UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-20797
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANK C. CIHAK,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(H-95-CR-27-1)
August 15, 1996
Before REYNALDO G. GARZA, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-appellant Frank Cihak appeals the district court’s
denial of his motion to dismiss Count I of the indictment against
him on double jeopardy grounds. Finding that the indictment
charges a separate offense than the conspiracy for which he was
previously convicted, we affirm the district court’s denial of the
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
motion to dismiss.
Cihak was charged in Count I of a 48 count indictment with
conspiracy (18 U.S.C. § 371) (1) to commit bank fraud (§§ 1344 and
1346) and wire fraud (§ 1343); (2) misapply bank funds (§ 656); (3)
to make false entries in bank books and records (§ 1005); (4) to
receive unlawfully converted money (§ 2315); and (5) to conduct
financial transactions with proceeds of a specified unlawful
activity (§ 1956(a)(1)(A)(i)).
Cihak moved to dismiss Count I, arguing that it violated his
double jeopardy rights because he had already been indicted for and
convicted of the same conspiracy offense in 1993. See United
States v. Allen, 76 F.3d 1348 (5th Cir. 1996). The district court
denied the motion, saying:
I am persuaded that although the conspiracies
charged in [United States v. Allen, 76 F.3d 1348]
and in the instant case are somewhat related, the
Indictments in the two cases nevertheless do not
charge a single conspiracy. Instead, they charge
two separate conspiracies.
Although no single factor is determinative, I
reach this conclusion because the only overlapping
co-conspirator in the two cases is Mr. Cihak; and
because the overt acts alleged in the two cases are
different and because the actions of the separate
conspiracies alleged in the other case did not
advance the conspiracy alleged in this case and
vice versa. I also note that there are some
differences in the time of the conspiracies
alleged, the statutory offenses alleged and the
places where the conspirators operated.
I conclude that the defendant has not
presented a prima facie non-frivolous claim of
double jeopardy, and alternatively I conclude that
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if he has, the Government has rebutted the
Defendant’s claim.
“The essential issue in the double jeopardy analysis
respecting conspiracy is whether one, or more than one, agreement
existed.” United States v. Deshaw, 974 F.2d 667, 673 (5th Cir.
1992) (footnote and citation omitted). To determine whether a
previous conspiracy conviction involves the “same offense” as a
subsequently charged conspiracy, we consider five factors:
(1) time, (2) persons acting as co-conspirators,
(3) the statutory offenses charged in the
indictments, (4) the overt acts charged by the
government or any other description of the offense
charged which indicates the nature and scope of the
activity which the government sought to punish in
each case, and (5) places where the events alleged
as part of the conspiracy took place.
United States v. Marable, 578 F.2d 151 (5th Cir. 1978). When
applying the Marable analysis, no one factor is determinative;
instead, we must look at all five factors in combination. United
States v. Atkins, 834 F.2d 426, 432-33 (5th Cir. 1987), overruled
on other grounds, 933 F.2d 325 (5th Cir. 1991).
After reviewing the indictments in both cases, the record, and
the briefs of the parties, we determine that the district court did
not err in denying Cihak’s motion to dismiss Count I of the
indictment on double jeopardy grounds. We agree with the district
court “that although the conspiracies charged in [the two
indictments] are somewhat related, the Indictments in the two cases
nevertheless do not charge a single conspiracy. Instead, they
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charge two separate conspiracies.” Accordingly, the order of the
district court is
AFFIRMED.
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