United States of America v. Nathan Craigue

2020 DNH 109

• Court: District Court, D. New Hampshire
• Decided: June 29, 2020
• Docket: 19-cr-142-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 19-cr-142-LM Opinion No. 2020 DNH 109 Nathan Craigue

O R D E R

Defendant, Nathan Craigue, is charged with two counts of

making a false statement to a federal agent in violation of 18

U.S.C. § 1001(a)(2). Craigue moves to dismiss the two counts as

multiplicitous under Federal Rule of Criminal Procedure

12(b)(3)(B)(ii) or, in the alternative, to compel the government

to elect between the multiplicitous counts.1 The government

objects.

STANDARD OF REVIEW

Federal Rule of Criminal Procedure 12(b)(1) provides that

“[a] party may raise by pretrial motion any defense, objection,

or request that the court can determine without a trial on the

merits.” Fed. R. Crim. P. 12(b)(1). Specifically, a motion

1 Craigue requests a hearing on this motion. However, upon review of the relevant pleadings, the court is not convinced that oral argument would “provide assistance to the court.” LR 7.1(d). claiming a defect in the indictment, such as “charging the same

offense in more than one count (multiplicity)”, must be raised

in a pretrial motion when the basis for the motion is

“reasonably available” and the motion can be determined without

a trial on the merits. Fed. R. Crim. P. 12(b)(3)(B)(ii). When

considering a motion to dismiss under Rule 12(b), the court must

accept the factual allegations in the indictment as true. See

United States v. Guerrier, 669 F.3d 1, 4 (1st Cir. 2011); United

States v. Bohai Trading Co., 45 F.3d 577, 578 n.1 (1st Cir.

1995).

BACKGROUND2

Craigue is the owner and operator of Craigue & Sons Home

Exteriors, which is a siding and home exterior company. In the

summer of 2018, the company was hired to perform work on a

property located in Concord, New Hampshire. Craigue tasked two

individuals, Kenneth McKenna and Nicholas Ford, with the

project. On August 28, 2018, McKenna had an accident at the job

site. He later died from his injuries.

The day of the accident, an officer from the Occupational

Safety and Health Administration (“OSHA”) visited the job site

2 To the extent the following facts are not alleged in the indictment, the court has drawn them from the parties’ pleadings. These facts are not dispositive of the pending motion and are recited only to provide context.

2 and questioned Craigue. In response to the OSHA officer’s

questioning, Craigue stated that McKenna and Ford were

subcontractors, not employees.

In October 2018, an OSHA officer interviewed Craigue again

about the accident.3 The officer asked Craigue whether McKenna

and Ford were employees. Craigue replied “I’ve always treated

them—they would come and go as they please, so I would always

treat them as not employees.” Doc. no. 1 at 2.

In 2019, a grand jury indicted Craigue on two counts of

making a false statement to a federal agent in violation of 18

U.S.C. § 1001(a)(2). Count one alleges that Craigue knowingly

and willfully made a materially false statement to the OSHA

officer on the day of the accident (August 28, 2018) by stating

that McKenna was a subcontractor, not an employee. Count two

alleges that Craigue knowingly and willfully made a second

materially false statement to the OSHA officer when he stated

during an interview in October 2018 that “I’ve always treated

them—they would come and go as they please, so I would always

treat them as not employees.” Doc. no. 1 at 2. Craigue argues

that these two counts are multiplicitous and therefore the court

3 The allegations in the indictment do not specify the identity of the OSHA officer who questioned Craigue on each of the two relevant occasions. Craigue represents, based on discovery provided by the government, that the same OHSA officer, Scott Kelly, questioned Craigue on both occasions. The government does not explicitly dispute this point.

3 should either dismiss the indictment or require the government

to elect between the two counts.

DISCUSSION

“A prosecution is multiplicitous when it charges a

defendant more than once for what is essentially a single

crime.” United States v. Smith, 919 F.3d 1, 15 (1st Cir. 2019),

cert. denied, 140 S. Ct. 203, 205 (2019) (internal quotation

marks omitted). For example, “when a felon has violated 18

U.S.C. § 922(g) by possessing a firearm, it would be

multiplicitous to charge the felon with two counts simply

because he had [the firearm] yesterday and today.” United

States v. Chiaradio, 684 F.3d 265, 272 (1st Cir. 2012). A

multiplicitous indictment creates two potential problems.

First, it may cause the defendant to receive multiple sentences

for the same offense, thereby running afoul of the Double

Jeopardy Clause, which bars such a result. See Smith, 919 F.3d

at 15; United States v. Gagalis, No. 04-CR-126-0106-PB, 2006 WL

931909, at *1 (D.N.H. Apr. 7, 2006). Second, a multiplicitous

indictment may result in the jury being “improperly prejudiced

by the suggestion that the defendant has committed several

crimes instead of one.” Gagalis, 2006 WL 931909, at *1.

Where, as here, “a claim of multiplicity is premised on an

indictment alleging several violations of a single statutory

4 provision, an inquiring court must determine whether there is a

sufficient factual basis to treat each count as separate.”

