                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
UNITED STATES OF AMERICA,           )
                                    )
      v.                            )               Crim. Action No. 17-0201-01 (ABJ)
                                    )
PAUL J. MANAFORT, JR.,              )
                                    )
      Defendant.                    )
____________________________________)

                          MEMORANDUM OPINION AND ORDER

       Defendant Paul J. Manafort, Jr. has moved to dismiss either Count Four or Count Five of

the Superseding Indictment [Dkt. # 202] on the grounds that the counts are multiplicitous. Def.’s

Mot. to Dismiss One of Two Multiplicitous Counts [Dkt. # 236] (“Def.’s Mot.”). He argues that

since the two counts both charge the same offense, dual convictions would violate the Double

Jeopardy Clause of the U.S. Constitution. Id. at 1. He also maintains that the unnecessary

multiplication of counts will prejudice a jury against him. Id. The government opposed the

motion, Gov’t Resp. to Def.’s Mot. [Dkt. # 249] (“Gov’t Opp.”), the motion is fully briefed, see

Def.’s Reply to the Gov’t Opp. [Dkt. # 270] (“Def.’s Reply”), and the Court heard argument on

April 19, 2018. For the reasons set forth below, the Court will deny defendant’s motion without

prejudice to its being renewed after trial.

       Multiplicity arises when “an indictment charges the same offense in more than one count.”

United States v. Mahdi, 598 F.3d 883, 887 (D.C. Cir. 2010), quoting United States v. Weathers,

186 F.3d 948, 951 (D.C. Cir. 1999). The Double Jeopardy Clause of the Constitution protects

against “multiple punishments for the same offense.” Weathers, 186 F.3d at 951, cert. denied, 529

U.S. 1005 (2000); U.S. Const. amend. V, cl. 2. Also, courts have recognized that charging the


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same offense in multiple counts can “unfairly increas[e] a defendant’s exposure to criminal

sanctions” because a jury may conclude that given the number of charges, the defendant must be

guilty of something. United States v. Clarke, 24 F.3d 257, 261 (D.C. Cir. 1994), quoting United

States v. Harris, 959 F.2d 246, 250 (D.C. Cir. 1992), abrogated on other grounds, United States

v. Stewart, 246 F.3d 728 (D.C. Cir. 2001); see also United States v. Morrow, 102 F. Supp. 3d 232,

246 (D.D.C. 2015) (multiplicitous charges may suggest to a jury “that a defendant has committed

not one but several crimes”), quoting United States v. Reed, 639 F.2d 896, 904 (2d Cir. 1981).

       Defendant asserts that Counts Four and Five of the Superseding Indictment in this case

charge the same offense. Court Four alleges that defendant made misleading statements in two

letters to the Department of Justice in violation of the Foreign Agents Registration Act (“FARA”),

22 U.S.C. §§ 612, 618(a)(2); 18 U.S.C. §§ 2, 3551, and paragraph 45 of that count identifies the

statements at issue:

               On or about November 23, 2016, and February 10, 2017, . . . defendant
               PAUL J. MANAFORT, JR., knowingly and willfully caused to be made a
               false statement of a material fact, and omitted a material fact necessary to
               make the statements therein not misleading, in a document filed with and
               furnished to the Attorney General . . . to wit, the underlined statements:

               •   “[DMI]’s efforts on behalf of the Party of Regions and Opposition Bloc
                   did not include meetings or outreach within the U.S.”

               •   “[N]either [DMI] nor Messrs. Manafort or Gates had any agreement
                   with the [Centre] to provide services.”

               •   “[DMI] did provide the [Centre], at the request of members of the Party
                   of Regions, with a list of potential U.S.-based consultants—including
                   [Company A and Company B]—for the [Centre]’s reference and further
                   consideration. [The Centre] then contracted directly with [Company A
                   and Company B] to provide services within the United States for which
                   these entities registered under the Lobbying Disclosure Act.”




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               •   “Although Gates recalls interacting with [the Centre]’s consultants
                   regarding efforts in the Ukraine and Europe, neither Gates nor Mr.
                   Manafort recall meeting with or conducting outreach to U.S.
                   government officials or U.S. media outlets on behalf of the [the Centre],
                   nor do they recall being party to, arranging, or facilitating any such
                   communications. Rather, it is the recollection and understanding of
                   Messrs. Gates and Manafort that such communications would have been
                   facilitated and conducted by the [Centre]’s U.S. consultants, as directed
                   by the [Centre], pursuant to the agreement reached between those
                   parties (to which [DMI] was not a party).”

