two or more separate counts or indictments. United States v. Nakashian, 820 F.2d 549 (2d Cir.), cert. denied, 484 U.S. 963, 98 L. Ed. 2d 392, 108 S. Ct. 451 (1987); see also United States v. Castro, 629 F.2d 456, 461 (7th Cir. 1980). Multiplicitous indictments or counts are prohibited by the double jeopardy clause of the United States Constitution, which "assures that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." United States v. Maldonado-Rivera, 922 F.2d 934, 969 (2d Cir. 1990) (citing Nakashian, 820 F.2d at 552).
Where, as here, the defendant is charged with multiple violations of one statute, the court must "identify the unit of prosecution of the offense charged" in order to determine whether the defendant's conduct "constitutes a single offense or several. . . ." United States v. Song, 934 F.2d 105, 108 (7th Cir. 1991). In identifying the correct "unit of prosecution," the court must first examine the statute itself. Id.
Here, the only difference between the substantive counts in the first indictment and those in the second indictment is the source of money the defendant allegedly embezzled or misapplied. For example, count three of the first indictment (CR-90-200T) charges that
in or about and between July 1, 1987 and June 30, 1988, the defendant, GORDON URLACHER, was an agent of the City of Rochester, that is the Chief of the Rochester Police Department, said City of Rochester having received in the one year period beginning July 1, 1987, benefits in excess of $ 10,000 under a federal program involving a grant, contract, subsidy, or other form of federal assistance; moreover,within the time period referenced,. . . the defendant, GORDON URLACHER,. . . did knowingly and intentionally embezzle, obtain by fraud and otherwise without authority convert and misapply cash monies in excess of $ 5,000, said cash monies having been in the care, custody and control of the Rochester Police Department, an agency of the City of Rochester; All in violation of Title 18, United States Code, Sections 666(a)(1)(A) and 2. (emphasis mine).
Count two of the second indictment (CR-91-190T) is identical to count three of the first indictment except that it specifies that the "said cash monies" were "received from the Monroe County Probation Department and the Chase Lincoln First Bank. . . ." In other words, the only difference between these two counts and, indeed, the other counts in the first and second indictments, is that the funds which the defendant allegedly embezzled came from different sources.
Accordingly, this court must look to the statute to determine whether it is "source-specific," that is, whether it permits the government to charge the defendant with a separate violation based upon the source of the funds he is alleged to have embezzled. I conclude that it does not. Title 18, United States Code, § 666(a)(1)(A) provides in pertinent part that
whoever,. . . being an agent of . . . a local . . . government, or any agency thereof -- embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that -- is valued at $ 5,000 or more, and is owned by, or is under the care, custody, or control of such . . . government or agency."
shall violate the law. Section 666(b) also requires that, the local government or agency receive "in any one year period, benefits in excess of $ 10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance." 18 U.S.C. § 666(b).
Moreover, the government urges this court to accept an interpretation of this statute which would permit aggregation of the value of property stolen in multiple conversions each involving less than $ 5,000. Support for this interpretation of the statute is found in Webb, supra. In Webb, the court ruled that the government may consolidate or aggregate the value of property stolen in multiple conversions of less than $ 5,000 in order to reach section 666's minimum of $ 5,000, as long as the conversions were part of a single plan or scheme, the intent of which was to convert or steal more than $ 5,000. Webb, 691 F. Supp. at 1168.
This view of section 666 serves to strengthen this court's conclusion that charging a defendant with a separate violation for each source of money allegedly stolen impermissibly exposes the defendant to multiple punishments for the same offense. To permit the government to aggregate multiple conversions to reach the $ 5,000 minimum, and then to start over again in a separate and distinct count is illogical and certainly unfair. Thus, I hold that the "unit of prosecution" in this case is "$ 5,000 or more," from whatever source, in any one year period in which the government or agency at issue receives more than $ 10,000 in Federal aid. Accordingly, the substantive counts in the second indictment are multiplicitous.
With respect to the conspiracy count in each indictment, the court must look to the "totality of the circumstances" to determine whether the two conspiracies alleged are, in fact, one conspiracy. United States v. Korfant, 771 F.2d 660, 662 (2d Cir. ...