United States v. W. Baldwin Droms, 566 F.2d 361 (2d Cir. 1977). · Go Syfert
United States v. W. Baldwin Droms, 566 F.2d 361 (2d Cir. 1977). Cases Citing This Book View Copy Cite
38 citation events (9 in the last 25 years) across 9 distinct courts.
Strongest positive: United States v. Parker (nywd, 2001-04-19)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Parker (2×)
W.D.N.Y. · 2001 · confidence medium
“An indictment is duplicitous if it joins two or more distinct crimes in a single count.” United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir.1992) (citing United States v. Murray, 618 F.2d 892, 896 (2d Cir.1980)); United States v. Droms, 566 F.2d 361, 363 (2d Cir.1977); United States v. Gleave, 786 F.Supp. 258 , 264 (W.D.N.Y.1992), rev’d on other grounds sub nom.
discussed Cited as authority (rule) United States of America, Appellee/cross-Appellant v. Alfred J. Rioux, Appellant/cross-Appellee
2d Cir. · 1996 · confidence medium
But, “ “when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, ... the verdict stands if the evidence is sufficient with respect to any one of the acts charged.’ ” United States v. Droms, 566 F.2d 361, 363 (2d Cir.1977) (per curiam) (quoting Turner v. United States, 396 U.S. 398, 420 , 90 S.Ct. 642, 654 , 24 L.Ed.2d 610 (1970)).
cited Cited as authority (rule) United States v. Frequency Electronics
E.D.N.Y · 1994 · confidence medium
See United States v. Berardi 675 F.2d 894, 897 (7th Cir.1982); United States v. Schwartz, 899 F.2d 243, 246 (3rd Cir.1990); United States v. Droms, 566 F.2d 361, 363 (2d Cir.1977).
discussed Cited as authority (rule) United States v. Moore (2×) also: Cited "see"
unknown court · 1992 · confidence medium
United States v. Droms, 566 F.2d 361, 363 (2d Cir.1977); United States v. Gleave, 786 F.Supp. 258 , 264 (W.D.N.Y.1992).
discussed Cited as authority (rule) United States v. Gleaye (2×) also: Cited "see"
W.D.N.Y. · 1992 · confidence medium
It is a rule of pleading and “... would in no event be fatal to the count.” United States v. Droms, 566 F.2d 361, 363, n. 1 (2d Cir.1977); United States v. Duncan, 850 F.2d 1104, 1108, n. 4 (6th Cir.1988).
discussed Cited as authority (rule) United States v. Gleave (2×) also: Cited "see"
W.D.N.Y. · 1992 · confidence medium
It is a rule of pleading and "... would in no event be fatal to the count." United States v. Droms, 566 F.2d 361, 363, n. 1 (2d Cir. 1977); United States v. Duncan, 850 F.2d 1104, 1108, n. 4 (6th Cir.1988).
cited Cited as authority (rule) United States v. Weichert
N.D.N.Y. · 1987 · confidence medium
Additionally, “an objection to duplicity is waived if not raised before trial, or, at the least, before verdict.” United States v. Droms, 566 F.2d 361, 373 (2d Cir.1977). 2.
discussed Cited as authority (rule) United States v. Jones
S.D.N.Y. · 1986 · confidence medium
At one time the court suggested that an objection of duplicitous counts would be timely if “raised before trial or, at the least, before verdict.” United States v. Droms, 566 F.2d 361, 363 (2d Cir.1977) (per curiam); United States v. Galgano, 281 F.2d 908 , *243 911 (2d Cir.1960), cert. denied, 366 U.S. 967 , 81 S.Ct. 1929 , 6 L.Ed.2d 1257 (1961).
discussed Cited as authority (rule) United States v. Noble Adjin Lartey
2d Cir. · 1983 · confidence medium
See Rule 12(f), Fed.R.Crim.P.; United States v. Alessi, 638 F.2d 466, 476 (2d Cir.1980); United States v. Murray, 618 F.2d 892 , 899 n. 8 (2d Cir.1980); United States v. Viserto, 596 F.2d 531, 538 (2d Cir.), cert. denied, 444 U.S. 841 , 100 S.Ct. 80 , 62 L.Ed.2d 52 (1979); United States v. Droms, 566 F.2d 361, 363 (2d Cir.1977) (per curiam).
discussed Cited as authority (rule) United States v. Wilson
S.D.N.Y. · 1983 · confidence medium
