Posted on May 19, 2008 by Anthony Lake

A Lesson in Duplicity - The Barry Bonds Superseding Indictment

     Charging two or more distinct offenses in a single count is what the law refers to as duplicity. See generally 1 Wright, Federal Practice and Procedure, § 142 (2nd ed. 1982); 8 Moore’s Federal Practice, § 8.03 (2nd ed. 1984). The test for determining whether separate statements in a single false statement count constitutes a single offense turns on whether each alleged false statement in a given count is substantially the same as the others. United States v. Graham, 60 F.3d 463 (8th Cir. 1995); United States v. Bins, 331 F.2d 390, 393 (4th Cir. 1961)(“the test for determining whether several offenses are involved is whether identical evidence will support each of them, and if any dissimilar facts must be proved, there is more than one offense”). In a fascinating case against a sitting federal district court judge, the Ninth Circuit noted that the vice of a duplicitous indictment is that a conviction could be obtained without a unanimous verdict as to each of the false statements in a particular count. United States v. Aguilar, 756 F.2d 1418, 1420 (9th Cir 1985).

Multiplicity is the charging of a single offense in several separate counts. Id.

In Bonds the government charged a number of alleged false statements in a single count in the original indictment (available here).  To illustrate the problem of multiplicity, we'll examine count one of the original indictment, which was later turned into 4 counts in the Superseding Indictment. In Count One, the government charged the following answers as a false statement (the alleged false statement is underlined):

  • Q. Let me be clear about this. Did he (Anderson) ever give you anything that you knew to be a steroid? Did he ever give a steroid?
  • A. I don't think Greg would do anything like that to me and jeopardize our friendship. I just don't think he would do that.
  • Q. Well, when you say you don't think he would do that, to your knowledge, I mean, did you ever take any steroid that he gave you?
  • A. Not that I know of.

Then, the government also charged in Count One, the following answers in the same false statement count (later set out as Count 2 of the Superseding Indictment (SSI)):

  • Q. So, I got to ask, Mr. Bonds. There's this number associated on a document with your name, and corresponding to Barry B. on the other document, and it does have these two listed anabolic steroids as testing positive in connection with it. Do you follow my question?
  • A. I follow where you're going, yeah.
  • Q. So, I guess I got to ask the question again, I mean, did you take steroids? And, specifically this test is in November 2000, were you taking steroids - -
  • A. No.
  • Q. - - or anything like that?
  • A. No, I wasn't at all. I've never seen these documents. I've never seen these papers.

Then, the government went on to charge in Count One, the following answers in the same false statement count (Count 3 of the SSI):

  • Q. So, starting in December 2001, on this page, again, there's a BB here, which obviously are consistent with your inititals, correct?
  • A. He could know other BBs.
  • Q. Correct. But BB would be your initials, is that correct?
  • A. That's correct.    ***************************************************************
  • Q. Okay. Were you obtaining testosterones from Mr. Anderson during this period of time?
  • A. Not at all.

And, finally, in the same count, the government charged the following answers in the same false statement count (Count 4 of the SSI):

  • Q. In January 2001 were you taking either the flax seed oil or the cream?
  • A. No.
  • Q. And were you taking any other steroids?
  • A. No.

Following the defendant’s Motion to Dismiss and Reply (available here and here), the district court instructed the government to either elect which alleged false statements it would proceed under, or file a superseding indictment curing the defect.

The result of the superseding indictment (available here), each of the alleged false statements set forth above, has now become a separately charged count of the Superseding Indictment, so that the 4 paragraphs set forth above now comprise Counts One through Four of the Superseding Indictment. Similarly, Count Two of the original indictment was separated into 2 separate counts in the Superseding Indictment, Count Three of the original indictment was separated into 2 separate counts and Count Four of the original indictment is now Counts Nine through Fourteen of the Superseding Indictment. The last count of the original indictment (now Count Fifteen of the Superseding) still charges obstruction of justice. So, duplicity is where a single count joins two or more distinct and separate offenses into a single count and for Mr. Bonds, it resulted in a 15 Count Superseding Indictment.
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