En Banc Rehearing in Rigas - Scope of Conspiracy, Totality, and Double Jeopardy

Eearlier this week, the Third Circuit decided the Rigas case en banc. United State v. Rigas, 605 F.3d 194 (3d Cr. 2010).  I have previously discussed the panel decision (United States v. Rigas, 584 F.3d 594 (3d Cir. 2009)) here. The Third Circuit took the case en banc

on the sole issue of 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.

You will recall that that statute defines a criminal conspiracy as a conspiracy to commit an offense and a conspiracy to defraud the United States -- "the 'offense' clause and the 'defraud' clause, as stated by the Court in granting the petition for rehearing en banc.

The en banc majority opinion was written by Judge Fuentes who wrote the panel majority opinion. The en banc minority opinion was written by Judge Rendell who wrote the panel minority opinion. Needless to say, the result does not change. And, I am not sure much new was added by the en banc opinions; the battle lines were staked out in the predicate panel opinions. I have not tried to compare the en banc and panel opinions to pick up sublte nuances, but will offer her the gist of the en banc opinions.
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