Issue Preclusion #2 - Conspiracy Theories and Getting to Perhaps (10/28/09)

Back on the preclusion theme I discussed yesterday here, I look at the case of United States v. Rigas, 584 F.3d 594 (3d Cir. 2009).

In Rigas, the defendants had been charged in New York (SDNY) on a broad federal conspiracy charge as follows:

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.

The Court focused its analysis on object (2), above, since it "most closely overlaps with the charges in the Pennsylvania Indictment."

The defendants were convicted of the conspiracy charge in the New York indictment. Then the Government (all right the grand jury) charged them in Pennsylvania on a federal tax conspiracy charge -- the ubiquitous defraud conspiracy charge.

The question was whether the second charge violated the double jeopardy clause. The majority (2 out of 3) held perhaps, with the case being remanded to the district court to resolve the perhaps. I look here at how the Court of Appeals got to perhaps.

This is a blog, not a law review, so I shall forego some of the details of the legal discussion, assuming that most of my readers will already be fully versed in the law. The majority's reasoning, which I state cryptically, is:

1. The Double Jeopardy clause of the Constitution "prohibits repeat trials for the same offense, not for the same conduct." The issue, both within conspiracy and outside it, is "whether Congress intended to impose multiple punishments for that conduct."

2. Cutting to the chase, the majority held that a single conspiracy with diverse objects is still a single conspiracy and must be charged once. The question was whether the conspiracy alleged in the Pennsylvania criminal case (the tax defraud conspiracy) was within the scope of the conspiratorial agreement charged in the first case (the New York case). The Court jumped through a lot of legal hoops to get there (I think, probably unnecessarily so, but time, space and discretion requires that I forego that exercise; it is, after all just a scope of the conspiratorial agreement issue, but for more of my thoughts on scope of the conspiracy, see John A. Townsend, Tax Obstruction Crimes: Is Making the IRS's Job Harder Enough, 9 Hous. Bus. & Tax. L.J. 255, 318 - 322 (2009) and my other blogs on scope; in this regard, I do agree with the dissenter, Judge Rendell, that "The majority renders complex what . . . is a straightforward issue, susceptible of a straightforward analysis . . . .," but can't agree with the dissenter's analysis.) The majority remands the case with the right question -- was the second charge (the Pennsylvania charge) within the scope of the conspiracy charged in New York (the first charge).

3. Based on what I see about the New York conspiracy charge as described by the majority and the Pennsylvania charge as described by the majority, I am skeptical as to whether the conspiracy charged in New York included the tax defraud charge in Pennsylvania. Let's see what happens on remand.