The opinion of the court was delivered by: Padova, District Judge.
Before the Court are Defendants' Motion to Dismiss Count One
of the Indictment, filed on June 26, 2000, and Defendants'
Motion to Compel Election or Dismiss Count One of the Indictment
as Duplicitous, filed on July 25, 2000. Defendant Sandra Lee
Gambone also moves, separately, for dismissal of Count One, or,
in the alternative, to compel election or order a separate
trial.*fn1 The Government filed a response on July 25, 2000.
Oral argument was held before the Court on August 23, 2000. The
matter is fully briefed and ripe for decision. For the reasons
that follow, the Court will deny Defendants' Motions to Dismiss
Count One of the Indictment. The Court will also deny
Defendants' alternative request to compel election.
In considering a motion to dismiss an indictment or a portion
of an indictment, the court accepts as true the well-pleaded
factual allegations set forth in the indictment. See United
States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990). If the
facts do not constitute a violation of federal law, the charges
should be dismissed. See United States v. Stewart, Crim.Act.
No. 96-583, 1997 WL 688815, *1, 1997 U.S. Dist.LEXIS 16947, at
*2 (E.D.Pa. Oct. 23, 1997) (citing United States v. Polychron,
841 F.2d 833, 834 (8th Cir.), cert. denied, 488 U.S. 851, 109
S.Ct. 135, 102 L.Ed.2d 107 (1988)).
Defendants first move to dismiss Count One of the Indictment
because it fails properly to allege a conspiracy to defraud the
United States pursuant to the defraud clause of section 371.
Defendants also move to dismiss Count One on the grounds it is
duplicitous. In the alternative, Defendants ask the Court to
compel the Government to choose from among the alleged
conspiracies in Count One. The Court will consider these
arguments in turn.
Section 371 of Title 18 of the United States Code provides:
If two or more persons conspire either to commit any
offense against the United States, or to defraud the
United States, or any agency thereof in any manner or
for any purpose, and one or more of such persons do
any act to effect the object of the conspiracy, each
shall be fined under this title or imprisoned not
more than five years, or both.
The Court of Appeals for the Third Circuit has explained that
section 371 describes two types of conspiracies: (1) a
conspiracy to commit a substantive offense under a separate
criminal statute (the "offense" clause); and (2) a conspiracy to
defraud the United States (the "defraud" clause) without
reference to another criminal statute. United States v.
Alston, 77 F.3d 713, 718 (3d Cir. 1996). Count One alleges a
conspiracy falling under the defraud clause.
A conspiracy to defraud the United States by frustrating the
lawful information-gathering function of the Internal Revenue
Service ("IRS") is commonly referred to as a "Klein
conspiracy," named after the landmark decision of the United
States Court of Appeals for the Second Circuit in United States
v. Klein, 247 F.2d 908 (2d Cir. 1957). In Klein, the
defendants participated in a scheme to import and sell Canadian
whiskey in the United States in such a way as to minimize the
amount of federal income tax that would be owed. In addition to
the filing of false income tax returns, the Government provided
substantial evidence of additional ...