1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-6-1996

USA v. Smith

Precedential or Non-Precedential:

Docket 95-5257

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Recommended Citation

"USA v. Smith" (1996). 1996 Decisions. Paper 170.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

N0. 95-5257 

 

 UNITED STATES OF AMERICA 

v. 

J. DAVID SMITH 

 David Smith, 

 Appellant 

 

On Appeal From the United States District Court 

For the District of New Jersey 

(D.C. Crim. Action No. 94-cr-00524-1) 

 

Argued October 26, 1995 

BEFORE: STAPLETON, McKEE and GIBSON,* Circuit Judges

(Opinion Filed May 6, l996) 

 

 

Faith S. Hochberg 

United States Attorney 

Kevin McNulty 

Kimberly M. Guagdagno (Argued) 

Patrick L. Rocco 

Assistant U.S. Attorneys 

970 Broad Street - Room 502 

Newark, NJ 07102 

 Attorneys for Appellee 

Dominic F. Amorosa (Argued) 

233 Broadway, Suite 3008 

New York, NY 10279 

 

 Attorney for Appellant 

 
2 

* Honorable John R. Gibson, United States Circuit Judge for the 

 Eighth Circuit, sitting by designation. 
3 

 

OPINION OF THE COURT

 

STAPLETON, Circuit Judge: 

 

 J. David Smith contends that multiple conspiracy 

indictments have put him twice in jeopardy for the same offense. 

The defendant was indicted in New Jersey for conspiring to 

defraud GTECH, his employer, through a kickback scheme. On the 

same day, he was indicted in Kentucky for conspiring to defraud 

GTECH with a different co-conspirator, also through a kickback 

scheme. After he was acquitted of the Kentucky charges, Smith 

filed a pretrial motion in the New Jersey prosecution to dismiss 

the conspiracy charges on double jeopardy grounds and both the 

conspiracy and substantive charges on collateral estoppel 

grounds. The court denied his motion, finding that he had failed 

to make the required showing under United States v. Liotard, 817 

F.2d 1074 (3d Cir. 1987), and that the issues raised in the New 

Jersey indictment were not identical to those decided in the 

Kentucky trial. 

We will affirm. 

I. 

 All charges against J. David Smith stem from his 

employment with GTECH, a lottery service company located in Rhode 

Island. Smith was the national sales manager for GTECH until 
2 

December 1993, with offices at the Rhode Island headquarters. He 

also maintained a farm and residence in Kentucky. During the 

time periods covered by the indictments, GTECH provided services 

to the state lotteries of New Jersey and Kentucky, as well as 

other states. 

 Steven D'Andrea and Joseph LaPorta are New Jersey 

residents who owned and controlled three New Jersey consulting 

companies, Benchmark Enterprises, Inc. ("Benchmark"), Sambuca 

Consultants ("Sambuca"), and Production Group Incorporated 

("PGI"). Luther Roger Wells, Jr., was a Kentucky resident who 

owned Bluegrass Industrial ("Bluegrass") and Bluegrass Industrial 

Distributors ("BID"). BID ostensibly provided ribbons used to 

print lottery tickets. Karen Smith, the defendant's wife, lived 

in Kentucky with her husband. She owned International Marketing 

Concepts, Inc. ("IMC"). 

 The Federal Bureau of Investigations ("FBI") began 

investigating D'Andrea in June of 1993. Investigators had 

Benchmark corporate records, GTECH records, and Smith's Kentucky 

bank records subpoenaed. By April 11, 1994, the investigation 

had produced information that prompted the New Jersey Division of 

the United States Attorney's Office to send Smith a target 

letter. Smith was thereafter advised that the FBI's evidence 

indicated that he was involved in a kickback scheme to defraud 

GTECH. Smith allegedly would arrange for service providers in 

New Jersey, New York, Texas, and Kentucky to be engaged by GTECH 
3 

and to be paid for non-existent or over-valued services.1 These 

service providers included Benchmark, Sambuca, and PGI in New 

Jersey, and BID in Kentucky. In return, these service providers 

would send kickbacks to third parties in Kentucky designated by 

Smith. These third parties included IMC and Billy Adams, a 

carpenter who frequently did work on Smith's farm. When IMC, 

Adams, and the three other designated third parties received the 

"consulting fees" from the service providers in the various 

states, they would transmit the funds to Smith and his wife or 

apply them for their benefit. According to an affidavit of 

Smith's counsel, the United States Attorney sought Smith's 

cooperation and threatened him with indictments in all four 

states if he failed to cooperate. Smith declined to cooperate 

and indictments against him were simultaneously returned in 

Kentucky and New Jersey. 

 The federal grand jury in Kentucky returned a ten count 

indictment charging Wells and Smith with conspiracy to commit 

mail fraud in violation of 18 U.S.C. § 371, aiding and abetting 

mail fraud in violation of 18 U.S.C. §§ 1341 & 1346, money 

laundering in violation of 18 U.S.C. § 1956, and assisting in the 

preparation of a false corporate tax return in violation of 26 

U.S.C. § 7206(2). The fraud counts charged Smith and Wells of 

defrauding GTECH of money and Smith's "honest services." See

 

1 Although the investigations uncovered activities in Texas and 

New York, Smith limits his double jeopardy arguments to the 

activities alleged in Kentucky and New Jersey. 
4 

Indictment in United States v. Smith, ¶¶ 6, 19 (W.D. Ky., 

September 29, 1994). 

