227. Conjunctive and Disjunctive Elements

If the criminal statute provides that it can be violated in several ways then plead in the conjunctive, but instruct in the disjunctive. United States v. Haymes, 610 F.2d 309 (5th Cir. 1980). To avoid uncertainty in charging an offense in which the statute enumerates several different acts in the alternative, the practice is to plead the offense by substituting the conjunction "and" for the disjunctive "or."

When a statute specifies several alternative ways in which an offense may be committed, the indictment may allege the several ways in the conjunctive, and this fact neither renders the indictment bad for duplicity nor precludes a conviction if only one of the several allegations linked in the conjunctive in the indictment is proven.

United States v. McCann, 465 F.2d 147, 162 (5th Cir.), cert. denied, 412 U.S. 927 (1972); see United States v. Mohr, 728 F.2d 1132, 1135 (8th Cir.), cert. denied, 469 U.S. 843 (1984)("Where a statute specifies two or more ways in which an offense may be committed, however, all may be alleged in the conjunctive in one count of the indictment, and proof of any one of the acts conjunctively charged may establish guilt.").

Thus, when the statute punishes taking, carrying away, or concealing, the indictment properly charged taking, carrying away, and concealing. See United States v. Gunter, 546 F. 2d 861 (10th Cir. 1976), cert. denied, 430 U.S. 947 (1977). Likewise, where the statute reads "prostitution or debauchery," the indictment should be phrased, "prostitution and debauchery." See Bayless v. United States, 365 F.2d 694 (10th Cir. 1966); United States v. Uco Oil Co., 546 F.2d 833 (9th Cir. 1976), cert. denied, 430 U.S. 966 (1977).

The exception is when the alternative means of committing an offense fall into "two conceptual groupings" which are mutually exclusive and could result in an obviously non-unanimous verdict. United States v. Gipson, 553 F.2d 453 (5th Cir. 1977). The consequence of charging in the alternative may lead to rendering the indictment insufficient for uncertainty, as in United States v. MacKenzie, 170 F. Supp. 797, 799 (D.Me. 1959).

It is equally well settled, however that an indictment which alleges the several acts constituting the statutory offense in the disjunctive or alternative lacks the necessary certainty and is wholly insufficient.

See also United States v. Hicks, 619 F.2d 752 (8th Cir. 1980); United States v. Klein, 850 F.2d 404, 406 (8th Cir.), cert. denied, 488 U.S. 867 (1988)("Federal pleading requires that an indictment charge in the conjunctive to inform the accused fully . . . . ").