NOTICE IS HEREBY GIVEN that the Court will hold a hearing on Julie Hiatt Steele’s Motion to Compel the Office of the Independent Counsel to Elect One of the Multiplicitous Counts Upon Which To Proceed, Steele Pretrial Motion No. 7, on Friday, February 26, 1999 at 9:00 a.m.

DATED: February 16, 1999

Julie Hiatt Steele, through undersigned counsel, hereby moves this Court, pursuant to Federal Rule of Criminal Procedure 12(b)(2), to compel the Office of the Independent Counsel to elect one of the multiplicitous counts upon which to proceed.

In support of her motion, Ms. Steele relies on the accompanying Memorandum of Law.

WHEREFORE, for the reasons set forth in the attached Memorandum, the Court should exercise its discretion and compel the OIC to elect one of the multiplicitous counts upon which to proceed, in the above-captioned matter.

DATED: February 16, 1999

The Office of the Independent Counsel ["OIC"] must elect one of the multiplicitous counts upon which to proceed in prosecuting Ms. Steele based on this Indictment. Because the OIC pleads Count Four, the false statements count, as a lesser included offense to Counts One through Three, the obstruction of justice counts, all four counts are multiplicitous. They are multiplicitous because they all stem from one statement that Ms. Steele made that the OIC deems is false. Ms. Steele cannot be prosecuted several times for the repetition of one allegedly false statement. As such, this Court must compel the OIC to elect the one count upon which it decides to proceed.

A full recitation of the facts, outlined in Ms. Steele's Motion to Dismiss Indictment, Or in the Alternative, For Transfer of Cause To the District of Columbia, filed with this Court on Monday, February 8, 1999, is incorporated by reference. Only the facts pertinent to this Motion are highlighted here.

On January 16, 1998, the Court of Appeals for the District of Columbia Circuit expanded the OIC's jurisdiction to include an investigation as to "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law . . .in dealing with potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton." January 16, 1998 Order of the Special Division (attached to Notice of Prosecutorial Jurisdiction). The OIC began an investigation into potential obstruction of justice and related charges connected to the Jones v. Clinton case this same month in the District of Columbia. The grand jury in the District of Columbia investigating potential obstruction in Jones v. Clinton apparently began focusing on potential obstruction connected to Kathleen Willey in March 1998.

According to the indictment, Willey, a former White House volunteer, alleges that in November 1993, President Clinton made unwanted sexual advances toward her in the White House. Id. at ¶¶ 6, 7. Specifically, Willey alleged that the President "groped" or "fondled" her. Id. Although she did not make this allegation public until the spring of 1997, the indictment alleges that Willey claims to have contemporaneously told several of her friends and acquaintances, including Julie Hiatt Steele, about the alleged "grope" by the President. Id. at 8.

In early 1997, Willey called Ms. Steele and asked her to talk to a reporter for Newsweek. Ms. Steele had no idea why the reporter was to interview her, but Willey called back and told Ms. Steele to tell the reporter the following events: that she (Willey) had gone to Ms. Steele's on the very night of an incident at the White House to relate to Ms. Steele that the President had "groped" her, and that she (Willey) appeared "upset" and "humiliated." Willey apparently does not dispute that she asked Ms. Steele to talk to the reporter, but she claims that she did not ask Ms. Steele to lie to him. Indictment at ¶¶ 8-9.

It is this alleged "lie" which is at the heart of the Indictment: the OIC believes Willey told the truth, and that Ms. Steele is lying. See, e.g. Indictment at ¶ 36 ("In truth and in fact. . .Kathleen Willey told. . . Steele about the alleged sexual advances. . . ."). All four counts in the Indictment rest upon the credibility determination between Ms. Steele and Willey - the proverbial "she said"/"she said."

Ms. Steele was indicted on January 7, 1999 on three counts of obstruction of justice and one count of making a false statement. Counts One through Three of the Indictment allege that Ms. Steele obstructed the "due administration of justice" of three pending judicial proceedings, Jones v. Clinton, the Eastern District of Virginia grand jury proceeding and the District of Columbia grand jury proceeding, respectively. Indictment at ¶¶35, 39, & 42. She allegedly obstructed these proceedings by repeating to various people her recollection that Ms. Willey did not inform her of the "grope" incident until several minutes before the Newsweek reporter interviewed her. Id. at ¶¶12, 25, 27, 28, 31, 32, 33, 35, 39, 42, 45. The various people to whom Ms. Steele is said to have consistently repeated this statement are: agents for the Federal Bureau of Investigations [FBI], the Eastern District of Virginia grand jury, the District of Columbia grand jury, the Newsweek reporter, the National Enquirer reporter, Larry King, John Doe #1 and Jane Doe #1.

Count Four of the Indictment alleges that Ms. Steele made the same allegedly false statement to two FBI agents who were assisting the investigation of obstruction of justice and witness tampering in the Jones v. Clinton case for the grand jury in the District of Columbia.

