United States v. Rigas

Pennsylvania’s parol man- evidence rule America, UNITED STATES of contract is clear

dates when written unequivocal, meaning its must be de- termined its contents alone. East RIGAS; Timothy John J. Ctr., Co., v. Mellovr-Stuart Crossroads Inc. Rigas, Appellants. J. 416 Pa. 205 A.2d aside, No. majority’s 08-3218. Putting the dismissal ambiguous, were I to find these clauses Appeals, United States Court of parol supports my the available evidence Third Circuit. interpretation. documentary evidence clearly Argued on the record in this case indicates July 2009. parties working were toward an Opinion Filed: Oct. international, global solution to their dis- pute way in no limiting were their

negotiations United States market. requests European

The record contains figures, inquiries by Lyle

sales & Scott Eagle’s

into American international activi-

ties, and references e-mails to the parties’ dispute,

“worldwide” nature of the Further,

among things. other the records

clearly demonstrates the London

meeting’s extensively discussion focused aspects

on the international parties’ summing up

businesses. In various as-

pects Meeting, Lyle of the London & Scott

negotiator Eagle Hall wrote that American register logo

“will their op- but allow/not

pose ours.” Hall’s notes do not evidence

any notion that the registra- discussions on companies’

tion of the marks were limited

to the United States. sum, agree while I with majority

that a contract was formed and that its definable, sufficiently

terms were I cannot

agree my colleagues’ view claus- agreement

es four and six of the

ambiguous. I would affirm Magistrate

Judge’s opinion entirety. in its McMichael, Esq., (Argued),

Lawrence G. Faranda-Diedrich, Esq., Matthew P. Pat- Northen, Paxson, Esq., rick M. Dilworth PA, Metz, Philadelphia, Joseph Esq., U. Paxson, PA, Harrisburg, Ap- Dilworth for pellants. Rocktashel,

George Esq., (Argued), J. Carlson, Esq., Martin C. Office of United PA, Attorney, Williamsport, agree Lorna We with the Rigases that 18 Graham, single statutory U.S.C. 371 creates a Esq., N. Office United States Scranton, PA, offense. Because we also find that Attorney, Appellee. for prima have established a facie case that there was one conspiratorial FUENTES, RENDELL, Before: agreement, we will remand to the District ROTH, Judges. Circuit

Court to conduct an evidentiary hearing on count. THE OPINION OF COURT Background1 I. FUENTES, Judge: Circuit appeal This stems from the 2002 col- Timothy Rigas Defendants John and lapse Adelphia Corpo- Communications (the “Rigases”) prevent seek to their trial (“Adelphia”). ration John Rigas was the Pennsylvania in the Middle District of Adelphia. founder of Until he conspiracy to defraud the United States served Adelphia’s Chairman and Chief and for substantive tax violations. evasion (“CEO”). son, Executive Officer His Tim- Rigases, The who were convicted con- othy Rigas, was a board member and spiracy and substantive fraud counts (“CFO”). Chief Financial Officer Until its York, acquit- District of New but Southern collapse disastrous Adelphia was fraud, claim that reprose- ted wire their largest the sixth cable provider television in Pennsylvania right cution violates their Although the United States. Rigas jeopardy. to be free from double family a majority Adelphia’s did own stock, outstanding they common controlled Rigases’ principal argument is that majority Adelphia’s a of shareholder (to alleged conspiracy the the defraud result, a Rigas family votes.2 As the elect- States) charged Pennsylvania in eight Adelphia’s ed of nine directors and by illegal agreement was formed the same Adelphia’s controlled all of af- corporate (to that created the York conspiracy New fairs. against commit offenses the United

States). Because conspiracy defraud 1990s, In Adelphia began pro- the late conspiracy the United States and to com- rapid expansion by cess of acquiring other against mit offenses the are It operators. acquisi- cable financed these ways violating different of a single general by issuing tions corporate new stock and statute, conspiracy § 18 U.S.C. the taking corporate on debt. of As result Rigases maintain that they should have process, Adelphia highly became prosecuted been under in the both theories leveraged. diluting In order to avoid their proceeding. same The District Court de- Adelphia, ap- control of and to the create Rigases’ nied the pearance motion to dismiss the that Adelphia reducing was its Pennsylvania burden, Rigases purchased large indictment. debt (M.D.Pa.2008); following principally Rigas, 1. The facts relate United States v. denied, (2d Cir.2007), overlap areas of between the New York In- F.3d 208 cert - U.S. -, (2008); Pennsylvania They dictment and Indictment. 170 L.Ed.2d 296 02-cr-1236, Rigas, No. are derived from the indictments in both (S.D.N.Y. cases, 2008). WL 2544654 June background well as sections of opinions by issued the District Courts in Pennsylvania New and Adelphia York as well as the 2. had two classes of common stock: share, Appeals Court per of for the Second Circuit. See A one vote while Class exercised Rigas, F.Supp.2d per Class B exercised ten votes share. Opera of Executive Vice President hia’s Adelphia stock and assumed amounts Rigas), and and another son of John the Govern- tions According to debt. Adelphia’s (an executive Mulcahey Adelphia a sham. Michael ment, transactions were these Rigas family). not a member of the finances but Adelphia’s the true state When al., Rigas, et No. S1- clear, States v. Adelphia col- See United became operations and (S.D.N.Y.). A in superceding 02-cr-1236 lapsed. dictment, July charged returned in 2002, Adelphia’s stock was Prior to June to commit conspiracy the defendants publicly and was registered with SEC in an offense the United States NASDAQ National Market on the traded objects § of 18 U.S.C. 371. violation 2002, Adelphia’s January In System. nu by count were alleged By June stock traded $31.85. fraud in violation of 15 merous: securities pennies a stock was worth Adelphia’s 78j(b) §§ and 78ff and C.F.R. U.S.C. NASDAQ. delisted share and was 240.10b-5; § wire fraud in violation of 18 Timothy Rigas were and In John 1346; making §§ false 1343 and U.S.C. of New in the Southern District indicted filings in misleading and statements SEC charged, York Indictment York. The New 78ff; § falsifica in violation of 15 U.S.C. offenses, con- wide-ranging among other public company of the books of a tion Adelphia and to hide both spiracy to loot 78m(b)(2)(A), §§ of 15 U.S.C. violation Adelphia’s weak Rigases’ plunder 78m(b)(5), 78ff, and 17 C.F.R. and the public financial condition from the 240.13b2-l; and bank fraud violation SEC, 371. A all in violation of 18 U.S.C. Rigases 1344. The were of 18 U.S.C. Rigases convicted the jury subsequently twenty-two substantive also count, a num- as well as on the fraud, fraud, bank and secu counts wire fraud offenses. Howev- ber of substantive rities fraud. The New York Indictment er, wire Rigases acquitted were Bill supplemented by a of Particulars was fraud counts. fraud and one of the bank January on indicted in the trial, Pennsylvania After a four-and-a-half month Middle District conspiracy Timothy Rigas guilty to defraud the and jury found John (1) in violation of 18 U.S.C. conspiracy to commit securities of: ill- by evading fraud, the taxes due on their to make false statements Timothy Rigas and gotten gains. John Exchange and Commission Securities charged with three counts (“SEC”), falsify Adelphia’s were also each books and (2) fraud; years records, of tax evasion for the tax 1998-2000.3 to commit bank and the pur fraud in connection with securities Action A. The New York stock, A Adelphia chase or sale of Class (3) notes; debentures, fraud. jury and and bank September grand a On They acquitted of wire fraud. The of New were sitting in the Southern District a jury did not reach conclusion about against York returned an indictment John object fraud an of the Timothy Rigas (Adelp- whether wire was Rigas, and Michael conspiracy detail to the count. Our Court denied the tional 3. after District motion, original Pennsyl- Indictment Rigases' jeopardy a review is based on double the District Court at the time it issued grand jury Superceding a In- before vania returned decision, between adding tax its but we note differences additional substantive dictment year. Superceding Indictment charges tax the Indictment and evasion related to the 2001 where relevant. Superceding Indictment also adds addi- The The Circuit conspiracy. ly overlaps Second reversed with the charges in the Penn- sylvania counts, Indictment. of the two bank fraud but one remaining affirmed the convictions. Ri Adelphia a. Use of Assets gas, 490 F.3d Purposes for Personal Rigas John received sentence of five The New York alleges Indictment that years’ imprisonment on the the Rigases Adelphia used funds “[ajmong count, a total combined sentence of things other ... golf construct a course years twelve on all the counts. United on primarily land owned JOHN RI- J. 02-cr-1236, Rigas, States v. No. 2008 WL GAS; routinely used Adelphia’s corporate (S.D.N.Y. 2008). at *7 June affairs, personal aircraft for their without Timothy Rigas received a sentence of five reimbursement to Adelphia; and used at years imprisonment on the $252,157,176 approximately least in Adelp- count, and a total combined sentence of pay hia funds to margin calls loans years seventeen on all Finan- counts. Id. Rigas family.” York New Indictment ¶ penalties governed by cial added). Settle- (emphasis Agreement ment between the Government The New York Bill of pro- Particulars Rigas family, Ri- including John specific vided allegations about some of the gas, Rigas, Rigas, Timothy Doris Michael “other things” Adelphia used Rigas, Rigas, Rigas James and Ellen Ven- funds example, for. For according to the Agreement etis. The Settlement did not Bill Adelphia purchased of Particulars: any tax apply to violations. real Rigas family estate from members

