*Pursuant to Local Rule 47.5, the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-20797

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FRANK C. CIHAK,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(H-95-CR-27-1)

August 15, 1996

Before REYNALDO G. GARZA, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Defendant-appellant Frank Cihak appeals the district court’s

denial of his motion to dismiss Count I of the indictment against

him on double jeopardy grounds. Finding that the indictment

charges a separate offense than the conspiracy for which he was

previously convicted, we affirm the district court’s denial of the
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motion to dismiss.

Cihak was charged in Count I of a 48 count indictment with

conspiracy (18 U.S.C. § 371) (1) to commit bank fraud (§§ 1344 and

1346) and wire fraud (§ 1343); (2) misapply bank funds (§ 656); (3)

to make false entries in bank books and records (§ 1005); (4) to

receive unlawfully converted money (§ 2315); and (5) to conduct

financial transactions with proceeds of a specified unlawful

activity (§ 1956(a)(1)(A)(i)).

Cihak moved to dismiss Count I, arguing that it violated his

double jeopardy rights because he had already been indicted for and

convicted of the same conspiracy offense in 1993. See United

States v. Allen, 76 F.3d 1348 (5th Cir. 1996). The district court

denied the motion, saying:

I am persuaded that although the conspiracies

charged in [United States v. Allen, 76 F.3d 1348]

and in the instant case are somewhat related, the

Indictments in the two cases nevertheless do not

charge a single conspiracy. Instead, they charge

two separate conspiracies.

Although no single factor is determinative, I

reach this conclusion because the only overlapping

co-conspirator in the two cases is Mr. Cihak; and

because the overt acts alleged in the two cases are

different and because the actions of the separate

conspiracies alleged in the other case did not

advance the conspiracy alleged in this case and

vice versa. I also note that there are some

differences in the time of the conspiracies

alleged, the statutory offenses alleged and the

places where the conspirators operated. 

I conclude that the defendant has not

presented a prima facie non-frivolous claim of

double jeopardy, and alternatively I conclude that
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if he has, the Government has rebutted the

Defendant’s claim.

“The essential issue in the double jeopardy analysis

respecting conspiracy is whether one, or more than one, agreement

existed.” United States v. Deshaw, 974 F.2d 667, 673 (5th Cir.

1992) (footnote and citation omitted). To determine whether a

previous conspiracy conviction involves the “same offense” as a

subsequently charged conspiracy, we consider five factors: 

(1) time, (2) persons acting as co-conspirators,

(3) the statutory offenses charged in the

indictments, (4) the overt acts charged by the

government or any other description of the offense

charged which indicates the nature and scope of the

activity which the government sought to punish in

each case, and (5) places where the events alleged

as part of the conspiracy took place. 

United States v. Marable, 578 F.2d 151 (5th Cir. 1978). When

applying the Marable analysis, no one factor is determinative;

instead, we must look at all five factors in combination. United

States v. Atkins, 834 F.2d 426, 432-33 (5th Cir. 1987), overruled

on other grounds, 933 F.2d 325 (5th Cir. 1991).

After reviewing the indictments in both cases, the record, and

the briefs of the parties, we determine that the district court did

not err in denying Cihak’s motion to dismiss Count I of the

indictment on double jeopardy grounds. We agree with the district

court “that although the conspiracies charged in [the two

indictments] are somewhat related, the Indictments in the two cases

nevertheless do not charge a single conspiracy. Instead, they
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charge two separate conspiracies.” Accordingly, the order of the

district court is 

AFFIRMED.