on the sole issue of whether the two clauses in 18 U.S.C. § 371 -- the "offense" clause and the "defraud" clause -- constitute separate offenses under the Double Jeopardy Clause of the United States Constitution.You will recall that that statute defines a criminal conspiracy as a conspiracy to commit an offense and a conspiracy to defraud the United States -- "the 'offense' clause and the 'defraud' clause, as stated by the Court in granting the petition for rehearing en banc.
The en banc majority opinion was written by Judge Fuentes who wrote the panel majority opinion. The en banc minority opinion was written by Judge Rendell who wrote the panel minority opinion. Needless to say, the result does not change. And, I am not sure much new was added by the en banc opinions; the battle lines were staked out in the predicate panel opinions. I have not tried to compare the en banc and panel opinions to pick up sublte nuances, but will offer her the gist of the en banc opinions.
The background was that the defendants, Rigas et al, had been tried and convicted in New York on a wide-ranging offense conspiracy charge under 18 U.S.C. § 371. Later, in Pennsylvania, the defendants were indicted on tax related counts, including a defraud conspiracy. The defendants alleged that the later charged was precluded on double jeopardy grounds by the earlier charge which involved, they alleged, the same alleged conspiracy.
In concluding that defendants had made a prima facie showing of potential double jeopardy, the Court summarized the law as follows:
Importantly, the Double Jeopardy Clause prohibits repeat trials for the same offense, not for the same conduct. Accordingly, a defendant may be subject to multiple prosecutions for the same conduct if Congress intended to impose multiple punishments for that conduct. See Albernaz v. United States, 450 U.S. 333, 344 (1981). In other words, a defendant generally may be subject to multiple prosecutions so long as each prosecution involves a different offense.The question was whether the conduct alleged in the second indictment -- the Pennsylvania indictment -- alleged a different offense (a defraud conspiracy) than the first indictment (an offense conspiracy). The Rigases conceded that "the ['offense' and 'defraud' clauses each contain an element that the other does not contain," so that if an element test were used (i.e., the Blockburger test (Blockburger v. United States, 284 U.S. 299, 304 (1932)), then they should lose. But, the majority opinion rejects the Blockburger test and instead, upon concluding that the conspiracy statute is a single offense that may include a single conspiracy with the object of both committing offenses and defrauding the United States, focuses the inquiry on the "totality of the circumstances" test to determine whether the conspiracy was a single conspiracy encompassing both the objects alleged in the New York case and the objects alleged in the Pennsylvania case. "The ultimate goal of the totality-of-the-circumstances test is to determine 'whether there are two agreements or only one.'" If the conspiracy were "only one," majority, reasoned, the single conspiracy could be charged only once. The Court then analyzes the "totatlity of the circumstances" and concludes:
In sum, because both indictments concern the same underlying transactions, they relate to the same time and place, and involve the same core group of participants. Both indictments have a common goal, and individual overt acts in both indictments were interdependent. Indeed, the record reveals no factor that would have prevented the Government from bringing the counts charged in the Pennsylvania Indictment in the New York prosecution. Accordingly, the Rigases have established a strong inference that there was a single agreement. On remand, the Government will bear the burden of proving by a preponderance of the evidence that the Rigases entered into two separate agreements.So, the majority remands the case for the district court to make the findings required to apply the totality of the circumstances test.
The majority does reject the Rigas' tenuous at best claim that the tax evasion counts are now precluded by the New York jury verdict of acquittal on the wire fraud counts. The majority panel easily decided that the record was insufficient to show that the jury verdict of acquittal necessarily covered the ground covered by the charges of tax evasion.
The minority quarreled with the majority over its conclusion that the conspiracy statute creates a single offense rather than two different offenses -- the offense conspiracy and the defraud conspiracy. Those who love this type of quarrel -- largely a semantical one -- can read the opinion. I see no need here to address it.