                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 07a0142p.06

                      UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                          X
                                     Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                           -
                                                           -
                                                           -
                                                               No. 06-1263
             v.
                                                           ,
                                                            >
 FREDERICK KAKOS,                                          -
                                  Defendant-Appellant. -
                                                          N
                           Appeal from the United States District Court
                          for the Eastern District of Michigan at Detroit.
                         No. 05-80290—George C. Steeh, District Judge.
                                     Argued: February 2, 2007
                                Decided and Filed: April 20, 2007
                  Before: KENNEDY, BATCHELDER, and CLAY, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Robert M. Kalec, DEAN & FULKERSON, Troy, Michigan, for Appellant. Patricia G.
Gaedeke, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: Robert M. Kalec, DEAN & FULKERSON, Troy, Michigan, for Appellant. Patricia
G. Gaedeke, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
                                        _________________
                                            OPINION
                                        _________________
         CLAY, Circuit Judge. Defendant Frederick Kakos appeals his conviction for the interstate
receipt of stolen property pursuant to 18 U.S.C. § 2315. Defendant was charged, in a single count
indictment, with knowingly receiving a stolen trailer and the stolen meat contained within that
trailer. On appeal, Defendant argues that the indictment was duplicitous, thereby compromising his
right to a unanimous jury verdict, and that the district court committed plain error by failing to give
the jury a special unanimity instruction which would have eliminated any such prejudice. For the
reasons that follow, we AFFIRM Defendant’s conviction.
                                         BACKGROUND
        On October 12, 2002, Defendant and his uncle, Sargis Malik, arrived at the home of
Defendant’s cousin, Maureen Ranierin, who managed a small business storing trucks and trailers
on her property in Warren, Michigan. Malik was driving a tractor trailer, which was stolen, as was
the $30,000 worth of Kroger’s meat contained in the trailer. Defendant told Ranierin that Malik was

                                                  1
No. 06-1263           United States v. Kakos                                                     Page 2


going to have a heart attack, and that Defendant needed to take him to the hospital. Ranierin
reluctantly consented to Defendant parking the trailer on her lot, although she charged him twenty
dollars more than the usual parking fee. After the rig was parked, Defendant went into the trailer
and emerged with a tray of meat, which he offered to Ranierin, who eventually accepted it upon
Defendant’s insistence. A few minutes later, Defendant and Malik left in the tractor. Malik drove
the tractor to Defendant’s house (leaving the trailer in storage with Ranierin), and then Defendant
drove Malik to the hospital where Malik was admitted.
        By October 17, 2002, the Federal Bureau of Investigations (“FBI”) was investigating the
theft of the meat and the trailer. On or about that date, Special Agent Johnston of the FBI
interviewed Malik at the hospital, and learned that the trailer was filled with meat. Johnston
interviewed Defendant on the same day. Defendant first told Johnston that Malik had bought the
meat and needed help storing it. Johnston pressed Defendant on this point, and Defendant then told
Johnston that his uncle was forced to steal the meat and had asked Defendant for help, which
Defendant agreed to provide. Defendant told Johnston that he contacted another individual, Fred
Maltise, to try to sell the meat.
         Later during the course of the investigation, the FBI searched the tractor, which was parked
in front of Defendant’s house. The search revealed a handwritten note from an unknown person on
which Defendant’s cell phone number was written, as well as directions to Ranierin’s storage
facility. The FBI’s investigation also uncovered phone records that revealed a large volume of calls
between Defendant and Malik in the time preceding the theft of the trailer.
       On February 12, 2003, after the FBI had contacted Maltise, Johnston again interviewed
Defendant. Defendant at this point claimed that he did not know that the meat was stolen.
According to Defendant, Malik came to him and said that he had bought the meat for $15,000, and
was trying to sell it for $15,000. Defendant revealed that he had some of the meat at his house, and
Johnston accompanied Defendant to his house, where Johnston recovered meat that was hidden in
Defendant’s garage. Defendant also admitted eating some of the meat.
       Defendant was indicted for a single count of interstate receipt of stolen property in violation
of 18 U.S.C. § 2315 on March 22, 2005. The indictment alleged that:
       On or about October 12, 2002, . . . Defendant . . . did unlawfully receive, possess and
       store, goods, wares and merchandise which had crossed State lines . . . after being
       stolen, that is, a trailer valued at approximately $32,000.00 . . . owned by EXTRA
       LEASE, . . . which trailer contained two orders of ground beef, ground round, ground
       chuck and sirloin marked with the Kroger brand name, valued at approximately
       $30,000.00 knowing the same to have been stolen in violation of Title 18, United
       States Code Section 2315.
         Defendant pled not guilty, and trial was held on June 7 and 8, 2005. Defendant’s defense
at trial was that he had not possessed the trailer, and that in any event he did not know that the
property was stolen at any time when he could conceivably have been in possession of the trailer.
Defendant testified that the first time he learned that the meat was stolen was when Malik called him
from the hospital. On June 8, 2005 the jury returned a verdict of guilty. Defendant was sentenced
to eleven months and twenty-nine days incarceration, to be followed by a period of three years of
supervised release, and payment of $28,992.98 in restitution.
                                           DISCUSSION
       Defendant first claims that the indictment was duplicitous because it charged him, in a single
count, with the allegedly separate offenses of possessing a stolen trailer and possessing the stolen
meat within that trailer. “An indictment is duplicitous if it sets forth separate and distinct crimes in
No. 06-1263           United States v. Kakos                                                         Page 3


