2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-21-2009

USA v. John Rigas

Precedential or Non-Precedential: Precedential

Docket No. 08-3218

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-3218

_____________

UNITED STATES OF AMERICA,

v.

JOHN J. RIGAS; 

TIMOTHY J. RIGAS,

 Appellants.

On Appeal from the District Court 

for the Middle District of Pennsylvania

(No. 05-cr-00402)

District Judge: Honorable John E. Jones III

___________

Argued July 14, 2009

Before: RENDELL, FUENTES, and ROTH, Circuit Judges

 (Opinion Filed: October 21, 2009)
2

Lawrence G. McMichael, Esq. (ARGUED)

Matthew P. Faranda-Diedrich, Esq.

Patrick M. Northen, Esq.

Dilworth Paxson

1500 Market Street, Ste. 3500E

Philadelphia, PA 19102

Joseph U. Metz, Esq.

Dilworth Paxson

112 Market Street, 8th Floor

Harrisburg, PA 17101

Counsel for Appellants

George J. Rocktashel, Esq. (ARGUED)

Martin C. Carlson, Esq.

Office of United States Attorney

240 West Third Street, Ste. 316

Williamsport, PA 17701

Lorna N. Graham, Esq.

Office of United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Counsel for Appellee
3

OPINION OF THE COURT

FUENTES, Circuit Judge:

Defendants John and Timothy Rigas (the “Rigases”) seek

to prevent their trial in the Middle District of Pennsylvania for

conspiracy to defraud the United States and for substantive tax

evasion violations. The Rigases, who were convicted of

conspiracy and substantive fraud counts in the Southern District

of New York, but acquitted of wire fraud, claim that their

reprosecution in Pennsylvania violates their right to be free from

double jeopardy. 

The Rigases’ principal argument is that the alleged

conspiracy (to defraud the United States) charged in

Pennsylvania was formed by the same illegal agreement that

created the New York conspiracy (to commit offenses against

the United States). Because conspiracy to defraud the United

States and conspiracy to commit offenses against the United

States are different ways of violating a single general conspiracy

statute, 18 U.S.C. § 371, the Rigases maintain that they should

have been prosecuted under both theories in the same

proceeding. The District Court denied the Rigases’ motion to

dismiss the Pennsylvania indictment.

We agree with the Rigases that 18 U.S.C. § 371 creates

a single statutory offense. Because we also find that the Rigases

have established a prima facie case that there was only one
 The following facts relate principally to the areas of 1

overlap between the New York Indictment and Pennsylvania

Indictment. They are derived from the indictments in both

cases, as well as the background sections of the opinions issued

by the District Courts in New York and Pennsylvania as well as

the Court of Appeals for the Second Circuit. See United States

v. Rigas, 565 F. Supp. 2d 620 (M.D. Pa. 2008); United States v.

Rigas, 490 F.3d 208 (2d Cir. 2007), cert denied, 128 S. Ct. 1471

(2008); United States v. Rigas, No. 02-cr-1236, 2008 WL

2544654 (S.D.N.Y. June 24, 2008).

 Adelphia had two classes of common stock: Class A 2

exercised one vote per share, while Class B exercised ten votes

per share.

4

conspiratorial agreement, we will remand to the District Court

to conduct an evidentiary hearing on the conspiracy count. 

I. Background1

This appeal stems from the 2002 collapse of Adelphia

Communications Corporation (“Adelphia”). John Rigas was

the founder of Adelphia. Until 2002, he served as Adelphia’s

Chairman and Chief Executive Officer (“CEO”). His son,

Timothy Rigas, was a board member and Chief Financial

Officer (“CFO”). Until its disastrous collapse in 2002, Adelphia

was the sixth largest cable television provider in the United

States. Although the Rigas family did not own a majority of

Adelphia’s outstanding common stock, they controlled a

majority of Adelphia’s shareholder votes. As a result, the Rigas 2

family elected eight of Adelphia’s nine directors and controlled
5

all of Adelphia’s corporate affairs.

In the late 1990s, Adelphia began a process of rapid

expansion by acquiring other cable operators. It financed these

acquisitions by issuing new corporate stock and taking on

corporate debt. As a result of this process, Adelphia became

highly leveraged. In order to avoid diluting their control of

Adelphia, and to create the appearance that Adelphia was

reducing its debt burden, the Rigases purchased large amounts

of Adelphia stock and assumed Adelphia’s debt. According to

the Government, these transactions were a sham. When the true

state of Adelphia’s finances and operations became clear,

Adelphia collapsed. 

Prior to June 2002, Adelphia’s stock was registered with

the SEC and was publicly traded on the NASDAQ National

Market System. In January 2002, Adelphia’s stock traded at

$31.85. By June 2002, Adelphia’s stock was worth pennies a

share and was delisted by NASDAQ.

In 2002, John and Timothy Rigas were indicted in the

Southern District of New York. The New York Indictment

charged, among other offenses, a wide-ranging conspiracy to

loot Adelphia and to hide both the Rigases’ plunder and

Adelphia’s weak financial condition from the public and the

SEC, all in violation of 18 U.S.C. § 371. A jury subsequently

convicted the Rigases on the conspiracy count, as well as a

number of substantive fraud offenses. However, the Rigases

were acquitted of wire fraud and one of the bank fraud counts.

In 2005, the Rigases were indicted in the Middle District

of Pennsylvania and charged with conspiracy to defraud the

United States in violation of 18 U.S.C. § 371 by evading the
In 2008, after the District Court denied the Rigases’ 3

double jeopardy motion, a Pennsylvania grand jury returned a

Superceding Indictment adding additional substantive tax

evasion charges related to the 2001 tax year. The Superceding

Indictment also adds additional detail to the conspiracy count.

Our review is based on the original Indictment before the

District Court at the time it issued its decision, but we note

differences between the Indictment and Superceding Indictment

where relevant.

6

taxes due on their ill-gotten gains. John and Timothy Rigas

were also each charged with three counts of tax evasion for the

tax years 1998-2000. 

3

A. The New York Action

On September 23, 2002, a grand jury sitting in the

Southern District of New York returned an indictment against

John and Timothy Rigas, Michael Rigas (Adelphia’s Executive

Vice President of Operations and another son of John Rigas),

and Michael Mulcahey (an Adelphia executive but not a

member of the Rigas family). See United States v. Rigas, et al.,

No. S1-02-cr-1236 (S.D.N.Y.). A superceding indictment,

returned in July 2003, charged the defendants with conspiracy

to commit an offense against the United States in violation of 18

U.S.C. § 371. The objects alleged by the conspiracy count were

numerous: securities fraud in violation of 15 U.S.C. §§ 78j(b)

and 78ff and 17 C.F.R. § 240.10b-5; wire fraud in violation of

18 U.S.C. §§ 1343 and 1346; making false and misleading

statements in SEC filings in violation of 15 U.S.C. § 78ff;

falsification of the books of a public company in violation of 15
7

U.S.C. §§ 78m(b)(2)(A), 78m(b)(5), and 78ff, and 17 C.F.R. §

240.13b2-1; and bank fraud in violation of 18 U.S.C. § 1344.

The Rigases were also charged in twenty-two substantive counts

of wire fraud, bank fraud, and securities fraud. The New York

Indictment was supplemented by a Bill of Particulars on January

2, 2004. 

After a four-and-a-half month trial, the jury found John

and Timothy Rigas guilty of: (1) conspiracy to commit securities

fraud, to make false statements to the Securities and Exchange

Commission (“SEC”), to falsify Adelphia’s books and records,

and to commit bank fraud; (2) securities fraud in connection

with the purchase or sale of Adelphia Class A stock, debentures,

and notes; and (3) bank fraud. They were acquitted of wire

fraud. The jury did not reach a conclusion about whether wire

fraud was an object of the conspiracy. The Second Circuit

reversed one of the two bank fraud counts, but affirmed the

remaining convictions. Rigas, 490 F.3d at 236, 239.

John Rigas received a sentence of five years’

imprisonment on the conspiracy count, and a total combined

sentence of twelve years on all the counts. United States v.

Rigas, No. 02-cr-1236, 2008 WL 2544654, at *7 (S.D.N.Y. June

24, 2008). Timothy Rigas received a sentence of five years

imprisonment on the conspiracy count, and a total combined

sentence of seventeen years on all counts. Id. Financial

penalties were governed by a Settlement Agreement between the

Government and the Rigas family, including John Rigas, Doris

Rigas, Michael Rigas, Timothy Rigas, James Rigas, and Ellen

Rigas Venetis. The Settlement Agreement did not apply to any

tax violations.
The following facts are taken from the New York 4

Indictment unless otherwise indicated.

8

1. New York Conspiracy Count

Count One of the New York Indictment alleges a wideranging 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. We focus on the second 4

aspect of the conspiracy, which most closely overlaps with the

charges in the Pennsylvania Indictment.

a. Use of Adelphia Assets for Personal Purposes

The New York Indictment alleges that the Rigases used

Adelphia funds “[a]mong other things . . . to construct a golf

course on land primarily owned by JOHN J. RIGAS; routinely

used Adelphia’s corporate aircraft for their personal affairs,

without reimbursement to Adelphia; and used at least

approximately $252,157,176 in Adelphia funds to pay margin

calls against loans to the Rigas family.” New York Indictment

¶ 62 (emphasis added). 