above market value property without the being conveyed to Adelphia; Adelphia pur- Conspiracy 1. New York Count real Rigas family chased estate for mem- One of York Count the New Indictment paid bers and to maintain and renovate (1) alleges wide-ranging conspiracy property; Adelphia that paid Rigases’ create the false appearance Adelphia’s property taxes and premiums; insurance operating performance strong was and Adelphia paid golf membership club dues Adelphia reducing was its debt bur- paid for the Rigases, expenses related to (2) den, Adelphia to use assets for the Rigas’s wedding, purchased Ellen personal Rigas benefit of of the members pairs slippers Timothy Rigas. family, and to make false and mislead- New York Bill of alleges Particulars also ing statements.4 focus on the We second Adelphia made charitable contribu- aspect conspiracy, which Rigases.5 most close- tions on behalf of the following commingling 4. The facts are taken from the New Adelphia the of cash between York Indictment unless otherwise indicated. [Rigas Managed and the Entities] and the [Rigas promis- Non-Cable Entities].... No 5. The Second Circuit determined that sory signed notes were ever in favor of [t]he evidence at New trial [the York] and, instances, Adelphia, personal in some throughout period showed that the expenses falsely Adelp- were recorded as conspiracy, $200 Defendants took over mil- expenses.... hia's The cash transfers to the Adelphia’s Manage- lion dollars from Cash Rigas family reported compen- were as System personal expenses ranging ment for loans, SEC, required by sation or the or purchase pairs $200 from to of bed- party disclosed investors as related trans- slippers Timothy Rigas, $3 room for to over actions. produce by Rigas, million to a film Ellen (footnote omitted). Rigas, F.3d at pay Rigas family margin $200 million to off missing money by loans. The was obscured Instead, Adelphia “purported- that stock. Advances

i.Cash compensated for those securities ly was ad- “Adelphia 1999 to From about [Rigas Family ‘assumptions’ by certain in cash to JOHN millions of dollars vanced by Adelphia.” New of debt Entities] owed RIGAS, RIGAS and MI- TIMOTHY J. J. ¶ “assump- 74. These York Indictment RIGAS, pub- of their in excess J. CHAEL because significance tions” had no financial New York compensation.” licly disclosed “jointly severally remained Adelphia ¶ family unnamed Indictment 169. Other Id. liable for all such debts.” also “substantial members received In about John of cash.” Id. amounts York Bill of Par- According to the New monthly pay- cash began receiving Rigas ticulars, took shares of Rigases also April In of about million. ments $1 by Adelphia owned from common stock Adelphia to file an Rigases “caused placed them in an Adelphia’s vault and 10-K, report on Form amended annual Buf- for benefit of the escrow account the total amount falsely which understated Sabres, by the hockey falo a team owned Rigases and oth- compensation [the Rigas family. ad- cash by failing the[se] include ers] Finally, Rigas family purchased to the New York According Id. vances.” margin using stock Adelphia stock on Particulars, these cash advances Bill of a When the loans from number banks. nearly million. totaled $80 loans, margin calls banks made Adelphia pay had the loans. Rigases ii.Golf Course Indictment, According to the York New began con- Rigases June Rigas Family did not reimburse “[t]he in Couders- structing golf course on land pay for the used to Adelphia funds Pennsylvania. Adelphia owned port, ¶ margin calls.” 185. land, Rigas portion of the while John small approx- Rigases the rest. The used owned Transfer 2. New York Wire Counts million in funds on imately Adelphia $13 in the New York The substantive counts equipment, development, course golf five wire fraud counts. Indictment included construction. the fol- They charged Adelphia made (1) a transfers: lowing fraudulent wire iii.Corporate Aircraft million; 18, 2001 transfer of September $5 Adelphia operated airplanes three out (2) an October 2001 transfer $4.5 Wellsville, The an New York. airport (3) million; 2002 transfer of March Rigas “and other members of the Rigases, (4) million; a March about $6.4 Air- family, routinely Adelphia used million; an of about transfer $3.9 reim- personal travel” without planes mil- of about April transfer $4.3 ¶ bursing Adelphia. Id. 192. of these Rigases acquitted lion. The charges. Purchases iv.Stock Adelphia took stock also Pennsylvania Action B. The Adelphia for it and used paying

without 6, 2005, jury sitting grand purchases Adelp- On October pay assets to for their Pennsylvania re- that in the Middle District of Rigas family The claimed hia stock. charging John and by turned an indictment Adelphia’s debt they reducing (1) count of con- Timothy Rigas with one Adelp- amounts of purchasing substantial stock, to defraud the United States they actually paid spiracy hia for but never 871; § Rigases violation of 18 six repaid U.S.C. had these loans or assumed tax liability Adelphia’s counts of evasion violation of 26 for corporate debt in all, 7201. exchange U.S.C. for the loans. the Penn- sylvania alleges indictment Rigas- that the According Pennsylvania Indict- es diverted billion from Adelphia $1.9 for ment, Rigases’ conspiracy to evade personal Rigas family benefit of mem- 1980’s, income tax dates back to the late bers,7 resulting a tax loss of over $300 shortly Rigas family after members sold million. privately companies Adelp- held cable to transaction, Rigas hia.6 As result of this The substantive counts of the indictment family paid members over million in $12.6 allege Rigas that John personally evaded federal income taxes. “JOHN J. RIGAS approximately million in tax $51 income and TIMOTHY J. RIGAS stated to an 1998-2000, years for the and that Timothy Adelphia employee they would never Rigas evaded million in tax income for $85 pay large again.” amount of taxes years. those ¶¶

Pennsylvania at Indictment 1-2. II. Discussion Timothy Rigas “Adelphia employees told Rigas family that the members should not Rigases maintain that Pennsyl- large Adelphia, take salaries from but vania conspiracy count right violates their ” company.’ should ‘live out of the Id. to be free from double jeopardy. They ¶ argue that 18 U.S.C. 371 single creates a statutory offense of conspiracy, and that thereafter, Shortly Rigases began they can be tried once for a diverting Adelphia funds from accounts conspiratorial agreement in violation of family Rigas family-con- members and Rigases statute. The also maintain allegations trolled entities. The about jury the New York concluded that closely parallel these diverted funds they Adelphia’s did take funds for allegations in the New York Indictment: use, personal their and thus that the sub- To make legitimate these transfers look tax stantive evasion counts are barred auditors, public Timothy and outside the collateral estoppel component of dou- Rigas many accounted for of these trans- ble jeopardy. The District Court denied intercompany fers as “loans or receivables the Rigases’ motion to dismiss Penn- Adelphia, owed to so as to evade the pay- sylvania Indictment, rejecting of their both ment of income taxes on the diverted arguments. 6-7, Pennsylvania funds.” Indictment at ¶ Rigases 5. The used Adelphia’s funds to A. Jurisdiction and Standard team, purchase hockey the Buffalo Sabres of Review pay personal expenses, golf to build a subject The District Court had

course, stock, pay Adelphia for and to jurisdiction pursuant matter to 18 U.S.C. pay margin buy loans used to additional Supreme 3231. As the Court has ex Adelphia Rigases stock. The also used plained: Adelphia’s corporate aircraft personal Timothy

travel. Rigas occasionally guarantee against made jeopardy [T]he double accounting indicating false entries that the assures an individual that ... he will not indicated, following Superceding alleges 6. Unless otherwise 7. The Indictment allegations facts are derived from the $900 in the diverted an additional million original Pennsylvania correspondingly larger Indictment. tax claims loss. 604 Cir.1985). a non- “If the defendant makes personal ... to endure forced

