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Case 1:20-cr-00330-PAE Document 621 Filed 02/25/22 Page 30 of 51

The defendant asks the Court to ignore these legal distinctions. In particular, the defendant urges the Court not to apply the first Korfant factor, claiming—without explanation—that this first factor applies to claims arising from successive prosecutions, and not multiplicity claims. (Def. Mot. at 22 n.4). But the Korfant factors are applied both when courts compare indictments in successive prosecutions and when courts analyze counts in the same indictment.⁷ See, e.g., Guzman, 7 F. App’x at 54-55 (applying the Korfant factors to a claim of multiplicity arising from multiple conspiracy counts in the same indictment); United States v. Diallo, 507 F. App’x 89, 91 (2d Cir. 2013) (holding that two narcotics conspiracy counts charged in the same case were not multiplicitous under the Korfant factors); Estrada, 320 F.3d at 180-81 (applying the Korfant factors to a successive prosecution); Sattar, 314 F. Supp. 2d at 307 (applying the Korfant factors to a successive prosecution). For good reason: it would make little sense to ignore the legal distinctions between counts when determining whether those counts are different in law and fact for double jeopardy purposes. See United States v. Hicks, 5 F.4th 270, 275 (2d Cir. 2021) (citing Blockburger v. United States, 284 U.S. 299 (1932)). The defendant asks this Court to ignore the first Korfant factor because it is fatal to her multiplicity claim. The two counts are legally distinct, and the Court can and should reject the defendant’s multiplicity claim for this reason alone.

⁷ The lone case cited by the defendant, United States v. Cooper, 886 F.3d 146 (D.C. Cir. 2018), held that two § 371 counts in the same indictment were multiplicitous. (Def. Mot. at 22 n.4). In reaching that conclusion, the Court did not hold that the first Korfant factor was inapplicable to that particular procedural posture. The defendant otherwise cites no case in which a court held that it was inappropriate to examine the legal differences between counts when evaluating a multiplicity claim.

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