United States of America v. John J. Rigas; Timothy J. Rigas

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)

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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

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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

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The following facts relate principally to the areas of1
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 A2
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 Rigas2
family elected eight of Adelphia’s nine directors and controlled

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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

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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

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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.

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The following facts are taken from the New York4
Indictment unless otherwise indicated.
8
1. New York Conspiracy Count
Count One of the New York Indictment alleges a wide-
ranging conspiracy (1) to create the false appearance that
Adelphia’s operating performance was strong and that Adelphia
was reducing its debt burden, (2) to use Adelphia assets for the
personal benefit of members of the Rigas family, and (3) to
make false and misleading statements. We focus on the second4
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;

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The Second Circuit determined that5
[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

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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

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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.

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Unless otherwise indicated, the following facts are6
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, Rigas6
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 family-
controlled 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.”

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The Superceding Indictment alleges that the Rigases7
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 tax7
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

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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 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 and is an issue of

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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.

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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

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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.)

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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

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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

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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

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The original text of the statute was substantially the8
same as the modern version. See United States v. Hirsch, 100
U.S. 33, 35 (1879).
Both Manton and Blockburger were authored by Justice9
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 its8
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

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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.

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While we find that the statute clearly creates a single10
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

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(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 that satisfies 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

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The Government urges us to disregard cases holding11
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

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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.

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Thus, the Second, Ninth, Eleventh, and D.C. Circuits12
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

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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

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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

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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.

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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

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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.

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The Pennsylvania Superceding Indictment expands the13
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

-- 33 of 54 --

The Pennsylvania Superceding Indictment expands the14
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 it significant 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.

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Mulcahey was responsible for managing Adelphia’s15
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 co-
conspirators including Michael Rigas, Michael Mulcahey, James
R. Brown, and Timothy A. Werth. Although other Rigas15
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]

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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.

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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-frivolous showing 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

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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,

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These transactions relate to “margin loans” the Rigases16
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 found16
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).

-- 39 of 54 --

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

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Under 18 U.S.C. § 1343, a defendant is guilty of wire17
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

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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

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See United States v. Ervasti, 201 F.3d 1029, 1039-40 (8th18
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, which18
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

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“The applicable rule is that, where the same act or20
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 cloud21
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

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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 focuses22
narrowly on conspiracies targeting the federal government. See
United States v. Brandon, 17 F.3d 409, 422 (1st Cir. 1994);

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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

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The majority fails to discuss Ervasti and Thompson and23
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

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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

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essential nature of the fraud.”).
In Smith (David L.), the court held that § 371 does not create25
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, 61926
(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 has25
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

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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

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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, the27
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

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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

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See Ervasti, 201 F.3d 1029; United States v. Morris, 9928
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 an29
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 multi-
factor 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 this28
requirement is easily satisfied here; the majority does not opine
otherwise. Accordingly, successive prosecutions of the Rigas’29

-- 53 of 54 --

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

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