The New York Bill of Particulars provided specific

allegations about some of the “other things” the Rigases used

Adelphia funds for. For example, according to the Bill of

Particulars: Adelphia purchased real estate from Rigas family

members above market value without the property being

conveyed to Adelphia; Adelphia purchased real estate for Rigas

family members and paid to maintain and renovate that property;
 The Second Circuit determined that 5

[t]he evidence at [the New York] trial showed that

throughout the period of the conspiracy,

Defendants took over $200 million dollars from

Adelphia’s Cash Management System for

personal expenses ranging from $200 to purchase

100 pairs of bedroom slippers for Timothy Rigas,

to over $3 million to produce a film by Ellen

Rigas, to $200 million to pay off Rigas family

margin loans. The missing money was obscured

by the commingling of cash between Adelphia

and the [Rigas Managed Entities] and the [Rigas

Non-Cable Entities]. . . . No promissory notes

were ever signed in favor of Adelphia, and, in

some instances, personal expenses were falsely

recorded as Adelphia’s expenses. . . . The cash

transfers to the Rigas family were not reported as

compensation or loans, as required by the SEC, or

disclosed to investors as related party

transactions.

Rigas, 490 F.3d at 218 (footnote omitted).

9

Adelphia paid the Rigases’ property taxes and insurance

premiums; Adelphia paid golf club membership dues for the

Rigases, paid expenses related to Ellen Rigas’s wedding, and

purchased 100 pairs of slippers for Timothy Rigas. The New

York Bill of Particulars also alleges that Adelphia made

charitable contributions on behalf of the Rigases.5
10

i. Cash Advances

From about 1999 to 2002, “Adelphia advanced millions

of dollars in cash to JOHN J. RIGAS, TIMOTHY J. RIGAS and

MICHAEL J. RIGAS, in excess of their publicly disclosed

compensation.” New York Indictment ¶ 169. Other unnamed

family members also received “substantial amounts of cash.”

Id. In about 2001, John Rigas began receiving monthly cash

payments of about $1 million. In April 2001, the Rigases

“caused Adelphia to file an amended annual report on Form 10-

K, which falsely understated the total amount of compensation

to [the Rigases and others] by failing to include the[se] cash

advances.” Id. According to the New York Bill of Particulars,

these cash advances totaled nearly $80 million.

ii. Golf Course

In June 2001, the Rigases began constructing a golf

course on land in Coudersport, Pennsylvania. Adelphia owned

a small portion of the land, while John Rigas owned the rest.

The Rigases used approximately $13 million in Adelphia funds

on golf course equipment, development, and construction. 

iii. Corporate Aircraft

Adelphia operated three airplanes out of an airport in

Wellsville, New York. The Rigases, “and other members of the

Rigas family, routinely used the Adelphia Airplanes for personal

travel” without reimbursing Adelphia. Id. ¶ 192.

iv. Stock Purchases

The Rigases also took Adelphia stock without paying for

it and used Adelphia assets to pay for their purchases of
11

Adelphia stock. The Rigas family claimed that they were

reducing Adelphia’s debt by purchasing substantial amounts of

Adelphia stock, but they never actually paid for that stock.

Instead, Adelphia “purportedly was compensated for those

securities by ‘assumptions’ by certain [Rigas Family Entities] of

debt owed by Adelphia.” New York Indictment ¶ 74. These

“assumptions” had no financial significance because Adelphia

remained “jointly and severally liable for all such debts.” Id. 

According to the New York Bill of Particulars, the

Rigases also took shares of common stock owned by Adelphia

from Adelphia’s vault and placed them in an escrow account for

the benefit of the Buffalo Sabres, a hockey team owned by the

Rigas family.

Finally, the Rigas family purchased Adelphia stock on

margin using stock loans from a number of banks. When the

banks made margin calls against the loans, the Rigases had

Adelphia pay the loans. According to the New York Indictment,

“[t]he Rigas Family did not reimburse Adelphia for the funds

used to pay the margin calls.” ¶ 185.

2. New York Wire Transfer Counts

The substantive counts in the New York Indictment

included five wire fraud counts. They charged that Adelphia

made the following fraudulent wire transfers: (1) a September

18, 2001 transfer of $5 million; (2) an October 1, 2001 transfer

of $4.5 million; (3) a March 28, 2002 transfer of about $6.4

million; (4) a March 29, 2002 transfer of about $3.9 million; and

(5) an April 12, 2002 transfer of about $4.3 million. The

Rigases were acquitted of these charges.
Unless otherwise indicated, the following facts are 6

derived from the allegations in the original Pennsylvania

Indictment.

12

B. The Pennsylvania Action

On October 6, 2005, a grand jury sitting in the Middle

District of Pennsylvania returned an indictment charging John

and Timothy Rigas with (1) one count of conspiracy to defraud

the United States in violation of 18 U.S.C. § 371; and (2) six

counts of tax evasion in violation of 26 U.S.C. § 7201. 

According to the Pennsylvania Indictment, the Rigases’

conspiracy to evade income tax dates back to the late 1980’s,

shortly after Rigas family members sold privately held cable

companies to Adelphia. As a result of this transaction, Rigas 6

family members paid over $12.6 million in federal income taxes.

“JOHN J. RIGAS and TIMOTHY J. RIGAS stated to an

Adelphia employee that they would never pay this large amount

of taxes again.” Pennsylvania Indictment at 6, ¶¶ 1-2. Timothy

Rigas told “Adelphia employees that the Rigas family members

should not take large salaries from Adelphia, but should ‘live

out of the company.’” Id. at 6, ¶ 3.

 Shortly thereafter, the Rigases began diverting funds

from Adelphia accounts to Rigas family members and familycontrolled entities. The allegations about these diverted funds

closely parallel the allegations in the New York Indictment: To

make these transfers look legitimate to the public and outside

auditors, Timothy Rigas accounted for many of these transfers

as “loans or intercompany receivables owed to Adelphia, so as

to evade the payment of income taxes on the diverted funds.”
The Superceding Indictment alleges that the Rigases 7

diverted an additional $900 million and claims a

correspondingly larger tax loss.

13

Pennsylvania Indictment at 6-7, ¶ 5. The Rigases used

Adelphia’s funds to purchase the Buffalo Sabres hockey team,

to pay personal expenses, to build a golf course, to pay for

Adelphia stock, and to pay margin loans used to buy additional

Adelphia stock. The Rigases also used Adelphia’s corporate

aircraft for personal travel. Timothy Rigas occasionally made

false accounting entries indicating that the Rigases had repaid

these loans or assumed liability for Adelphia’s corporate debt in

exchange for the loans. In all, the Pennsylvania indictment

alleges that the Rigases diverted $1.9 billion from Adelphia for

the personal benefit of Rigas family members, resulting in a tax 7

loss of over $300 million.

The substantive counts of the indictment allege that John

Rigas personally evaded approximately $51 million in income

tax for the years 1998-2000, and that Timothy Rigas evaded $85

million in income tax for those years. 

II. Discussion

The Rigases maintain that the Pennsylvania conspiracy

count violates their right to be free from double jeopardy. They

argue that 18 U.S.C. § 371 creates a single statutory offense of

conspiracy, and that they can only be tried once for a single

conspiratorial agreement in violation of that statute. The

Rigases also maintain that the New York jury concluded that

they did not take Adelphia’s funds for their personal use, and

thus that the substantive tax evasion counts are barred by the
14

collateral estoppel component of double jeopardy. The District

Court denied the Rigases’ motion to dismiss the Pennsylvania

Indictment, rejecting both of their arguments.

A. Jurisdiction and Standard of Review

The District Court had subject matter jurisdiction

pursuant to 18 U.S.C. § 3231. As the Supreme Court has

explained:

[T]he guarantee against double jeopardy assures

an individual that . . . he will not be forced

. . . to endure the personal strain, public

embarrassment, and expense of a criminal trial

more than once for the same offense. . . .

Consequently, if a criminal defendant is to . . .

enjoy the full protection of the Clause, his double

jeopardy challenge to the indictment must be

reviewable before that subsequent exposure

occurs. 

Abney v. United States, 431 U.S. 651, 661-62 (1977).

Accordingly, pretrial orders denying motions to dismiss an

indictment on double jeopardy grounds are within the “collateral

order” exception to the final order requirement. See United

States v. Esposito, 912 F.2d 60, 61 (3d Cir. 1990). We thus

have appellate jurisdiction to consider this appeal under 28

U.S.C. § 1291. 

Our review of double jeopardy challengesis plenary. See

United States v. Ciancaglini, 858 F.2d 923, 926 (3d Cir. 1988).

“Since collateral estoppel as a bar to reprosecution is a

component of the Double Jeopardy Clause and is an issue of
15

law, our review is plenary.” United States v. Merlino, 310 F.3d

137, 141 (3d Cir. 2002).

B. Double Jeopardy

The double jeopardy clause of the Fifth Amendment

provides that no person shall “be subject for the same offence to

be twice put in jeopardy of life or limb.” U.S. Const. amend. V.

“Protections against double jeopardy are ancient and we

interpret the Double Jeopardy Clause in light of its origin and

the line of its growth.” United States v. Rivera, 384 F.3d 49, 54

(3d Cir. 2004) (citations, quotation marks, and footnote omitted)

(noting origins of double jeopardy protections in Greek and

Roman law).

A defendant bears the initial burden of presenting

evidence to put his double jeopardy claim at issue. See United

States v. Felton, 753 F.2d 276, 278 (3d Cir. 1985). “If the

defendant makes a non-frivolous showing of double jeopardy,

he is entitled to a pre-trial evidentiary hearing to determine the

merits of his claim.” United States v. Liotard, 817 F.2d 1074,

1077 (3d Cir. 1987) (citing United States v. Inmon, 594 F.2d

352, 353 (3d Cir. 1979)). “Once the defendant has made out his

prima facie case, the burden of persuasion shifts to the

government to prove by a preponderance of the evidence that the

two indictments charge the defendant with legally separate

crimes.” Id. (citing Felton, 753 F.2d at 278).

