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Sample Memorandum re Multiplicity
IV. THE INDICTMENT IS NOT MULTIPLICITOUS|
Counts 14 through 21 charge interstate shipment of adulterated food in violation of 21 U.S.C. § 331(a). Counts 30 and 32 charge adulteration of a food after shipment in interstate commerce in violation of 21 U.S.C. § 331(k). The foods are alleged to be adulterated within the meaning of two definitions in the Food, Drug, and Cosmetic Act: (1) because they contained substitute ingredients (21 U.S.C. § 342(b)(2)); and (2) because they contained added ingredients whose purpose was to make the foods appear to be better and of greater value than they actually were (21 U.S.C. § 342(b)(4)).
A food is adulterated if it is diluted or depreciated in quality, if it fails to come to the standards set by law as to ingredients or to which any foreign substance, wholesome or unwholesome, is added. On the other hand, a food is misbranded if its label is false or misleading. These definitions clearly show that a product may be misbranded without necessarily being adulterated and vice versa.[FN1]See Flavor Fresh Foods, slip op. at 4 (quoting Beech-Nut Nutrition Corp., 659 F. Supp. at 1496). Other courts have reached a similar conclusion. See, e.g., United States v. Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d 532, 546 & n.26 (8th Cir. 1981) ("separate prosecutions for misbranding drugs and adulterating drugs are consistent with the intent of Congress and are within the language of the statute"), cert. denied, 455 U.S. 1016 (1982); see also United States v. Torigian Laboratories, Inc., 577 F. Supp. 1514, 1518-19 (E.D.N.Y.) (applying the Blockburger test to permit multiple counts of adulteration and misbranding charges with respect to the same lots of devices), aff'd mem., 751 F.2d 373 (2d Cir. 1984).[FN2]
FN1. Additionally, the Beech-Nut court found that the legislative history supported the bringing of separate charges to allege that a particular shipment was misbranded and adulterated:
The food legislation was meant to protect the people (i) against unwholesome foods and (ii) against deception in the sale of commodities. S.Rep. No. 301, 58th Cong., 2d Sess. 11, 14, 21, 22 (1906). The legislative history of 21 U.S.C. § 331(a) indicates that a single shipment of "misbranded AND adulterated" food may constitute separate offenses.
659 F. Supp. at 1496.
FN2. This conclusion is consistent with United States v. Wiesenfeld Warehouse Co., 376 U.S. 86 (1964), in which the Supreme Court stated that:
The language of [§ 331k] unambiguously defines two distinct offenses with respect to food held for sale after interstate shipment . . . . For the most part, acts resulting in misbranding and acts resulting in adulteration are wholly distinct.
FN3. Even if the various counts were multiplicitous, the proper time for remedying such a deficiency would be after conviction rather than before. "The principal danger in multiplicity is that the defendant will be given multiple sentences for the same offense." 1 C. Wright, Federal Practice and Procedure § 145 at 524-26 (1982). That can be remedied post-trial by merging the convictions and permitting only a single sentence for each merged count. See Ball, 470 U.S. at 865 ("If, upon trial, the district judge is satisfied that there is sufficient proof to go to the jury on both counts, he should instruct the as to the elements of each offense. Should the jury return guilty verdicts, however, the district judge should enter judgment on only one of the statutory offenses."); cf. United States v. Barrett, 933 F.2d 355, 361 n.4 (6th Cir. 1991) (noting that, with the advent of the Sentencing Guidelines, the dangers of multiple sentences has been largely obviated).