be he is embarrassment, showing jeopardy, of double and ex- frivolous strain, public evidentiary hearing pre-trial than once to a trial more entitled of a criminal pense of his claim.” Consequently, the merits offense.... to determine the same for Liotard, 1074, enjoy ... 817 F.2d is to v. if a criminal defendant United States Clause, Cir.1987) (3d his v. (citing of the protection full 1077 (3d Cir.1979)). Inmon, 352, the indict- challenge to 353 jeopardy double 594 F.2d before his must be reviewable has made out ment “Once the defendant case, occurs. subsequent exposure persuasion prima burden facie by a government prove to shifts to the 651, States, 661— 431 U.S. Abney v. United the evidence preponderance (1977). 651 52 L.Ed.2d 97 S.Ct. the defendant with charge two indictments denying mo- orders Accordingly, pretrial crimes.” Id. Fel legally separate (citing on double dismiss an indictment tions to 278). ton, F.2d at 753 “collateral grounds are within the jeopardy require- final order exception to the order” Jeopar Importantly, the Double 912 Esposito, v. See United States ment. prohibits repeat trials dy Clause for Cir.1990). (3d thus have 61 We F.2d the same offense, same not for conduct. ap- to jurisdiction consider appellate subject Accordingly, may a defendant be § 1291. peal under 28 U.S.C. con for the same multiple prosecutions jeopardy Our review double multi Congress impose if intended to duct States challenges plenary. is See United for that conduct. Alber ple punishments (3d F.2d Cir. Ciancaglini, v. States, 333, 344, 450 U.S. naz v. United 1988). as a bar estoppel collateral “Since (1981). In L.Ed.2d 275 101 S.Ct. component reprosecution is words, may generally be other defendant an issue of Jeopardy Clause and is Double long as subject multiple prosecutions law, plenary.” is States our review United involves a different of prosecution each Cir.2002). (3d Merlino, 137, 141 v. 310 F.3d fense. Jeopardy B. Double Blockburger v. United clause of the Fifth jeopardy The double forth the well- Supreme Court set person that no shall provides Amendment determining whether Con known test to be subject “be for the same offence punish the gress separately intended to limb.” put jeopardy of life or U.S. twice 299, 304, conduct. 284 U.S. same course Const, “Protections dou amend. V. L.Ed. 306 Block- interpret we jeopardy ble are ancient and that, act or “where the same burger states of its light Jeopardy the Double Clause constitutes a violation of two transaction origin growth.” and the line of its to be statutory provisions, the test distinct (3d Rivera, 49, 54 Cir. v. States are to determine whether there applied 2004) (citations, marks, and foot quotation one, each or is whether two offenses omitted) origins of double (noting note a fact requires proof of which provision and Roman jeopardy protections Greek added). (emphasis other not.” Id. does law). words, Blockburger “[u]nder In other test, ele statutory looks to the A initial bur court defendant bears the if ments of the crime determine put evidence to his dou presenting den of v. any overlap.” States there is jeopardy ble claim at issue. See United (3d Cir.2003). (3d Chorin, Felton, 605 Blockburger test is a tool for solve this question threshold to determine determining Congress whether intended to Blockburger whether applies. punish of distinct

separately violations 1. Section 371 statutory thus does not provisions, and statutory a apply single provision where 18, Title United States Code Section 371 Thus, Supreme was violated. Court provides, pertinent part: Blockburger did not find relevant in a case If persons two or more conspire either “single agreement prohibit where a is the any to commit against offense the Unit- conspiracy, ed and however diverse its ob States, ed or to defraud the United jects agreement] a single [that violates but States, any agency or any thereof in statute, Code,” a pre 37 Criminal any manner or for purpose, and one or general conspiracy decessor the current more of persons any such do act to States, statute. Braverman v. United 317 object effect the of the conspiracy, each 49, 54, 99, U.S. 63 S.Ct. 87 L.Ed. 23 shall be fined under impris- this title or See also Sanabria v. United 437 not years, oned more than five or both. U.S. 70 n. 57 L.Ed.2d added.) (Emphasis (1978) (holding Blockburger 43 test Indictment, In the New York the Gov- apply to violation of a single did stat alleges ernment a conspiracy to “commit ute); Evans, United States v. 854 F.2d an offense the United States.” On Cir.1988) (5th (“[T]he Blockburger 58 test hand, the other Pennsylvania Indict- applied separate is not to find offenses alleges ment conspiracy a “to defraud the where the act or transaction violates but a United States.” contrast, single statutory provision.”) In Supreme Albemaz the Alston, Court concluded In v. (3d Blockburger apply test did Cir.1996), where we noted that “[§ ] 371 multiple the defendant’s conduct violated types refers to two conspiracies.” We 339-40, conspiracy statutes. 450 U.S. previously have also agree- described an (distinguishing S.Ct. 1137 Braverman ment to defraud the United States and to on the basis that “the conspiratorial agree commit a substantive offense as “a single Braverman, although many ment it had conspiracy objects.” with two statute”). objectives, (3d violated but a single Schramm, Xavier, Cir.1996) also See United States v. (discussing charge (3d Cir.1993) (applying 1290-91 to defraud the United States and to com- Blockburger fraud). test single where statute was However, mit mail we have not clearly separate provisions divided into yet explicitly addressed whether these penalty provisions). with different types parts single are of a statutory offense. Both the New York Pennsyl Edmonds, allege vania actions violations of 18 U.S.C. we However, § 371. are prongs guide there two set forth the considerations that our § 371. The Government maintains that single evaluation of whether a statute cre prongs separate offenses, these two create offenses. ates numerous or means hand, the other committing single On maintain offense. 80 F.3d (3d banc) Cir.1996) (en (holding creates offense that can ways. be committed in two Because the predicate illegal the individual acts parties dispute whether 371 contains establishing continuing one criminal enter offense). statutory or more provisions, prise we must re- are elements of that We “device, or criminalizing scheme (1) statute legislative the text must consider defraud, money obtaining of (2) artifice to an statute; the historical history of the by misrepresentation, material property or jury represents verdict that a tradition a fraud or operates a that or transaction set of on a discrete agreement substantial single creates of- purchaser” deceit a considerations; on (3) actions; constitutional omitted)); (internal quotation marks fense 818-22; (4) lenity. Id. at the rule of Navarro, v. United States Navarro, 145 v. see also United States Cir.1998) (3d (holding that federal 589-90 Cir.1998) (3d (applying 580, 589-90 F.3d single a money laundering statute creates that to conclude the Edmonds framework committed in three can offense which be cre- money laundering statute federal the 7(c)(1) ways); Fed.R.Crim.P. alternate that can be committed single ates a offense allege that (authorizing single a count to ways). alternate in three “by one or more an offense was committed means”); v. United History specified Milanovich Legislative a. Text and States, 553-54, 81 S.Ct. 365 U.S. the text of the statute. begin with We (1961) that defen- (holding 5 L.Ed.2d key provisions. three Section 371 contains convicted under separately cannot be dant First, conspire.” persons “two or more § which prongs both 18 U.S.C. Second, object of the must from the embezzling stealing or prohibits any to offense be “either commit receiving stolen States or such States, to the Unit- or defraud property). States, any any agency thereof ed or Smith, Jerry v. Third, any “one purpose.” manner or for § analyzed Ninth the text Circuit any act to persons do or more of such following observations about and made object conspiracy.” effect its structure: provision contains a Although the second Here the defendants alternatives, sug- does not number of separate clauses of a under § more than one gest that 371 creates statute, separate two stat- “ the same punisha- ‘A often makes offense. statute to infer that strange utes. It would be another, ... doing thing of one or ble punish twice a Congress intended a considerable specifying sometimes thus clauses. conspiracy that violates both Then, by things. proper number of prohibits single a criminal statute Where construction, ordinary person a who one acts, courts should not infer alternative all, statute transaction does violates the impose ” multi- legislature’s intent once, only penalty.’ one but and incurs ple punishment. 46, 51, 502 U.S. v. United Griffin (9th Cir.1989) (citation 703, 712 (1991) (el- 116 L.Ed.2d 371 S.Ct. omitted). (quoting Bishop, 1 J. lipsis original) reading, § a natural agree Procedure at 355-56 We under New Criminal (2d Arizona, ed.1913)); single creates a offense. The rele- also see Schad just single 624, 635-36, portion 115 vant 371 is not 501 U.S. sentence, statute, divided (“[Legislatures fre- but L.Ed.2d 555 “either” by commas. The use of the word alternative means of quently enumerate “to any “to commit offense” and intending without before committing crime objects these are suggests defraud” separate separate define elements or Yeaman, than crimes.”); provide rather 194 meant alternatives Cir.1999) Furthermore, (3d (holding to create offenses. come in the agreement these alternatives middle substantial on a discrete set of sentence, and are followed the de- However, facts. 80 F.3d at 818-19. con- scription of an additional element. spiracy is a well-established exception to this historical tradition. limited,

Although legislative it is his- tory of 371 is consistent with this inter- A single conspiracy, like the pretation. The original conspiracy federal conspiracy charged in the New York In in part statute was enacted 1867 as of “An dictment, can include a range wide of crim existing relating Act to amend Laws Braverman, See objectives. inal 317 U.S. Revenue, Internal and for other Pur- (“Whether 53, 63 S.Ct. 99 object aof 471, (1867).8 poses.” See 14 Stat. 484 Be- single commit agreement is to many one or incorporation cause of its in an act con- crimes, it inis either agreement case that revenue, cerning some believed both which constitutes the conspiracy which the prongs conspiracy of the statute were “di- punishes.”). statute conspiratorial One rected at conspiracy to defraud the agreement “cannot be taken to be several Jerry United States of its revenue.” agreements and conspiracies hence several Smith, However, 891 F.2d at 712. envisages because it the violation of sever Supreme conspir- Court concluded that the al statutes rather than one.” Id. acy statute criminal “every made form of As the Ninth in Jerry explained Circuit conspiracy States, against the United Smith: every form of conspiracy to defraud them.” The clause “defraud the United States” Hirsch, United States v. 100 U.S. 35- merely expands scope offense (noting 25 L.Ed. 539 that it was by including object another of a conspir- Congress not unusual for “in- to combine acy that might not otherwise be covered bill). congruous legislation” in the same by “any the clause offense.”... In oth- Further, at Congress the time enacted words, er where conspiracy is the 371 its modern form in it was charge, the established rule is that a interpreted aware that the courts similar charge conspiracy of to commit more language predecessor in a conspiracy stat than one may offense be in a included offense. See United single ute to create a single count without violating gener- Manton, (2d States v. 107 F.2d against al rule duplicity. Cir.1939) J.) (Sutherland, (holding that the 891 F.2d at 712-13. predecessor prongs conspiracy offense).9 statute created a Treating fraud on the United States as any object other of a conspiracy does little Jury b. Confusion and Constitutional to enlarge sweep objectives the broad Considerations constituting “offenses the United Edmonds, expressed we Accordingly, concern States.” interpretation offenses with a range wide of alternate of the statute does not offend historical means are inconsistent with the historical jury traditions about the verdict or due tradition that a jury represents process. verdict original Blockburger 9. Both Mantón