one count.” United States v. Davis, 306 F.3d 398, 415 (6th Cir. 2002) (citing United States v.
Campbell, 279 F.3d 392, 398 (6th Cir. 2002)). Whether an indictment is duplicitous is a question
of law that this Court reviews de novo. Id. “The overall vice of duplicity is that the jury cannot in
a general verdict render its finding on each offense, making it difficult to determine whether a
conviction rests on only one of the offenses or on both.” United States v. Duncan, 850 F.2d 1104,
1108 n.4 (6th Cir. 1988). While a duplicative indictment can prejudice a defendant in a variety of
ways, the primary concern is that a defendant may be deprived of his right to a unanimous jury
verdict. See United States v. Savoires, 430 F.3d 376, 380 (6th Cir. 2005); United States v. Shumpert
Hood, 210 F.3d 660, 662-63 (6th Cir. 2000). That is, a jury might return a guilty verdict on the
single count submitted to them without all twelve jurors agreeing that the defendant committed
either of the offenses charged within that count. Other adverse effects on a defendant “may include
improper notice of the charges against him, prejudice in the shaping of evidentiary rulings, in
sentencing, in limiting review on appeal, [and] in exposure to double jeopardy.” Duncan, 850 F.2d
at 1108 n.4.
        Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B), a motion alleging a defect in
the indictment must be made before trial. Yet while a defendant waives technical errors to an
indictment by his failure to object to the duplicity before trial, the alleged harm to the defendant’s
substantive rights resulting from a duplicitous indictment can be raised at trial or on appeal,
notwithstanding the defendant’s failure to make a pretrial motion. United States v. Adesida, 129
F.3d 846, 849 (6th Cir. 1997). The rationale for this distinction is that, whereas Rule 12 applies only
to defects in the institution of criminal proceedings, see Davis v. United States, 411 U.S. 233, 241
(1973), a verdict rendered by a less-than-unanimous jury violates a defendant’s Sixth Amendment
rights by a harm that arises from the trial itself. See Johnson v. Louisiana, 406 U.S. 356, 369 (1972)
(Powell, J. concurring) (“In an unbroken line of cases reaching back into the late 1800's, the Justices
of this Court have recognized, virtually without dissent, that unanimity is one of the indispensable
features of federal jury trial.” (emphasis removed)). As we explained in our analogous discussion
of a multiplicitous indictment in United States v. Rosenbarger:
       The Government maintains that Fed. R. Crim. P. 12 should be applied in this case.
       Rule 12 provides, inter alia, that if the defense of multiplicity is not raised prior to
       trial, it is waived. The argument that one waives his right to object to the imposition
       of multiple sentences by his failure to object to the multiplicitous nature of an
       indictment is a non sequitur. Rule 12 applies only to objections with regard to the
       error in the indictment itself; the effect of Rule 12 is that dismissal of a multiplicitous
       indictment is not required; however, if sentences are imposed on each count of that
       multiplicitous indictment the defendant is not forced to serve the erroneous sentence
       because of any waiver.
536 F.2d 715, 721-22 (6th Cir. 1976). The law of duplicity parallels that of multiplicity. A
defendant moving pursuant to Rule 12 can request that a duplicitous indictment be dismissed, see
Adesida, 129 F.3d at 849, he can attempt to force the government to elect the charge within the count
upon which it will rely, or he can ask the court to particularize the distinct offenses contained within
a count. See Shumpert Hood, 210 F.3d at 663. By contrast, a defendant’s objections to the
indictment made after trial has begun are properly addressed not to the indictment itself but to the
harm stemming from the duplicitous indictment. See Davis, 306 F.3d at 415; Adesida, 129 F.3d at
849.
        Defendant, however, not only failed to challenge the indictment pursuant to Rule 12; he did
not in any way raise the issue of duplicity before the trial court. Nevertheless, Defendant argues that
our review is governed by a standard other than plain error. Where a defendant fails to object to an
indictment before trial, the case proceeds under the presumption that the court’s instructions to the
jury will clear up any ambiguity created by the duplicitous indictment. Adesida, 129 F.3d at 849.
No. 06-1263                United States v. Kakos                                                                  Page 4