United States v. Gordon, 875 F.3d 26, 32 (1st Cir. 2017)

(quoting United States v. Stefanidakis, 678 F.3d 96, 100–01 (1st

Cir. 2012)); see also United States v. Pires, 642 F.3d 1, 15

(1st Cir. 2011). That determination “depends on whether

Congress intended to punish separately each of the alleged

violations.” Gordon, 875 F.3d at 32; see also Smith, 919 F.3d

at 15. In other words, the court must determine the “unit of

prosecution” of the relevant statute. Gagalis, 2006 WL 931909,

at *1.

Under 18 U.S.C. § 1001(a)(2), it is a crime to knowingly

and willfully “make[] any materially false, fictious, or

fraudulent statement or representation” on any matter within

“the jurisdiction of the executive, legislative, or judicial

branch of the Government of the United States.” 18 U.S.C. §

1001(a)(2). This statutory language makes it unlawful to

knowingly and willfully make a single false statement or

representation of material fact to a United States agency.

United States v. Guzman, 781 F.2d 428, 432 (5th Cir. 1986);

United States v. Jones, Crim. No. 1:11-CR-42-TCB-LTW, 2012 WL

4049449, at *8 (N.D. Ga. Aug. 3, 2012), R&R adopted 2012 WL

4049448 (N.D. Ga. Sept. 13, 2012).

5 The unit of prosecution under § 1001(a)(2)—a single false

statement—would seem to suggest that Craigue could be charged,

convicted, and punished for both of his allegedly false

statements without a multiplicity problem. However, the Eighth

and Ninth Circuit Courts of Appeals have adopted a special rule

applicable under § 1001(a)(2) under certain circumstances:

“where identical false statements, in either oral or written

form, are made in response to identical questions, the declarant

may be convicted only once.” United States v. Stewart, 420 F.3d

1007, 1013 (9th Cir. 2005) (quoting United States v. Olsowy, 836

F.2d 439, 443 (9th Cir. 1987)); see also United States v.

Graham, 60 F.3d 463, 467 (8th Cir. 1995). The underlying

justification for this rule is that “the repetition of a false

statement by a declarant does not further impair the operations

of the government beyond the initial violation, and a contrary

rule would permit the government to pile on multiple convictions

by repeatedly asking a declarant the same question.” Stewart,

420 F.3d at 1013. This approach, referred to as the “unitary

harm rule,” has developed into the following two-part test:

“[t]he government may charge separate violations for identical

false statements under section 1001(a)(2) if: (1) the declarant

was asked the same question and gave the same answer; and (2)

the later false statement further impaired the operations of the

6 government.” Id.; see also Graham, 60 F.3d at 467; United

States v. Salas-Camacho, 859 F.2d 788, 791 (9th Cir. 1988).

For instance, in Stewart, the Ninth Circuit reversed one of

the defendant’s convictions under § 1001(a)(2) as multiplicitous

under the unitary harm rule. Stewart, 420 F.3d at 1014. In

that case, the defendant was charged with making two false

statements to an FBI agent in relation to an investigation into

whether he had threatened to murder a federal judge. Id. at

1010. In November 2002, an FBI agent told the defendant he had

reason to believe the defendant was involved in a conspiracy to

harm a federal judge and asked if the defendant had said

“anything that could even be misinterpreted as a threat to a

judge.” Id. at 1011. Defendant denied saying anything. Id.

Two months later, in January 2003, the same FBI agent

interviewed the defendant a second time and again asked whether

he had said “anything which could have been misinterpreted by

anyone regarding any threats to a judge.” Id. Again, defendant

replied in the negative. Id. Applying the unitary harm rule,

the Ninth Circuit reversed the defendant’s conviction on the

second false statement because the two convictions involved

identical questions and answers and the evidence at trial did

not establish that the defendant’s second false statement had

further impaired the FBI’s investigation. Id. at 1014.

7 The government argues that the court should decline to

follow Stewart and its supporting line of cases because the

“statutory language [of § 1001(a)(2)] cannot plausibly be

stretched as far” as these cases and defendant wish to take it.

Doc. no. 21 at 5. The court is not persuaded. The court finds

the unitary harm rule adhered to in the Eighth and Ninth

Circuits logical and persuasive. Further, the government has

not cited, and the court has not found, any case that has

expressly rejected the unitary harm rule or lodged a similar

criticism of the rule.

To the contrary, although only the Eighth and Ninth

Circuits have expressly adopted the rule, numerous other courts

have applied or implicitly adopted the rule. See, e.g., United

States v. Wu, 419 F.3d 142, 147 (2d Cir. 2005) (noting Second

Circuit’s “implicit endorsement” of Olsowy); United States v.

Long, No. 1:06CR00028, 2007 WL 218592, at *4 (W.D. Va. Jan. 29,

2007) (vacating perjury conviction as multiplicitous under

unitary harm rule); United States v. Cisneros, 26 F. Supp. 2d

24, 44 (D.D.C. 1998) (citing Olsowy and Salas-Camacho

approvingly); cf. United States v. Anderson-Bagshaw, 509 Fed.