 Allegedly, Smith authorized BID to receive 8% brokerage 

commissions on paper sales from RMF Business Forms, Inc., a New 

York corporation, to GTECH and the Kentucky Lottery Corporation. 

Wells set up BID for the sole purpose of receiving the brokerage 

payments. Neither Wells nor BID provided services of any kind to 

GTECH or the Kentucky Lottery Corporation. Smith had GTECH 

employees in Kentucky fill out false invoices from Wells 

requesting his 8% commission, which were then processed in Rhode 

Island. 

 When Wells received his payments, he sent a portion to 

IMC, Adams, and other designated third parties. The payments 

were disguised as "consulting fees." The alleged conspiracy 

lasted from April 1992 to February 1994, and a total of $31,000 

was purportedly kicked back to Smith and his wife during this 

period. 

 The Kentucky prosecution went to trial. After the 

prosecution presented its case, the judge entered a judgment of 

acquittal on all the charges pursuant to Fed. R. Crim. P. 29. He 

found that (i) the record contained insufficient evidence 

indicating that GTECH lost any money; (ii) a violation of GTECH's 

intangible right to Smith's honest services could not support a 

criminal fraud conviction; and (iii) the government failed to 

prove that GTECH was unaware of the kickback payments and that 

the payments were unauthorized. The judge found that the facts 
5 

indicated that GTECH had willingly paid BID fees for the purpose 

of generating goodwill, and no fraud had occurred. 

 The New Jersey federal grand jury returned a nineteen 

count indictment charging Smith, D'Andrea, and LaPorta with 

conspiring unlawfully to transport money obtained by fraud in 

violation of 18 U.S.C. § 371, transporting such money in 

violation of 18 U.S.C. § 2314, violating the New Jersey 

commercial bribery statute in violation of 18 U.S.C. § 1952, and 

laundering the proceeds of their fraud in violation of 18 U.S.C. 

§ 1956. See Indictment in United States v. Smith (D.N.J., 

September 29, 1994). 

 Allegedly, Smith met with D'Andrea and LaPorta in April 

1992. LaPorta agreed to introduce GTECH employees to 

representatives of the State of New Jersey to discuss 

implementing a new lottery game called "Keno." Smith recommended 

to officers of GTECH that GTECH employ Benchmark as a consultant 

in New Jersey. He eventually had $579,047 in consulting fees 

paid to Benchmark, and in return, D'Andrea and LaPorta gave Smith 

$157,000 in kickbacks. Over the course of the alleged 

conspiracy, Smith also directed GTECH to pay consulting fees to 

PGI and Sambuca. As in the Kentucky scheme, the consultants sent 

the payments to IMC, Adams, and other third parties in Kentucky 

designated by Smith, who then applied the balance for the benefit 

of Smith and his wife. The conspiracy allegedly lasted from 

March 1992 to March 1994. 
6 

 The trial in the New Jersey case was scheduled to 

proceed in April 1995. In pretrial motions, Smith raised double 

jeopardy and collateral estoppel as defenses to all the New 

Jersey counts. Applying the analysis set forth in Liotard, the 

court found, without an evidentiary hearing, that the conspiracy 

charge was not barred because Smith had failed to make the 

required non-frivolous showing that there had been only one 

conspiracy. Issue preclusion was found to be inapposite since 

none of the issues decided in Kentucky were presented by the New 

Jersey indictment. Smith appeals the court's ruling on the 

conspiracy charge and denial of collateral estoppel on all the 

charges. He does not appeal the ruling that the substantive 

charges are not barred by double jeopardy. 

II. 

 The district court had subject matter jurisdiction 

pursuant to 18 U.S.C. § 3231. 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), cert. 

dismissed, 498 U.S. 1075 (1991). Consequently, we have appellate 

jurisdiction to consider Smith's appeal under 28 U.S.C. § 1291. 

Our review of double jeopardy challenges is 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, see Ashe v. Swenson, 397 U.S. 436, 
7 

445-46 (1970), and is an issue of law, see Swineford v. Snyder 

County, 15 F.3d 1258, 1265 (3d Cir. 1994), our review of the 

collateral estoppel claims is also plenary. 

III. 

 The Fifth Amendment guarantees that no person shall "be 

subject for the same offense to be twice put in jeopardy of life 

or limb." U.S. Const. amend. V. The Supreme Court has 

emphasized the importance of protecting individuals not only from 

double punishment, but also from being twice subject to trial: 

[T]he guarantee against double jeopardy assures an 

individual that, among other things, he will not be 

forced, with certain exceptions, to endure the personal 

strain, public embarrassment, and expense of a criminal 

trial more than once for the same offense. It thus 

protects interests wholly unrelated to the propriety of 

any subsequent conviction. . . . [E]ven if the accused 

is acquitted, . . . he has still been forced to endure 

a trial that the Double Jeopardy Clause was designed to 

prohibit. Consequently, if a criminal defendant is to 

avoid exposure to double jeopardy and thereby 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). 