8. The text of the statute was substan- au- tially thored Justice We See the same Sutherland. note that as modern version. Mantón, later, Hirsch, 33, 35, years which was written some 100 U.S. Blockburger apply did not test to resolve L.Ed. 539 whether statute created one or more offenses. justice, brib Lenity example, For obstruction Rule of

c. officials, evasion, tax and tax ery public in fa ambiguity an resolve “[W]e under both prosecuted have all been fraud to determine lenity required when vor of See, v. Born e.g., United States prongs. multi punishing Congress the intent of (con (3d Cir.2009) man, 559 F.3d act.” criminal the same ple aspects of bribery charged under spiracy to commit States, 415, 419, 358 U.S. v. United Heflin Manton, States v. prong); offense United (1959); see L.Ed.2d 407 79 S.Ct. (2d Cir.1939) (bribery 81, 83, 349 U.S. also Bell v. United prong); under defraud charged (1955) (“When 99 L.Ed. (3d Wexler, 117, 118 Judiciary the task Congress leaves (tax Cir.1994) fraud an undeclared Congress imputing offense); and to commit defraud will, resolved ambiguity should be Moon, 718 F.2d Myung v. States Sun Here, lenity the rule of lenity.”). favor of (2d Cir.1983) 1210, file (conspiracy to 1216 any ambiguity that if-there were suggests returns, to make false false income tax in favor it should be resolved in the statute and to government agencies, to statements single a that it establishes concluding of justice charged under offense obstruct Wright, A. Fed 1A Charles offense.10 See Rankin, F.2d v. 870 prong); United States § 142 at 14- Procedure Practice and eral (3d Cir.1989) 109, (conspiracy to ob 113 2008) (“Because (4th a determina 15 ed. justice charged under defraud struct involved offenses are separate tion that § prong). If 371 created two multiple punishment possible makes offenses, any conspiracy to commit of then conduct, Congress has unless the same prosecuted could be twice these offenses contemplates sepa that it clearly indicated indictment, based on same the same crimes, should be resolved rate doubts consecu proof, multiple and could result turning single transaction against nature of overlapping tive sentences. crimes.”). multiple against prongs suggests the two both Con offense, conduct that satisfies intended to create one gress Much of the ap highlights appropriateness consti- of the statute also prong “defraud” lenity. the rule of United States plying against an United States. tutes offense Cf. ted)); Auffenberg, clearly also United States v. 539 cre- see While we find that the statute offense, 781, (D.Vi.2008) single (conspiracy that the Govern- F.Supp.2d we note ates 783 willing be to concede ment should wire fraud and to defraud to commit ambiguous; States United statute is least count); charged United States in one Circuit, Attorneys' the Third includ- Offices in Alston, 713, (3d 714 Cir. States v. 77 F.3d Attorney’s Office for the ing the United States 1996) (Eastern Pennsylvania District charged Pennsylvania, have Middle District charged conspiracy to defraud and to commit See, single prongs of 371 as a offense. both structuring); States v. financial Donahue, 45, 46 e.g., v. 885 F.2d United States Schramm, 156, (3d Cir.1996) 158 75 F.3d (Middle (3d Cir.1989) Pennsylvania District of (Western Pennsylvania charged District of conspiracy avoid to defraud mail conspiracy to defraud and to commit currency reports); United filing transaction Wexler, fraud); F.3d United States v. 31 Kemmel, F.Supp. 720 v. 160 (3d Cir.1994) (District Jersey New 118 (M.D.Pa.1958) (holding that indictment prepare charged conspiracy defraud and to conspiracy de- charging single count of law); tax in violation of federal false returns to commit an the United States and fraud (3d Shoup, v. 608 F.2d 953 United States United States was not du- offense Cir.1979) (Eastern Pennsylvania District of plicitous is because "[t]he charged conspiracy and to obstruct one, to defraud crime, its and that is however diverse count). (citation single justice in a quotation omit- objects” marks

609 Yeaman, (3d Cir.1999) 194 453 charging provisions v. F.3d both 371 was not (focusing overlapping on nature of alterna duplicitous), amended as to opin form of holding tives in fraud statute in it (9th only, ion 906 F.2d Cir.1990); offense). single created Hauck, United States v. 980 F.2d (10th Cir.1992) (holding single con reasons, join

