Here is the opinion on a motion to dismiss in United States v. Smith (D. Utah): US v Smith DCT Order.
An excerpt:
Based on the differences in these statutes, the Court finds the indictment is not multiplicitous. Each charge would require the government to prove an element that is not required in the others. As set forth above, ARPA requires a showing that the item is an archeological resource, that it is over 100 years old, and that its value is more than $500. Under Section 641, the government must show that the property was government property and had a value of over $1,000. Similarly, under Section 1163, the government must show the property belonged to an “Indian tribal organization” and had a value in excess of $1,000. Therefore, because each count requires proof of something the others do not, the indictment is not multiplicitous and the Motion will be denied.
However, even if the Court did find the indictment to be multiplicitous, the government is correct that the discretion in choosing which charge to pursue rests with it. In Jones, the Forest Service officers observed the defendants “digging in Indian ruins located on the federal government land.” The defendants were charged under a general theft statute covered by 18 U.S.C. § 641. The defendants sought to have the charge dismissed, arguing that Congress intended the Antiquities Act to be the only means of prosecuting that type of conduct. The Ninth Circuit rejected this argument stating, “[t]he rule we apply is straightforward: where an act violates more than one statute, the Government may elect to prosecute under either unless the congressional history indicates that Congress intended to disallow the use of the more general statute.” As a result, “[w]here the statute applies to the conduct in question and there is no affirmative evidence that Congress intended to limit the application of the more general statute, the prosecutor is free to elect to prosecute under either.” Because the Court has already found there is no clear Congressional intent, the government is not barred from bringing simultaneous charges based on the three statutes.
Turtle Talk 