United States v. Kerley, No. 08-1818-cr (2d Cir. September 25, 2008) (Jacobs, Pooler, CJJ, Restani, JCIT)
Clifford Kerley was convicted, after a jury trial, of two counts of willfully evading a child support obligation – one for each of his twin daughters – in violation of 18 U.S.C. § 228(a)(3). On appeal, he successfully argued that the indictment against him was multiplicitous, because it charged him in two counts, even though he had been subject to a single support order. He also prevailed on his argument that the “vulnerable victim” enhancement should not apply.
An indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when in law and fact, only one crime has been committed. Kerley’s argument that he only committed a single violation of § 228(a)(3) turned on whether the “unit of prosecution” for that offense is the support …