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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More on Issue Preclusion #2 - Conspiracy Theories and Getting to Perhaps

I previously blogged here the Third Circuit panel decision in United States v. Rigas, 584 F.3d 594 (3d Cir. 2009). The Wall Street Journal today has this summary of the oral argument on Wednesday in the en banc rehearing of the case.

Issue Preclusion #2 - Conspiracy Theories and Getting to Perhaps

Back on the preclusion theme I discussed yesterday here, I look at the case of United States v. Rigas, 584 F.3d 594 (3d Cir. 2009).

In Rigas, the defendants had been charged in New York (SDNY) on a broad federal conspiracy charge as follows:

Count One of the New York Indictment alleges a wide-ranging conspiracy (1) to create the false appearance that Adelphia's operating performance was strong and that Adelphia was reducing its debt burden, (2) to use Adelphia assets for the personal benefit of members of the Rigas family, and (3) to make false and misleading statements.

The Court focused its analysis on object (2), above, since it "most closely overlaps with the charges in the Pennsylvania Indictment."

The defendants were convicted of the conspiracy charge in the New York indictment. Then the Government (all right the grand jury) charged them in Pennsylvania on a federal tax conspiracy charge -- the ubiquitous defraud conspiracy charge.
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Conspiracy Theories - Issue Preclusion #1

I picked up this relatively new case, United States v. Thyfault, 579 F.3d 748 (7th Cir. 2009), decided August 26, 2009 dealing with issue preclusion from a not guilty verdict. Thyfault may be read or downloaded here. Of course, everyone knows that a defendant found not guilty cannot be retried on the specific charge. But, can the defendant be retried on a related count for which the jury hung? I shall return to that issue is discussing the Rigas case in a later blog. The Rigas case may be read or downloaded here.

In the opening paragraph of Thyfault, Judge Bauer summarizes the facts to set up the issue as follows:

On November 4, 2004, a multi-count superceding indictment charged Michael Thyfault and other individuals with multiple mail fraud and tax evasion offenses. The indictment accused the defendants of being the prime movers in a major scheme to defraud Intercounty Title Company of Illinois ("Inter-county") and related entities. The scheme involved theft and mismanagement of Intercounty's escrow funds over a ten-year period, during which time Intercounty's deficits were covered by thefts from its escrow account. Thyfault was charged with one count of conspiracy to commit mail fraud and four counts of mail fraud. The jury acquitted Thyfault on the conspiracy count, but was unable to reach a verdict on the mail fraud counts. The government then sought to retry Thyfault on the mail fraud counts; Thyfault moved to dismiss the charges on the basis of issue preclusion, arguing that his conspiracy acquittal precluded the government from attempting to prove his intent to defraud, an element of the mail fraud charges. The district court agreed and granted the motion. The government brings this appeal, contending that the district court erred in granting Thyfault's motion because a rational jury could well have found that Thyfault intended to violate the law, but not in agreement with others as charged in the conspiracy. We reverse.

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