The opinion of the court was delivered by: Seybert, J., District Judge
Sandra Hatfield ("Hatfield") and David H. Brooks ("Brooks") (collectively, "Defendants") are charged with conspiracy to commit and substantive securities fraud, conspiracy to commit mail and wire fraud, mail fraud, wire fraud, conspiracy to obstruct justice, obstruction of justice, and conspiracy to defraud the United States. The Indictment separately charges Hatfield with three counts of insider trading and one count of tax evasion, and Brooks with six counts of insider trading, one count of making material misstatements to auditors, and two counts of filing false tax returns. On March 16, 2009, the Court severed the tax counts from the non-tax counts. On July 9, 2009, the Government filed a second Superseding Indictment charging Patricia Lennex with conspiracy to defraud the United States in connection with the severed tax counts.
On January 5, 2009, Brooks filed a lengthy and periphrastic motion essentially challenging Counts One and Six through Eleven on the grounds of duplicity, multiplicity, impermissible ex post facto retroactivity, and/or Federal Rule of Criminal Procedure 7. For the reasons below, Brooks' motion to dismiss is DENIED.
I. Multiplicity/Duplicity Arguments
An indictment is duplicitous if it joins two or more distinct crimes in a single count. United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980). A duplicitous indictment, which alleges several offenses in the same count, must be distinguished from "the allegation in a single count of the commission of a crime by several means." Id. 618 F.2d at 896. The latter is not duplicitous. Additionally, "(t)he allegation in a single count of a conspiracy to commit several crimes is not duplicitous." Murray, 618 F.2d at 896 see also Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942) ("Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one."). "Finally, a single conspiracy is not transformed into multiple conspiracies merely by virtue of the fact that it may involve two or more phases or spheres of operation, so long as there is sufficient proof of mutual dependence and assistance." United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir. 1990).
The policy considerations underlying the prohibition against duplicitous indictments include:
[A]voiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any one of the crimes charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double jeopardy in a subsequent prosecution.
United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981) (citing Murray, 618 F.2d at 896).
Before the Court can grant a dismissal on duplicity grounds, a defendant must demonstrate prejudice resulting from the alleged duplicity; the duplicity doctrine is "more than an exercise in mere formalism." Murray, 618 F.2d at 897; Margiotta, 646 F.2d at 733. A finding of "[d]uplicity does not necessarily require dismissal of an indictment." United States v. Sturdivant, 244 F.3d 71, 79 (2d Cir. 2001) (citing United States v. Goodman, 285 F.2d 378 (5th Cir. 1960)). Among other safeguards, the Court can provide "a jury instruction that ensures that the jury is unanimous as to the conduct underlying the conviction." Id. (citing Murray, 618 F.2d at 898; cf. Abney v. United States, 431 U.S. 651, 664-65, 97 S.Ct. 2034, 52 L.Ed. 2d 651 (1977)).
An indictment is multiplicitous if a single offense is charged in more than one count. See United States v. Reed, 639 F.2d 896, 904 (2d Cir. 1981). "The vice in multiplicity of charges is that it may lead to multiple sentences for the same offense and may improperly prejudice a jury by suggesting that a defendant has committed not one but several crimes." Id. (citing United States v. Carter, 576 F.2d 1061, 1064 (3d Cir. 1978)). However, a single act can violate two statutes. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); United States v. Gumbs, 246 F.2d 441, 442 (2d Cir. 1957). Also, "each transaction in a securities fraud case constitutes a separate offense." United States v. Dioguardi, 492 F.2d 70, 83 (2d Cir. 1974), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed. 2d 112 (1974) (citing Sanders v. United States, 415 F.2d 621, 626 (5th Cir. 1969), cert. denied, 397 U.S. 976, 90 S.Ct. 1096, 25 ...