For these we spiracy count to government defraud agen majority Appeals of the Circuit Courts of cy and to commit other substantive of to consider the issue and conclude that See, creates a single e.g., duplicitous offense. fenses was not because “it is Manton, 107 F.2d at 839 permissible charge offense but J.) (Sutherland, (holding that indictment specify alternative means to commit the duplicity was not “bad for because it alleg offense”); Harmas, es that the conspiracy contemplated the (11th Cir.1992) (“The stat violation of a criminal statute and also the disjunctive ute is written in the and should States”);11 defrauding of the United Unit interpreted be as establishing two alterna Williams, ed States v. 623- tive violation.”); means of committing a (2d Cir.1983) (indictment alleging of May v. United fense and defraud in same (D.C.Cir.1949) (rejecting argument that “a count not duplicitous); United States v. conspiracy to violate a criminal statute and (5th 365, Cir.1992) Wiley, 979 F.2d 367-68 to defraud the United States was two of (same); Pierce, United States v. 479 F.3d fenses”). But see United v. Haga, (8th Cir.2007) (“Each 546, 552 of the three (5th 1036, Cir.1987) (“Count 821 F.2d 1043 object sets of tax offenses—fraudulent re I charged must have a conspiracy either to turns, mail fraud and wire fraud —further any ‘commit offense’ or to ‘defraud the general agreement multiple and are States’; United it cannot charged have facets of one conspiracy.”); United States both.”); Ervasti, United States v. 201 F.3d Smith, 992, (9th v. David 424 F.3d 1000 (8th 1029, Cir.2000) 1039 (“Though it is not Cir.2005) (analyzing charges under differ formally subsections, § divided into 371 “[bjecause ent prongs single as offense all offenses.”); plainly establishes two United conspiracy three counts in this case violate Thompson, States v. 814 F.2d 1475- statute”); the same Jerry United States v. (10th Cir.1987) Smith, (9th Cir.1989) 77 (holding 891 F.2d 712-13 that defendant (holding single that indictment count had not presented a discernable double urges disregard 11. The ducting jeopardy analysis, Government us to goal a double is holding single cases that 371 creates a legislative apply stat- to ascertain intent issue, purposes duplicity. reject written, ute for the We keeping statute at argument. this intent”); Wright, § 1A at 17-20 (noting question analyzing that "the real [in "Duplicity improper joining is the of dis duplicity] an legisla- indictment for is one of single tinct and offenses in a count. intent, tive to be ascertained from all the data Duplicitous may specific counts conceal the available”); Milanovich v. United charges, prevent jury deciding guilt from cf. 551, 553-54, 365 U.S. 5 L.Ed.2d respect particular or innocence with to a of fense, (noting 773 that issue of whether stat- exploit prejudicial the risk of evidentia designed punishments ute was to create two ry rulings, endanger sentencing.” or fair (3d statutory for the same criminal act is one of Haddy, United States v. 134 F.3d Further, Cir.1998) (internal omitted). interpretation). duplici- "one vice of citations The is duplicity ty general jeopardy prejudice sue in both is that a ... could and double is verdict Congress protecting whether against intended to create one of the defendant himself See, Starks, e.g., fense or jeopardy.” two. v. double States Con (3d Cir.1994) ("In (3d ley, Cir.1975). 37 F.3d con- at the directs a district court to look notwithstanding that first test claim jeopardy conspiracy totality to commit of the circumstances involved charged prosecution §of 371 prong “offense” each offense. mail fraud under impede charged and second of the totali goal The ultimate under “de- function of United States lawful ty the circumstances test is to deter 371).12 prong of fraud” agreements there are two mine “whether only one.” States v. J. David or Totality the Circumstances (3d Cir.1996); Smith, 1261, 1267 Having determined (“The Becker, 892 F.2d at 268 see also offense, statutory we must single creates a one critical determination is whether Rigases’ conduct whether determine existed.”). assessing In agreement times or multiple violated statute issue, the Third Circuit considers whether: pro Jeopardy Double Clause once. The ” (a) of the two al the “locus criminis from one “splitting hibits Government (b) same; there leged conspiracies is the prosecutions.” conspiracy into several degree temporal over significant is Becker, conspiracies two lap between (3d Cir.1989). However, it can be difficult (c) overlap per there is an charged; of conduct whether a course distinguish (in conspiracies between the two sonnel using or two constitutes one cluding unindicted as well as indicted Blockburger test. generally applicable (d) the overt acts coconspirators); conspiracy may be di particular, single (e) by the played the role [ ] each al multiple prosecutions, vided into according to the two indict defendant case, In such a leging different overt acts. are similar. ments indict danger is that successive “[t]he par ments defendant Liotard, (emphasis F.2d at 1078 added 817 conspiracy might ticipation single in a omitted). In other and internal citations scrutiny [under withstand same evidence words, that the defendant must show if Blockburger places the court test] the time, action, responsibil- place, people, and evidence used to emphasis upon undue in prosecutions. ities are similar both of the overt acts prove the commission However, this list is not exhaustive and Liotard, alleged.” 817 conspiracies may “different warrant em- (3d Cir.1987); Krulew 1078 cf. phasizing different factors.” J. David 440, 447, 336 U.S. 69 itch v. United Smith, 82 F.3d at 1267. Other factors (1949) (Jackson, 790 J. S.Ct. 93 L.Ed. may determining in whether prove helpful “chameleon-like, (noting that concurring) charges an indictment one or more con- special a coloration [conspiracy] takes on “(1) there was a spiracies are: ‘whether many independent of from each of the (2) goal among the conspirators’; common overlaid”). may it fenses on which be agreement contemplated ‘whether bringing pass courts of a continuous result problem, To resolve this Circuit, the continuous including the Third have will not continue without appeals, conspirators’; “totality cooperation of the circumstances” developed participants to which the over- distinguish conspiracy prosecutions test to ‘the extent ” dealings.’ in the lap based on the same statute. various (3d See, Becker, 287 e.g., Kemp, F.2d at This States v. 268. Fifth, Thus, Second, Ninth, Eleventh, Eighth and Circuits offense. The Tenth 12. conflicting precedent. § have D.C. Circuits have held that 371 creates one Cir.2007) (quoting Kelly, 1078 n. 7 (holding that “these differences (3d Cir.1989) (setting in statutory violation are immaterial and fortuitous”). for determining Thus, forth test whether a we concluded that Lio- charged count should have been tard was to a pretrial entitled evidentiary multiple conspiracies)). hearing. Id. at 1079. Further, applying the test a Kemp, States v. like the instant court case, district must “assure that the sub allegations involved of widespread stance of the matter controls and not the but abstract financial misconduct. grand jury’s characterization of it.” J. F.3d at Kemp and his codefendants Smith, Thus, David 82 F.3d at 1267. a conspiracy with in court must “look full scope into the variety volved a transactions, fraudulent implied activities described and in including extension of otherwise-unavail dictments.” Id. at 1268 (holding that “we government officials, able loans to direct must look to the entire record before the officials, bribes to those and direction of court”). district government contracts companies within is, defendants’ thus, control. Id. Kemp Liotard, the defendant had been ac- both more factually similar than Liotard— quitted of a 371 conspiracy to violate 18 which alleged involved conspiracies to steal U.S.C. transporting stolen transport goods, stolen see 817 F.2d at goods interstate commerce. 817 F.2d at 1076 — and more Accordingly, recent. we subsequently charged 1076. He was begin Kemp with the factors. § 371 conspiracy to violate 18 U.S.C. 659 by stealing from an shipment interstate Kemp a. Test goods. Id. The District Court declined to a hearing conduct on the defendant’s dou- goal among i. “Common Id.; jeopardy ble claim. see also United conspirators” Liotard, States v. F.Supp. Kemp first factor is whether there (D.N.J.1986). applied totality We goal was common among conspira- the circumstances test and concluded that Kemp, tors. 500 F.3d at 287. The Gov- the defendant had made out a nonfrivolous urges ernment us to objec- focus on the showing of jeopardy: double merchandise tives of the conspiracies charged in the two was stolen place; from the same peri- the indictments, arguing that object the of the od of the in conspiracy charged the first New York conspiracy was to commit secu- entirely indictment was subsumed within fraud, fraud, fraud, rities wire bank to file period the of time set out in the second SEC, reports false with the falsify and to indictment; the principal coconspirator the books and records of Adelphia, while indictments; was the same in both the object the Pennsylvania of the nature of the charged overt acts in the two was to defraud the IRS. identical; nearly indictments were and the played defendant the However, same role in each argument this misses Liotard, charged indictment. point 817 F.2d at the totality of the of the circum Liotard, 1078-79. We found that it was immaterial stances specifically test. we that the alleged two indictments rejected objects different including of the acts of similarly theft. Id. at 1079. conspiracies We in that test. 817 F.2d at 1078 significant found it was not n. 7. It is well established that a alleged conspiracy two indictments to com- conspiratorial agreement can envisage the See, mit different underlying offenses. Id. at e.g., violation of several statutes. 49, The to allegations 317 U.S. related conversion Braverman v. United by Rigases—a Fur- funds Adelphia 87 L.Ed. 23 the subsid- S.Ct. ther, approach iary would within New Indict- the Government’s scheme the York weight “grand jury’s in- give ment—appear undue be the same in both conduct, Rigases’ of the characterization” dictments. focusing on the “substance of

instead of Requiring ii. Result Continuous Smith, the 82 F.3d at matter.” J. David Cooperation Continuous Thus, considering in whether the 1267. goal a common we look to defendants had Kemp The second factor is wheth the underlying purpose alleged the agreement contemplated bringing er “the See, activity. e.g., criminal pass a continuous result that will not (3d Cir.2007) Greenidge, continue without coopera the continuous goal “to (describing common as make mon- conspirators.” tion Kemp, of the stolen altered ey depositing corpo- at part The first of this over factor accounts”); rate into business Kel- checks laps the from time factor the Liotard ly, (describing 892 F.2d at 259 common test. In evaluating “cooperation” part the ”). goal money selling ‘speed’ make “to of this factor “we look to whether there was evidence that the activities of one above, forth in the Pennsyl As set necessary or group advantageous alleges vania the Indictment Government aspect the the success another that, bill, tax particularly high after a scheme or to the overall success of Rigases they “that would never decided venture.” United v. Greenidge, pay large amount of taxes again.” [a] (3d Cir.2007) (internal quota ¶¶6, Pennsylvania Indictment 1-2. To omitted). marks, ellipsis, tion and citation Rigases accomplish purpose, this de words, In other we consider all whether “Rigas family members cided that should aspects interdependent. scheme were Adelphia, take large salaries from but ” (“[inter Kemp, C F.3d at f. the company.’ should out of To ‘live Id. dependence serves as an evidence of detection, the Rigases engaged avoid in agreement; is, helps it establish sham transactions to conceal their use of alleged coconspirators whether are all course, corporate Of assets. conceal objectives committed to the set of same Government, their income from the (internal a single conspiracy.” citation and had to conceal it from the also omitted)). quotation marks including public general, shareholders. time, Pennsylvania As to Indictment simply targeted The New York Indictment span covers wider time than the New aspect Rigases’ scheme. Fur Indictment, again York ther, key years but dispositive it that the conspira is not conspiracies both are same. The cy charged in the New York Indictment Pennsylvania alleges Indictment the Pennsylvania the was broader than Indict conspiracy lasted from charges “November ment. The in both indictments [2005],” through the date of the goal relate to a common of the indictment enriching A but Rigases through occurring describes overt acts Adelphia. “master conspiracy Pennsylvania more than one between and 2002.13 [can involve] majority at 2. alle- subsidiary scheme.” United States v. Indictment The (3d Cir.1972). Kenny, gations in the count relate to Pennsylvania Superceding allege any 13. The does Indictment elude 1989 but expands period continuing conspiratorial of activity the the to in- 2002. after period the between 1996 and 2002. of The the two conspiracies. The Rigases were tax alleged loss is further limited to the the main in both actors indictments. Oth- period of 1998 2000.14 er members of the Rigas family are also central to both indictments.

