United States v. Szpyt, 785 F.3d 31

In 2008 Szpyt and Dellosantos were indicted in Maine for a single, multi-state conspiracy to distribute cocaine and marijuana; at trial the jury convicted them of conspiracy and related counts.
Evidence at trial indicated two separate enterprises: (1) a Massachusetts-based Vizcaíno–Dellosantos–Szpyt cocaine distribution network, and (2) a Maine-centered Sanborn enterprise distributing cocaine and marijuana.
On appeal (United States v. Dellosantos), a panel concluded the evidence showed at least two distinct conspiracies and reversed: it held insufficient evidence that defendants joined the Sanborn cocaine-and-marijuana conspiracy and also found a material variance between the indictment and the Vizcaíno–Dellosantos–Szpyt cocaine-only conspiracy, vacating convictions.
After the appellate vacatur and a district-court judgment labeled an "acquittal," the government returned with a new indictment charging defendants only for the Vizcaíno–Dellosantos–Szpyt cocaine-only conspiracy.
Defendants moved to dismiss the new indictment as barred by the Double Jeopardy Clause; the district court granted dismissal, but the First Circuit reversed, holding retrial on the cocaine-only conspiracy was permissible.

Issue	Plaintiff's Argument (U.S.)	Defendant's Argument (Dellosantos / Szpyt)	Held
Whether Double Jeopardy bars reprosecution	Dellosantos vacatur was for a procedural variance as to the cocaine-only conspiracy; retrial on that distinct conspiracy is allowed	Vacatur was an acquittal for insufficiency of evidence as to the single, overarching conspiracy, so reprosecution on the cocaine-only theory is the same offense and barred	Reversed district court: vacatur encompassed both a substantive acquittal (Sanborn conspiracy) and a procedural variance (Vizcaíno cocaine-only); double jeopardy does not bar reprosecution on the cocaine-only conspiracy
Whether judicial estoppel prevents the government from changing its earlier one-conspiracy position	Government’s prior position lost on appeal; it did not obtain a favorable judicial ruling to estop it now	Government is judicially estopped from asserting two conspiracies after earlier advocating one overarching conspiracy	Rejected estoppel: prior position was not successfully maintained on appeal; allowing retrial does not give the government unfair advantage
Whether venue in Maine is improper for Dellosantos	Venue proper because acts in furtherance occurred in Maine (Szpyt’s sales and clubhouse activity)	Dellosantos had no Maine ties; he was only active in Massachusetts	Venue upheld: conspiracy venue proper where any coconspirator committed acts in furtherance (preponderance standard)

Burks v. United States, 437 U.S. 1 (1978) (reversal for insufficiency of evidence bars retrial)
Montana v. Hall, 481 U.S. 400 (1987) (retrial permitted when conviction reversed for procedural error rather than insufficiency)
Brown v. Ohio, 432 U.S. 161 (1977) (two offenses are same unless each requires proof of an element the other does not)
Scott v. United States, 437 U.S. 82 (1978) (successful appeal on grounds other than insufficiency does not bar retrial)
Martin Linen Supply Co. v. United States, 430 U.S. 564 (1977) (focus on whether a ruling resolves factual elements when labeling an acquittal)
United States v. Dellosantos, 649 F.3d 109 (1st Cir. 2011) (panel decision finding at least two distinct conspiracies and vacating convictions for insufficiency as to one conspiracy and for material variance as to the other)
United States v. Laguna-Estela, 394 F.3d 54 (1st Cir. 2005) (five-factor same-evidence/similarity test for comparing conspiracies)
Marshall v. Bristol Superior Court, 753 F.3d 10 (1st Cir. 2014) (reaffirming that vacatur for variance permits retrial)