“[P]roper jury instructions can mitigate the risk of jury confusion and alleviate the doubt that would
otherwise exist as to whether all members of the jury had found the defendant guilty of the same
offense.” United States v. Lloyd, 462 F.3d 510, 514 (6th Cir. 2006) (quoting Savoires, 430 F.3d at
380.) When confronting a challenge to duplicity not raised under Rule 12, this Court has frequently
looked to the instructions actually given at trial to assess the risk that a defendant was convicted by
a non-unanimous verdict. See id. at 515; Savoires, 430 F.3d at 380; Davis, 306 F.3d at 416; United
States v. Blandford, 33 F.3d 685, 699 (6th Cir. 1994).
         Because the harm from a duplicitous indictment is inextricably intertwined with the jury
instructions actually given, when a defendant raises a challenge to a duplicitous indictment for the
first time on appeal the issue of whether our review is limited to plain error depends upon whether
the defendant objected to the jury instructions which failed to cure the faulty indictment. Where the
defendant does not object to the district court’s instructions to the jury, review is limited to plain
error. This rule is required by Lloyd, where we stated that “Lloyd did not seek to dismiss the
duplicitous count of the indictment before trial or challenge the jury instructions. Consequently, this
court may overturn the conviction on count two only if there was plain error which affected Lloyd’s
substantial rights.” 462 F.3d at 514; see also Savoires, 430 F.3d at 381 (“We may correct the errors
identified by Mr. Savoires if they constitute ‘plain error’ within the meaning of [Federal Rule of
Criminal Procedure] 52(b). The duplicity of the indictment and the related defects in the charge to
the jury are plain.” (citations omitted)). Accord United States v. Verrecchia, 196 F.3d 294, 297 (1st
Cir. 1999) (“Although an argument that an indictment should be dismissed as duplicitous is waived
if not made before trial, a defendant is still entitled on request to an instruction requiring jury
unanimity on which offense (of the two or more alleged in the duplicitous count) he committed.”
(citations omitted)); United States v. Savage, 67 F.3d 1435, 1439 (9th Cir. 1995) (“Duplicity raises
the concern that Savage could have been convicted without a unanimous verdict . . . . Because a
substantial right is at issue, we review the jury instructions for plain error even though Savage failed
to object to the instructions below.”); cf. United States v. Sasser, 971 F.2d 470, 477 & n.5 (10th Cir.
1992) (noting that a challenge to the district court’s refusal to1 give a specific unanimity charge was
implicitly an assertion that the indictment was duplicitous).
         In the instant case, Defendant cannot demonstrate plain error. Defendant argues that there
is a threat that he was not convicted by a unanimous jury verdict. Section 2315 of Title 18 of the
United States Code prohibits the receipt or possession of stolen merchandise, valued at $5,000 or
more, which has crossed state lines after being stolen, if the defendant “know[s] the same to have
been stolen.” The indictment alleged that the merchandise consisted of a stolen trailer that contained
stolen meat. Defendant contends that some jurors might have concluded that he knew that the meat
was stolen but did not know that the trailer was stolen, while other jurors could have believed
exactly the opposite. We reject this argument because it is inconsistent with the evidence presented
at trial. Throughout the trial, and in the instructions to the jury, the meat and the trailer were
frequently referred to collectively as “the meat and the trailer” or “the property.” Arguably, some
of the evidence at trial implied that Defendant knew that the meat was stolen without necessarily