 Following Abney, we established in United States v. 

Inmon, 568 F.2d 326 (3d Cir. 1977), the procedure by which a 

defendant could vindicate his double jeopardy rights prior to 

trial. We held that "when a defendant has made a non-frivolous 

showing that a second indictment is for the same offense for 

which he was formerly in jeopardy, the government must prove by a 

preponderance of the evidence that there were in fact separate 
8 

offenses before the defendant may be subjected to trial." Id. at 

332. In allocating the burden of proof, the paramount 

consideration was the "impracticality of placing the evidentiary 

burden on" the defendant: 

Inmon would be required to prove facts establishing the 

charge of conspiracy to which he pleaded guilty and to 

prove facts establishing the second conspiracy as well. 

How he could do either, without access to the proof on 

which the government proposed to rely and without the 

ability to offer immunity to prospective witnesses, is 

not readily apparent. Even after a trial on the first 

indictment, the defendant would lack access to the 

government's proof of the second offense. 

Id. at 329-30. 

 We have been keenly aware of the difficulty of 

vindicating double jeopardy rights prior to trial. We have 

stressed that the possibility of making a non-frivolous showing 

must be within the reach of a defendant innocent of the charges 

and without knowledge of the evidence the government may put 

forth. Were the threshold showing made any higher, a conspiracy 

defendant would be without a meaningful opportunity to protect 

his right to avoid exposure to a second trial for the same crime. 

These considerations define an important difference between an 

assessment of double jeopardy rights prior to an evidentiary 

hearing and after a hearing or full trial when we have the 

benefit of a developed record. Compare, e.g., Ciancaglini, 858 

F.2d at 926-30; Liotard, 817 F.2d at 1077-79; and Inmon, 568 F.2d 

at 329-33 with, e.g., United States v. Becker, 892 F.2d 265 (3d 

Cir. 1989); United States v. Felton, 753 F.2d 276 (3d Cir. 1985); 

and United States v. Inmon, 594 F.2d 352 (3d Cir.) (affirming 
9 

denial of double jeopardy claim after evidentiary hearing), cert.

denied, 444 U.S. 859 (1979). 

 Although the "same evidence" test is normally used to 

ascertain whether successive prosecutions charge the same crime, 

in Liotard we recognized that multiple conspiracy indictments 

raised special concerns that the "same evidence test" might not 

adequately address.2 "The danger is that successive indictments 

against a single defendant for participation in a single 

conspiracy might withstand same evidence scrutiny if the court 

places undue emphasis upon the evidence used to prove the 

commission of the overt acts alleged." Id. at 1078. We noted 

that "[i]t is the agreement which constitutes the crime, not the 

overt acts. . ." Id. (quoting Young, 503 F.2d at 1076). To 

address this concern, we adopted the "totality of the 

circumstances" test, which did not emphasize overt acts. From 

prior cases of this Court that had implicitly used that test, we 

extracted four factors to consider when determining whether there 

was one or more agreements: (a) the "locus criminis" of the 

alleged conspiracies; (b) the degree of temporal overlap between 

the conspiracies; (c) the overlap of personnel between the 

conspiracies, including unindicted co-conspirators; and (d) the 

similarity in the overt acts charged and role played by the 

 

2 The same evidence test asks whether "the evidence required to 

support a conviction upon one of [the indictments] would have 

been sufficient to warrant a conviction upon the other." United 

States v. Young, 503 F.2d 1072, 1075 (3d Cir. 1974) (quoting 

United States v. Pacelli, 470 F.2d 67, 72 (2d Cir. 1972), cert. 

denied, 410 U.S. 983 (1973)). 
10 

defendant in each indictment. Id. If the defendant makes the 

requisite showing, he is entitled to a pretrial evidentiary 

hearing to adjudicate his double jeopardy claim. Id. at 1077. 

 In applying the Liotard totality of the circumstances 

analysis, we have understood that the ultimate inquiry presented 

by conspiracy double jeopardy claims is whether there are two 

agreements or only one. See Becker, 892 F.2d at 268 ("The 

critical determination is whether one agreement existed."); see 

also Ciancaglini, 858 F.2d at 927. To that end, we have not 

applied the Liotard factors in a rigid manner, as different 

conspiracies may warrant emphasizing different factors. See id.