Importantly, the Double Jeopardy Clause prohibits repeat

trials for the same offense, not for the same conduct.

Accordingly, a defendant may be subject to multiple

prosecutions for the same conduct if Congress intended to

impose multiple punishments for that conduct. Albernaz v.
16

United States, 450 U.S. 333, 344 (1981). In other words, a

defendant generally may be subject to multiple prosecutions as

long as each prosecution involves a different offense.

In Blockburger v. United States, the Supreme Court set

forth the well-known test for determining whether Congress

intended to separately punish the same course of conduct. 284

U.S. 299, 304 (1932). Blockburger states that, “where the same

act or transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there are

two offenses or only one, is whether each provision requires

proof of a fact which the other does not.” Id. (emphasis added).

In other words, “[u]nder the Blockburger test, a court looks to

the statutory elements of the crime charged to determine if there

is any overlap.” United States v. Chorin, 322 F.3d 274, 281 (3d

Cir. 2003). 

The Blockburger test is a tool for determining whether

Congress intended to separately punish violations of distinct

statutory provisions, and thus does not apply where a single

statutory provision was violated. Thus, the Supreme Court did

not find Blockburger relevant in a case where a “single

agreement is the prohibited conspiracy, and however diverse its

objects [that agreement] violates but a single statute, § 37 of the

Criminal Code,” a predecessor to the current general conspiracy

statute. Braverman v. United States, 317 U.S. 49, 54 (1942).

See also Sanabria v. United States, 437 U.S. 54, 70 n.24 (1978)

(holding that Blockburger test did not apply to violation of a

single statute); United States v. Evans, 854 F.2d 56, 58 (5th Cir.

1988) (“[T]he Blockburger test is not applied to find separate

offenses where the act or transaction violates but a single

statutory provision.”) In contrast, in Albernaz the Supreme
17

Court concluded that the Blockburger test did apply where the

defendant’s conduct violated multiple conspiracy statutes. 450

U.S. at 339-40 (distinguishing Braverman on the basis that “the

conspiratorial agreement in Braverman, although it had many

objectives, violated but a single statute”). See also United States

v. Xavier, 2 F.3d 1281, 1290-91 (3d Cir. 1993) (applying

Blockburger test where single statute was clearly divided into

separate provisions with different penalty provisions). 

Both the New York and Pennsylvania actions allege

violations of 18 U.S.C. § 371. However, there are two prongs

to § 371. The Government maintains that these two prongs

create separate offenses. On the other hand, the Rigases

maintain that § 371 creates a single offense that can be

committed in two ways. Because the parties dispute whether §

371 contains one or more statutory provisions, we must resolve

this threshold question to determine whether Blockburger

applies.

1. Section 371 

Title 18, United States Code Section 371 provides, in

pertinent part:

If two or more persons conspire either to commit

any offense against the United States, or to

defraud the United States, or any agency thereof

in any manner or for any purpose, and one or

more of such persons do any act to effect the

object of the conspiracy, each shall be fined under

this title or imprisoned not more than five years,

or both. (Emphasis added.)
18

In the New York Indictment, the Government alleges a

conspiracy to “commit an offense against the United States.”

On the other hand, the Pennsylvania Indictment alleges a

conspiracy “to defraud the United States.” 

In United States v. Alston, 77 F.3d 713, 718 (3d Cir.

1996), we noted that “[§] 371 refers to two types of

conspiracies.” We have also previously described an agreement

to defraud the United States and to commit a substantive offense

as “a single conspiracy with two objects.” United States v.

Schramm, 75 F.3d 156, 158 (3d Cir. 1996) (discussing charge of

conspiracy to defraud the United States and to commit mail

fraud). However, we have not yet explicitly addressed whether

these types of conspiracy are parts of a single statutory offense.

In United States v. Edmonds, we set forth the

considerations that guide our evaluation of whether a single

statute creates numerous offenses, or separate means of

committing a single offense. 80 F.3d 810, 812 (3d Cir. 1996)

(en banc) (holding that the individual predicate illegal acts

establishing a continuing criminal enterprise are elements of that

offense). We must consider (1) the text and legislative history

of the statute; (2) the historical tradition that a jury verdict

represents substantial agreement on a discrete set of actions; (3)

constitutional considerations; and (4) the rule of lenity. Id. at

818-22; see also United States v. Navarro, 145 F.3d 580, 589-90

(3d Cir. 1998) (applying the Edmonds framework to conclude

that the federal money laundering statute creates a single offense

that can be committed in three alternate ways).

a. Text and Legislative History

We begin with the text of the statute. Section 371
19

contains three key provisions. First, “two or more persons

conspire.” Second, the object of the conspiracy must be “either

to commit any offense against the United States, or to defraud

the United States, or any agency thereof in any manner or for

any purpose.” Third, “one or more of such persons do any act

to effect the object of the conspiracy.” 

Although the second provision contains a number of

alternatives, this does not suggest that § 371 creates more than

one offense. “‘A statute often makes punishable the doing of

one thing or another, . . . sometimes thus specifying a

considerable number of things. Then, by proper and ordinary

construction, a person who in one transaction does all, violates

the statute but once, and incurs only one penalty.’” Griffin v.

United States, 502 U.S. 46, 51 (1991) (ellipsis in original)

(quoting 1 J. Bishop, New Criminal Procedure § 436, at 355-56

(2d ed. 1913)); see also Schad v. Arizona, 501 U.S. 624, 635-36

(1991) (“[L]egislatures frequently enumerate alternative means

of committing a crime without intending to define separate

elements or separate crimes.”); United States v. Yeaman, 194

F.3d 442, 453 (3d Cir. 1999) (holding that statute criminalizing

“device, scheme or artifice to defraud, an obtaining of money or

property by material misrepresentation, or a transaction that

operates as a fraud or deceit on a purchaser” creates single

offense (internal quotation marks omitted)); United States v.

Navarro, 145 F.3d 580, 589-90 (3d Cir. 1998) (holding that

federal money laundering statute creates a single offense which

can be committed in three alternate ways); Fed. R. Crim. P.

7(c)(1) (authorizing a single count to allege that an offense was

committed “by one or more specified means”); Milanovich v.

United States, 365 U.S. 551, 553-54 (1961) (holding that
20

defendant cannot be separately convicted under both prongs of

18 U.S.C. § 641, which prohibits embezzling or stealing from

the United States or receiving such stolen property). 

In United States v. Jerry Smith, the Ninth Circuit

analyzed the text of § 371 and made the following observations

about its structure:

Here the defendants were charged with a

conspiracy under separate clauses of the same

statute, not two separate statutes. It would be

strange to infer that Congress intended to punish

twice a conspiracy that violates both clauses.

Where a single criminal statute prohibits

alternative acts, courts should not infer the

legislature’s intent to impose multiple

punishment. 

891 F.2d 703, 712 (9th Cir. 1989) (citation omitted). 

We agree that under a natural reading, § 371 creates a

single offense. The relevant portion of § 371 is not just a single

statute, but a single sentence, divided only by commas. The use

of the word “either” before “to commit any offense” and “to

defraud” suggests that these objects are meant to provide

alternatives rather than to create separate offenses. Furthermore,

these alternatives come in the middle of the sentence, and are

followed by the description of an additional element. 

Although it is limited, the legislative history of § 371 is

consistent with this interpretation. The original federal

conspiracy statute was enacted in 1867 as part of “An Act to

amend existing Laws relating to Internal Revenue, and for other
The original text of the statute was substantially the 8

same as the modern version. See United States v. Hirsch, 100

U.S. 33, 35 (1879).

 Both Manton and Blockburger were authored by Justice 9

Sutherland. We note that Manton, which was written some

years later, did not apply the Blockburger test to resolve whether

the conspiracy statute created one or more offenses.

21

Purposes.” See 14 Stat. 471, 484 (1867). Because of its 8

incorporation in an act concerning revenue, some believed that

both prongs of the conspiracy statute were “directed only at

conspiracy to defraud the United States of its revenue.” Jerry

Smith, 891 F.2d at 712. However, the Supreme Court

concluded that the conspiracy statute made criminal “every form

of conspiracy against the United States, and every form of

conspiracy to defraud them.” United States v. Hirsch, 100 U.S.

33, 35-36 (1879) (noting that it was not unusual for Congress to

combine “incongruous legislation” in the same bill). 

Further, at the time Congress enacted § 371 in its modern

form in 1948, it was aware that the courts interpreted similar

language in a predecessor conspiracy statute to create a single

offense. See United States v. Manton, 107 F.2d 834, 838 (2d

Cir. 1939) (Sutherland, J.) (holding that the separate prongs of

predecessor conspiracy statute created a single offense).9

b. Jury Confusion and Constitutional Considerations

In Edmonds, we expressed concern that offenses with a

wide range of alternate means are inconsistent with the historical

tradition that a jury verdict represents substantial agreement on
22

a discrete set of facts. 80 F.3d at 818-19. However, conspiracy

is a well-established exception to this historical tradition. 

A single conspiracy, like the conspiracy charged in the

New York Indictment, can include a wide range of criminal

objectives. See Braverman, 317 U.S. at 53 (“Whether the object

of a single agreement is to commit one or many crimes, it is in

either case that agreement which constitutes the conspiracy

which the statute punishes.”). One conspiratorial agreement

“cannot be taken to be several agreements and hence several

conspiracies because it envisages the violation of several

statutes rather than one.” Id.

As the Ninth Circuit explained in Jerry Smith:

The clause “defraud the United States” merely

expands the scope of the offense by including

another object of a conspiracy that might not

otherwise be covered by the clause “any

offense.”. . . In other words, where conspiracy is

the charge, the established rule is that a charge of

conspiracy to commit more than one offense may

be included in a single count without violating the

general rule against duplicity. 