         1
           At least two other circuits have held that a late challenge to a duplicitous indictment can be reviewed for plain
error. See United States v. Hammen, 977 F.2d 379, 382 (7th Cir. 1992); United States v. Masat, 896 F.2d 88, 91 (5th
Cir. 1990). But see United States v. Payne, 341 F.3d 393, 402 & n.5 (5th Cir. 2003) (suggesting that a duplicitous
indictment not objected to at trial cannot be reviewed for plain error). In light of the rule that the prejudice from a
duplicitous indictment can be cured by proper jury instructions, it is unclear whether there is in effect any difference
between reviewing an indictment for duplicity and asking whether submitting the duplicitous count to the jury created
the risk of conviction by a non-unanimous verdict.
No. 06-1263               United States v. Kakos                                                                Page 5


implying that Defendant knew that the trailer was stolen.2 No evidence, however, suggested the
inverse conclusion. That is, Defendant points to nothing in the record that would allow a juror to
infer that Defendant knew the trailer was stolen but did not know that the meat was stolen, and we
likewise can find no evidence from which a juror could draw that conclusion. There is consequently
no risk that the jury was not unanimous in its belief that Defendant knowingly received stolen meat,
and hence his conviction for violating § 2315 was proper.3 Because Defendant cannot demonstrate
prejudice, he   cannot show plain error, and we need not consider whether the indictment was
duplicitous.4
         Defendant also argues that the district court committed plain error by failing to issue a
special unanimity instruction. A special unanimity instruction would have informed the jury that
they could agree that Defendant either possessed the trailer knowing it was stolen or that he
possessed the meat knowing that it was stolen, but that they must unanimously agree that the same
violation had been proven. See, e.g., Blandford, 33 F.3d at 699 (giving special unanimity charge
with respect to extortion). Although the question of whether a special unanimity instruction is
necessary is not identical to the inquiry as to whether the indictment was duplicitous, see United
States v. Correa-Ventura, 6 F.3d 1070, 1081 (5th Cir. 1993), Defendant does not suggest any reason
why a special unanimity instruction was necessary that is independent of his argument that the
indictment was duplicitous. Therefore, we conclude that Defendant cannot demonstrate that the
district court’s failure to give a special unanimity instruction constituted plain error.
                                                 CONCLUSION
        Defendant cannot demonstrate the allegedly duplicitous indictment or the district court’s
failure to give a special unanimity instruction constituted plain error. We therefore AFFIRM
Defendant’s conviction.




         2
           For example, the fact that Defendant called Maltise in order to sell the meat and the fact that Defendant hid
a tray of meat in his garage strongly suggested that he knew that the meat was stolen, but an inference that Defendant
knew the trailer was stolen based on this evidence is more tenuous.
         3
            Defendant stipulated that “the property had a value in excess of $5,000 to wit: $62,000” and that “after the
property was stolen, it was transported in interstate commerce.” J.A. at 19. This tracks the indictment, which alleged
that the trailer was valued at $32,000, the meat was valued at $30,000, and that both items had crossed state lines after
being stolen. Thus, Defendant’s conviction under 18 U.S.C. § 2315 could have been properly based on a finding that
Defendant possessed either the meat or the trailer (or both) knowing the same to have been stolen.
         4
            For the first time in his reply brief, Defendant suggests that he was prejudiced because he was subject to an
increased sentence pursuant to U.S. Guidelines Manual § 2B1.1(b)(1)(D). Defendant has waived this argument by failing
to raise it in his original brief on appeal. And in any event, Defendant cannot demonstrate that he was prejudiced at
sentencing inasmuch as the evidence against him was of ample strength to support the sentence imposed.