at 930 ("[I]t is neither wise nor possible to attempt an 

exhaustive listing of the factors that may enter into the 

totality of the circumstances test. . . ."). In Becker, the 

defendant was convicted in Pennsylvania of a conspiracy to 

possess with intent to distribute marijuana in Pennsylvania, New 

Jersey, and Massachusetts. He had a prior conviction in West 

Virginia for a conspiracy to manufacture and distribute 

marijuana, and argued that the West Virginia conviction barred 

the Pennsylvania conviction. In this particular conspiracy case, 

we found important the fact that the conspiracies had different 

objects. The object of the West Virginia conspiracy had been to 

manufacture and possess with intent to distribute. In contrast, 

the Pennsylvania indictment alleged that the objects were to 

smuggle, store, and distribute marijuana. "These were two 

different objectives and agreements, and hence two conspiracies." 
11 

Becker, 892 F.2d at 268. Although we noted that the time periods 

alleged in both indictments overlapped, such temporal overlap by 

itself did not prove one conspiracy. Id. Similarly, when we 

applied the totality of the circumstances test to successive RICO 

prosecutions in Ciancaglini, we found most important the fact 

that the indictments alleged different patterns of racketeering 

activity. See 858 F.2d at 930. One indictment alleged a pattern 

of illegal gambling and extortion; the other focussed on murder 

and drug distribution. We noted that the outcome was sensitive 

to a different mix of factors: "[U]nder our totality of the 

circumstances test, a more significant overlap of time, or a more 

substantial identity of overt acts or similarity in predicate 

acts could dictate a different result." Id.

 Finally, we must keep in mind that a primary objective 

of our jurisprudence in this area is to assure that the substance 

of the matter controls and not the grand jury's characterization 

of it. Thus, for example, the fact that the Kentucky indictment 

here alleges a conspiracy to commit mail fraud while the New 

Jersey one alleges a conspiracy to transport in interstate 

commerce the proceeds of a fraud is wholly unimportant if the 

evidence indicates that there was but one agreement to defraud 

GTECH utilizing both the mails and the interstate transportation 

of funds. E.g., Braverman v. United States, 317 U.S. 49 (1942); 

United States v. Reyes, 930 F.2d 310, 312 (3d. Cir. 1991); United 

States v. Morrow, 717 F.2d 800, 804 (3d Cir. 1983), cert. denied, 

464 U.S. 1069 (1984). We must not allow the double jeopardy 
12 

clause to be subverted by artful pleading or by the selective and 

strategic reservation of evidence in one prosecution so that it 

can be used in a subsequent one premised upon the same agreement. 

 The government has argued here that the details and 

scope of the criminal conspiracies as revealed by a simple 

reading of the New Jersey and Kentucky indictments should control 

our inquiry. We decline the government's invitation to look 

solely to the acts as alleged in each indictment. Those acts 

are, of course, primarily the overt acts which the grand jury 

chose to allege in each instance. Undue emphasis on the alleged 

overt acts is precisely the problem we sought to avoid when we 

adopted the totality of the circumstances approach. That 

approach requires us to look into the full scope of activities 

described and implied in the indictments. 

 In Felton, for example, we looked not only to the overt 

acts alleged but also to aspects of the conspiracy implied but 

not emphasized or even described in the indictments. The 

defendant Hathorn had already pled guilty in Florida to a charge 

of conspiracy to possess with intent to distribute marijuana when 

he was indicted in Pennsylvania as Felton's drug supplier. The 

Pennsylvania indictment simply stated that Felton purchased large 

quantities of marijuana from Hathorn in 1980. Prior to trial, an 

evidentiary hearing had been held following a successful nonfrivolous showing, but the court denied his double jeopardy 

claim. We reversed, finding that testimony indicated that 

Hathorn was involved in one "continuing, albeit loosely 
13 

organized, conspiracy" to smuggle drugs into the country by plane 

and distribute them. Felton, 753 F.2d at 279. Hathorn and his 

co-conspirators had made at least four drug smuggling flights in 

1980 and 1981. The smuggling flight that was the basis of the 

Florida indictment was one of these flights, and at the 

Pennsylvania hearing, an agent of the Drug Enforcement Agency 

linked the marijuana sold to Felton to another of these flights. 

We noted that these flights were very similar, all originating in 

Atlanta, picking up marijuana in Columbia, and returning to 

similar locations. Id. at 280. Had we not looked beyond the 

acts alleged in the Pennsylvania indictment, we would not have 

uncovered the operational and locational similarity of the 

conspiracies in which Hathorn participated. Thus, we must look 

to the entire record before the district court in examining the 

totality of the circumstances to determine if the conspiracies 

alleged in the two indictments truly are different agreements. 

IV. 

 Using the Liotard factors as a framework for evaluating 

the totality of the circumstances, we have carefully examined 

Smith's double jeopardy claim. He insists that the indictments 

paint a picture of a single, over-arching conspiracy in which he 

acted in concert with IMC, Adams, his Kentucky and New Jersey codefendants, and others to divert funds from GTECH in Rhode Island 

for the benefit of himself and his wife in Kentucky. While we 

agree that the two alleged conspiracies are similar in location, 
14 

time frame, and the roles he played, Smith has failed to provide 

a basis for inferring that all of the conspirators were tied 

together into one conspiracy. There is some overlap among the 

alleged conspirators, but he has shown no reason to believe that 

the New Jersey defendants and Kentucky defendants may have been 

committed to the same agreement. 

