For Purposes of Double Jeopardy, General Conspiracy Statute Creates Single Offense that May Be Committed in Two Ways

In United States v. Rigas, No. 08-3218 (3d Cir., 10/21/2009) , the defendants, members of the Rigas family, were charged with participating in a fraudulent scheme effectuated through their ownership of Adelphia Communications. The defendants were indicted, inter alia, for conspiracy under 18 U.S.C. § 371 in two separate jurisdictions for the conduct underlying this fraudulent scheme. Specifically, in 2002, the Southern District of New York indicted the defendants for conspiracy to commit an offense against the United States, namely securities fraud, based upon their misuse of corporate funds for personal expenses. In 2005, the Middle District of Pennsylvania charged the defendants with conspiracy to defraud the United States via income tax evasion, based upon their failure to pay income tax on monies they illegally obtained from Adelphia. The defendants argued that the Pennsylvania indictment violated their rights under the Fifth Amendment’s Double Jeopardy Clause. Relying upon Blockburger v. United States, 284 U.S. 299 (1932), the Third Circuit joined the majority of circuits to rule that 18 U.S.C. § 371 proscribes one offense which may be committed two ways. (Judge Rendell in dissent, however, relied upon Blockburger to find that § 371 creates two separate offenses.) The court also reiterated that the Clause prohibits the government from splitting a single conspiracy into several prosecutions. Citing United States v. Liotard, 817 F.2d 1074 (3d Cir.1987) and United States v. Kemp, 500 F.3d 257 (3d Cir. 2007), the court ultimately remanded the case to allow the lower court to determine whether the defendants entered into two separate agreements or only one.

The defendants also challenged the Pennsylvania prosecution for the substantive counts of tax evasion on grounds of collateral estoppel. Specifically, the defendants argued that, since the New York jury found them not guilty of some of the wire and bank fraud counts, the jury must have believed that the monies obtained by the defendants from Adelphia were loans and not income. However, the court recognized that the New York jury acquitted the defendants on only a few of the enumerated transactions. Consequently, the government could prosecute the defendants in Pennsylvania for tax evasion in relation to the remaining transactions.