The New York Indictment charged a conspiracy between 1999 and May 2002. The York New Indictment named a However, the New York sug- Indictment coconspirators number including Michael gests that Rigases’ conspiratorial the con- Rigas, Mulcahey, Michael James R. duct began well before 1999. Bill The of Brown, Timothy A. Al- Werth.15 alleges Particulars Rigas- further the though Rigas other family members were began using Adelphia es funds their for not specifically named in the York New personal benefit at “[f]rom least ... 1993.” many indictment of the allegations relate ¶ Bill of Particulars 81. Because the New to Rigas family,” “the including John Ri- York Indictment purport does not reach gas’s “wife, sons, daughter and son-in-law.” origin the of Rigases’ conspiracy, the we ¶ New York Indictment 2. example, For do not find it significant that charges its the New York Indictment alleges that began later than those in the Pennsylvania “Adelphia advanced substantial amounts of Indictment. cash to other members of Rigas the Fami-

As to interdependence, again ¶ we reiter- ly,” id. and that Rigases the caused ate that the Government claims that the Adelphia to file a Form 10-K “which false- Rigases appropriated money Adelp- from ly understated the total amount com- hia to taking avoid salaries on they which pensation ... another member the would have had to pay income tax. See Rigas Family by failing to include the[se] ¶¶ Pennsylvania Indictment 1-2 ¶ advances,” cash id. 173. The Bill of Par- (“JOHN J. RIGAS and TIMOTHY J. RI- ticulars also listed at least nine members GAS stated to an Adelphia employee that Rigas family who Adelphia used the they pay large would never amount of corporate personal aircraft for travel. again.”; Timothy taxes Rigas “Adelp- told Similarly, Pennsylvania Indictment hia employees Rigas family mem- alleges the Rigases conspired large bers should not take salaries from others known unknown. It also alleg- Adelphia, but should ‘live out of the com- es that Rigases Rigas, caused Michael ”) Further, pany.’ had to hide James and Ellen Rigas, Rigas to under- their misuse of Adelphia’s corporate assets report their income. public from the in order to avoid detection of their income the Government. Remaining b. Liotard Factors Overlapping Participants iii. i. Place Both Kemp Liotard tests direct The New York geographi- Indictment is us to consider overlap participants cally than the broader indict- Pennsylvania Pennsylvania 14. The Superceding Indictment loans. Werth was the of External Director expands alleged tax loss to include Adelphia. Reporting responsible for He was year. tax supervising preparation for Adelphia's financial statements. Mulcahey responsible managing was Adelphia’s treasury, including supervi- "the York Bill New named an Particulars money flowing Adelp- sion of into and out of co-conspira- additional seventeen unindicted ¶ hia.” New tors, Indictment York Brown was possible and described three additional responsible raising capital Adelphia for for co-conspirators investigation. under on-going through transactions securities and bank na- Played by conspiracies occurred iii. Role Defendants ment, but both focus on tionwide, and both Indictments figures in The were central defendants corpo- Adelphia’s homes Rigases’ and caused the conspiracies. They both Pennsylvania. in headquarters rate transactions, personally and were wrongful for transactions. responsible hiding those specifical- Pennsylvania Indictment The Buf- Pennsylvania; Coudersport, ly names Putting together all of factors these Colorado; York; Creek, falo, Beaver New Rigases have made out a non-frivolous acts City places where York and New The showing jeopardy. of double New The place. took related to conspiracy alleges Rigases that the York these involves York Indictment also New for Adelphia’s corporate took assets their York Indict- the New locations. While use those transactions personal and hid identify Buffalo specifically ment does not The regulators. from investors and Penn- Creek, the Bill of Particulars or Beaver that one sylvania conspiracy alleges reason to those allegations related does include took assets Rigases those same was locations. publicly receiving large avoid salaries on they required which would have been find it significant do not We income tax. pay Because both indictments included mis- Indictment also New York transactions, underlying concern same the na- to investors across representations they place time and relate same conversion allegations tion. The related to group partici- involve the core same by Rigases—a funds sub- Adelphia Both have a pants. indictments common In- York sidiary scheme within the New in goal, and individual overt acts both in- in dictment—appear to the same both be were interdependent. dictments Accord- indictments, thus in the same occurred Rigases have a ingly, established locations. strong inference that there was remand, agreement. On the Government ii. Overt Acts by proving pre- will bear the burden of allege conver- Both indictments seem to ponderance Rigas- the evidence assets, by the same sion of the same agreements. into es entered two means, in the same transactions. Certain-

ly, not con- alleges each indictment acts Estoppel C. Collateral In- other. York tained in the The New Rigases argue The also dictment, alleges which fraudulent both substantive counts of tax evasion should be fi- misrepresentations Adelphia’s about based estoppel. dismissed on collateral performance, and fraudulent nances that, Rigases acquitting maintain Rigases of the fact that the concealment counts of them substantive wire corporate person- misusing assets fraud, jury the New must have found York al is far than the Penn- purposes, broader any assets the obtained from Further, sylvania the Penn- Indictment. loans, Adelphia legitimate rath constituted sylvania allegations Indictment includes er than income. returns, filing tax which related to income Jeopardy York Indict- “The Clause are not included the New Double However, in- key estop- in both ... embodies of collateral principles ment. overt acts Ri- of an pel relitigation are in which the that can bar the issue dictments transactions gases secretly corporate actually Adelphia’s took decided a defendant’s favor judgment.” valid and final assets.

615 (3d Bailin, Merlino, 137, 141 270, (7th Cir.2002); v. 977 282 F.2d Cir. v. Swenson, 1992))). 436, usually impossible also Ashe v. 397 U.S. it “[S]ince see is 1189, 444-45, 25 L.Ed.2d 469 any 90 S.Ct. determine with precision upon what (1970). estoppel The of collateral jury doctrine the a verdict in basis reached a crimi case, that “when an issue of ultimate ensures it nal is a rare situation in which the aby has once been determined valid fact estoppel collateral will defense be available issue judgment, again final that cannot to a defendant.” United States v. McGow litigated parties between the same in an, (2d Cir.1995) (citation be 8, 443, at any omitted). future lawsuit.” Id. 90 S.Ct. Further, claim the benefit “[t]o 1189. of collateral estoppel [a must defendant] jury that prove unanimously the [first] argue that Rigases The seem to collater- Merlino, acquitted him.” 310 F.3d at 141 estoppel from al bars the re- Government added). (emphasis litigating they misap- the issue of whether any Adelphia’s propriated assets. However, “the rule of collateral However, jury only the New York re- in estoppel criminal cases is not to be acquittal a final judgment turned as to applied with the hypertechnical and archa five individual transactions set forth in approach ic a century pleading 19th 17-21 of the New York Indictment: Counts book, but rationality.” with realism and (1) 18, a September transfer of $5 Ashe, 397 U.S. at 90 S.Ct. 1189. million; (2) an October transfer of Thus, government the cannot avoid the (3) million; 28, 2002 a March transfer $4.5 general preclusive jury effect of a verdict (4) million; about a March $6.4 by speculating that the verdict could have million; of about an transfer $3.9 upon finding govern based a that the been April mil- 2002 transfer about $4.3 had prove ment failed to elements that if Accordingly, lion.16 we found that even were never the contested defense. Id. estoppel only it would applied, collateral Ashe arose out of a multi-victim armed from preclude claiming the Government robbery poker occurring game at a in the Rigases paying taxes on avoided Id. at of a home. basement S.Ct. particular million involved those $24 trial, During 1189. his first Ashe was transactions. robbing partici one of the case,

In a criminal a defendant defense offered at trial pants. present was that demonstrating bears the burden of Ashe was at robbery. acquitted, issue he was actually seeks to foreclose was After Ashe try a proceeding. government sought decided the first See Dowl defendant 342, 350-51, ing robbing time for allegedly 493 U.S. second differ player game. ent at at 107 L.Ed.2d 708 the same Id. heavy Supreme is a S.Ct. held This burden. United States v. 90 1189. The Court Console, (3d Cir.1993) jury’s the first trial verdict (“ verdict, general necessarily that the defendant ‘When case involves established and, therefore, establishing necessarily verdict was not one of the robbers relitigat- from any particular precluded government determined issue is ex ” 445-46, tremely ing that issue. 90 S.Ct. 1189 (quoting difficult.’ Id. spond payments Rigases Adelp- ''margin These relate to caused transactions par- payments hia on those loans. loans” the from third to make as borrowed buy Adelphia also described as overt ties stock on behalf of their These transactions are Pennsylvania family. listed acts in the Indictment. The transactions above corre- was the real issue rationally con- irrelevant because that (holding “[t]he appropriately the transfers were whether jury the was whether before ceivable issue disclosed. one of the rob- had been the [defendant]

