United States v. Sailor J. Kennedy, 726 F.2d 546 (9th Cir. 1984). · Go Syfert
United States v. Sailor J. Kennedy, 726 F.2d 546 (9th Cir. 1984). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 1993 · 2 courts · …determines whether each count 'requires proof of a fact which the other does not. at p. 547
38 citation events (13 in the last 25 years) across 9 distinct courts.
Strongest positive: United States v. Marcela Heredia (ca9, 2022-06-27)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 25 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Marcela Heredia
9th Cir. · 2022 · confidence medium
One of the dangers of a duplicitous indictment is that a jury could convict “without reaching unanimous agreement on a given set of facts.” United States v. Kennedy, 726 F.2d 546, 548 (9th Cir. 1984).
cited Cited as authority (rule) United States v. Rosen
C.D. Cal. · 2005 · confidence medium
Kennedy , at 548.
discussed Cited as authority (rule) United States v. Collazos-Munoz
9th Cir. · 2002 · confidence medium
The test for multiplicity, charging a single offense in more than one count, is whether each count “requires proof of a fact which the other does not.” United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.1984).
cited Cited as authority (rule) United States v. George Paul Salemo
9th Cir. · 1996 · confidence medium
United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.), cert. denied, 469 U.S. 965 (1984).
discussed Cited as authority (rule) United States v. Keith Richard Kerna
9th Cir. · 1994 · confidence medium
United States v. Meza-Soria, 935 F.2d 166, 167 (9th Cir.1991). 54 In order to ascertain whether or not counts of an indictment are multiplicitous, "[t]he court applie[s] the traditional test which determines whether each count requires proof of a fact which the other does not." United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.), cert. denied, 469 U.S. 965 (1984) (internal quotations omitted).
cited Cited as authority (rule) United States v. Virgil Lebron Hayes and James Edward Golson
6th Cir. · 1992 · confidence medium
United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.), cert. denied, 469 U.S. 965 (1984).
discussed Cited as authority (rule) United States v. Hayward
N.D. Ill. · 1991 · confidence medium
The traditional test of multiplicity involves a determination of “whether each count requires proof of a fact which the other does not.” United States v. Marquardt, 786 F.2d 771, 778 (7th Cir.1986) (quoting United States v. Kennedy, 726 F.2d 546, 547-548 (9th Cir.), cert. denied, 469 U.S. 965 , 105 S.Ct. 365 , 83 L.Ed.2d 301 (1984)); Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932).
discussed Cited as authority (rule) United States v. Roberto Gonzalez, Roberto Ramirez, Angel M. Amejeiras, Vicente Chao, Luis Gonzalez, and Rafael Izquierdo
7th Cir. · 1991 · confidence medium
In United States v. Marquardt, 786 F.2d 771, 778 (7th Cir.1986), we set forth the standard utilized in evaluating whether counts are multiplicitous: “The traditional test of multiplicity ‘determines whether each count “requires proof of a fact which the other does not.” ’ United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.), cert. denied, [ 469 U.S. 965 ], 105 S.Ct. 365 , 83 L.Ed.2d 301 (1984) (quoting United States v. Glanton, 707 F.2d 1238 (11th Cir.1983)). ‘If one element is required to prove the offense in one count which is not required to prove the offense in the second …
discussed Cited as authority (rule) United States v. Briscoe
7th Cir. · 1990 · confidence medium
In Marquardt, supra, we set forth our standard for evaluating claims of multiplicity: 172 "The traditional test of multiplicity 'determines whether each count "requires proof of a fact which the other does not." ' United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.), cert. denied, 469 U.S. 965 , 105 S.Ct. 365 , 83 L.Ed.2d 301 (1984) (quoting United States v. Glanton, 707 F.2d 1238 (11th Cir.1983)). 'If one element is required to prove the offense in one count which is not required to prove the offense in the second count, there is no multiplicity.' United States v. Briscoe, 742 F.2d 842, …
discussed Cited as authority (rule) United States v. Briscoe
7th Cir. · 1990 · confidence medium
In Marquardt, supra, we set forth our standard for evaluating claims of multiplicity: “The traditional test of multiplicity ‘determines whether each count “requires proof of a fact which the other does not.” ’ United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.), cert. denied, 469 U.S. 965 , 105 S.Ct. 365 , 83 L.Ed.2d 301 (1984) (quoting United States v. Glanton, 707 F.2d 1238 (11th Cir.1983)). ‘If one element is required to prove the offense in one count which is not required to prove the offense in the second count, there is no multiplicity.’ United States v. Briscoe, 742 …
discussed Cited as authority (rule) United States v. Sanchez-Lopez
9th Cir. · 1989 · confidence medium
"We review the denial of a motion to require an election of counts for abuse of discretion.” United States v. Kennedy, 726 F.2d 546, 547 (9th Cir.), cert. denied, 469 U.S. 965 , 105 S.Ct. 365 , 83 L.Ed.2d 301 (1984).
discussed Cited as authority (rule) United States v. Epifanio Sanchez-Lopez Brijido Astorga-Ayon, United States of America v. Antonio Martinez-Ortega, United States of America v. Guillermo Sanchez-Lopez