See United States v. Murray, 618 F.2d 892, 896-99 (2d Cir 1980); United States v. Viserto, 596 F.2d 531, 538-39 (2d Cir.1979), cert. denied, 444 U.S. 841 , 100 S.Ct. 80 , 62 L.Ed.2d 52 (1980); United States v. Droms, 566 F.2d 361, 363 (2d Cir.1977); United States v. Di Salvo, 251 F.Supp. 740, 742 (S.D.N.Y.1966); United States v. Ricciardi, 40 F.R.D. 135, 136 (S.D.N.Y.1965) (and cases cited therein). 72 .
discussed Cited as authority (rule) United States v. Alessi
2d Cir. · 1980 · confidence medium
See Davis v. United States, 411 U.S. 233, 243-45 , 93 S.Ct. 1577, 1583-1584 , 36 L.Ed.2d 216 (1973); United States v. Viserto, 596 F.2d 531, 538 (2d Cir.), cert. denied, 444 U.S. 841 , 100 S.Ct. 80 , 62 L.Ed.2d 52 (1979); United States v. Droms, 566 F.2d 361, 363 (2d Cir. 1977).
discussed Cited as authority (rule) United States v. Alessi
2d Cir. · 1980 · confidence medium
See Davis v. United States, 411 U.S. 233, 243-45 , 93 S.Ct. 1577, 1583-1584 , 36 L.Ed.2d 216 (1973); United States v. Viserto, 596 F.2d 531, 538 (2d Cir.), cert. denied, 444 U.S. 841 , 100 S.Ct. 80 , 62 L.Ed.2d 52 (1979); United States v. Droms, 566 F.2d 361, 363 (2d Cir. 1977).
discussed Cited as authority (rule) United States v. Dale Murray, Paul Leahey, Ronald Vanderbosch, Lawrence Tower, and Linton Sherlock (2×) also: Cited "see"
2d Cir. · 1980 · confidence medium
See United States v. Viserto, 596 F.2d 531, 538-39 (2d Cir.), cert. denied, 444 U.S. 841 , 100 S.Ct. 80 , 62 L.Ed.2d 52 (1979); United States v. Droms, 566 F.2d 361, 363 (2d Cir. 1977) (per curiam); United States v. Galgano, 281 F.2d 908, 911 (2d Cir. 1960), cert. denied, 366 U.S. 967 , 81 S.Ct. 1916 , 6 L.Ed.2d 1253 (1961); see generally 8 Moore’s Federal Practice, supra, 11 8.04 at 8-12.
discussed Cited as authority (rule) United States v. Frank Viserto, Jr., Richard Rocco, Joseph Solce, Garnet Johnson, Sarah Payne, Howard Williams and Prentiss Covington
2d Cir. · 1979 · confidence medium
United States v. Droms, 566 F.2d 361, 363 (2d Cir. 1977) (per curiam); United States v. Rodriguez, 556 F.2d 638, 641 (2d Cir. 1977), cert. denied, 434 U.S. 1062 , 98 S.Ct. 1233 , 55 L.Ed.2d 762 (1978); and see generally Davis v. United States, 411 U.S. 233, 243 , 93 S.Ct. 1577 , 36 L.Ed.2d 216 (1973); United States v. Kelley, 395 F.2d 727, 729-30 (2d Cir.), cert. denied, 393 U.S. 963 , 89 S.Ct. 391 , 21 L.Ed.2d 376 (1968).
cited Cited "see" United States v. Abakporo
S.D.N.Y. · 2013 · signal: see · confidence high
See United States v. Droms, 566 F.2d 361 , 363 n. 1 (2d Cir.1977). .
cited Cited "see" State of NY v. SCA Services, Inc.
S.D.N.Y. · 1999 · signal: see · confidence high
See United States v. Droms, 566 F.2d 361, 363 (2d Cir.1977).
discussed Cited "see" United States v. Leonard S. Siegel and Martin B. Abrams (2×)
2d Cir. · 1983 · signal: see · confidence high
We do not need to consider whether use of the cash for bribery on behalf of the corporation breached defendants’ fiduciary duties, for when an indictment charges acts in the conjunctive, “the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” Turner v. United States, 396 U.S. 398, 420 , 90 S.Ct. 642, 654 , 24 L.Ed.2d 610 (1970) (footnote omitted); See United States v. Droms, 566 F.2d 361, 363 (2d Cir.1977).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
W. Baldwin DROMS, Appellant
579, Docket 76-1232.
Court of Appeals for the Second Circuit.
Feb 25, 1977.
566 F.2d 361
Thomas E. De Lorenzo, Schenectady, N.Y. (Parisi, De Lorenzo, Gordon & Pas-quariello, Schenectady, N.Y., of counsel), for appellant., Thomas P. O’Sullivan, Asst. U.S. Atty., Albany, N.Y. (Paul V. French, U.S. Atty., Northern District of New York, Albany, N.Y., of counsel), for appellee.
Moore, Oakes, Per Curiam, Timbers.
Cited by 30 opinions  |  Published
Reporter's Syllabus — editorial summary, not part of the Court's opinion