891 F.2d at 712-13.

Treating fraud on the United States as any other object of

a conspiracy does little to enlarge the broad sweep of objectives

constituting “offenses against the United States.” Accordingly,

this interpretation of the statute does not offend historical

traditions about the jury verdict or due process.
 While we find that the statute clearly creates a single 10

offense, we note that the Government should be willing to

concede that the statute is at least ambiguous; United States

Attorneys’ Offices in the Third Circuit, including the United

States Attorney’s Office for the Middle District of Pennsylvania,

have charged both prongs of § 371 as a single offense. See, e.g.,

United States v. Donahue, 885 F.2d 45, 46 (3d Cir. 1989)

(Middle District of Pennsylvania charged conspiracy to defraud

and to avoid filing currency transaction reports); United States

v. Kemmel, 160 F. Supp. 718, 720 (M.D. Pa. 1958) (holding that

indictment charging single count of conspiracy to defraud the

United States and to commit an offense against the United States

was not duplicitous because “[t]he conspiracy is the crime, and

that is one, however diverse its objects” (citation and quotation

marks omitted)); see also United States v. Auffenberg, 539 F.

Supp. 2d 781, 783 (D.V.I. 2008) (conspiracy to commit wire

fraud and to defraud the United States charged in one count);

United States v. Alston, 77 F.3d 713, 714 (3d Cir. 1996)

23

c. Rule of Lenity

“[W]e resolve an ambiguity in favor of lenity when

required to determine the intent of Congress in punishing

multiple aspects of the same criminal act.” Heflin v. United

States, 358 U.S. 415, 419 (1959); see also Bell v. United States,

349 U.S. 81, 83 (1955) (“When Congress leaves to the Judiciary

the task of imputing to Congress an undeclared will, the

ambiguity should be resolved in favor of lenity.”). Here, the

rule of lenity suggests that if there were any ambiguity in the

statute it should be resolved in favor of concluding that it

establishes a single offense. See 1A Charles A. Wright, 10
(Eastern District of Pennsylvania charged conspiracy to defraud

and to commit financial structuring); United States v. Schramm,

75 F.3d 156, 158 (3d Cir. 1996) (Western District of

Pennsylvania charged conspiracy to defraud and to commit mail

fraud); United States v. Wexler, 31 F.3d 117, 118 (3d Cir. 1994)

(District of New Jersey charged conspiracy to defraud and to

prepare false tax returns in violation of federal law); United

States v. Shoup, 608 F.2d 950, 953 (3d Cir. 1979) (Eastern

District of Pennsylvania charged conspiracy to defraud and to

obstruct justice in a single count). 

24

Federal Practice and Procedure § 142 at 14-15 (4th ed. 2008)

(“Because a determination that separate offenses are involved

makes possible multiple punishment for the same conduct,

unless Congress has indicated clearly that it contemplates

separate crimes, doubts should be resolved against turning a

single transaction against multiple crimes.”).

Much of the conduct thatsatisfies the “defraud” prong of

the statute also constitutes an offense against the United States.

For example, obstruction of justice, bribery of public officials,

tax evasion, and tax fraud have all been prosecuted under both

prongs. See, e.g., United States v. Bornman, 559 F.3d 150, 151

(3d Cir. 2009) (conspiracy to commit bribery charged under

offense prong); United States v. Manton, 107 F.2d 834, 839 (2d

Cir. 1939) (bribery charged under defraud prong); United States

v. Wexler, 31 F.3d 117, 118 (3d Cir. 1994) (tax fraud charged

as conspiracy to defraud and to commit offense); United States

v. Sun Myung Moon, 718 F.2d 1210, 1216 (2d Cir. 1983)

(conspiracy to file false income tax returns, to make false

statements to government agencies, and to obstruct justice
 The Government urges us to disregard cases holding 11

that § 371 creates a single statute for the purposes of duplicity.

We reject this argument. 

“Duplicity is the improper joining of distinct and separate

offenses in a single count. Duplicitous counts may conceal the

specific charges, prevent the jury from deciding guilt or

innocence with respect to a particular offense, exploit the risk of

prejudicial evidentiary rulings, or endanger fair sentencing.”

United States v. Haddy, 134 F.3d 542, 548 (3d Cir. 1998)

(internal citations omitted). The issue in both duplicity and

25

charged under offense prong); United States v. Rankin, 870 F.2d

109, 113 (3d Cir. 1989) (conspiracy to obstruct justice charged

under defraud prong). If § 371 created two separate offenses,

then conspiracy to commit any of these offenses could be

prosecuted twice in the same indictment, based on the same

proof, and could result in multiple consecutive sentences. The

overlapping nature of the two prongs both suggests that

Congress intended to create only one offense, and highlights the

appropriateness of applying the rule of lenity. Cf. United States

v. Yeaman, 194 F.3d 442, 453 (3d Cir. 1999) (focusing on

overlapping nature of alternatives in fraud statute in holding that

it created single offense).

For these reasons, we join the majority of the Circuit

Courts of Appeals to consider the issue and conclude that § 371

creates a single offense. See, e.g., United States v. Manton, 107

F.2d at 839 (Sutherland, J.) (holding that indictment was not

“bad for duplicity because it alleges that the conspiracy

contemplated the violation of a criminal statute and also the

defrauding of the United States”); United States v. Williams, 11
double jeopardy is whether Congress intended to create one

offense or two. See, e.g., United States v. Conley, 37 F.3d 970,

980 (3d Cir. 1994) (“In conducting a double jeopardy analysis,

the goal is to ascertain legislative intent and to apply the statute

at issue, as written, in keeping with that intent”); 1A Wright, §

142, at 17-20 (noting that “the real question [in analyzing an

indictment for duplicity] is one of legislative intent, to be

ascertained from all the data available”); cf. Milanovich v.

United States, 365 U.S. 551, 553-54 (1961) (noting that issue of

whether statute was designed to create two punishments for the

same criminal act is one of statutory interpretation). Further,

“one vice of duplicity is that a general verdict . . . could

prejudice the defendant in protecting himself against double

jeopardy.” United States v. Sparks, 515 F.2d 112, 116 (3d Cir.

1975).

26

705 F.2d 603, 623-24 (2d Cir. 1983) (indictment alleging

offense and defraud conspiracy in same count not duplicitous);

United States v. Wiley, 979 F.2d 365, 367-68 (5th Cir. 1992)

(same); United States v. Pierce, 479 F.3d 546, 552 (8th Cir.

2007) (“Each of the three sets of object offenses—fraudulent tax

returns, mail fraud and wire fraud—further the general

agreement and are multiple facets of one conspiracy.”); United

States v. David Smith, 424 F.3d 992, 1000 (9th Cir. 2005)

(analyzing charges under different prongs as single offense

“[b]ecause all three conspiracy counts in this case violate the

same statute”); United States v. Jerry Smith, 891 F.2d 703, 712-

13 (9th Cir. 1989) (holding that single indictment count

charging both provisions of § 371 was not duplicitous),

amended as to form of opinion only, 906 F.2d 385 (9th Cir.
Thus, the Second, Ninth, Eleventh, and D.C. Circuits 12

have held that § 371 creates one offense. The Fifth, Eighth and

Tenth Circuits have conflicting precedent.

27

1990); United States v. Hauck, 980 F.2d 611, 615 (10th Cir.

1992) (holding that single conspiracy count to defraud

government agency and to commit other substantive offenses

was not duplicitous because “it is permissible to charge a single

offense but specify alternative means to commit the offense”);

United States v. Harmas, 974 F.2d 1262, 1266 (11th Cir. 1992)

(“The statute is written in the disjunctive and should be

interpreted as establishing two alternative means of committing

a violation.”); May v. United States, 175 F.2d 994, 1003 (D.C.

Cir. 1949) (rejecting argument that “a conspiracy to violate a

criminal statute and to defraud the United States was two

offenses”). But see United States v. Haga, 821 F.2d 1036, 1043

(5th Cir. 1987) (“Count I must have charged a conspiracy either

to ‘commit any offense’ or to ‘defraud the United States’; it

cannot have charged both.”); United States v. Ervasti, 201 F.3d

1029, 1039 (8th Cir. 2000) (“Though it is not divided formally

into subsections, § 371 plainly establishes two offenses.”);

United States v. Thompson, 814 F.2d 1472, 1475-77 (10th Cir.

1987) (holding that defendant had not presented a discernable

double jeopardy claim notwithstanding that first prosecution

charged conspiracy to commit mail fraud under “offense” prong

of § 371 and second charged conspiracy to impede lawful

function of United States under “defraud” prong of § 371).12

2. Totality of the Circumstances

Having determined that § 371 creates a single statutory
28

offense, we must determine whether the Rigases’ conduct

violated that statute multiple times or only once. The Double

Jeopardy Clause prohibits the Government from “splitting one

conspiracy into several prosecutions.” United States v. Becker,

892 F.2d 265, 268 (3d Cir. 1989). However, it can be difficult

to distinguish whether a course of conduct constitutes one

conspiracy or two using the generally applicable Blockburger

test. In particular, a single conspiracy may be divided into

multiple prosecutions, each alleging different overt acts. In such

a case, “[t]he danger is that successive indictments against a

single defendant for participation in a single conspiracy might

withstand same evidence scrutiny [under the Blockburger test]

if the court places undue emphasis upon the evidence used to

prove the commission of the overt acts alleged.” United States

v. Liotard, 817 F.2d 1074, 1078 (3d Cir. 1987); cf. Krulewitch

v. United States, 336 U.S. 440, 447 (1949) (Jackson, J.

concurring) (noting that “chameleon-like, [conspiracy] takes on

a special coloration from each of the many independent offenses

on which it may be overlaid”).

