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United States v. Roberts

United States Court of Appeals for the Ninth Circuit

July 9, 1985, Argued and Submitted ; December 10, 1985, Decided

No. 84-3124

Opinion

 [*none]  (EDITOR'S NOTE: The following court-provided text does not appear at this cite in 783 F.2d.]

ORDER

WILKINS, District Judge

The memorandum disposition filed December 10, 1985, is redesignated as an authored opinion by Judge Wilkins per the attached Opinion.

OPINION

 [*769]  David William Roberts appeals from his convictions on one count of bank fraud, one count of bankruptcy fraud, and two counts of perjury. We affirm the convictions on all counts, but remand to the district court for modification of its order regarding restitution.

MULTIPLICITY OF CHARGES

 [**2]  Appellant contends that the trial court committed reversible error by refusing to dismiss three multiplicious counts of perjury. The indictment contained a count of concealment of assets of a bankrupt estate in violation of 18 U.S.C. § 152 (1982) and three counts of making a false statement under oath concerning the location of assets of a bankrupt estate in violation of 18 U.S.C. § 1621 (1982).

] An indictment is not multiplicious if each count requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932); United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.), cert. denied, 469 U.S. 965, 105 S. Ct. 365, 83 L. Ed. 2d 301 (1984). In determining whether a count requires proof of a fact which the other does not, "the elements of the offense are determinative, even if there is substantial overlap in their proof." United States v. Solomon, 753 F.2d 1522, 1527 (9th Cir. 1985). The perjury counts required proof of facts which the concealment count did not, and the district court did not abuse [**3]  its discretion in denying Roberts' motion to dismiss the perjury counts.

Appellant also contends that the district court erred by failing to merge Roberts' convictions for perjury and concealment for purposes of sentencing. ] When the same act constitutes a violation of two separate criminal statutes, a defendant may be convicted of and receive punishment under both statutes without offending the double jeopardy clause if proof of one violation does not necessarily include proof of the other offense, and there is no evidence that Congress intended to prohibit separate punishment for the two offenses. See United States v. Woodward, 469 U.S. 105, 105 S. Ct. 611, 612-13, 83 L. Ed. 2d 518 (1985) (per curiam). Under this test the district court properly declined to merge appellant's convictions for purposes of sentencing.

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783 F.2d 767 *; 1985 U.S. App. LEXIS 26140 **

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID WILLIAM ROBERTS, Defendant-Appellant

Subsequent History:  [**1]   Redesignated as an Opinion February 21, 1986

Prior History: Appeal from the United States District Court for the District of Montana., Russell E. Smith, District Judge, Presiding. DC No. CR 84-13-1 RES.

CORE TERMS

district court, restitution, contends, perjury, restitution order, bill of sale, bankrupt, counts, convictions, impeach

Criminal Law & Procedure, Defective Joinder & Severance, Multiplicity, Definition of Multiplicity, General Overview, Sentencing, Merger, Joinder & Severance, Severance of Offenses, Accusatory Instruments, Consolidation, Standards of Review, Harmless & Invited Error, Abuse of Discretion, Evidence, Evidence, Credibility of Witnesses, Impeachment, Bias, Motive & Prejudice, Trials, Witnesses, Relevance, Preservation of Relevant Evidence, Exclusion & Preservation by Prosecutors, Sentencing Alternatives, Probation, Conditions, Bankruptcy Law, Case Administration, Bankruptcy Crimes, Presentation, Restitution

Criminal Law & Procedure, Defective Joinder & Severance, Multiplicity, Definition of Multiplicity, General Overview, Sentencing, Merger, Joinder & Severance, Severance of Offenses, Accusatory Instruments, Consolidation, Standards of Review, Harmless & Invited Error, Abuse of Discretion, Evidence, Evidence, Credibility of Witnesses, Impeachment, Bias, Motive & Prejudice, Trials, Witnesses, Relevance, Preservation of Relevant Evidence, Exclusion & Preservation by Prosecutors, Sentencing Alternatives, Probation, Conditions, Bankruptcy Law, Case Administration, Bankruptcy Crimes, Presentation, Restitution