and this time here united states versus stoppel which focuses on the overlapping characteristics of successively charged criminal conspiracies now the chloral stoffel doctrine was implicated here because the government by its words and its deeds has admitted that  both the enterprises were the same as well as the racketeering patterns for example the government at the first trial sought to introduce evidence of the securities fraud charge securities fraud under four four b in other words before filing the indictment they understood what the pattern of racketeering activity of the one enterprise was and was responsible for securities  fraud health care fraud in new york city from two thousand and seven to two thousand and twelve the government confirmed that in both its opening and closing statements at the second trial which  organization dizzy it ended in detail and described the relatedness and continuity of the conspiracy and yet the government decided to  restrict its initial prosecution to the health care fraud and strategically named the organization the no fault organization so when the charge enterprises a are the same this court is engages in a two step analysis what did the first juries acquittals decide and what was the impact of the second trial not the district court found that the first  acquittals decided that either there was no conspiracy or that zuma lansky didn't knowingly and willingly join any conspiracy now to understand the impact at the second trial there are certain things i think that are important for this court to notice to consider first the government's opening and closing statements describing the d z organization is being responsible for a pattern of securities fraud that in fact financed the health care fraud without a break further the district court let the government introduce the entire health care fraud case rehash it at the second trial and even let them let them expand it to include another witness a new witness igor katzman who testified extensively about his relationship with the d z organization including laundering money for both the securities fraud in the health care fraud schemes and at the first at the first trial  the acquitted conduct were the substantive counts and that left open because there was one hundred three the the the rico issue to be convicted of rico was not necessary that your client committed the substantive offense and therefore it would appear that it is a sufficiently distinct charge in the second trial to charge that he was a member of  conspiracy and among the subset of acts which he may not have actually himself committed but that others did are the substantive charges of which he was acquitted that's correct your honor and now that you've just mentioned the essential element or strict element or strict evidence tests application of the collateral stoppel doctrine some lansky is relying on the applicant was the second trial how long was the second did it last well it didn't it was thirty one hundred transcript pages i'm not sure how many days of trial it was i can't i think it was him from having rico liability because rico liability doesn't require that he commit health care fraud or mail fraud in self he requires only that he conspires to for the benefit of the the enterprise does rico conspiracy intent is for the benefit to he conspires to the benefit of the enterprise as opposed to conspiracy to commit mail fraud requires that he have a specific knowledge and specific intent to engage in a conspiracy to commit mail fraud right that's correct so that the intent requirement is different between the two conspiracies so therefore i don't understand how i don't understand how acquittal on the conspiracy precludes you either precludes prosecution on the on the rico conspiracy the broader rico conspiracy or proof of the existence of the substantive acts which serve as the predicate acts for the under the underlying rico enterprise well because this court has recognized fundamental principles of fairness but if if i can be convicted if i if i'm not if i'm acquitted of of shooting someone i can still be convicted of engaging in a rico under prize one of one of which the predicate acts were shooting someone because i don't have to have either intended to shoot them myself or the strict evidence test dealing with intent the issue is whether the trial was unfair because the government was allowed to rehash its entire health care fraud case at a second said the government may not prove the new charge by inserting facts necessarily determined against it on the first try but is it necessarily hasn't necessarily been determined that your client was not part of a conspiracy to do acts of which your client was acquitted as a substantive matter well craig you are also somebody may have done them only he didn't do combination with other evidence as probative of the defendant's participation in the conspiracy and because of that they say they held that it was fundamentally unfair he couldn't you're definitely right he could be retried for mail fraud conspiracy or mail fraud you're right about that yes but the point is that the jury hung up on the rico i mean if the jury had acquitted him of rico healthcare for i think you're right but i don't know how they could've have  conspiracy acts necessarily meant that they couldn't that there was the fact that they had already determined that precluded his conviction on the rico and i don't see it both kramer and this court's decision this case is that my friend is a huge difference yes and no under principles of fairness i think we still have an issue here that's really important and as bullets said the paneling knowledge that they could never know although they could never know how much weight the rehash evidence carried with the second jury from the standpoint of double jeopardy the jabal jeopardy clause the key fact was that the retrial exposed the defendant to the ordeal of multiple trials and the repeated risk of conviction for the same conduct for which he was acquitted but they have retried the healthcare fraud rico yes yes yeah i'm not but they have the good they have decided to add additional evidence if they wish to do so depending on the evidence yes thank you richard rebuttal i would like to it please the court josh enough towels for the united states i represent the united states at the second trial below the defendant's double jeopardy rights were not violated when he was tried on the second indictment let me just respond fraud scheme and there were six patterns of racketeering that mirror those so the straight double jeopardy issue i think we can all agree that since he was not tried on the any of the counts is a court of theirs will not double jeopardy acquittal and hung jury the government expanded the the rico case the rico enterprise and charged those as predicates now moving to the evidence piece i think judge jacobs judge wisely you have it exactly right rico is just different and the government is allowed to offer evidence even of a quick conduct in support of proving the defendants involved assuming you're right wouldn't wouldn't it give you a queasy feeling that people could be retried over and over again as you and you cook the same dish with a different sauce and just drive people into you get a conviction in the abstract of course but that's not what happened here i think there was the rico conspiracy where there was a hung was spent with the jury listening to the same testimony that the last year in this i think it's fair to say that half the trial was probably about the no fault but it wasn't the exact same evidence we did reuse obviously some of the evidence but there were two new case a guy falls asleep and there's a cocaine deal in the apartment and the only issue was at the first trial did this individual possess the cocaine he was acquitted of the substantive and the jury hung on the conspiracy and then they go to retry him on the conspiracy and they want to put in the evidence of possession so that as a narcotics case this is a wide ranging classic organized crime case where the defendant to great lengths to to keep himself off of paper that there was no evidence and that is float above in the classic organized crime l c n case type of case where he did not want to be involved which is which leads to it which is which makes sense the jury did not hear that he was on the day to day basis doing everything here he was running now in terms of the ultimate issue i'll sit down briefly that clearly the jury did not reach the ultimate issue here i mean it's a this is a very high burden for the got for the defendant to me it's very rare as your as this court has pointed out all the jury we don't know what the jury  concluded jack and in his detail the pinion said we just don't know we know that he was acquitted of the underlying health care fraud and money laundering counts but we don't know because they didn't they hung on the r enterprise and you obviously can have a you can obviously conclude that the someone who is a member of a rico conspiracy did not commit the underlying racketeering access which wesley point out that's just that's not required under rico unless you're acquittal based on the fact that he couldn't be convicted of the rico conspiracy in light of the acquittals and he makes that argument very briefly and brief to us and i have in the record here that  i don't recall the withdrawing but judge i can see a ping in that with both the straight double jeopardy issue should they dismiss it and the use of the evidence in the subsequent trial so i'm not i'm not one hundred percent sure what they did last if you'd just gone back and retry the health care thirteen indictment we did not we went for a much broader different enterprise indictment thank you thank you  first of all on with respect to the government's claim that the two prosecutions are were different two organizations are different indictments are different that's just completely wrong because relatedness and continuity can be also apply to operate is a bar to the introduction an organization of certain facts and all of those facts of the health care fraud were introduced at the second  say he did preclude them from arguing that zemlinsky was guilty of healthcare fraud that they think the government ignored that order and actually went wild merging the two and claiming he was guilty of that and that's described in more detail at the opening brief at page thirty seven in the reply brief at three from thirteen to fourteen so i think that's a really i'm important point to