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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page 26of51 her motion, that these counts are “virtually identical.” (Def. Mot. at 22). But charges that cover different schemes under different statutes are not “virtually identical.” The Court should reject this argument. A. Applicable Law The Double Jeopardy Clause of the Fifth Amendment to the Constitution “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Accordingly, a defendant cannot be sentenced for multiplicitous charges covering the same crime. “An indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when, in law and fact, only one crime has been committed.” United States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999); see also United States v. Jones, 482 F.3d 60, 72 (2d Cir. 2006) (“A claim of multiplicity cannot succeed, however, ‘unless the charged offenses are the same in fact and in law.’” (quoting United States v. Estrada, 320 F.3d 173, 180 (2d Cir. 2003)). Although the Double Jeopardy Clause does not protect against simultaneous prosecutions for the same offense, a defendant has a right not to be punished twice for the same crime. United States v. Josephberg, 459 F.3d 350, 355 (2d Cir. 2006) (per curiam). Accordingly, “[i]f the jury convicts on more than one multiplicitous count, the defendant’s right not to suffer multiple punishments for the same offense will be protected by having the court enter judgment on only one of the multiplicitous counts.” /d. Similarly, where the judgment of conviction has already been entered on multiplicitous counts, that right is protected by vacating the convictions on all but one multiplicitous count. Id. “For purposes of a multiplicity analysis, the determinative issue is not whether the same conduct underlies separate counts, but whether the offense charged in one count is the same as the 25 DOJ-OGR-00009588