United States v. Armenteros-Chervoni: Defining Multiplicity Under 18 U.S.C. §§ 1001 & 1791

Introduction

The First Circuit’s decision in United States v. Armenteros-Chervoni clarifies how federal courts must treat multiple, identical false statements under 18 U.S.C. § 1001(a)(2) and the unit‐of‐prosecution question under 18 U.S.C. § 1791(a)(1) & (b)(4). The appellant, Jorge Luis Armenteros-Chervoni, an attorney from Puerto Rico, was convicted on five counts arising from a single December 22, 2021 prison visit: three counts under § 1001(a)(2) (false statements on visitor forms) and two counts under § 1791(a)(1)/(b)(4) (attempt to smuggle prohibited objects). On appeal, Armenteros argued that the indictment was multiplicitous and that various evidentiary and procedural errors at trial required reversal.

Summary of the Judgment

The First Circuit:

Held that three identical “No” answers on three visitor forms, submitted simultaneously and to the same official, constituted a single § 1001 offense. Convictions on Counts 4 & 5 were vacated as multiplicitous; Count 3 was affirmed.
Concluded that 18 U.S.C. § 1791(d)(1)(F)’s definition of “a phone or other device used by a user of commercial mobile service” does not split into separate “kinds” simply because of the statutory “or.” Attempting to bring both cellphones and SIM cards in one visit to one inmate is one offense. The conviction on Count 2 was vacated; Count 1 was affirmed.
Rejected all claims of trial error under Rules 401 & 403 and challenges to argument restrictions.

Analysis

Precedents Cited

Multiplicity & Double Jeopardy: United States v. Serino, 835 F.2d 924 (1st Cir. 1987); Bell v. United States, 349 U.S. 81 (1955); United States v. Lilly, 983 F.2d 300 (1st Cir. 1992); United States v. Verrecchia, 196 F.3d 294 (1st Cir. 1999).
Additional Impairment Doctrine: United States v. Salas-Camacho, 859 F.2d 788 (9th Cir. 1988); United States v. Olsowy, 836 F.2d 439 (9th Cir. 1987); United States v. Rosen, 365 F. Supp. 2d 1126 (C.D. Cal. 2005).
Multiplicity Remedies: United States v. Langford, 946 F.2d 798 (11th Cir. 1991); Lilly, 983 F.2d at 305–06.
Rules of Evidence: Relevance and probative value (Fed. R. Evid. 401); balancing probative value vs. unfair prejudice (Fed. R. Evid. 403); cases such as Old Chief v. United States, 519 U.S. 172 (1997); United States v. Kilmartin, 944 F.3d 315 (1st Cir. 2019); United States v. Pires, 642 F.3d 1 (1st Cir. 2011).
Closing Argument Control: Herring v. New York, 422 U.S. 853 (1975); United States v. Teleguz, 492 F.3d 80 (1st Cir. 2007).

Legal Reasoning

Multiplicity Under 18 U.S.C. § 1001(a)(2)

Section 1001(a)(2) prohibits “knowingly” making “any materially false . . . statement” in “any matter within the jurisdiction” of the federal government. The court emphasized:

Multiplicity turns on congressional intent as to the unit of prosecution (Bell).
When the same false statement is made multiple times in one setting—here, the visitor was asked the same question (“Are any listed items in your possession?”) three times and answered “No” each time—there is a single § 1001 offense if no new impairment to government functions occurs.
“Additional impairment” doctrine (9th Cir.) does not apply when the identical false statements are addressed to the same official at the same time, and the government has not shown any distinct harm for each statement.

Unit of Prosecution Under 18 U.S.C. § 1791(a)(1)/(b)(4)

Section 1791(a)(1) criminalizes providing or attempting to provide “a prohibited object” to an inmate. Subsection 1791(d)(1)(F) defines that term to include “a phone or other device used by a user of commercial mobile service.” The court held:

Congress did not clearly mark each sub‐item in § 1791(d)(1)(F) as a separate offense by the mere use of “or” without repeating the article “a.”
Where Congress uses “a firearm or destructive device or a controlled substance . . .,” it repeats the article to mark separate subcategories; it did not do so here.
Thus, attempting to provide cellphones and SIM cards to the same inmate on one visit is one § 1791 offense.

Evidentiary Rulings & Closing Argument

Testimony about a witness’s prior smuggling operations and the value of contraband was minimally relevant (Rule 401) to show knowledge and motive and carried no unfair prejudice when accompanied by clear limiting instructions (Rule 403).
Evidence that an intended recipient (another inmate) had a disciplinary history for possessing cellphones, and testimony about his gang role, were relevant to intent and knowledge and not so inflammatory as to tip the balance under Rule 403.
The district court properly exercised its broad discretion in limiting certain phrases and metaphors in defense counsel’s closing argument, while still allowing full articulation of the reasonable‐doubt standard.

Impact

This decision clarifies two key points in federal criminal practice:

Under § 1001, identical false statements made in a single interaction to the same official constitute one offense—defense and prosecution must assess the potential for multiplicity when filing multiple counts based on repetitive statements.
Under § 1791, the unit of prosecution is “a prohibited object” (as defined in subsection (d)(1))—sub‐elements of a single definition do not automatically become separate offenses without a clearer congressional directive.

Lower courts will apply these principles to avoid double jeopardy concerns and to frame indictments that accurately reflect congressional intent.

Complex Concepts Simplified

Multiplicity: Charging the same criminal act more than once in separate counts—barred by the Double Jeopardy Clause unless Congress clearly intended multiple punishments.
Unit of Prosecution: The fundamental “chunk” of conduct that Congress punishes as one offense—determined by statute’s text and structure.
“Additional Impairment” Doctrine: In some circuits, making the same false statement to different officials can be separate offenses if each impairs different government functions.
Federal Rule of Evidence 401: Evidence is relevant if it makes a fact more or less probable—even marginally.
Federal Rule of Evidence 403: Even relevant evidence may be excluded if its tendency to unfairly prejudice the jury substantially outweighs its probative value.

Conclusion

The First Circuit’s ruling in United States v. Armenteros-Chervoni establishes that:

Identical false statements made in one encounter to the same official under § 1001 are a single offense absent distinct harms.
Within § 1791(d)(1)(F), “a phone or other device used by a user of commercial mobile service” is a single unit of prosecution—sub‐items do not split into separate crimes without clearer statutory language.

Practitioners must heed these clarifications when drafting indictments, assessing multiplicity, and formulating defense strategies. The decision strikes a careful balance between respecting congressional drafting choices and upholding constitutional protections against double jeopardy.