To resolve this problem, the courts of appeals, including

the Third Circuit, have developed a “totality of the

circumstances” test to distinguish conspiracy prosecutions based

on the same conspiracy statute. See, e.g., Becker, 892 F.2d at

268. This test directs a district court to look at the totality of the

circumstances involved in each offense. 

The ultimate goal of the totality of the circumstances test

is to determine “whether there are two agreements or only one.”

United States v. J. David Smith, 82 F.3d 1261, 1267 (3d Cir.

1996); see also Becker, 892 F.2d at 268 (“The critical

determination is whether one agreement existed.”). In assessing
29

this issue, the Third Circuit considers whether:

(a) the “locus criminis” of the two alleged

conspiracies is the same; (b) there is a significant

degree of temporal overlap between the two

conspiracies charged; (c) there is an overlap of

personnel between the two conspiracies

(including unindicted as well as indicted

coconspirators); and (d) the overt acts charged

and [(e)] the role played by the defendant

according to the two indictments are similar.

Liotard, 817 F.2d at 1078 (emphasis added and internal citations

omitted). In other words, the defendant must show that place,

time, people, action, and responsibilities are similar in both

prosecutions. However, this list is not exhaustive and “different

conspiracies may warrant emphasizing different factors.” J.

David Smith, 82 F.3d at 1267. Other factors that may prove

helpful in determining whether an indictment charges one or

more conspiracies are: “(1) ‘whether there was a common goal

among the conspirators’; (2) ‘whether the agreement

contemplated bringing to pass a continuous result that will not

continue without the continuous cooperation of the

conspirators’; and (3) ‘the extent to which the participants

overlap in the various dealings.’” United States v. Kemp, 500

F.3d 257, 287 (3d Cir. 2007) (quoting United States v. Kelly,

892 F.2d 255, 259 (3d Cir. 1989) (setting forth test for

determining whether a single conspiracy count should have been

charged as multiple conspiracies)).

Further, in applying the test a district court must “assure

that the substance of the matter controls and not the grand jury’s
30

characterization of it.” J. David Smith, 82 F.3d at 1267. Thus,

a court must “look into the full scope of activities described and

implied in the indictments.” Id. at 1268 (holding that “we must

look to the entire record before the district court”).

In Liotard, the defendant had been acquitted of a § 371

conspiracy to violate 18 U.S.C. § 2314 by transporting stolen

goods in interstate commerce. 817 F.2d at 1076. He was

subsequently charged with § 371 conspiracy to violate 18 U.S.C.

§ 659 by stealing from an interstate shipment of goods. Id. The

District Court declined to conduct a hearing on the defendant’s

double jeopardy claim. Id.; see also United States v. Liotard,

638 F. Supp. 1101, 1104 (D.N.J. 1986). We applied the totality

of the circumstances test and concluded that the defendant had

made out a nonfrivolous showing of double jeopardy:

merchandise was stolen from the same place; the period of the

conspiracy charged in the first indictment was entirely subsumed

within the period of time set out in the second indictment; the

principal coconspirator was the same in both indictments; the

nature of the overt acts charged in the two indictments were

nearly identical; and the defendant played the same role in each

charged indictment. Liotard, 817 F.2d at 1078-79. We found

that it was immaterial that the two indictments alleged different

acts of theft. Id. at 1079. We similarly found that it was not

significant that the two indictments alleged conspiracy to

commit different underlying offenses. Id. at 1078 n.7 (holding

that “these differences in statutory violation are immaterial and

fortuitous”). Thus, we concluded that Liotard was entitled to a

pretrial evidentiary hearing. Id. at 1079. 

United States v. Kemp, like the instant case, involved

allegations of widespread but abstract financial misconduct.
31

500 F.3d at 264. Kemp and his codefendants were charged with

a conspiracy that involved a variety of fraudulent transactions,

including extension of otherwise-unavailable loans to

government officials, direct bribes to those officials, and

direction of government contracts to companies within

defendants’ control. Id. Kemp is, thus, both more factually

similar than Liotard—which involved alleged conspiracies to

steal and transport stolen goods, see 817 F.2d at 1076—and

more recent. Accordingly, we begin with the Kemp factors.

a. Kemp Test

i. “Common goal among the conspirators”

The first Kemp factor is whether there was a common

goal among the conspirators. Kemp, 500 F.3d at 287. The

Government urges us to focus on the objectives of the

conspiracies charged in the two indictments, arguing that the

object of the New York conspiracy was to commit securities

fraud, wire fraud, bank fraud, to file false reports with the SEC,

and to falsify the books and records of Adelphia, while the

object of the Pennsylvania conspiracy was to defraud the IRS.

However, this argument misses the point of the totality of

the circumstances test. In Liotard, we specifically rejected

including objects of the charged conspiracies in that test. 817

F.2d at 1078 n.7. It is well established that a single

conspiratorial agreement can envisage the violation of several

statutes. See, e.g., Braverman v. United States, 317 U.S. 49, 53

(1942). Further, the Government’s approach would give undue

weight to the “grand jury’s characterization” of the Rigases’

conduct, instead of focusing on the “substance of the matter.”

J. David Smith, 82 F.3d at 1267. Thus, in considering whether
32

the defendants had a common goal we look to the underlying

purpose of the alleged criminal activity. See, e.g., United States

v. Greenidge, 495 F.3d 85, 93 (3d Cir. 2007) (describing

common goal as “to make money by depositing stolen and

altered corporate checks into business accounts”); Kelly, 892

F.2d at 259 (describing common goal as “to make money selling

‘speed’”).

As set forth above, in the Pennsylvania Indictment the

Government alleges that, after a particularly high tax bill, the

Rigases decided “that they would never pay [a] large amount of

taxes again.” Pennsylvania Indictment at 6, ¶¶ 1-2. To

accomplish this purpose, the Rigases decided that “Rigas family

members should not take large salaries from Adelphia, but

should ‘live out of the company.’” Id. To avoid detection, the

Rigases engaged in sham transactions to conceal their use of

corporate assets. Of course, to conceal their income from the

Government, the Rigases also had to conceal it from the public

in general, including shareholders. The New York Indictment

simply targeted this aspect of the Rigases’ scheme. Further,

it is not dispositive that the conspiracy charged in the New York

Indictment was broader than the Pennsylvania Indictment. The

charges in both indictments relate to a common goal of

enriching the Rigases through Adelphia. A “master conspiracy

[can involve] more than one subsidiary scheme.” United States

v. Kenny, 462 F.2d 1205, 1216 (3d Cir. 1972). The allegations

related to conversion of Adelphia funds by the Rigases—a

subsidiary scheme within the New York Indictment—appear to

be the same in both indictments.
The Pennsylvania Superceding Indictment expands the 13

period of the conspiracy to include 1989 to 2008, but does not

allege any continuing conspiratorial activity after 2002.

33

ii. Continuous Result Requiring Continuous Cooperation

The second Kemp factor is whether “the agreement

contemplated bringing to pass a continuous result that will not

continue without the continuous cooperation of the

conspirators.” Kemp, 500 F.3d at 287. The first part of this

factor overlaps with the time factor from the Liotard test. In

evaluating the “cooperation” part of this factor “we look to

whether there was evidence that the activities of one group were

necessary or advantageous to the success of another aspect of

the scheme or to the overall success of the venture.” United

States v. Greenidge, 495 F.3d 85, 93 (3d Cir. 2007) (internal

quotation marks, ellipsis, and citation omitted). In other words,

we consider whether all aspects of the scheme were

interdependent. Cf. Kemp, 500 F.3d at 289 (“[I]nterdependence

serves as evidence of an agreement; that is, it helps establish

whether the alleged coconspirators are all committed to the same

set of objectives in a single conspiracy.” (internal citation and

quotation marks omitted)).

As to time, the Pennsylvania Indictment covers a wider

time span than the New York Indictment, but again the key

years in both conspiracies are the same. The Pennsylvania

Indictment alleges that the conspiracy lasted from “November

1989, through the date of the indictment [2005],” but only

describes overt acts occurring between 1998 and 2002.13

Pennsylvania Indictment at 2. The majority of the allegations in
The Pennsylvania Superceding Indictment expands the 14

alleged tax loss to include the 2001 tax year.

34

the conspiracy count relate to the period between 1996 and

2002. The alleged tax loss is further limited to the period of

1998 to 2000. 

14

The New York Indictment charged a conspiracy between

1999 and May 2002. However, the New York Indictment

suggests that the Rigases’ conspiratorial conduct began well

before 1999. The Bill of Particulars further alleges that the

Rigases began using Adelphia funds for their personal benefit

“[f]rom at least . . . 1993.” Bill of Particulars ¶ 81. Because the

New York Indictment does not purport to reach the origin of the

Rigases’ conspiracy, we do not find itsignificant that its charges

began later than those in the Pennsylvania Indictment.

As to interdependence, we again reiterate that the

Government claims that the Rigases appropriated money from

Adelphia to avoid taking salaries on which they would have had

to pay income tax. See Pennsylvania Indictment at 6, ¶¶ 1-2

(“JOHN J. RIGAS and TIMOTHY J. RIGAS stated to an

Adelphia employee that they would never pay this large amount

of taxes again.”; Timothy Rigas told “Adelphia employees that

the Rigas family members should not take large salaries from

Adelphia, but should ‘live out of the company.’”) Further, the

Rigases had to hide their misuse of Adelphia’s corporate assets

from the public in order to avoid detection of their income by

the Government. 
 Mulcahey was responsible for managing Adelphia’s 15

treasury, including “the supervision of money flowing into and

out of Adelphia.” New York Indictment ¶ 5. Brown was

responsible for raising capital for Adelphia through securities

transactions and bank loans. Werth was the Director of External

Reporting for Adelphia. He was responsible for supervising the

preparation of Adelphia’s financial statements.

