Presently before the court are the report and recommendation of Magistrate Judge Hoffman. (Doc. # 61). Defendant Robert Radin (hereinafter “defendant”) filed an objection, (doc. # 66), and the government filed a response, (doc. # 71).
On April 2, 2013, a grand jury returned an indictment charging defendant with one count of social security fraud in violation of 42 U.S.C. § 408(a)(4). (Doc. # 1). On July 15, 2014, a grand jury returned a superseding indictment adding another count charging defendant with theft of government money in violation of 18 U.S.C. § 641. (Doc. # 32).
Defendant then filed a motion to dismiss the superseding indictment on the grounds of multiplicity and duplicity. (Doc. # 41). The government filed a response, (doc. # 45), and defendant filed a reply, (doc. # 51).
Defendant also filed a motion to dismiss the superseding indictment based on preindictment delay. (Doc. # 43). The government filed a response, (doc. # 46), and defendant filed a reply, (doc. # 58).
Magistrate Judge Hoffman considered the parties’ filings and recommended that defendant’s motions to dismiss be denied. (Doc. # 61). Judge Hoffman found that defendant failed to demonstrate that the superseding indictment was multiplicitous or duplicitous, reasoning that each count required proof of different facts and asserted only a single theory of liability.
Judge Hoffman also concluded that dismissal for preindictment delay was inappropriate because defendant failed to prove actual prejudice. Accordingly, Judge Hoffman also recommended that defendant’s motion to dismiss for preindictment delay be denied. Defendant then filed the instant objection to Judge Hoffman’s report and recommendation. (Doc. # 66).
II. Legal Standard
A party may file specific written objections to the findings and recommendations of a United States magistrate judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); LR IB 3-2. Where a party timely objects to a magistrate judge’s report and recommendation, the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). The court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id.
Defendant moved to dismiss the superseding indictment on the grounds of multiplicity. Magistrate Judge Hoffman considered the parties’ arguments and recommended that defendant’s motion be denied. Defendant objects on the grounds that the report and recommendation fail to identify which elements of the crimes charged are distinct from one another. (Doc. # 66).
“An indictment is multiplicitous if it charges a single offense in several counts.” United States v. Rude, 88 F.3d 1538, 1546 (9th Cir. 1996). To assess whether two statutory provisions penalize the same offense, the court must determine “whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (9th Cir. 1932). . . . . . .
42 U.S.C. § 408(a)(4) punishes anyone who knows of an event changing a right to payment and “conceals or fails to disclose such event with an intent fraudulently to secure payment either in a greater amount than is due or when no ...