En Banc Court to Revisit Construction of Federal Conspiracy Statute

On the government’s request, the Circuit has ordered en banc review of the decision in US v. Rigas, No. 08-3218 (Oct. 21, 2009) (original Third Circuit Blog post here). The order granting review, filed January 13, directs that the sole issue is "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." (More fully, the statute begins: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States....")

The issue split the original panel. In an opinion by Judge Fuentes, the majority held that the conspiracy statute creates a single statutory offense, while Judge Rendell, in dissent, construed the statute to create distinct ones. Both opinions recognized a circuit split on the issue, although the judges offered different counts: the majority found a 4-3 split in favor of its rule, while the dissent tallied a 2-1 split to opposite effect. (The disagreement owed to conflicting views regarding the scope of certain rulings.)

The case involves the high-profile prosecution of members of the Rigas family on charges of diverting funds from Adelphia Communications Corporation for personal use. Until its collapse in 2002, Adelphia was the country’s sixth largest cable operator.