               •   “[A] search has been conducted for correspondence containing
                   additional information related to the matters described in [the
                   government’s] Letters. However, as a result of [DMI’s] Email
                   Retention Policy, which does not retain communications beyond thirty
                   days, the search has returned no responsive communications.”

Superseding Indictment ¶ 45. Count Five alleges that the same statements, made in the same two

letters, also violated 18 U.S.C. § 1001(a). Superseding Indictment ¶ 47. Indeed, Count Five

specifically references “the statements in the November 23, 2016, and February 10, 2017,

submissions to the Department of Justice quoted in paragraph 45” as the actionable statements for

purposes of the §1001 count. Superseding Indictment ¶ 47. So there is no question that the two

counts are based upon the exact same set of facts and circumstances. 1

       But the test for multiplicity is not whether two counts are based on the same set of facts;

rather, it is whether the statutory elements of the two offenses are the same. “The applicable rule

is that, where the same act or transaction constitutes a violation of two distinct statutory provisions,

the test to be applied to determine whether there are two offenses or only one, is whether each

provision requires proof of a fact which the other does not.” Blockburger v. United States, 284

U.S. 299, 304 (1932). This exercise “focuses exclusively on the statutory elements of the




1       At the hearing held on May 23, 2018, the government confirmed that Counts Four and Five
are predicated upon the statements set forth in paragraph 45 of the Superseding Indictment, and no
other statements or omissions. Tr. of Mots. Hr’g Held on May 23, 2018 [Dkt. # 305] at 90.
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offenses,” Weathers, 186 F.3d at 951, 954, and “not on the proof offered in a given case.” United

States v. McLaughlin, 164 F.3d 1, 8 (D.C. Cir. 1998), citing Iannelli v. United States, 420 U.S.

770, 785 n.17 (1975).

       Courts typically apply the Blockburger test unless the statutes “plainly express[]”

Congressional intent to impose separate punishments for the same alleged conduct. Mahdi, 598

F.3d at 888–89, citing Garrett v. United States, 471 U.S. 773, 779 (1985). At bottom, “whether

defendant has in fact been punished twice for the same offense . . . depends upon what ‘the

legislature intended.’” Mahdi, 598 F.3d at 887 quoting Weathers, 186 F.3d at 951.

        Defendant correctly observes that one could prove the alleged section 1001 violation

without proving any facts that are not necessary to the FARA count, and that the alleged false

statements or misrepresentations in the two charges are identical. Def.’s Mot. at 6, 8. But as the

authority set forth above provides, the inquiry is not tied to the particular facts of the case, and it

does not turn on whether the proof satisfying one charge can satisfy the other, but whether proof

of one of “necessarily includes proof of” the other. Ball v. United States, 470 U.S. 856, 862 (1985)

(emphasis in original).

       The Supreme Court’s application of the test in United States v. Woodward demonstrates

this distinction. 469 U.S. 105 (1985) (per curiam). In that case, the defendant falsely answered

“no” to the question of whether he was carrying more than $5000 in currency when he entered the

country. Id. at 106–07. He was charged with both making a false statement in violation of section

1001 and willfully failing to report that he was carrying in excess of $5,000 into the United States

in violation of 31 U.S.C. § 1058. Id. at 106. In rejecting the defendant’s claim that the obviously

overlapping counts were multiplicitous, the Court stated:




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                Section 1001 proscribes the nondisclosure of a material fact only if the fact
                is “conceal[ed] . . . by any trick, scheme, or device,” (Emphasis added.) A
                person could, without employing a “trick, scheme, or device,” simply and
                willfully fail to file a currency disclosure report. A traveler who enters the
                country and passes through Customs prepared to answer questions
                truthfully, but is never asked whether he is carrying over $5,000 in currency,
                might nonetheless be subject to conviction under 31 U.S.C. § 1058 (1976
                ed.) for willfully transporting money without filing the required currency
                report. However, because he did not conceal a material fact by means of a
                “trick, scheme, or device,” (and did not make any false statement) his
                conduct would not fall within 18 U.S.C. § 1001.

469 U.S. at 108 (footnotes omitted); see also id. n.5 (noting that a violation of section 1001 requires

an “affirmative act by which means a material fact is concealed”). So the question is whether one

offense would always entail proof of the other, and that is an issue of first impression in this Circuit.

        Manafort compares the elements of a section 1001 false statement violation with those

needed to prove a FARA violation, and he asserts that a prosecution that “proves the elements of

making a false FARA statement . . . will necessarily have proven the elements of making a false

statement in a matter within the jurisdiction of the executive branch” in violation of section 1001.

