Federal Practice and Procedure § 145 (3d ed. 1999) (citing cases). Courts have utilized other remedies when presented with the threat of impermissible duplicity that vary according to the particular harm or harms to be avoided and the stage of the proceeding at which the threatened harm or harms arise. Thus, courts have held that prior to a defendant’s conviction, prejudice to the defendant can be avoided by having the government elect to proceed based upon only one of the distinct crimes included within a duplicitous count, see, e.g., United States v. Aguilar, 756 F.2d 1418, 1422-24 (9th Cir.1985); Thomas v. United States, 418 F.2d 567, 568 (5th Cir.1969); United States v. Kearney, 444 F.Supp. 1290, 1295 (S.D.N.Y.1978); cf. United States v. Gibson, 310 F.2d 79, 80 n. 1 (2d Cir.1962) (<HOLDING>), disapproved on other grounds, Leary v. United
holding that the conviction should be affirmed despite the existence of two conspiracies where the indictment charged only one because this variance did not prejudice the defendant holding that when two underlying offenses are charged in an indictment for capital murder the state need only prove one of the two offenses to support the conviction holding that government avoided committing prejudicial error despite having included two statutory offenses in one count of indictment because government did not offer evidence as to the violation of one of the statutes and the trial court did not convict on that basis holding that the district court did not err in instructing the jury not to draw any adverse inferences from the governments failure to call a witness because the witness did not have a relationship with the government such that one would expect him to give testimony in favor of the government holding that the district court committed plain error by admitting evidence obtained in violation of the fourth amendment where the error did affect a substantial right of the defendants and the admission of evidence which should have been excluded did have a prejudicial impact on the jury