United States v. Hoeffner
626 F.3d 857
5th Cir.2010Background
- Hoeffner, an attorney, represented silicosis claimants against Hartford-insureds and paid bribes to Hartford employees Rossow and Prestage to influence settlements.
- Settlements yielded about $56 million to Hoeffner, including $34 million from Hartford, with a 40% contingency fee.
- Evidence at trial showed payments to Rossow/Prestage from settlement funds, including checks from Hoeffner’s IOLTA account and wire transfers, some used for bribes.
- Indictment charged conspiracy to commit mail/wire fraud, money laundering, multiple counts of wire/mail fraud, and money laundering, with two theories: honest services fraud and money/property fraud.
- Trial proceeded with the government initially pursuing honest services fraud, but later abandoned that theory and pursued money/property fraud; the jury could not reach a verdict, leading to a mistrial.
- A second superseding indictment was filed; the district court denied the motion to dismiss; Hoeffner appeals the denial on double jeopardy grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the indictment allege two distinct theories of liability | Hoeffner: indictment alleges only honest services theory | Government: indictment alleges two distinct theories (honest services and money/property) | Indictment alleged two theories of liability |
| Does abandoning one theory at trial bar retrial on the other | Abandonment of honest services theory precludes retrial on all counts | Retrial on money/property theory remains permissible | Retrial on money/property theory not precluded by abandonment of honest services theory |
| Is retrial on money/property theory supported by precedent | Cases like Gray and Slay preclude retrial if government abandons the theory | Brown II supports retrial on surviving theory when two theories exist | Yes, retrial on money/property theory is allowed per Brown II and related authority |
Key Cases Cited
- United States v. Brown (Brown II), 571 F.3d 492 (5th Cir. 2009) (retrial permitted on money/property theory after abandoning honest services)
- United States v. Brown (Brown I), 459 F.3d 509 (5th Cir. 2006) (retrial considerations in multi-theory indictments)
- Abney v. United States, 431 U.S. 651 (U.S. 1977) (double jeopardy; not addressing sufficiency on interlocutory review)
- Ashe v. Swenson, 397 U.S. 436 (U.S. 1970) (jeopardy principles; final judgment restraints)
- Yeager v. United States, — S. Ct. 2360 (U.S. 2009) (jeopardy and issue preclusion after mistrial/abandonment)
- McMillan v. United States, 600 F.3d 434 (5th Cir. 2010) (multiple means of committing mail/wire fraud; money/property theory viability)
- McNally v. United States, 483 U.S. 350 (U.S. 1987) (limits of intangible rights theory; disappearance leading to §1346)
- Skilling v. United States, 130 S. Ct. 2896 (U.S. 2010) (honest services fraud limited to bribes/kickbacks; impact on related theories)