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Multiplicity: More Than a Bad Michael Keaton Movie

By Robyn Hagan Cain | Last updated on

After Michael Keaton retired his Batsuit in the early 90s, he went on to star with Andie McDowell in Multiplicity. We watched it. In a theatre. It was terrible.

For years, we've blocked out the word "multiplicity" because it prompts cinematic PTSD episodes. Today, we're overcoming that obstacle to discuss how it applies to improper sentencing in Tenth Circuit appeals.

Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior. It's not actually fatal to an indictment: The government may submit multiplicitous charges to the jury. Multiplicitous sentences, however, violate the Double Jeopardy Clause.

Defendant Darryn Frierson and 19 co-defendants were charged in a multiple-count indictment with alleged criminal activities as members of the Crips street gang. Following a lengthy jury trial with five codefendants, Frierson was convicted of eight offenses.

The district court sentenced Frierson to concurrent terms of 120 months' imprisonment on each count. Among his grounds for appeal, Frierson argued that two of the counts against him were multiplicitous. The Tenth Circuit Court of Appeals agreed that Frierson's multiplicity appeal had merit.

In this case, Frierson was indicted on two counts charging a conspiracy to distribute crack cocaine. He claimed that the "only substantive difference" between the two counts was that one count specified that the overall scope of the conspiracy was "50 grams and more."

To establish that the two conspiracies were distinct -- instead of multiplicitous -- the jury had to find the "existence of more than one agreement to perform some illegal act or acts." To do so, the jurors had to be adequately instructed that they could not find Frierson guilty of more than one count of conspiracy unless they were convinced beyond a reasonable doubt that he entered into two separate agreements to violate the law.

Here, the jury was not properly instructed, so it didn't find that Frierson entered into two separate agreements to distribute crack cocaine. The appellate court, in turn, vacated Frierson's sentence on the two counts in question, and remanded the case.

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