The New York Bill of Particulars named an additional

seventeen unindicted co-conspirators, and described three

additional possible co-conspirators under on-going

investigation.

35

iii. Overlapping Participants

Both the Liotard and Kemp tests direct us to consider

overlap in the participants of the two conspiracies. The Rigases

were the main actors in both indictments. Other members of the

Rigas family are also central to both indictments. 

The New York Indictment named a number coconspirators including Michael Rigas, Michael Mulcahey, James

R. Brown, and Timothy A. Werth. Although other Rigas 15

family members were not specifically named in the New York

indictment many of the allegations relate to “the Rigas family,”

including John Rigas’s “wife, sons, daughter and son-in-law.”

New York Indictment ¶ 2. For example, the New York

Indictment alleges that “Adelphia advanced substantial amounts

of cash to other members of the Rigas Family,” id. ¶ 169, and

that the Rigases caused Adelphia to file a Form 10-K “which

falsely understated the total amount of compensation to . . .

another member of the Rigas Family by failing to include the[se]
36

cash advances,” id. ¶ 173. The Bill of Particulars also listed at

least nine members of the Rigas family who used the Adelphia

corporate aircraft for personal travel. 

Similarly, the Pennsylvania Indictment alleges that the

Rigases conspired with others known and unknown. It also

alleges that the Rigases caused Michael Rigas,James Rigas, and

Ellen Rigas to under-report their income.

b. Remaining Liotard Factors

i. Place

The New York Indictment is geographically broader than

the Pennsylvania indictment, but both conspiracies occurred

nationwide, and both Indictments focus on the Rigases’ homes

and Adelphia’s corporate headquarters in Pennsylvania. 

The Pennsylvania Indictment specifically names

Coudersport, Pennsylvania; Buffalo, New York; Beaver Creek,

Colorado; and New York City as places where acts related to the

conspiracy took place. The New York Indictment also involves

these locations. While the New York Indictment does not

specifically identify Buffalo or Beaver Creek, the Bill of

Particulars does include allegations related to those locations. 

We do not find it significant that the New York

Indictment also included misrepresentations to investors across

the nation. The allegations related to conversion of Adelphia

funds by the Rigases—a subsidiary scheme within the New

York Indictment—appear to be the same in both indictments,

and thus occurred in the same locations.
37

ii. Overt Acts

Both indictments seem to allege conversion of the same

assets, by the same means, in the same transactions. Certainly,

each indictment alleges acts not contained in the other. The

New York Indictment, which alleges both fraudulent

misrepresentations about Adelphia’s finances and performance,

and fraudulent concealment of the fact that the Rigases were

misusing corporate assets for personal purposes, is far broader

than the Pennsylvania Indictment. Further, the Pennsylvania

Indictment includes allegations related to filing income tax

returns, which are not included in the New York Indictment.

However, key overt acts in both indictments are transactions in

which the Rigases secretly took Adelphia’s corporate assets. 

iii. Role Played by Defendants

The defendants were central figures in both conspiracies.

They caused the wrongful transactions, and were personally

responsible for hiding those transactions. 

Putting all of these factors together the Rigases have

made out a non-frivolousshowing of double jeopardy. The New

York conspiracy alleges that the Rigases took Adelphia’s

corporate assets for their personal use and hid those transactions

from investors and regulators. The Pennsylvania conspiracy

alleges that one reason the Rigases took those same assets was

to avoid publicly receiving large salaries on which they would

have been required to pay income tax. Because both

indictments concern the same underlying transactions, they

relate to the same time and place and involve the same core

group of participants. Both indictments have a common goal,

and individual overt acts in both indictments were
38

interdependent. Accordingly, the Rigases have established a

strong inference that there was a single agreement. On remand,

the Government will bear the burden of proving by a

preponderance of the evidence that the Rigases entered into two

separate agreements. 

C. Collateral Estoppel

The Rigases also argue that the substantive counts of tax

evasion should be dismissed based on collateral estoppel. The

Rigases maintain that, in acquitting them of the substantive

counts of wire fraud, the New York jury must have found that

any assets the Rigases obtained from Adelphia constituted

legitimate loans, rather than income. 

“The Double Jeopardy Clause . . . embodies principles of

collateral estoppel that can bar the relitigation of an issue

actually decided in a defendant’s favor by a valid and final

judgment.” United States v. Merlino, 310 F.3d 137, 141 (3d Cir.

2002); see also Ashe v. Swenson, 397 U.S. 436, 444-45 (1970).

The doctrine of collateral estoppel ensures that “when an issue

of ultimate fact has once been determined by a valid and final

judgment, that issue cannot again be litigated between the same

parties in any future lawsuit.” Id. at 443. 

The Rigases seem to argue that collateral estoppel bars

the Government from relitigating the issue of whether they

misappropriated any of Adelphia’s assets. However, the New

York jury only returned a final judgment of acquittal as to five

individual transactions set forth in Counts 17-21 of the New

York Indictment: (1) a September 18, 2001 transfer of $5

million; (2) an October 1, 2001 transfer of $4.5 million; (3) a

March 28, 2002 transfer of about $6.4 million; (4) a March 29,
These transactions relate to “margin loans” the Rigases 16

borrowed from third parties to buy Adelphia stock on behalf of

their family. The transactions listed above correspond to

payments the Rigases caused Adelphia to make as payments on

those loans. These transactions are also described as overt acts

in the Pennsylvania Indictment.

39

2002 transfer of about $3.9 million; and (5) an April 12, 2002

transfer of about $4.3 million. Accordingly, even if we found 16

that collateral estoppel applied, it would only preclude the

Government from claiming that the Rigases avoided paying

taxes on the $24 million involved in those particular

transactions. 

In a criminal case, a defendant bears the burden of

demonstrating that the issue he seeks to foreclose was actually

decided in the first proceeding. See Dowling v. United States,

493 U.S. 342, 350-51 (1990). This is a heavy burden. United

States v. Console, 13 F.3d 641, 665 (3d Cir. 1993) (“‘When a

case involves a general verdict, establishing that the verdict

necessarily determined any particular issue is extremely

difficult.’” (quoting United States v. Bailin, 977 F.2d 270, 282

(7th Cir. 1992))). “[S]ince it is usually impossible to determine

with any precision upon what basis the jury reached a verdict in

a criminal case, it is a rare situation in which the collateral

estoppel defense will be available to a defendant.” United

States v. McGowan, 58 F.3d 8, 12 (2d Cir. 1995) (citation

omitted). Further, “[t]o claim the benefit of collateral estoppel

[a defendant] must prove that the [first] jury unanimously

acquitted him.” Merlino, 310 F.3d at 141 (emphasis added).
40

However, “the rule of collateral estoppel in criminal

cases is not to be applied with the hypertechnical and archaic

approach of a 19th century pleading book, but with realism and

rationality.” Ashe, 397 U.S. at 444. Thus, the government

cannot avoid the preclusive effect of a general jury verdict by

speculating that the verdict could have been based upon a

finding that the government had failed to prove elements that

were never contested by the defense. Id. Ashe arose out of a

multi-victim armed robbery occurring at a poker game in the

basement of a home. Id. at 437. During his first trial, Ashe was

charged with robbing one of the participants. The only defense

offered at trial was that Ashe was not present at the robbery.

After Ashe was acquitted, the government sought to try the

defendant a second time for allegedly robbing a different player

at the same game. Id. at 439. The Supreme Court held that the

jury’s verdict in the first trial necessarily established that the

defendant was not one of the robbers and, therefore, precluded

the government from relitigating that issue. Id. at 445-46

(holding that “[t]he single rationally conceivable issue before

the jury was whether the [defendant] had been one of the

robbers”). 

To determine whether collateral estoppel bars retrial

following a general verdict of acquittal, a court must examine

the record of the prior proceeding and ask “whether a rational

jury could have grounded its verdict upon an issue other than

that which the defendant seeks to foreclose from consideration.”

Id. at 444. “The inquiry must be set in a practical frame and

viewed with an eye to all the circumstances of the proceedings.”

Id. (internal quotation marks omitted). Nonetheless, the

Rigases fall far short of meeting their burden of establishing that
Under 18 U.S.C. § 1343, a defendant is guilty of wire

17

fraud if he has devised a scheme to obtain money or property by

means of fraud; and transmitted any communication by wire in

interstate commerce for the purpose of executing the scheme.

41

they are entitled to collateral estoppel.

The Rigases maintain that the issue in the New York

prosecution was whether the assets they received from Adelphia

were income or legitimate loans. To succeed on their collateral

estoppel claim, the Rigases would have to convince us that the

only question at issue in the New York trial was whether the

Rigases received the wire transfers as income. In other words, 17

the Rigases would have to show that their only defense was that

they believed that the wire transfers were legitimate loans.

However, the record is barely sufficient to establish that this was

a defense at all. 

The record includes an excerpt from the New York trial

in which defense counsel argued to the judge that proving the

transfers were legitimate loans was a valid defense. In this

excerpt, the Government argued that the question of whether the

transfers were loans or compensation was irrelevant because the

real issue was whether the transfers were appropriately

disclosed. 

The parties also submitted excerpts of the Government’s

closing argument. The Government argued that the transfers

were not loans, but also argued that the transfers were not

appropriately disclosed. The parties did not submit the Rigases’

closing argument, nor did they submit the New York jury

instructions. Accordingly, it is impossible to determine with any
42

certainty what defenses were raised at the New York trial. But,

the record does suggest that there were other contested issues.