9th Cir. · 1989 · confidence medium
"We review the denial of a motion to require an election of counts for abuse of discretion." United States v. Kennedy, 726 F.2d 546, 547 (9th Cir.), cert. denied, 469 U.S. 965 , 105 S.Ct. 365 , 83 L.Ed.2d 301 (1984). 39 Count I of the indictment charged appellants with conspiracy to distribute 500 grams of cocaine in violation of 21 U.S.C.
discussed Cited as authority (rule) United States v. Katherine J. Segall, A/k/a: Katherine J. Coady (2×)
9th Cir. · 1987 · confidence medium
“There is ‘no bright line ... dividing charges comprising a single offense from those comprising separate and distinct offenses.’ ” United States v. Kennedy, 726 F.2d 546, 547 (9th Cir.1984) (quoting United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir.1976), cert. denied, 430 U.S. 966 , 97 S.Ct. 1646 , 52 L.Ed.2d 357 (1977)).
discussed Cited as authority (rule) United States v. Debbe Marquardt
7th Cir. · 1986 · confidence medium
The traditional test of multiplicity “determines whether each count ‘requires proof of a fact which the other does not.’ ” United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.), cert. denied, — U.S. —, 105 S.Ct. 365 , 83 L.Ed.2d 301 (1984) (quoting United States v. Glanton, 707 F.2d 1238 (11th Cir.1983)).
discussed Cited as authority (rule) United States v. David William Roberts
9th Cir. · 1986 · confidence medium
Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932); United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.), cert. denied, — U.S. -, 105 S.Ct. 365 , 83 L.Ed.2d 301 (1984).
discussed Cited as authority (rule) United States v. Adrian Norman Payseno
9th Cir. · 1986 · confidence medium
United States v. Kennedy, 726 F.2d 546, 548 (9th Cir.), cert. denied, — U.S.-, 105 S.Ct. 365 , 83 L.Ed.2d 301 (1984). *835 Count II of the indictment charged Payseno with knowingly participating with Brown in the use of extortionate means from April to December, 1979.
cited Cited as authority (rule) United States v. Mark Edward Harris and Robert Piper
9th Cir. · 1984 · confidence medium
United States v. Kennedy, 726 F.2d 546, 548 (9th Cir.1984).
discussed Cited "see" United States v. Stephen Ward
9th Cir. · 2016 · signal: see · confidence high
See United States v. Kennedy, 726 F.2d 546, 548 (9th Cir.1984) (finding no plain error in an allegedly duplicitous indictment where the jury instructions eliminated any “danger that the jury could convict ... without reaching unanimous agreement on a given set of facts”). *541 5.
discussed Cited "see" United States v. Ron Dean Garlick (2×) also: Cited "see, e.g."
9th Cir. · 2001 · signal: see · confidence high
See Kennedy, 726 F.2d at 548 .
cited Cited "see" United States v. Green
9th Cir. · 1988 · signal: see · confidence high
See United States v. Kennedy, 726 F.2d 546, 548 (9th Cir.), cert. denied, 469 U.S. 965 (1984). 8 Count 2 of the indictment charged manufacture of the bomb between April 1986 and April 3, 1987.
cited Cited "see, e.g." United States v. Pacific Gas & Electric Co.
N.D. Cal. · 2015 · signal: see, e.g. · confidence medium
See, e.g., United States v. Kennedy, 726 F.2d 546, 548 (9th Cir.1984).
discussed Cited "see, e.g." United States v. Shitian Wu (2×)
2d Cir. · 2005 · signal: compare · confidence medium
Compare United States v. UCO Oil Co., 546 F.2d 833, 838-39 (9th Cir.1976), and United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.1984), with United States v. Olsowy, 836 F.2d 439, 442-43 (9th Cir.1988).
discussed Cited "see, e.g." United States v. Laimeche
9th Cir. · 2003 · signal: see, e.g. · confidence medium
See, e.g., United States v. Kennedy, 726 F.2d 546, 548 (9th Cir.1984) (holding that separate sentences may be imposed for each false document submitted to a bank in violation of 18 U.S.C. § 1014 ); United States v. Moore, 653 F.2d 384, 391 (9th Cir.l981)(stating that calls on different days to the same person are separate acts in violation of 18 U.S.C. § 201 (e)).
discussed Cited "see, e.g." United States v. Quigley
W.D. Mich. · 1993 · signal: see also · confidence medium
See also, United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.), cert. denied, 469 U.S. 965 , 105 S.Ct. 365 , 83 L.Ed.2d 301 (1984) (quoting United States v. Glanton, 707 F.2d 1238 (11th Cir.1983) (The traditional test of multiplicity “determines whether each count ‘requires proof of a fact which the other does not.’ ”) The one court which has considered the multiplicity argument in the context of § 844(i) and § 924(c) rejected the defendant’s challenge.
cited Cited "see, e.g." United States v. Michael Stephen Lancellotti
9th Cir. · 1985 · signal: see also · confidence medium
See also United States v. Kennedy, 726 F.2d 546, 548 (9th Cir.), cert. denied, — U.S. -, 105 S.Ct. 365 , 83 L.Ed.2d 301 (1984).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Sailor J. KENNEDY, Defendant-Appellant
83-3048.
Court of Appeals for the Ninth Circuit.
Feb 22, 1984.
726 F.2d 546
1984 U.S. App. LEXIS 25265
Stephen Cooper, Asst. U.S. Atty., Fairbanks, Alaska, for plaintiff-appellee., Daniel U. Smith, Kentfield, Cal., for defendant-appellant.
Wright, Tang, Alarcon.
Cited by 31 opinions  |  Published
EUGENE A. WRIGHT, Circuit Judge:

