In U.S. v. Hassoum, No. 04-60001 (Jan. 30, 2007), the Court (Edmondson, Tjoflat, Gibson b.d.) reinstated a count of the indictment which had been dismissed by the district court on multiplicity grounds.
The indictment charged three interrelated offenses: violating 18 U.S.C. § 956(a)(1) by conspiring to commit acts of murder, kidnapping and maiming; violating 18 U.S.C. § 2339A(a) by providing material support and resources in preparation for a violation of § 956(a)(1); and violating 18 U.S.C. § 371 by conspiring to violate § 2339A(a).
The Court noted that multiplicity challenges are reviewed under Blockburger v. U.S., 284 U.S. 299 (1932), which holds that cumulative punishment may not be imposed under several statutes unless each statutory provision requires proof of an additional fact that the other does not.
The Court found that the legislative history regarding § 2339A(a) did not shed light on the question, and that it would therefore examine the elements of the statutes at issue.
The Court pointed out that the Blockburger analysis typically does not turn on the specific facts alleged in the indictment. Here, each of the three counts charged a separate statutory violation, and none merged into another as a lesser-included offense. The § 956(a)(1) count required proof that the defendant conspired to commit acts constituting murder, kidnapping and maiming, the § 371 count required proof of a conspiracy to provide material support in violation of § 2339A(a), and the § 2339A(a) count required proof of providing material support for a violation of § 956(a)(1). As a result, the counts were not multiplicitous.
The Court recognized a scenario in which a complete overlap would exist between the conspiracy counts of the indictment, for example, if the government proved that the defendants provided material support intending that it be used to violate § 956(a)(1), in which case the same evidence would support proof of two offenses (§ 2339A(a) and § 956(a)(1)). But this "mere possibility" did not alter the analysis. The question was: "does a scenario exist where the hypothetical defendant might violate one section without violating the other?" Here this scenario existed, because the defendants might have provided material support in preparation for the § 956 conspiracy, but without being guilty of the § 956 conspiracy. Hence, no multiplicity problem arose. [Cf. Double Jeopardy-Post Blakely, 41 Am. Crim. L. Rev. 1373 (2004) (Double Jeopardy should ask whether a person’s actual blameworthy conduct is being punished twice, not whether two provisions in the abstract are "conceptually distinct")].