Accordingly, the Rigases have failed to meet their burden of

demonstrating that the New York trial definitively decided that

the wire transfers were not compensation. Thus, we will affirm

the District Court’s denial of the Rigases’ motion to dismiss the

tax evasion charges in the Pennsylvania Indictment.

III. Conclusion

For the reasons stated above, we will remand to the

District Court to conduct an evidentiary hearing in accordance

with Liotard on whether the conspiracy charged in the

Pennsylvania Indictment was part of the conspiratorial

agreement charged in the New York Indictment. However, we

will affirm the District Court’s denial of the Rigases’ motion on

collateral estoppel grounds.

RENDELL, Circuit Judge - dissenting.

The majority renders complex what I suggest is a

straightforward issue, susceptible of a straightforward analysis

under Blockburger v. United States, 284 U.S. 299 (1932). The

only relevant question required to be asked and answered here

is whether the two types of conspiracy crimes outlined in 18

U.S.C. § 371, conspiracy to commit an offense against the

United States and conspiracy to defraud the United States,

constitute separate offenses, requiring proof of different

elements, and for which different cumulative punishments can

be meted out. I suggest that the answer is clearly and

unequivocally “yes,” they are distinct offenses. Two of the three

courts of appeals that have addressed this precise issue, have so
See United States v. Ervasti, 201 F.3d 1029, 1039-40 (8th 18

Cir. 2000) (finding that § 371 clearly establishes two offenses);

United States v. Thompson, 814 F.2d 1472, 1476-77 (10th Cir. 1987)

(applying Blockburger to § 371 to determine that double jeopardy

does not bar prosecutions for conspiracy to commit mail fraud and

conspiracy to defraud the United States); but see United States v.

Smith (David L.), 424 F.3d 992, 1000 (9th Cir. 2005) (declining to

apply Blockburger to assess double jeopardy because all of the

conspiracy counts at issue alleged a violation of the same statute, §

371).

 The majority does not refer to the comprehensive, 19

thoughtful, 38 page opinion of the District Court concluding that

double jeopardy does not apply. I agree entirely with Judge Jones’

reasoning and I commend the District Court opinion to the reader as

its clarity is persuasive. See United States v. Rigas, 565 F. Supp. 2d

620 (M.D. Pa. 2008).

43

held. Given that, the first part of the majority opinion, which 18

reasons to the contrary, is wrong. The second part, which

applies a test that is useful only if the fact pattern involved two

alleged conspiracies for the same criminal offense (e.g.

successive prosecutions for conspiracy to commit mail fraud) is

unnecessary.19

The majority seizes on the use of the phrase “distinct

statutory provisions” in Blockburger as indicating that its test

only applies when the successive offenses are found in different

statutes. 284 U.S. at 304. But that is not what Blockburger
 “The applicable rule is that, where the same act or 20

transaction constitutes a violation of two distinct statutory provisions,

the test to be applied to determine whether there are two offenses or

only one, is whether each provision requires proof of a fact which the

other does not.” Blockburger, 284 U.S. at 304 (emphasis added).

 The majority relies on inapposite cases that tend to cloud 21

the issue. United States v. Evans and Sanabria v. United States dealt

with single act - single statutory provision offenses. 854 F.2d 56 (5th

Cir. 1988); 437 U.S. 53 (1978). Braverman v. United States involved

the issue of “duplicity” where a single conspiracy had several objects

and differentiated that fact pattern from cases in which a single act

violated two statutes. 317 U.S. 49 (1942). These cases are factually

distinguishable and not controlling. Moreover, as I suggest is the

correct approach here, the Xavier court applied the Blockburger test

in order to assess whether two crimes under a single statute that was

44

says. Rather it refers to “distinct statutory provisions.”20

“Distinct” means “distinguished from all others.” WEBSTER’S

II NEW RIVERSIDE DICTIONARY 390 (1988). “Provision” means

“[a] clause in a statute, contract or other legal instrument.”

BLACK’S LAW DICTIONARY 1345 (9th ed. 2009)(emphasis

added). To say that the two provisions in § 371 are not distinct

is to equate conspiracy to commit an offense with conspiracy to

defraud. That makes no sense. Moreover, as is discussed in

more detail below, application of Blockburger is the way to

determine the intent of Congress, and its application here leads

to the conclusion that not only are these distinct provisions, but

because the elements differ greatly, Congress intended different

punishments and double jeopardy does not prevent the Rigas’

prosecution for conspiracy to evade taxes.21
divided into distinct statutory provisions were the “same offense.” 2

F.3d 1281, 1291 (3d Cir. 1993). 

 See United States v. Alston, 77 F.3d 713, 718 (3d Cir. 1995) 22

(noting that § 371 refers to “two types of conspiracies”); United

States v. Tham, 960 F.2d 1391, 1399 (9th Cir. 1992) (noting that the

“offense” and “defraud” clauses of § 371 identify two separate

conspiracies with two separate objectives); see also United States v.

Vazquez, 319 F.2d 381, 384 (3d Cir. 1963) (“The general conspiracy

section of the Criminal Code, 18 U.S.C.A. § 371 . . . condemns two

types of conspiracies.”); United States v. Brandon, 17 F.3d 409, 422

(1st Cir. 1994) (“18 U.S.C. § 371 creates two distinct criminal

offenses: conspiracies to commit offenses against the United States

and conspiracies to defraud the United States.”); United States v.

Haga, 821 F.2d 1036, 1039 (5th Cir. 1987) (noting that § 371

“criminalizes conspiracies of two sorts”). 

45

If there were a doubt as to Congress’ intent as to whether

these are distinct offenses, one need only look at a consideration

deemed significant by the Supreme Court—the specific evil

sought to be addressed by the respective provisions. See

Albernaz v. United States, 450 U.S. 333, 343 (1981) (“The

conclusion we reach today regarding the intent of Congress [to

create distinct statutory offenses] is reinforced by the fact that

the two conspiracy statutes are directed to separate evils

presented by drug trafficking.”). Virtually without exception,

courts of appeals have held that the “offense” and “defraud”

clauses aim to protect different actors and redress distinct social

harms. On the one hand, the “defraud” clause focuses 22

narrowly on conspiracies targeting the federal government. See

United States v. Brandon, 17 F.3d 409, 422 (1st Cir. 1994);
46

United States v. Falcone, 960 F.2d 988, 990 (11th Cir. 1992) (en

banc); United States v. Thompson, 814 F.2d 1472, 1467-77 (10th

Cir. 1987). Its purpose is two-fold: (1) to ensure the integrity of

the federal treasury and (2) to promote the smooth effective

operation of the federal bureaucracy. Accordingly, the

“defraud” clause prohibits efforts not only to cheat the

government out of property or money but also to interfere with

or obstruct the operation of government by deceit, craft, trickery,

or at least by means that are dishonest. See United States v. Arch

Trading Co., 987 F.2d 1087, 1091-92 (4th Cir. 1993); see also

Hammerschmidt v. United States, 265 U.S. 182, 188 (1924)).

On the other hand, the “offense” clause aims to protect the

public generally. Brandon, 17 F.3d at 422. Accordingly, its

applicability does not hinge on the identity of the target, which

need not be the federal government. Id. Nor does the “offense”

clause require proof of interference with government operations.

Rather, it broadly embraces conspiracies aimed at violating any

federal law. Id.; see also United States v. Hirsch, 100 U.S. 33,

35-36 (1879). Thus, contrary to the majority’s contention, the

two prongs of § 371 do not simply describe alternative means of

committing the same offense, but instead describe two distinct

crimes. 

The majority maintains that its position reflects the

holding of the “majority of the Circuit Courts of Appeals to

consider the issue.” Just the opposite is true: the Ninth Circuit

Court of Appeals alone has held that the “offense” and

“defraud” clauses identify the same offense for double jeopardy

purposes. Smith (David L.), 424 F.3d 992. In fact, two other

courts of appeals have concluded that Congress intended to
 The majority fails to discuss Ervasti and Thompson and 23

merely cites these cases in a string citation as contrary authority.

47

authorize cumulative punishment for violation of both

provisions. In Ervasti, 201 F.3d at 1039-40, the Eighth Circuit

reasoned that § 371, which uses “either . . . or” language,

“plainly establishes two offenses.” It bolstered this conclusion

by noting the unique elements of proof required for the

“offense” and “defraud” crimes. In Thompson, 814 F.2d at

1476-77, the Tenth Circuit, applying Blockburger, also found no

“colorable claim” of double jeopardy. These courts had no

difficulty reaching this conclusion, presumably because the two

offenses are so clearly separate and distinct as a matter of

substance. Smith, on the other hand, relied solely on form, and

concluded without discussion that Blockburger did not apply

because both crimes appear in the same statute. I submit that

Ervasti and Thompson are more persuasive.23

The majority relies on cases interpreting § 371 in the

duplicity context as authority for purposes of double jeopardy.