 "Locus criminis" is defined very simply as the 

"locality of a crime; the place where a crime was committed." 

Black's Law Dictionary 941 (6th ed. 1990). Smith argues that the 

primary locations for both conspiracies was in Rhode Island, 

where GTECH's headquarters and his office were located, and where 

the funds were allegedly diverted, and Kentucky, where he 

allegedly received the kickbacks. The government stresses that 

all the acts alleged in the Kentucky indictment occurred in 

Kentucky, and all those alleged in the New Jersey indictment 

occurred in New Jersey. We agree with Smith that events 

underlying the New Jersey and Kentucky indictments commence and 

end at the same spots and that the geography of his alleged 

criminal activity is consistent with the existence of what he 

describes as an over-arching conspiracy. Although the 

indictments focus on acts in different states, they both 

implicate important acts in furtherance of the alleged 

conspiracies in both Rhode Island and Kentucky. 

 With respect to the chronological component of the 

Liotard analysis, extensive temporal overlap is apparent from the 

record: the New Jersey conspiracy spanned March 1992 to March 
15 

1994, and the Kentucky conspiracy spanned April 1992 to February 

1994. 

 Also, we agree with Smith that the government's 

evidence indicates he played a virtually identical role in the 

activities that the government characterizes as two conspiracies. 

In each instance, he used his influence as national sales manager 

to procure contracts or fraudulent sales for his alleged coconspirators. He then used his relationships with his creditors 

and others in Kentucky to launder the kickback proceeds. 

 While we agree with Smith that these three factors are 

consistent with a single conspiracy, they are neither alone nor 

together dispositive in his case. Two conspiracies may be found 

despite similarity in location, see, e.g., United States v. 

Macchia, 35 F.3d 662, 671 (2d Cir. 1994); Ciancaglini, 858 F.2d 

at 929, and extensive overlap in time periods, see, e.g., 

Macchia, 35 F.3d at 669-70; United States v. Brown, 926 F.2d 779, 

782 (8th Cir. 1991); Becker, 892 F.2d at 268; Ciancaglini, 858 

F.2d at 930. A defendant may play a similar role in multiple, 

unrelated conspiracies. See, e.g., United States v. Robinson, 

774 F.2d 261, 273-75 (8th Cir. 1985) (holding that organizer of 

two similar, contemporaneous loan scams could be tried for each 

loan scam conspiracy); United States v. Somers, 950 F.2d 1279, 

1282 (7th Cir. 1991) (holding two, overlapping conspiracies were 

distinct even though defendant acted as major distributor of 

cocaine in each), cert. denied, 504 U.S. 917 (1992). 
16 

 That brings us to the factor most critical in the 

context of Smith's case -- the extent of the overlap of personnel 

between the two alleged conspiracies. Smith correctly points out 

that he and IMC and the other designated third parties in 

Kentucky played a role in the activities alleged in both the 

Kentucky indictment and the New Jersey indictment. To this 

extent, there is an overlap. But Smith's argument, we believe, 

misses a critical point. 

 An overlap in membership is useful to a double jeopardy 

analysis to the extent that it helps determine whether the 

alleged conspirators in both indictments were committed to the 

same objectives and consequently were members of a single 

conspiracy. When the same people are involved in the activities 

which the government alleges to be undertaken in furtherance of 

two different conspiracies, it will normally be possible to infer 

that they were aware of each other, of each other's activities, 

and of each other's objectives. When the activities are 

interdependent or mutually supportive to any degree, the 

inference becomes compelling that the participants are involved 

in but one conspiracy. Even where there are participants in one 

alleged conspiracy who are not involved in the activities of the 

other alleged conspiracy, these inferences may still have 

persuasive force when the common participants predominate. 

However, in evaluating the degree of overlap-in-participants 

factor in a particular case, one must look to the circumstances 

of both the common participants and the participants apparently 
17 

connected with only one of the alleged conspiracies. When the 

evidence indicates that the activities of the alleged 

conspiracies are not interdependent or mutually supportive and 

that there are major participants in each conspiracy who lack 

knowledge of, or any interest in, the activities of the other, 

this factor weighs heavily in favor of a conclusion that two 

conspiracies exist. 

 The necessity of looking to the circumstances of all 

participants in the two alleged conspiracies arises from basic 

conspiracy law. A criminal agreement is defined by the scope of 

the commitment of its co-conspirators. See generally Marcus, P., 

Prosecution and Defense of Conspiracy Cases, §§ 4:01-4:02 (1995). 

Thus, where a defendant is unaware of the overall objective of an 

alleged conspiracy or lacks any interest in, and therefore any 

commitment to, that objective, he is not a member of the 

conspiracy. In Kotteakos v. United States, 328 U.S. 750 (1946), 

for example, the indictment alleged a single conspiracy to obtain 

loans from the FHA using fraudulent information. The evidence, 

however, showed that while a single individual, Brown, was at the 

"hub" of the scheme and assisted in the preparation of each loan 

application, the other individuals in each loan transaction had 

no interest in the success of any loan application other than 

their own. As described in a subsequent Supreme Court case, the 

evidence in Kotteakos did not show a single conspiracy: 

Except for Brown, the common figure, no conspirator was 

interested in whether any loan except his own went 

through. And none aided in any way, by agreement or 

otherwise, in procuring another's loan. The 
18 

conspiracies therefore were distinct and disconnected, 

not parts of a larger general scheme, both in the phase 

of agreement with Brown and also in the absence of any 

aid given to others as well as in specific object and 

result. There was no drawing of all together in a 

single, over-all, comprehensive plan. 