Kennedy was convicted on three counts of making false statements to a federally insured bank under 18 U.S.C. § 1014. There are two substantial questions: [1] (1) whether the indictment was multiplicitous because it charged three violations of Section 1014 when all statements were made to obtain a single loan; and (2) whether it was duplicitous because it allowed conviction on Count II for statements made in several separate documents.

FACTS

. Kennedy is a mortgage broker. He was convicted of obtaining a $350,000 line of credit from the First National Bank of Fairbanks by falsely representing that a nonexistent mortgage and note were a valid subsisting first loan.

Count I alleged that Kennedy stated that he would assign a valid mortgage and note to the bank in return for the line of credit. The proof showed that the “mortgage and note” was merely a proposed transaction. Based on this misrepresentation, the bank advanced the line of credit.

Count II alleged that Kennedy assigned a promissory note and a mortgage, and executed a security agreement regarding the same property involved in Count I. These three documents initiated disbursements of funds from the line of credit.

Count III charged Kennedy with executing a collateral note, binding himself to repay the $350,000 line of credit from the bank, and repeating the fictitious description of the “mortgage and note.” The collateral note maintained the flow of payments from the line of credit.

Before trial, Kennedy moved to dismiss and to require the prosecution to elect counts. A magistrate denied the motion. Kennedy was convicted on all counts.