bers”)- excerpts also parties The submitted The closing argument. the Government’s collateral whether To determine the transfers argued that Government following general retrial estoppel bars loans, that the argued but also were not a court must examine acquittal, verdict disclosed. appropriately transfers were not ask proceeding and prior the record of the Rigases’ not submit the parties The did have jury could a rational “whether the they nor did submit closing argument, an issue other upon verdict grounded its jury Accordingly, instructions. New York the defendant seeks than that which any cer- to determine with impossible it is consideration.” Id. foreclose from at the were raised tainty what defenses in must be set inquiry “The 90 S.Ct. 1189. But, trial. the record does New York eye with an frame and viewed practical that there were other contested suggest proceed circumstances of the to all the have Accordingly, Rigases the issues. (internal marks omit quotation Id. ings.” failed to meet their burden demonstrat- ted). Nonetheless, fall far Rigases the definitively New York trial ing that the of establish meeting their burden short of that the wire transfers were not decided to collateral es- they that are entitled ing Thus, we will affirm the compensation. toppel. Rigases’ mo- denial of the District Court’s that the issue Rigases The maintain charges the tax evasion tion to dismiss prosecution York was whether the New Pennsylvania the Indictment. Adelphia they the received from assets To suc- legitimate income or loans. III. Conclusion claim, the estoppel their collateral ceed on above, will stated we For the reasons would have to convince us Rigases to conduct an to the District Court remand in the New York only question at issue in accordance with Li- evidentiary hearing Rigases received trial was whether on otard whether In other transfers as income.17 wire part of Pennsylvania in the Indictment was words, have to show would charged in conspiratorial agreement they only defense was that be- that their However, Indictment. we the New York legiti- that the wire transfers were lieved affirm the District Court’s denial will However, barely is mate loans. the record estoppel Rigases’ motion on collateral was a de- sufficient to establish grounds. fense at all. RENDELL, Judge dissenting. Circuit from the excerpt The record includes an I majority complex what counsel The renders York trial which defense New issue, suscep- suggest straightforward the trans- is a argued judge proving analysis under straightforward of a was a valid de- tible legitimate fers were loans Blockburger v. United U.S. excerpt, In this the Government fense. L.Ed. question of whether argued to be question required was relevant compensation transfers were loans or fraud; any and transmitted commu- a defendant is means of 17. Under 18 U.S.C. commerce for nication wire in interstate guilty wire fraud if he has devised executing money property by purpose of the scheme. or scheme to obtain and answered here is whether the applies asked when the successive offenses are in types conspiracy two crimes outlined in 304, found different statutes. 284 U.S. at 371, conspiracy § to an 18 U.S.C. commit 52 S.Ct. But that is not what Block- offense the United States and con- burger says. Rather it refers to “distinct States, spiracy to defraud the United con- statutory provisions.”20 “Distinct” means offenses, requiring proof stitute “distinguished from all others.” Web- elements, of different and for which differ- Dictionary steR’s II New RiveRside 390 punishments ent cumulative can be meted (1988). “Provision” means “[a] clause in a I suggest clearly out. that the answer is statute, contract or legal other instru- unequivocally “yes,” they are distinct Dictionary (9th ment.” Black's Law 1345 offenses. Two of the three ap- courts of added). ed.2009)(emphasis say To peals that have precise addressed this is- provisions § two 371 are not distinct is sue, that, have so held.18 Given the first equate conspiracy to commit an offense part majority of the opinion, which reasons conspiracy with to defraud. That makes contrary, wrong. is The second Moreover, no sense. as is discussed in part, which a test applies is useful below, more application detail of Blockbur- only fact pattern the involved two al- if ger way is the to determine the intent of leged conspiracies for the same criminal Congress, application and its here leads to (e.g. prosecutions offense successive for only conclusion that not are these dis- fraud) conspiracy to commit mail is unnec- tinct provisions, but because the elements essary.19 greatly, differ Congress intended different punishments and majority jeopardy seizes on double does the use not phrase statutory prevent “distinct provisions” Rigases’ prosecution for con- Blockburger indicating only that its test spiracy to evade taxes.21 Ervasti, 1029, one, 18. See United v. only States 201 F.3d two offenses or is whether each (8th Cir.2000) (finding 1039-40 371 provision requires proof aof fact which the offenses); clearly establishes two United Blockburger, other does not.” 284 U.S. at 1472, Thompson, States v. 1476-77 added). (emphasis 52 S.Ct. 180 (10th Cir.1987) (applying Blockburger to jeopardy 371 to determine that double does majority inapposite 21.The relies on cases prosecutions not conspiracy bar to com- that tend to cloud the issue. States v. mit mail fraud and to defraud the Evans and Sanabria v. United States dealt States); United (David but see United v. States Smith single single statutory provision with of- L.), (9th Cir.2005) act— 1000 (5th Cir.1988); fenses. 854 F.2d 56 437 U.S. (declining apply Blockburger dou- assess (1978). 98 S.Ct. 2170 Bravermanv. Unit- jeopardy ble because all of the “duplicity” ed alleged States involved the issue of counts issue a violation of the same statute, 371). single conspiracy objects where a had several pattern and differentiated that fact from cases majority compre 19. The does not refer to the single which act violated two statutes. hensive, thoughtful, page opinion (1942). 317 U.S. 87 L.Ed. 23 concluding jeopar District Court that double factually distinguishable These cases are dy apply. agree entirely does not I Moreover, controlling. suggest not as I is Judge reasoning Jones' and I commend the here, approach ap- correct the Xavier court opinion District Court to the reader as its plied Blockburger test in order to assess clarity persuasive. is See United v. Ri (M.D.Pa.2008). whether two crimes under a gas, statute that F.Supp.2d statutory provisions was divided into distinct that, applicable 20. “The rule is where the were the “same offense.” 2 F.3d same act or transaction constitutes a violation (3d Cir.1993). statutory provisions, of two distinct the test to applied be to determine whether there are Congress’ 68 L.Ed. 968 On a doubt as to S.Ct. If there were hand, are these distinct other the “offense” clause aims intent as to whether Brandon, offenses, look at a consider one need protect public generally. Supreme by significant ation deemed Accordingly, applicability at 422. its sought to be ad specific evil Court—the hinge identity not on the of the tar- does provisions. See respective dressed the federal get, govern- which need be U.S. Albernaz clause ment. Id. Nor does the “offense” (1981) 343, 1137, 275 67 L.Ed.2d govern- of interference with require proof (“The today regarding we reach conclusion Rather, operations. broadly ment it em- create distinct Congress [to of the intent any conspiracies violating aimed at braces by the fact statutory is reinforced offenses] Id.; federal law. see also United States v. are direct that the two statutes Hirsch, 33, 35-36, L.Ed. 539 100 U.S. 25 by drug presented evils separate ed to (1879). Thus, majority’s contrary to the Virtually exception, trafficking.”). without contention, prongs § the two of 371 do not that the “of appeals have held courts of simply describe alternative means of com- pro clauses aim to fense” and “defraud” offense, mitting the same but instead de- tect actors and redress distinct different two distinct crimes. scribe hand, one the “de social harms.22 On the majority position that its The maintains narrowly conspir focuses on fraud” clause “majority of the holding reflects the targeting government. the federal acies Appeals Circuit Courts of to consider the Brandon, 409, 17 F.3d States v. See United opposite issue.” Just is true: (1st Cir.1994); 422 States v. Fal United Appeals alone Ninth Circuit Court has Cir.1992) (en (11th cone, 988, 960 F.2d 990 held that the “offense” and “defraud” banc); Thompson, 814 identify clauses the same offense for dou (10th Cir.1987). 1472, 1476-77 Its F.2d (David L.), jeopardy purposes. ble Smith (1) to the in purpose is two-fold: ensure fact, 424 992. In two other courts of F.3d treasury and tegrity of the federal in appeals Congress have concluded that operation of promote the smooth effective punishment tended to authorize cumulative bureaucracy. Accordingly, federal In Er provisions. for violation of both only prohibits “defraud” clause efforts vasti, 1039-40, Eighth 201 F.3d at government property out of or to cheat the 371, § that which uses Circuit reasoned with or ob money but also to interfere language, “plainly ... “either or” estab operation government by struct the de It con ceit, lishes two offenses.” bolstered this craft, by means trickery, or least unique elements of noting clusion that States v. are dishonest. See United Co., and “de proof required the “offense” Trading Arch 987 F.2d 1091-92 (4th Cir.1993); Thompson, 814 F.2d at Hammerschmidt fraud” crimes. see also 1476-77, Circuit, 182, 188, applying 44 the Tenth v. United 265 U.S. Alston, types conspira- § 77 F.3d 371 ... condemns two See United States v. Brandon, (3d Cir.1996) cies.”); (noting § United States v. 17 F.3d 718 that 371 refers to (1st Cir.1994) ("18 § types conspiracies''); United States v. 422 U.S.C. 371 "two Tham, (9th Cir.1991) 1399 creates two distinct criminal offenses: con- 960 F.2d (noting spiracies "defraud” to commit offenses the Unit- the "offense” and identify conspiracies 371 two con ed States and to defraud clauses of States.”); Haga, spiracies separate objectives); see with two Cir.1987) (5th (noting Vazquez, abo United States v. (3d Cir.1963) ("The conspiracies general conspiracy 371 "criminalizes two Code, sorts”). the Criminal 18 U.S.C.A. section of (2d Blockburger, Cir.1981); also found no “colorable 646 F.2d jeopardy. claim” of double These courts (2d Murray, States v. conclusion, difficulty reaching no Cir.1980). had These considerations deter- presumably because the two offenses are mine, large part, whether violation of clearly separate so as a matter distinct statutory distinct provisions may be Smith, hand, of substance. on the other charged in indictment count— form, solely relied on and concluded with- is, whether an indictment count is Blockburger out discussion that did not impermissibly duplicitous. As the Second apply appear because both crimes the Circuit Court of Appeals explained in same statute. I submit that Ervasti and “If Murray, duplicity doctrine of is to Thompson persuasive.23 are more be more than an exercise in mere formal- majority interpret- relies ism, on cases it must be invoked when an in- duplicity context au- ing dictment affects the policy considerations thority purposes for jeopardy. of double above; discussed because policy those principle duplicity emanates from here, considerations are thwarted not we 8(a), prohibits Fed.R.Crim.P. which conclude that the indictment was not du- ” government charging from separate of- .... plicitous 618 F.2d at 897-98. Ac- in a single fenses indictment count. Sev- cordingly, courts have held that a appeals eral courts of have concluded that indictment count charging violations of “offense” and clauses do not “defraud” the “offense” and “defraud” clauses—if separate constitute purposes offenses for framed with adequate specificity—would 8(a). blush, of Rule at appli- While first enable determination of the “convicted” precedents cation of these to the double offenses and thus would not be impermis- jeopardy sensible, context seems I submit sibly duplicitous.24 finding the “offense” and jeopardy inquiry, The double by con clauses are not separate “defraud” of- trast, focuses not on clarity jury of the for duplicity purposes fenses not does verdict but rather on whether a later analysis control the jeopardy for double prosecution 8(a) punishment entails the double purposes. key Rule serves three (1) prohibited by the Constitution. The over purposes: to ensure the defendant re- riding specific issue is not in adequate ceives whether of the offenses notice (2) dictment speaks count with the charged; requisite to minimize the risk that lucidity, jurors enabling precise were determination par- not unanimous as to the jury’s findings, charged; ticular offenses to en- but rather whether precise Congress particu- impose multiple able determination of the intended to lar offenses of which for punishment the defendant was violation distinct statu And, here, or acquitted, tory provisions. convicted critical to avoid re- considering prosecution of the defendant for the same the obvious difference between the two offense. See Margiotta, types conspiracies alleged and their im Rosenblatt, majority 23. The fails to discuss Ervasti and in United v. States Thompson merely (2d Cir.1977), these in a cites cases appellants rely, 40-42 which on string contrary authority. citation as only that a count alleging unspecified defraud the United in some States Williams, 24. See United v. States way allega- risks conviction either an without (2d Cir.1983) (“The specificity proof tion or of the essential nature of the conspiracy-to-defraud allegations and the fraud.”). jury's verdicts on the substantive counts elimi- any possibility expressed nate of the concerns Albernaz, 339-42, sentence, 450 U.S. surely purposes plications 1137; fundamentally distinct Tobacco Co. v. United American not. These it did application 781, 788, of du rote inquiries preclude 328 U.S. S.Ct. jeopardy to the double precedents plicity applies Liotard where L.Ed. 1575 court of Accordingly, no federal context. for the prosecutions are successive there prece duplicity its relied on appeals has inquiry central under same offense. The the “offense” to determine whether dents particular agree is whether the Liotard define distinct of clauses and “defraud” were defendants entered ments into which jeopardy.25 of double purposes fenses for conspiracy. single overarching part of And, fact, appeals one court of at least if relevant But that consideration is in the differently § 371 has construed involving the conspiracies criminal two con duplicity than in the jeopardy double That is not charged. are same offense F.2d at Thompson, 814 Compare text. Here, Blockburger not us. what is before (double jeopardy), 1476-77 that, more than the result only applies; (10th Hauck, analysis Blockburger reached via Cir.1992) (duplicity).26 differ point: the elements are proves re concerning majority’s is the Equally there punishments ent controlling Blockburger as the jection of jeopardy double does fore intended and in the situation jeopardy test for double apply. majority on us. The relies before on the ele Blockburger Because focuses (3d Liotard, 1074 Cir 817 F.2d States v. the provisions of the violated—not ments .1987), test setting applicable forth the into agreements factual details jeopardy claim. double for defendants’ even applies, defendants entered —it which However, has re Supreme the Court emanate particular where the violations that where consistently held peatedly and (as agreement, single overarching from a implicat are conspiracy provisions distinct factors, majority, applying the Liotard the ed, governs whether Blockburger the test here.)27 the case On this concluded was violation of separate prosecution of each There, instructive. the point, See Albernaz is Jeopardy the Double Clause. fends ted) added); (David L.), (emphasis v. Phil- United States the court held 25. In Smith Cir.1981) (5th statutory lips, § distinct of- 371 does create 664 F.2d 1007 fenses; so, however, without reference ("[U]nder it did Blockburger possible the test it is of, to, reaching independent law the and case conspiracy single agreement or for a criminal duplicity 424 context. conclusion the same specific, give to distinct offenses under rise F.3d at 1000. statutes.”); separate conspiracy Barton, (2d Cir.1981) v. 235 Dale, F.Supp. 782 See also ("It single undisputed that a transaction is (D.D.C.1991) (distinguishing courts’ 619 give liability may rise to for distinct offenses duplicity § and 371 in the construction violating without the under statutes rejecting appli- jeopardy contexts and double Jeopardy is true whether Double Clause. This jeopardy duplici- cation of double cases ... or be substantive crimes offenses ty inquiry). added); (emphasis conspiracy.”) see crimes of Marren, 27. See United States Morris, (1st 99 F.3d 476 also United States v. (7th Cir.1989) ("In agreement general, an 936 Cir.1996) Blockburger (applying test to deter- be several unlawful acts must to commit pro- Jeopardy Clause mine whether Double conspiracy. excep single An as a prosecution two con- hibited under distinct however, tion, Congress has exists where § provisions, 371 and 21 spiracy 18 U.S.C. multiple to authorize manifested an intent 841(a)(1) 846). §§ & U.S.C. punishments conduct that violates two for (internal statutory provisions.”) citation omit- that, Supreme notwithstanding spiracy Court held in restraint of may trade that single conspiracy agreement, narcotics or stop monopoly, short of and the other a conspiracy because distinct offenses of conspiracy to monopolize that may not § import marijuana, 21 U.S.C. be content with restraint short of mo- marijuana, to distribute nopoly. One is made criminal separately charged, U.S.C. by § and the other 2 of the Sherman jeopardy there is no double violation. Alb Act. ernaz, U.S. 101 S.Ct. 1137. We believe also that in accordance Congress Because intended to authorize case, with the Blockburger §§ 1 and of consecutive sentences for violation of the require Sherman Act proof of con- offenses, two distinct the Court concluded spiracies which reciprocally are distin- imposition of cumulative punishment guishable from independent of each permissible, only single