Def.’s Mot. at 6. That may be the case with respect to a plainly false statement, but the analysis

has to work in all situations. The FARA provision also covers statements that are misleading due

to a willful omission of material fact, 22 U.S.C. § 618(a)(2), but a willful omission of material fact

that renders a statement misleading would not constitute a violation of section 1001 as well if the

statement were literally true. United States v. Safavian, 528 F.3d 957, 967 (D.C. Cir. 2008) (stating

that literal truth is a complete defense to a section 1001 charge), citing United States v. Milton,

8 F.3d 39, 45 (D.C. Cir. 1993). Further, FARA covers willful omissions of material fact without

limitation, 22 U.S.C. § 618(a)(2), but the only willful omissions of material fact that are covered

by section 1001 are those made by “trick, scheme, or device.” 18 U.S.C. § 1001(a)(1). Thus, if

one engages in the same sort of close review of statutory language that the Supreme Court


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undertook in Woodward, it becomes clear that it is possible to violate FARA without violating

section 1001. And neither party has pointed to any plain expression of Congressional intent in

either statute that would override the Blockburger analysis. See Mahdi, 598 F.3d at 888. 2

       Under all of these circumstances, the D.C. Circuit has observed that the better practice

would be to defer this determination until after the trial. United States v. Hubbell, 177 F.3d 11, 14

(D.C. Cir. 1999) (“[M]ultiplicity claims are better sorted out post-trial.”); see also United States v.

Clark, 184 F.3d 858, 872 (D.C. Cir. 1999) (“[T]he usual remedy is to hold that the convictions

have merged and order that one be vacated.”); United States v. Dale, 991 F.2d 819, 859 (D.C. Cir.

1993). While courts have recognized that some prejudice may arise from the accumulation of

multiple charges, see, e.g., Clarke, 24 F.3d at 261; Harris, 959 F.2d at 250; United States v.

Phillips, 962 F. Supp. 200, 202 (D.D.C. 1997), the duplication here does not significantly affect

the overall heft of the indictment, and the harm that can flow from the existence of multiple charges

can be ameliorated with proper jury instructions. United States v. Wheeler, No. 11–151, 2012 WL

1865506 at *2 (D.D.C. May 22, 2012) (“potential prejudice can be addressed through carefully-

crafted jury instructions”). The Court agrees with the observation of another court in this district

that “[t]he primary evil of multiplicitous charges is that a defendant will be punished twice for the




2        The government points to cases where courts permitted prosecutions for specific regulatory
offenses along with section 1001. See Gov’t Opp. at 10–11, n.5, citing United States v. Ramos,
725 F.2d 1322, 1324 (11th Cir. 1984) (involving section 1001 and 18 U.S.C. § 1542, which governs
false statements in passport applications); United States v. Bryant, 117 F.3d 1464, 1468–69 (D.C.
Cir. 1997) (involving section 1001 and 18 U.S.C. § 912, which prohibits impersonating a federal
official); United States v. Laimeche, 56 F. App’x 835, 836 (9th Cir. 2003) (unpublished) (involving
section 1001 and a Medicare-specific statute); United States v. York, 888 F.2d 1050, 1058–59 (5th
Cir. 1989) (involving section 1001 and 18 U.S.C. § 1014, which applies to false statements in loan
applications). But those cases are not binding on this Court, and they are not determinative on the
issue here since they do not wrestle with the statutory elements of the two offenses charged in this
case.
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same offense,” United States v. Sanford, Ltd., 859 F. Supp. 2d 102, 124 (D.D.C. 2012), and in the

absence of binding authority on the particular statutes here, it will follow the directive of the D.C.

Circuit that this problem should be addressed at the conclusion of the trial.

               Given the absence of controlling D.C. Circuit precedent, the trial court
               correctly submitted the [two tax statutes] counts to the jury. Initially
               permitting convictions on both counts serves the useful purpose of allowing
               [the appellate] court to determine whether there is error concerning one of
               the counts that does not affect the other.

United States v. Dale, 991 F.2d 819, 859 (D.C. Cir. 1993) (internal citation and quotation marks

omitted); see also Wheeler, 2012 WL 1865506 at *1 (stating that letting potentially multiplicitous

charges go to a jury allows for appeal of first-impression multiplicity question).

                                          CONCLUSION

       For the reasons set forth above, defendant’s motion [Dkt. # 236] is DENIED WITHOUT

PREJUDICE to its being renewed after trial.

       SO ORDERED.




                                               AMY BERMAN JACKSON
                                               United States District Judge

DATE: May 25, 2018




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