ANALYSIS

A. Multiplicity

We review the denial of a motion to require an election of counts for abuse of discretion. United States v. Wasserteil, 641 F.2d 704, 709 (9th Cir.1981). There is “no bright line .. . dividing charges comprising a single offense from those comprising separate and distinct offenses.” United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir.1976), cert, denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977) (footnote omitted).

Kennedy contends that his conviction on three counts resulted from an impermissible splintering within the indictment of facts constituting a single offense. He claims that the indictment was multiplicitous because all documents submitted to the bank repeated the same false statement, and they were all executed for a single purpose: to obtain the $350,000 line of credit.

We have not previously decided whether 18 U.S.C. § 1014 allows multiple convictions for separate documents submitted to obtain a single loan. The Fifth and the Eleventh Circuits, however, have rejected Kennedy’s argument. United States v. Glanton, 707 F.2d 1238 (11th Cir.1983); United States v. Miranne, 688 F.2d 980 (5th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 736, 74 L.Ed.2d 959 (1983); United States v. Bins, 331 F.2d 390 (5th Cir.), cert, denied, 379 U.S. 880, 85 S.Ct. 149, 13 L.Ed.2d 87 (1964).

In Glanton, the court upheld a conviction on three counts of violating Section 1014 arising out of repetitions of the same false statement in three separate documents. 707 F.2d at 1239. The court applied the traditional test which determines whether[*548] each count “requires proof of a fact which the other does not.” Id. at 1240 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)).

We agree with this reasoning. The “proof of facts” test is well established in the law of this circuit. See United States v. Bosque, 691 F.2d 866, 869 (9th Cir.1982); United States v. Sanford, 673 F.2d 1070, 1073 (9th Cir.1982); United States v. Moore, 653 F.2d 384, 390-91 (9th Cir.), cert, denied, 454 U.S. 1102,102 S.Ct. 680, 70 L.Ed.2d 646 (1981).

■ In Moore, for instance, the defendant was convicted on three counts of violating 18 U.S.C. § 201(e) by soliciting money in exchange for promising not to testify. Each count was based on a separate phone call, but two of the calls were made to the same person and repeated the same offer. We rejected Moore’s claim that the counts were, multiplicitous, saying:

[Bjecause each call ... requires proof distinct from the other ... the calls do not constitute a single continuing violation. Appellant’s purpose in making the calls, it is true, was constant; but it does not follow that each attempt “to market” his testimony must be considered a single transaction.

653 F.2d at 391.

Under this test, separate sentences may be imposed for each false document or set of false documents submitted to the bank. This approach is consistent with Section 1014’s language. The statute prohibits knowingly making any false statement to a bank. It is the false statement, not the anticipated loan, which defines the crime. See UCO Oil, 546 F.2d at 838-39. We distinguish those cases where courts have refused to impose multiple punishment for several “statements” contained within a single document. See United States v. Sue, 586 F.2d 70 (8th Cir.1978); United States v. Sahley, 526 F.2d 913, 918 (5th Cir.1976). See also UCO Oil, 546 F.2d at 838.

B. Duplicity

Kennedy also claims that Count II is defective because it alleges that he made false statements in three separate documents.

Kennedy failed to bring this to the attention of the trial court. He must show that allowing the Count to go to the jury was “plain error.” Fed.R.Crim.P. 52(b).

Plain error is “highly prejudicial error affecting substantial rights.” United States v. Gilman, 684 F.2d 616, 620 (9th Cir.1982). We will reverse for plain error only in exceptional circumstances. Id.

There was no plain error here. The three documents involved were submitted as a package to initiate disbursements from the bank’s line of credit. Count II charged these documents in the conjunctive and the court’s instructions clearly required the jury to find that each false statement was made in the manner' alleged in order to convict. There was no danger that the jury could convict on Count II without reaching unanimous agreement on a given set of facts. Cf. United States v. Carman, 577 F.2d 556 (9th Cir.1978); UCO Oil, 546 F.2d at 835.

AFFIRMED. The mandate shall issue now.

1

. Kennedy’s other points on appeal do not require discussion in a published opinion. They will be considered in an unpublished memorandum. Ninth Circuit Rule 21.