was even where other although objects of the con- overarching or agreement conspiracy existed. spiracies may partially overlap. applied Alb ernaz Blockburger as methodology adjudicat the established (citations omitted) Id. at 66 S.Ct. 1125 ing double jeopardy brought by claims added). (emphasis Because the Blockbur- defendants. American To test, ger which focuses on the elements of Co., bacco decided almost four decades be offenses, here, majority’s controls Albemaz, Court, fore Supreme again application of Liotardis inqui- multi-factor applying Blockburger, approved impo ry, examining particular whether separate penalties sition of for defendants agreements into which defendants entered conspiring convicted of restrain trade constituted a overarching conspira- industry the tobacco in violation of section cy, misplaced is unnecessary. Act, 1 of the Sherman U.S.C. distinctiveness of the offenses under (1976), conspiring and of monopolize Blockburger, not the existence of an over- industry in tobacco violation of section 2 of Liotard, arching agreement under is what Act, that 15 U.S.C. 328 U.S. at purposes matters here for jeop- double 788, 66 S.Ct. rejected 1125. The Court ardy. double jeopardy argument similar to that pressed by defendants here: Under Blockburger, imposition cu- punishment mulative permissible

On the is for vio- authority of the Braverman case, statutory provisions, lation of distinct petitioners pro- claim that there is but that conspiracy, provision requires one vided each namely, conspiracy unique fix prices. proof. In contrast element Consistent with po- adopted by virtually sition sep- described that case in all courts of counts, arate gen- appeals,28 all we that require- under the conclude statute, here; eral easily we have here ment is satisfied majority offenses, statutory opine one a con- does not Accordingly, otherwise.29 Ervasti, 1029; 28. See 201 F.3d requires 29. The "offense” clause Morris, (1) (1st Marren, Cir.1996); proof: agreement of an to commit an v. 99 F.3d 476 law; (2) proscribed by offense federal 924; Thompson, 890 F.2d (3) party agreement; defendant was a (3d Cir.1987); F.2d 1472 United States v. Na intentionally joined the defendant kashian, (2d Cir.1987); 552-54 agreement with an awareness of its unlawful Twomey, v. objectives; conspira- that one of the (1st Cir.1986). tors committed an overt act in furtherance of conspiracy. See Third Circuit Mod.Crim. un- prosecutions successive clauses of and “defraud” the “offense”

der Jeopardy- the Double do not violate

Clause. reasoning majority’s

I submit consistent with estab-

and result is jurisprudence jeopardy

lished double Congress did not prosecutions

will bar respectful- I therefore prohibit.

intend to

ly dissent & BAY

DELAWARE RIVER

AUTHORITY, Appellant

in No. 08-4029 KOPACZ, Appellant D.

Jan 08-4086. No. 08-4029,

Nos. 08-4086. of Appeals, States Court

Third Circuit.

Argued May Sept.

Filed (2008). conspiracy. Third Circuit Mod.Crim. Jury "defraud” (1) See Instr. 6.18.371A proof: requires of an Jury Jury clause of Instr. 6.18.371B The Model persons agreement among more two or define “defraud” as to "cheat the Instructions States; (2) the United that the defen- defraud any agen- government or of its (3) party agreement; dant was a money property” cies out of or or to “obstruct intentionally joined agree- the defendant one of the United States or interfere with objective to defraud the ment aware of its functions, deceit, government’s lawful States; conspir- that one of the craft, trickery, Id. or dishonest means.” an overt act in furtherance of ators committed

Case Details

Case Name: United States v. Rigas

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 21, 2009

Citation: 584 F.3d 594

Docket Number: 08-3218

Court Abbreviation: 3rd Cir.