Blumenthal v. United States, 332 U.S. 539, 558 (1947). "The jury 

could not possibly have found, upon [this] evidence, that there 

was only one conspiracy." Kotteakos, 328 U.S. at 768. 

 In contrast, the Supreme Court in Blumenthal found that 

the evidence showed a single conspiracy to market whiskey at 

prices above the legal ceiling price in a manner that would 

appear lawful. Even though some of the multiple participants in 

the scheme were unaware of the identity or role of other 

participants, all were committed to a single, common objective. 

As the Court explained the evidence: 

All knew of and joined in the overriding scheme. All 

intended to aid the owner, . . . to sell the whiskey 

unlawfully, though the two groups of defendants 

differed on the proof in knowledge and belief 

concerning the owner's identity. All by reason of 

their knowledge of the plan's general scope, if not its 

exact limits, sought a common end, to aid in disposing 

of the whiskey. True, each salesman aided in selling 

only his part. But he knew the lot to be sold was 

larger and thus that he was aiding in a larger plan. He 

thus became a party to it . . . ." 

Blumenthal, 332 U.S. at 559. 

 Following the law established in Kotteakos and 

Blumenthal, in numerous variance cases we have drawn a 

distinction between multiple and single conspiracies based upon 

the existence of a commitment to a single set of objectives. See

United States v. Kenny, 462 F.2d 1205, 1216 (3d Cir.) (holding 

that "evidence of a large general scheme, and of aid given by 
19 

some conspirators to others in aid of that scheme" is sufficient 

to establish single conspiracy), cert. denied, 409 U.S. 914 

(1972); see also Reyes, 930 F.2d at 313; United States v. 

Theodoropoulos, 866 F.2d 587, 593 (3d Cir. 1989); United States 

v. Adams, 759 F.2d 1099, 1109-10 (3d Cir.), cert. denied, 474 

U.S. 906, and 474 U.S. 971 (1985). 

 We have found this distinction between multiple and 

single conspiracies no less compelling in the double jeopardy 

context. In Becker, we compared a conspiracy to grow and 

distribute marijuana with a conspiracy to smuggle and distribute 

foreign-grown marijuana and found decisive that "[t]hese were two 

different objectives" and "hence two conspiracies." 892 F.2d at 

268 (emphasis added). In Liotard, we compared two conspiracies 

to steal different truckloads of goods from the same trucking 

company. The government argued that the fact that the separate 

heists were arranged in distinct conversations proved two 

conspiracies. We held, however, that the defendant had made a 

non-frivolous showing of a single conspiracy. We noted, inter

alia, that the conspirators in each alleged conspiracy were 

committed to a common goal. "The . . . goal of each conspiracy 

was, in addition to the personal enrichment of the participants, 

the financial ruination of the alleged co-conspirators' employer 

. . . ." 817 F.2d at 1077. We rejected the government's 

contention because once all the conspirators had agreed to the 

common objective, the organization of sub-plots would not be 

"indicative of a separate conspiracy." Id. at 1079 n.8. As 
20 

succinctly stated by the court in United States v. Mintz, "[i]n a 

double jeopardy analysis involving conspiracies, the court must 

determine whether the two transactions were interdependent and 

whether the Defendants were 'united in a common unlawful goal or 

purpose.'" 16 F.3d 1101, 1104 (10th Cir.), cert. denied, 114 S. 

Ct. 2723, and 114 S. Ct. 2760 (1994); see also Macchia, 35 F.3d 

at 771-72 (examining interdependence as one factor in double 

jeopardy analysis); United States v. Dortch, 5 F.3d 1056, 1063-64 

(7th Cir. 1993) (same), cert. denied, 114 S. Ct. 1077 (1994); 

United State v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990) ("Of 

principle concern is whether the conduct of the alleged coconspirators, however diverse and far-ranging, exhibits an 

interdependence."), cert. denied, 502 U.S. 952 (1991). Cf.

United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987) 

(discussing interrelatedness of several conspiracies). 

 The ultimate purpose of the totality of the 

circumstances inquiry is to determine whether two groups of 

conspirators alleged by the government to have entered separate 

agreements are actually all committed to the same set of 

objectives in a single conspiracy. A non-frivolous showing of a 

single conspiracy will be made when the record reveals a degree 

of participant overlap, which together with other factors, 

permits an inference that members of each alleged conspiracy were 

aware of the activities and objectives of the other conspiracy 

and had some interest in the accomplishment of those objectives. 

