1093
Multiplicity
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One court has held that the solicitation and conspiracy
statutes are not multiplicitous. United States v.
Holveck, 867 F. Supp. 969, 976-77 (D.Kan. 1994). Applying
the rule of statutory construction in Blockburger v. United
States, 284 U.S. 299 (1932), the court ruled that a §
371 conspiracy and a § 373 solicitation each requires proof
of different elements. For a defendant to be found guilty of
solicitation, the Government need not prove that an agreement or
conspiracy existed between the defendants. Likewise, a
conspiracy charge does not require proof of a serious effort to
induce another person to commit a Federal offense. United
States v. Holveck, 867 F. Supp. at 977. Further, the
legislative history of § 373 does not show that Congress
intended it to be charged only when a conspiracy is not charged.
Prosecutors may decide, in the exercise of their discretion, not
to charge a § 373 solicitation when a § 371 conspiracy
can be proven. However, there is no legal impediment to charging
both offenses in an indictment relating to the same criminal
conduct.
[updated January 1998] [cited in USAM 9-60.500] | |