App’x 396, 412 (6th Cir. 2012) (noting that Sixth Circuit has

not expressly adopted the unitary harm rule and declining to

decide whether to adopt it because the rule was inapplicable to

the facts presented). Notably, at least two district courts in

8 the First Circuit have relied on this jurisprudence. See

Gagalis, 2006 WL 931909, at *3 n.3 (citing Olsowy to clarify

that repeating the same false statement to the same audience

does not “necessarily” result in multiple securities fraud

violations); United States v. Mavroules, 819 F. Supp. 1109, 1111

(D. Mass. 1993) (relying on Salas-Camacho to find two false

statement charges not multiplicitous because the second

statement further impaired the government’s function). Given

this weight of authority and the logic behind the rule, the

court adopts the unitary harm rule.

The question remains whether the unitary harm rule should

be applied in this case, i.e. whether Craigue was asked the same

question and gave the same answer twice and whether the later

alleged false statement further impaired the operations of the

government. Count one alleges that Craigue falsely represented

to an OHSA officer in August 2018 that McKenna was a

subcontractor and not an employee. Count two alleges that

Craigue falsely represented to an OHSA officer in October 2018

that McKenna was not an employee by saying “I’ve always treated

them—they would come and go as they please, so I would always

Though these statements are not identical, the alleged

false assertion—that McKenna was not an employee—is the same.

These two alleged false statements can be considered identical

9 for the purposes of the unitary harm rule because the “same

factual proof” would be required to prove their falsity:

evidence that McKenna was in fact an employee. Graham, 60 F.3d

at 467. Further, not much time elapsed between the two

statements. See Stewart, 420 F.3d at 1011 n.1, 1014. Because

the indictment alleges two functionally identical false

statements made just two months apart in separate counts,

defendant has a colorable claim that the indictment is

multiplicitous. See Graham, 60 F.3d at 466-67 (three charges

for making false statement in bankruptcy proceeding found to be

multiplicitous where defendant lied about ownership interest in

property during first meeting with creditors and repeated the

same lie during second and third meetings with creditors);

United States v. Trent, 949 F.2d 998, 1000 (8th Cir. 1991)

(reversing false statement conviction on multiplicity grounds

when defendant’s repetition of her fabricated story of a robbery

to FBI agents “added nothing” to the harm caused to the FBI’s

inquiry); Olsowy, 836 F.2d at 443 (holding that defendant’s same

oral denial about having received a Social Security check

repeated two weeks later to same government agent did not

further impair government operations and therefore conviction on

second statement could not stand).

At this stage of the proceedings, however, it is not clear

whether the other factual prerequisites of the rule are present

10 in this case. From the face of the indictment, one cannot tell

if Craigue made the two statements in response to identical

questions. Additionally, the court cannot discern from the

facts alleged in the indictment whether Craigue’s second

statement “further impaired the operations of the government.”

Stewart, 420 F.3d at 1013-14 (holding second conviction

multiplicitous where government agent’s trial testimony did not

establish that defendant’s second false statement added “any

additional impairment to his investigation”). One fact that may

be crucial to the “impairment” analysis is whether Craigue made

both his statements to the same government agent. Compare

multiplicitous where defendant made identical false statements

to same FBI agent), with Salas-Camacho, 859 F.3d at 791

(upholding conviction for two identical false statements when

defendant made statements to two different Customs inspectors

who each had different job duties). As noted above, though

there appears to be evidence that Craigue made both statements

to the same OHSA officer, that is not evident from the

indictment. Because these factual issues require further

development, the court denies Craigue’s motion to dismiss the

indictment without prejudice as premature. See United States v.

Hubbell, 177 F.3d 11, 14 (D.C. Cir. 1999).

11 The court also denies without prejudice Craigue’s request

that the court compel the government to elect between the two

charges. The court has not yet made a finding that the

indictment is multiplicitous, so it would be premature to

require the government to elect between the two counts now.

Even if the court were to find the indictment multiplicitous

before trial, it would be within the court’s discretion to

either “require the [g]overnment to elect on which count it will

proceed or to allow both counts to proceed to trial and dismiss

one prior to sentencing.” United States v. Widi, 697 F. Supp.

2d 140, 145 (D. Me. 2010). This is so in part because Craigue

appears to argue only that the purported multiplicitous

indictment violates the Fifth Amendment’s Double Jeopardy

Clause. See id.; cf. United States v. Martinez, 599 F. Supp. 2d

784, 794 (W.D. Tex. 2009) (observing that defendant may argue

that multiplicitous indictment will improperly prejudice jury by

suggesting that several crimes have been committed). Double

Jeopardy, however, is not implicated until the defendant faces

punishment for multiplicitous convictions. See Widi, 697 F.

Supp. 2d at 145. Thus, even assuming Craigue is convicted of

both counts at trial, the court can protect his rights by

sentencing him on only one conviction. See id.

12 CONCLUSION

For the foregoing reasons, the court denies without

prejudice Craigue’s motion to dismiss the indictment as

multiplicitous or require an election between the two counts

(doc. no. 19).

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

June 29, 2020

cc: Counsel of Record U.S. Probation U.S. Marshal