The principle of duplicity emanates from Fed. R. Crim. P. 8(a),

which prohibits the government from charging separate offenses

in a single indictment count. Several courts of appeals have

concluded that the “offense” and “defraud” clauses do not

constitute separate offenses for purposes of Rule 8(a). While

at first blush, application of these precedents to the double

jeopardy context seems sensible, I submit that the finding that

the “offense” and “defraud” clauses are not separate offenses for

duplicity purposes does not control the analysis for double
See United States v. Williams, 705 F.2d 603, 624 (2d Cir. 24

1983) (“The specificity of the conspiracy-to-defraud allegations and

the jury’s verdicts on the substantive counts eliminate any possibility

of the concerns expressed in United States v. Rosenblatt, 554 F.2d 36,

40-42 (2d Cir. 1977), on which appellants rely, that a count alleging

only a conspiracy to defraud the United States in some unspecified

way risks conviction without either an allegation or proof of the

48

jeopardy purposes. Rule 8(a) serves three key purposes: (1) to

ensure the defendant receives adequate notice of the offenses

charged; (2) to minimize the risk that jurors were not unanimous

as to the particular offenses charged; and (3) to enable precise

determination of the particular offenses of which the defendant

was convicted or acquitted, critical to avoid reprosecution of the

defendant for the same offense. See United States v. Margiotta,

646 F.2d 729, 733 (2d Cir. 1981); United States v. Murray, 618

F.2d 892, 896 (2d Cir. 1980). These considerations determine,

in large part, whether violation of distinct statutory provisions

may be charged in a single indictment count—that is, whether

an indictment count is impermissibly duplicitous. As the

Second Circuit Court of Appeals explained in Murray, “If the

doctrine of duplicity is to be more than an exercise in mere

formalism, it must be invoked only when an indictment affects

the policy considerations discussed above; because those policy

considerations are not thwarted here, we conclude that the

indictment was not duplicitous . . . .” 618 F.2d at 897-98.

Accordingly, courts have held that a single indictment count

charging violations of the “offense” and “defraud” clauses– if

framed with adequate specificity–would enable determination of

the “convicted” offenses and thus would not be impermissibly

duplicitous. 

24
essential nature of the fraud.”). 

 In Smith (David L.), the court held that § 371 does not create 25

distinct statutory offenses; it did so, however, without reference to,

and independent of, case law reaching the same conclusion in the

duplicity context. 424 F.3d at 1000. 

See also United States v. Dale, 782 F. Supp. 615, 619 26

(D.D.C. 1991) (distinguishing courts’ construction of § 371 in the

duplicity and double jeopardy contexts and rejecting application of

49

The double jeopardy inquiry, by contrast, focuses not on

the clarity of the jury verdict but rather on whether a later

prosecution entails the double punishment prohibited by the

Constitution. The overriding issue is not whether a specific

indictment count speaks with the requisite lucidity, enabling

precise determination of the jury’s findings, but rather whether

Congress intended to impose multiple punishment for violation

of distinct statutory provisions. And, here, considering the

obvious difference between the two types of conspiracies

alleged and their implications for purposes of sentence, surely

it did not. These fundamentally distinct inquiries preclude rote

application of duplicity precedents to the double jeopardy

context. Accordingly, no federal court of appeals has relied on

its duplicity precedents to determine whether the “offense” and

“defraud” clauses define distinct offenses for purposes of double

jeopardy. And, in fact, at least one court of appeals has 25

construed § 371 differently in the double jeopardy than in the

duplicity context. Compare Thompson, 814 F.2d at 1476-77

(double jeopardy), with United States v. Hauck, 980 F.2d 611,

615 (10th Cir. 1992) (duplicity).26
double jeopardy cases to the duplicity inquiry). 

50

Equally concerning is the majority’s rejection of

Blockburger as the controlling test for double jeopardy in the

situation before us. The majority relies on United States v.

Liotard, 817 F.2d 1074 (3d Cir. 1987), as setting forth the

applicable test for defendants’ double jeopardy claim. However,

the Supreme Court has repeatedly and consistently held that

where distinct conspiracy provisions are implicated, the

Blockburger test governs whether separate prosecution of each

violation offends the Double Jeopardy Clause. See Albernaz,

450 U.S. at 339-42; American Tobacco Co. v. United States, 328

U.S. 781, 788 (1946). Liotard applies where there are

successive prosecutions for the same offense. The central

inquiry under Liotard is whether the particular agreements into

which defendants entered were part of a single overarching

conspiracy. But that consideration is relevant only if two

criminal conspiracies involving the same offense are charged.

That is not what is before us. Here, Blockburger not only

applies; more than that, the result reached via the Blockburger

analysis proves the point: the elements are different and separate

punishments were therefore intended and double jeopardy does

not apply.

Because Blockburger focuses on the elements of the

provisions violated–not the factual details of the agreements into

which defendants entered–it applies, even where the particular

violations emanate from a single overarching agreement, (as the

majority, applying the Liotard factors, concluded was the case
See United States v. Marren, 890 F.2d 924, 936 (7th Cir. 27

1989) (“In general, an agreement to commit several unlawful acts

must be charged as a single conspiracy. An exception, however,

exists where Congress has manifested an intent to authorize multiple

punishments for conduct that violates two statutory provisions.”)

(internal citation omitted) (emphasis added); United States v. Phillips,

664 F.2d 971, 1007 (11th Cir. 1981) (“[U]nder the Blockburger test

it is possible for a single criminal agreement or conspiracy to give rise

to distinct offenses under specific, separate conspiracy statutes.”);

United States v. Barton, 647 F.2d 224, 235 (2d Cir. 1981) (“It is

undisputed that a single transaction may give rise to liability for

distinct offenses under separate statutes without violating the Double

Jeopardy Clause. This is true whether the offenses be substantive

crimes . . . or crimes of conspiracy.”) (emphasis added); see also

United States v. Morris, 99 F.3d 476 (1st Cir. 1996) (applying

Blockburger test to determine whether Double Jeopardy Clause

prohibited prosecution under two distinct conspiracy provisions, 18

U.S.C. § 371 and 21 U.S.C. §§ 841(a)(1) & 846).

51

here.) On this point, Albernaz is instructive. There, the 27

Supreme Court held that, notwithstanding a single narcotics

conspiracy or agreement, because distinct offenses of conspiracy

to import marijuana, 21 U.S.C. § 963, and conspiracy to

distribute marijuana, 21 U.S.C. § 846, were separately charged,

there is no double jeopardy violation. Albernaz, 450 U.S. at

340. Because Congress intended to authorize consecutive

sentences for violation of the two distinct offenses, the Court

concluded that imposition of cumulative punishment was

permissible, even where only a single overarching agreement or

conspiracy existed. Albernaz applied Blockburger as the

established methodology for adjudicating double jeopardy
52

claims brought by conspiracy defendants. In American Tobacco

Co., decided almost four decades before Albernaz, the Supreme

Court, again applying Blockburger, approved the imposition of

separate penalties for defendants convicted of conspiring to

restrain trade in the tobacco industry in violation of section 1 of

the Sherman Act, 15 U.S.C. § 1 (1976), and of conspiring to

monopolize the tobacco industry in violation of section 2 of that

Act, 15 U.S.C. § 2 (1976). 328 U.S. at 788. The Court rejected

a double jeopardy argument similar to that pressed by

defendants here:

On the authority of the Braverman case,

petitioners claim that there is but one conspiracy,

namely, a conspiracy to fix prices. In contrast to

the single conspiracy described in that case in

separate counts, all charged under the general

conspiracy statute, we have here separate

statutory offenses, one a conspiracy in restraint of

trade that may stop short of monopoly, and the

other a conspiracy to monopolize that may not be

content with restraint short of monopoly. One is

made criminal by § 1 and the other by § 2 of the

Sherman Act.

We believe also that in accordance with the

Blockburger case, §§ 1 and 2 of the Sherman Act

require proof of conspiracies which are

reciprocally distinguishable from and independent

of each other although the objects of the
See Ervasti, 201 F.3d 1029; United States v. Morris, 99 28

F.3d 476 (1st 1996); Marren, 890 F.2d 924; United States v.

Thompson, 814 F.2d 1472 (3d Cir. 1987); United States v. Nakashian,

820 F.2d 549, 552-54 (2d Cir. 1987); United States v. Twomey, 806

F.2d 1136, 1143 (1st Cir. 1986).

 The “offense” clause of § 371 requires proof: (1) of an 29

agreement to commit an offense proscribed by federal law; (2) that

the defendant was a party to the agreement; (3) that the defendant

53

conspiracies may partially overlap.

Id. at 788 (citations omitted) (emphasis added). Because the

Blockburger test, which focuses on the elements of the offenses,

controls here, the majority’s application of Liotard’s multifactor inquiry, examining whether the particular agreements into

which defendants entered constituted a single overarching

conspiracy, is misplaced and unnecessary. The distinctiveness

of the offenses under Blockburger, not the existence of an

overarching agreement under Liotard, is what matters here for

purposes of double jeopardy. 

Under Blockburger, the imposition of cumulative

punishment is permissible for violation of distinct statutory

provisions, provided that each provision requires a unique

element of proof. Consistent with the position adopted by

virtually all courts of appeals, we conclude that this 28

requirement is easily satisfied here; the majority does not opine

otherwise. Accordingly, successive prosecutions of the Rigas’ 29
intentionally joined the agreement with an awareness of its unlawful

objectives; and (4) that one of the conspirators committed an overt act

in furtherance of the conspiracy. See Third Circuit Mod. Crim. Jury

Instr. 6.18.371A (2008). The “defraud” clause of § 371 requires

proof: (1) of an agreement among two or more persons to defraud the

United States; (2) that the defendant was a party to the agreement; (3)

that the defendant intentionally joined the agreement aware of its

objective to defraud the United States; and (4) that one of the

conspirators committed an overt act in furtherance of the conspiracy.

See Third Circuit Mod. Crim. Jury Instr. 6.18.371B (2008). The

Model Jury Instructions define “defraud” as to “cheat the United

States government or any of its agencies out of money or property”

or to “obstruct or interfere with one of the United States

government’s lawful functions, by deceit, craft, trickery, or dishonest

means.” Id.

54

under the “offense” and “defraud” clauses of § 371 do not

violate the Double Jeopardy Clause.

I submit that the majority’s reasoning and result is not

consistent with established double jeopardy jurisprudence and

will bar prosecutions that Congress did not intend to prohibit.

I therefore respectfully dissent