When, as here, a defendant claims that there was a single hub and 
21 

spoke conspiracy despite the presence of spoke conspirators who 

lacked knowledge of each other's activities, a factfinder will be 

unable to infer the existence of but one conspiracy in the 

absence of evidence that the activities of the spoke participants 

were, to some degree, interdependent or mutually supportive. 

 In the context of this case, we must look to whether 

Wells and his companies and D'Andrea and LaPorta and their 

companies were engaged in any common activities that are alleged 

in either or both indictments or are otherwise revealed in the 

record, or if their respective schemes were interdependent in any 

way. The answer to this inquiry is readily apparent -- there is 

nothing to indicate that the co-conspirators named in the 

Kentucky indictment and those named in the New Jersey indictment 

engaged in any common activities or that their respective schemes 

were interdependent. 

 The lack of common activities or interdependence is the 

root problem with Smith's position. He gives us no reason to 

believe that the New Jersey and Kentucky conspiracies were 

interdependent or mutually supportive in any way. He can 

identify nothing in the record suggesting that Wells was actually 

aware of D'Andrea and LaPorta, or vice versa, and he cannot point 

to any common activities engaged in for the benefit of all 

participants. The co-conspirators in each state derived no 

benefit, financial or otherwise, from Smith's activities in the 

other state, nor was the success of the conspiracy in one state 

contingent on the success of the conspiracy in the other. To the 
22 

contrary, what the record reveals of the economics of the 

kickback schemes strongly suggests that Wells had no motive to 

commit himself to anything beyond the receipt of his commissions 

and that the same is true for D'Andrea and LaPorta and their 

consulting fees. From the lack of mutual awareness and 

interdependence, economic or otherwise, we can only conclude that 

each group of conspirators had an interest in and were committed 

only to receiving their own unearned compensation. 

 Smith also suggests that the indictments show that he 

may have been involved in a hub or core conspiracy that planned 

the subconspiracies in each state. Such a core conspiracy 

conceivably could exist even where the subconspiracies are not 

interdependent except for the overlap in membership and common 

planning. Put differently, he is suggesting that there may be 

three conspiracies, one core conspiracy and two or more 

subconspiracies, and that acquittal on one subconspiracy 

precludes prosecution on the others. We agree that if Smith, 

IMC, and the other designated third parties in Kentucky 

conspired, they may well have been core conspirators in an 

interstate conspiracy headed by Smith.3 The possibility that a 

core conspiracy existed, however, does not change our conclusion. 

 

3 The current record would permit a trier of fact to infer that 

(1) the kickbacks paid by the service providers in both Kentucky 

and New Jersey were intended to, and did, benefit Mrs. Smith; (2) 

IMC received kickbacks from the service providers in both 

Kentucky and New Jersey and passed them on to, or applied them 

for the benefit of, Mr. and Mrs. Smith; and (3) Mrs. Smith was 

the sole principal in IMC. Based on these inferences, we believe 

a trier of fact could further infer that Smith, Mrs. Smith and 
23 

 If Smith had perceived the opportunity to defraud GTECH 

through the submission of fraudulent invoices from service 

providers, and acting alone like Brown in Kotteakos, had 

independently recruited service providers in several states to 

submit such invoices, arranged for the payment of the invoices by 

GTECH, and received kickbacks from the service providers in each 

state, he and the service providers in each state, like Brown and 

each of the loan applicants, would have been members of separate 

conspiracies. Under the principles discussed in Kotteakos and 

applied in subsequent decisions,4 the service providers in each 

state, assuming that they lacked commitment to the success of 

Smith's overall, interstate scheme to defraud, would have been 

members of distinct conspiracies, and Smith could have been 

prosecuted separately for each. 

 

IMC were aware of, and committed to, the success of an interstate 

conspiracy to defraud GTECH. 

4 See, e.g., Robinson, 774 F.2d at 265, 273-75 (holding that 

"mastermind" behind two similar loan scams involving different 

sets of co-conspirators could be tried for both conspiracies); 

United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985) 