Multiplicity occurs in two problematic pleading situations. One situation is the charging of one offense in multiple counts. United States v. Burns, 990 F.2d 1426, 1438 (4^th Cir. 1993); United States v. Allied Chemical Corp., 420 F. Supp. 122, 123-24 (E.D.Va. 1976). The other is the charging of "a series of repeated acts [that] are charged as separate crimes but the defendant claims they are part of a continuous transaction and therefore a single crime." See United States v. Allen, 13 F.3d 105, 107 (4^th Cir. 1993)(citing 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure §19.2(e), at 457-58 & n.121(1984)); see also Blockburger v. United States, 284 U.S. 299, 302 (1932). The Blockburger Court established a test to determine if the indictment charges one offense or two. "The test . . . is whether each [statutory] provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304.

The two dangers with multiplicity are: "that the defendant may be given multiple sentences for the same offense," Burns, 990 F.2d at 1438; Allied Chemical Corp., 420 F. Supp. at 123, and that "it may prejudice the jury by creating the impression that the defendant has committed several offenses where there may have been only one." United States v. Jameson, 1992 U.S.App. LEXIS 17565 (Attached at Exhibit "2"); United States v. Smith, 591 F.2d 1105, 1108 (5^th Cir. 1979); United States v. Hearod, 499 F.2d 1003 (5^th Cir. 1974). To combat this problem, Federal Rule of Criminal Procedure 7(c)(1) states that "[i]t may be alleged in a single count . . . that the defendant committed [the offense] by one or more specified means." Fed. R. Crim. P. 7(c)(1)(1998); Allied Chemical Corp., 420 F. Supp. at 123.

In the case at bar, Counts One through Three allege that Ms. Steele violated 18 U.S.C. 1503, which provides, in relevant part that:

18 U.S.C. 1503 (1998).

Count Four of the Indictment alleges that Ms. Steele made an allegedly false statement, also enumerated in Counts Two and Three, to two FBI agents who were assisting the District of Columbia grand jury's investigation of obstruction of justice and witness tampering in the Jones v. Clinton case in violation of 18 U.S.C. 1001. Indictment at ¶45. Section 1001, in relevant part, provides:

18 U.S.C. 1001.

Depending on the way a violation is pled, an obstruction of justice charge may have more elements than a false statement charge. However, the way the OIC pleads the violations in Ms. Steele's indictment, the OIC must prove the same elements in the false statement count as in the obstruction counts. In other words, Count Four, the false statement count, is a lesser included offense to the obstruction charged in Counts Two and Three. See Rutledge v. United States, 517 U.S. 292, 297 & n.6 (1996) (stating that the Blockburger test pertains to two statutes where one is a lesser included offense of the other because one statute's elements are completed incorporated in the other statute). The elements in Counts One through Three, the obstruction counts, are identical because they all charge that Ms. Steele's allegedly false statement obstructed the pending investigation of obstruction of justice in Jones v. Clinton.

Importantly, courts have held that when a defendant tells one false statement, she cannot be indicted several times for repeating that one statement. United States v. Jameson, 1992 U.S.App. LEXIS 17565, *25-27 (4^th Cir. 1992)(finding that defendant made four separate false statements); Gebhard v. United States, 422 F.2d 281, 289-90 (9^th Cir. 1970); United States v. Seagall, 833 F.2d 144, 146-47 (9^th Cir. 1987); United States v. Olsowy, 836 F.2d 439, 443 (9^th Cir. 1987), cert. denied, 485 U.S. 991 (1988); United Sates v. Salas-Comacho, 859 F.2d 788, 791 (9^th Cir. 1988); United States v. Sue, 586 F.2d 70, 71 (8^th Cir. 1978) (making several false statements in one document constitutes only one criminal violation); cf. Masinia v. United States, 296 F.2d 871, 880 (8th Cir. 1961)("The offense of perjury may not be compounded by the repetitious asking of the same question") and United States v. Orman, 207 F.2d 148, 160 (3^rd Cir. 1953) ("where the separate questions seek to establish but a single fact, or relate to but a single subject of inquiry, only one penalty for contempt may be imposed"); Trumbo v. United States, 176 F.2d 49 (D.C. Cir. 1949), cert. denied, 339 U.S. 934 (contempt); United States v. Yukio Abe, 95 F.Supp. 991, 992 (D.C. Hawaii 1951)(only one contempt can lie for repeated refusals to testify).

As the Ninth Circuit succinctly stated:

Gebhard v. United States, 422 F.2d 281, 289-90 (9^th Cir. 1970) (reversing conviction on multiplicitous counts based on the repetition of one perjurous statement). See also Sue, 586 F.2d at 71; Masinia, 296 F.2d at 880 (perjury); Orman, 207 F.2d 148 at 160 (contempt).