Thomas E. De Lorenzo, Schenectady, N.Y. (Parisi, De Lorenzo, Gordon & Pasquariello, Schenectady, N.Y., of counsel), for appellant.

Thomas P. O'Sullivan, Asst. U.S. Atty., Albany, N.Y. (Paul V. French, U.S. Atty., Northern District of New York, Albany, N.Y., of counsel), for appellee.

Before MOORE, OAKES and TIMBERS, Circuit Judges.

PER CURIAM:

Lead Opinion

PER CURIAM:

This appeal is from a judgment of conviction for violation of 26 U.S.C. § 7206(1), entered after a jury trial in the United States District Court for the Northern District of New York, James T. Foley, Chief Judge. Appellant was charged in a one-count indictment with willfully subscribing, under penalty of perjury, a statement of financial information in connection with an Internal Revenue Service settlement, know[*363] ing the statement to be false in two material respects: (1) as to the income report and (2) as to whether appellant had disposed of an asset worth $500 or more for less than full value between the beginning of the taxable period in dispute and the date of the statement. Objection was made at trial and is made on appeal that evidence as to one of the two alleged falsifications — disposition of an asset — was insufficient, since the asset in question, a stock certificate, was never delivered and hence not transferred under N.Y.U.C.C. §§ 8-309, -313 (McKinney 1964). See Wolder v. Commissioner, 493 F.2d 608, 613 & n.5 (2d Cir.), cert. denied, 419 U.S. 828, 95 S.Ct. 49, 42 L.Ed.2d 53 (1974). No objection has been made here or below, however, to the court’s charge to the jury that it could convict if it found that defendant had falsified the financial statement in either one of the two ways charged in the indictment. We affirm the judgment.

An indictment is invalidly duplicitous when it joins in a single count two or more distinct, separate offenses. United States v. Gibson, 310 F.2d 79, 80 n.1 (2d Cir. 1962); United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975). But Fed.R.Crim.P. 7(c)(1) permits allegation in a single count that an offense has been committed in a multiplicity of ways; such a count is not duplicitous. See 1 C. Wright, Federal Practice and Procedure § 142, at 307-10 (1969). It has been held, for example, that an indictment charging both “accepting” and “receiving” wagers in one count is not improper. United States v. Conti, 361 F.2d 153, 157-58 (2d Cir. 1966), vacated on other grounds, 390 U.S. 204, 88 S.Ct. 899, 19 L.Ed.2d 1035 (1968); Driscoll v. United States, 356 F.2d 324, 331-32 (1st Cir. 1966), vacated on other grounds, 390 U.S. 202, 88 S.Ct. 899, 19 L.Ed.2d 1034 (1968). Thus, had this indictment charged alternatively that appellant had violated the law either by falsely saying he had not disposed of the asset or by falsely omitting to mention that he retained the asset, it clearly would not have been duplicitous. See United States v. Conti, supra, 361 F.2d at 158 (“[c]harging alternative ways of violating- a statute in the conjunctive is permissible”).

The alternative falsifications charged here, however, required entirely different proof as to the two matters alleged, even though the crime as to both was willfully making “any return, statement, or other document” that the maker does not believe to be correct “as to every material matter.” 26 U.S.C. § 7206(1). But because no objection or request to elect was made we need not decide whether the indictment was duplicitous.[1] An objection to duplicity is waived if not raised before trial or, at the least, before verdict. See, e. g., United States v. Galgano, 281 F.2d 908, 911 (2d Cir. 1960), cert. denied, 366 U.S. 960, 81 S.Ct. 1916, 6 L.Ed.2d 1253 (1961); United States v. Costner, 359 F.2d 969, 974 (6th Cir. 1966); 1 C. Wright, supra, § 145, at 335-36.

Nor need we decide whether the evidence was sufficient to go to the jury on the asset-disposal question. “The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as [appellant’s] indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610 (1970); see United States v. Conti, supra, 361 F.2d at 158. Here it is undisputed that the evidence was sufficient to sustain the charge that appellant understated his income.

Judgment affirmed.

1

Duplicity, of course, is only a pleading rule and would in no event be fatal to the count. Reno v. United States, 317 F.2d 499, 502 (5th Cir.), cert. denied, 375 U.S. 828, 84 S.Ct. 72, 11 L.Ed.2d 60 (1963); 1 C. Wright, Federal Practice and Procedure § 142, at 311 (1969).

Concurrence in Part

TIMBERS, Circuit Judge,

concurring in part and dissenting in part:

I concur in the judgment of affirmance on the ground that, when a jury returns a general verdict of guilty on an indictment charging several acts in the conjunctive, the verdict stands if the evidence is sufficient[*364] with respect to any of the acts charged, as it was here with respect to the charge that Droms had understated his income. Turner v. United States, 396 U.S. 398, 420 (1970); United States v. Conti, 361 F.2d 153, 158 (2 Cir. 1966) (Moore, J.), vacated on other grounds, 390 U.S. 204 (1968).

Since in my view no more is needed to justify affirmance of the judgment of conviction, I respectfully dissent from the balance of the opinion which, being largely dictum, is without precedential force.