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Case 1:20-cr-00330-PAE Document 621 Filed 02/25/22 Page 26 of 51

her motion, that these counts are “virtually identical.” (Def. Mot. at 22). But charges that cover
different schemes under different statutes are not “virtually identical.” The Court should reject
this argument.

A. Applicable Law

The Double Jeopardy Clause of the Fifth Amendment to the Constitution “protects against
multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
Accordingly, a defendant cannot be sentenced for multiplicitous charges covering the same crime.
“An indictment is multiplicitous when it charges a single offense as an offense multiple times, in
separate counts, when, in law and fact, only one crime has been committed.” United States v.
Chacko, 169 F.3d 140, 145 (2d Cir. 1999); see also United States v. Jones, 482 F.3d 60, 72 (2d
Cir. 2006) (“A claim of multiplicity cannot succeed, however, ‘unless the charged offenses are the
same in fact and in law.’”) (quoting United States v. Estrada, 320 F.3d 173, 180 (2d Cir. 2003)).
Although the Double Jeopardy Clause does not protect against simultaneous prosecutions for the
same offense, a defendant has a right not to be punished twice for the same crime. United States
v. Josephberg, 459 F.3d 350, 355 (2d Cir. 2006) (per curiam). Accordingly, “[i]f the jury convicts
on more than one multiplicitous count, the defendant’s right not to suffer multiple punishments for
the same offense will be protected by having the court enter judgment on only one of the
multiplicitous counts.” Id. Similarly, where the judgment of conviction has already been entered
on multiplicitous counts, that right is protected by vacating the convictions on all but one
multiplicitous count. Id.

“For purposes of a multiplicity analysis, the determinative issue is not whether the same
conduct underlies separate counts, but whether the offense charged in one count is the same as the
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