(holding that company participating in two price fixing schemes 

with different sets of co-conspirators could be tried for both 

because "[t]he participation of a single common actor in what are 

allegedly two sets of conspiratorial activities does not 

establish the existence of a single conspiracy . . . . This is 

true even where the common actor is alleged to have directed both 

sets of activities") (citations omitted); United States v. Papa, 

533 F.2d 815, 822 (2d Cir. 1976) (holding that defendant could be 

tried for two conspiracies with different co-conspirators because 

he "was the director of two unrelated chains distributing 

narcotics" and "the mere fact that he supervised each chain does 

not transform two separate conspiracies into one" (emphasis 

added)); see also Somers, 950 F.2d at 1282 (holding that cocaine 

distributor could be convicted of two, contemporaneous 

conspiracies to distribute cocaine in same locality where 

distributees and suppliers differed in each conspiracy). 
24 

 The question posed by Smith's possible participation in 

a core conspiracy is whether this conclusion would be different 

if the evidence were to show that Smith, while independently 

recruiting the service providers in each state, had secured the 

commitment of his wife, IMC, and perhaps other core conspirators 

to his overall, interstate scheme to defraud. While we have 

found surprisingly little authority on the point, we are 

convinced that the answer is "no." Because a conspiracy is 

defined by the scope of commitment of its participants, the 

existence of a master, core conspiracy would not change the 

character of the agreements with the service providers. Each has 

its own distinct scope of commitment and membership. Whether or 

not there was a core conspiracy, we perceive no reason why Smith 

cannot be prosecuted both for his conspiracy with the Kentucky 

service provider and for his conspiracy with the New Jersey 

service providers. As Justice Stevens observed in United States 

v. Broce, the fact that there may be an ongoing, core conspiracy 

is not inconsistent with the prosecution of a member of that 

conspiracy for separate illegal agreements with others entered 

into in furtherance of the overall objective of the core 

conspiracy: 

[T]he continuous, cooperative effort among Kansas 

highway contractors to rig bids, which permeated the 

Kansas highway construction industry for more than 25 

years . . . was unquestionably a single, continuing 

conspiracy that violated § 1 of the Sherman Act, 15 

U.S.C. § 1. It does not necessarily follow, however, 

that separate bid-rigging arrangements carried out in 

furtherance of an illegal master plan may not be 

prosecuted separately. 
25 

. . . . 

 There is something perverse in the assumption that 

respondents' constitutional rights may have been 

violated by separately prosecuting them for each of two 

complete and flagrant violations of the Sherman Act 

simply because they may also have been guilty of an 

ongoing and even more serious violation of the same 

statute for more than a quarter of a century. 

488 U.S. 563, 580-81 (Stevens, J., concurring). See also Dortch, 

5 F.3d at 1063 ("While it is likely that [defendants] only had 

one agreement with each other, that does not prevent them, as a 

partnership, from joining more than one conspiracy to distribute 

cocaine in the East St. Louis/St. Louis area. '[T]he guarantee 

against double jeopardy does not insulate a criminal from 

punishment for subsequent offenses merely because he chooses to 

continue committing the same type of crime.' West, 670 F.2d at 

681.").5

 As we have indicated, a non-frivolous showing of a 

single conspiracy under Liotard's totality of circumstances 

approach is not a high threshold. The defendant need only be 

able to identify alleged facts and other evidence which, if 

credited, gives reason to believe that any alleged conspiratorial 

activity was in furtherance of a single conspiracy. Having 

considered the totality of circumstances in Smith's case, we 

 

5 This case does not present the issue of whether the 

government, having first prosecuted a defendant for an overarching core conspiracy, can then prosecute him for a 

subconspiracy with one who is not a core conspirator to 

accomplish one of the objectives of the core conspiracy. 

Arguably, this would be akin to a subsequent prosecution for a 

lesser included offense. Since the Kentucky prosecution here was 

limited to the conspiracy to defraud GTECH in the transactions 

involving Kentucky invoices, we, of course, express no opinion on 

that issue. 
26 

conclude that he has failed to make a non-frivolous showing 

because there is nothing in the record that suggests that the New 

Jersey defendants and Kentucky defendants are tied together into 

a single conspiracy by a commitment to a single set of 

objectives. Our conclusion is the same whether we examine the 

totality of the circumstances for a single conspiracy or for a 

core conspiracy with multiple subconspiracies. 

V. 

 Smith contends that under Ashe v. Swenson, 397 U.S. 436 

(1970), the government is collaterally estopped from prosecuting 

him in New Jersey. He argues that because the Kentucky district 

court found no "intent to defraud" GTECH on both the conspiracy 

and mail fraud counts, the government is precluded from proving 

any intent to defraud GTECH in New Jersey, defeating the 

conspiracy and substantive fraud charges set forth in the 

indictment there. We are unpersuaded. 

 The findings of the trial judge in Kentucky were, of 

course, limited to the charges before him. They were accordingly 

limited to the payments made by GTECH to Bluegrass and the 

illegal kick-back payments made by it. The court concluded that 

the government had not proved that the payments were made in 

furtherance of a scheme to defraud GTECH. While the government 

should not be permitted to attempt to contradict these factual 

findings in the New Jersey case, there is no reason to believe 

that it will attempt to do so. Clearly, there is no conflict 
27 

between those findings and the facts alleged in the New Jersey 

indictment and, accordingly, there is no basis for not allowing 

the case to proceed to trial.6

VI. 

 The April 5, 1995, order of the district court will be 

affirmed. 

 

6 Insofar as the conspiracy charge is concerned, the defendant's 

double jeopardy and collateral estoppel claims both turn on 

whether there is but one conspiracy. Smith recognizes this fact 

himself. In the section of his brief arguing for estoppel, he 

states that "[w]hen one considers that the Government fragmented 

the single alleged fraud into two separate indictments for 

tactical reasons, the acquittal in Kentucky was in reality an 

acquittal for the whole fraud, no matter how the Government 

divided up the charge." Appellant's Brief at 36-37. As we have 

indicated, we perceive no bar to the government's proceeding to 

attempt to prove the New Jersey conspiracy.