Ms. Steele is being prosecuted for "a series of repeated acts [that] are charged as separate crimes but . . . are part of a continuous transaction and therefore a single crime." United States v. Allen, 13 F.3d 105, 107 (4^th Cir. 1993)(citing 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure §19.2(e), at 457-58 & n.121(1984)). The entire Indictment is based on one act: Ms. Steele’s statement that Ms. Willey did not inform her of the grope until several minutes before the Newsweek reporter interviewed Ms. Steele. Indictment at ¶¶12, 25, 27, 28, 31, 32, 33, 35, 39, 42, 45. Ms. Steele, then, has repeated that one statement to various people: the Eastern District of Virginia grand jury, the District of Columbia grand jury, John Doe #1, Jane Doe #1, the Newsweek reporter, the National Enquirer reporter, and Larry King. Because of this series of repeating the same statement, the Indictment charges Ms. Steele with having committed separate crimes.

Ms. Steele has committed only one act, made a statement which the OIC believes is false. She cannot be indicted multiple times for repeating the same statement to the FBI and the two grand juries, particularly when the OIC compelled her to do so. Jameson, 1992 U.S.App. LEXIS 17565 at *25-27; Gebhard, 422 F.2d 281 at 289-90; Seagall, 833 F.2d at 146-47; Olsowy, 836 F.2d at 443; Salas-Comacho, 859 F.2d at 791.

The OIC requested that Ms. Steele repeat her recollection to two different grand juries despite the fact that the OIC believed it to be false. Hypothetically, such a person could be indicted in a fifty-count indictment, if the OIC believed the original statement to be false, subpoenaed the person before a grand jury in each of the fifty states, and the person consistently repeated this same allegedly false statement. Such a scenario is both absurd, multiplicitous and found to be improper in this Circuit in United States v. Jameson, 1992 U.S.App. LEXIS 17565, *25-27 (4^th Cir. 1992). See also Gebhard, 422 F.2d 281 at 289-90 (9^th Cir.); Seagall, 833 F.2d at 146-7 (9^th Cir.); Olsowy, 836 F.2d at 443(9^th Cir.); Salas-Comacho, 859 F.2d at 791 (9^th Cir.); Sue, 586 F.2d at 71 (8^th Cir.); Masinia, 296 F.2d at 880 (8^th Cir.); Orman, 207 F.2d at 160 (3^rd Cir.); Trumbo, 176 F.2d at 49 (D.C. Cir.); Yukio Abe, 95 F.Supp. at 992 (D.C. Hawaii).

An amendment of the indictment is not proper as it would violate Ms. Steele's Fifth Amendment right that she be indicted by a grand jury only after presentment of sufficient evidence on each count. U.S. CONST. amend V. It is within the court's discretion as to which stage of the proceeding to impose a remedy for a multiplicitous indictment. Sue, 586 F.2d at 71; see also 1 Charles A. Wright, Federal Practice and Procedure §145 (1982). Before trial, the remedy is for the court to require the OIC to elect one of the multiplicitous counts upon which to proceed. Id.; United State v. Maldonado-Rivera, 922 F.2d 934, 982 (2d Cir. 1990), cert. denied 501 U.S. 1233 (1991); United States v. Smith, 591 F.2d 1105, 1108 (5^th Cir. 1979).

Courts have reversed convictions when the defendant was convicted upon multiplicitous counts of an indictment. See United States v. Burns, 990 F.2d 1426, 1438 (4^th Cir. 1993) (citations omitted); Whalen v. United States, 445 U.S. 684, 693-695 (1980). And, when a defendant is convicted multiple times because of multiplicitous counts in an indictment, his multiple sentences are vacated, but for one. Id. See also Ball v. United States, 470 U.S. 856, 864-65 (1985; Rutledge v. United States, 517 U.S. 292, 301-03 (1996); United States v. Walton, 86 F.3d 1154, 1996 WL 293136, **4 (4^th Cir. 1996)(attached at Exhibit "3").

In this case, the proper remedy would be for the court to order the OIC to elect one of the counts upon which to proceed. Because Ms. Steele is alleged to have made only one false statement, it is clear the proof will be the same for each count, and there is no reason to delay election. The Court should not leave the indictment as is in contravention of well-established law prohibiting prosecutions based on repetitions of one allegedly false statement. Because multiplicitous counts in an indictment cannot lie, this Court should exercise its discretion now and require the OIC to elect one count upon which to proceed.

WHEREFORE, for the foregoing reasons, the Court must dismiss the Indictment in the above-captioned matter.

DATED: February 16, 1999

I hereby certify that a true and correct copy of the foregoing Notice of Hearing, Motion to Compel the Office of the Independent Counsel to Elect One of the Multiplicitous Counts Upon Which To Proceed (Steele Pretrial Motion No. 7), and Memorandum of Law in Support thereof was served, via hand-delivery, on this 16th day of February, 1999, on the following:

Andrew L. Hurst

Upon consideration of Ms. Steele's Motion to Compel the Office of the Independent Counsel to Elect One of the Multiplicitous Counts Upon Which To Proceed, it is this _______ day of _____________, 1999, hereby

ORDERED that Ms. Steele's Motion is hereby GRANTED, and it is further

ORDERED that the Office of Independent Counsel is to elect one of the multiplicitous counts in the indict under which to proceed within ten (10) days of this Order.

____________________________

Hon.

United States District Court

Judge