United States v. Frierson, 698 F.3d 1267

Darryn Frierson and 19 codefendants were charged with Crips gang activities in a multi-count indictment.
Frierson was convicted on eight counts (including Counts 2, 7, 8, 9, 10, 11, 12, 28); Count 1 (RICO) was deadlocked and Count 29 (marijuana conspiracy) was acquitted.
The district court denied a judgment of acquittal or new trial and imposed concurrent 120-month sentences on the counts.
Frierson raised multiple appellate arguments, but this court addressed only multiplicity because it was meritorious.
The court remands to vacate one conviction (either Count 11 or Count 28) and affirms the remaining convictions and sentences.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are Counts 11 and 28 multiplicitous?	Frierson contends two crack-conspiracy counts reflect one overall conspiracy.	Government concedes multiplicity if two counts are duplicative.	Yes; Counts 11 and 28 are multiplicitous; remand to vacate one conviction.
Was the jury instructed to find two separate agreements?	Frierson argues the jury was not instructed to require distinct agreements.	Government relied on lack of distinct instruction to argue multiplicity was not established.	Instruction failed to require separate agreements; contributes to multiplicity finding.

United States v. Fleming, 19 F.3d 1325 (10th Cir. 1994) (test for distinct conspiracies requiring two separate agreements)
United States v. Swingler, 758 F.2d 477 (10th Cir. 1985) (jury must be told two separate agreements exist to convict on multiple conspiracy counts)
United States v. Nickl, 427 F.3d 1286 (10th Cir. 2005) (multiplicitous sentences violate Double Jeopardy; vacate one conviction)
United States v. McCullough, 457 F.3d 1150 (10th Cir. 2006) (plain-error review for multiplicity where not raised in district court)
United States v. Barrett, 496 F.3d 1079 (10th Cir. 2007) (multiplicity defined as charges covering same criminal behavior)