United States v. 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-00402-001 and 05-cr-00402-002)
District Judge: Honorable John E. Jones III
___________

Argued February 17, 2010

Before: McKEE, Chief Judge, SCIRICA, RENDELL,
BARRY, AMBRO, FUENTES, SMITH, FISHER,
CHAGARES, JORDAN, and HARDIMAN, Circuit Judges
 (Opinion Filed: May 12, 2010)

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

Alan Hechtkopf, Esq.
Alexander P. Robbins, Esq. (ARGUED)
United States Department of Justice
Post Office Box 502
Washington, DC 20044

George J. Rocktashel, Esq.
Office of United States Attorney
240 West Third Street, Ste. 316
Williamsport, PA 17701

Counsel for Appellees
 OPINION OF THE COURT

FUENTES, Circuit Judge, with whom McKEE, Chief Judge,
and BARRY, AMBRO, SMITH, FISHER, and JORDAN,
Circuit Judges, join:
Defendants John and Timothy Rigas (the “Rigases”) seek
to prevent their federal trial in Pennsylvania for conspiracy to
defraud the United States, in violation of 18 U.S.C. § 371, and
for substantive tax evasion violations.1 The Rigases, who were
convicted of conspiracy under the same statute in New York,
claim that their reprosecution in Pennsylvania violates their right
to be free from double jeopardy. Specifically, they contend that
§ 371 creates a single offense that can be violated in alternative
ways, and that the Government cannot split a single conspiracy
into two prosecutions. The Government, on the other hand,

1
18 U.S.C. § 371 provides:
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.

3
contends that § 371 creates separate and distinct crimes, and
therefore the Rigases’ prosecution in Pennsylvania presents no
double jeopardy violation. We conclude that, under a plain and
natural reading of § 371, the statute creates a single offense, and
that the successive prosecution of the Rigases in this case may
constitute a double jeopardy violation.
I. Background 2
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 the 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

2
The following facts relate principally to the areas of
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, and 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, 552 U.S. 1242
(2008); United States v. Rigas, No. 02-cr-1236, 2008 WL
2544654 (S.D.N.Y. June 24, 2008).

4
majority of Adelphia’s shareholder votes.3 As a result, the Rigas
family elected eight of Adelphia’s nine directors and controlled
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 Securities and Exchange Commission (“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

3
Adelphia had two classes of common stock: Class A
exercised one vote per share, while Class B exercised ten votes
per share.

5
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. They 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
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 to 2000.4
A. The New York Action
In September 2002, a grand jury sitting in the Southern
District of New York returned an indictment against John Rigas,
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, No. S1-02-cr-
1236 (S.D.N.Y.). A Superseding Indictment, returned in July
2003, charged the defendants with conspiracy to commit an

4
In 2008, after the District Court denied the Rigases’
double jeopardy motion, a federal grand jury convened in
Pennsylvania returned a Superseding Indictment adding
additional substantive tax evasion charges related to the 2001
tax year. The Superseding 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
Superseding Indictment where relevant.

6
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
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 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 an aggregate
sentence of twelve years on all the counts. 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

7
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.
1. New York Conspiracy Count
Count One of the New York Indictment alleged 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 second
aspect of the conspiracy, which most closely overlaps with the
charges in the Pennsylvania Indictment.
The New York Indictment and Bill of Particulars alleged
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. 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; 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

8
also alleged that Adelphia made “charitable contributions” on
behalf of the Rigases.
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.
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.
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.
The Rigases also took Adelphia stock without paying for
it and used Adelphia assets to pay for their purchases of
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

9
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.
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 National Hockey
League team owned by the Rigas family.
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.
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 1980s,
shortly after Rigas family members sold privately held cable

10
companies to Adelphia.5 As a result of this transaction, Rigas
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 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.” Id.
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

5
Unless otherwise indicated, the following facts are
derived from the allegations in the original Pennsylvania
Indictment.

11
members,6 resulting in a tax loss of over $300 million. T h e
substantive counts of the Indictment allege that John Rigas
personally evaded approximately $51 million in income tax for
the years 1998 to 2000, and that Timothy Rigas evaded $85
million in income tax for those years.
The Rigases maintain that the alleged conspiracy—to
defraud the United States as charged in Pennsylvania, and to
commit offenses against the United States as charged in New
York—was formed by the same illegal agreement, and therefore
they should have been prosecuted under both theories in the
same proceeding. The District Court denied the Rigases’
motion to dismiss the Pennsylvania Indictment. On appeal, a
panel of this Court concluded that the Rigases established a
prima facie case that there was only one conspiratorial
agreement. Accordingly, the panel remanded the matter to the
District Court for a hearing to determine whether the
Pennsylvania prosecution should be dismissed on double
jeopardy grounds. See United States v. Rigas, 584 F.3d 594 (3d
Cir. 2009). We granted the Government’s petition for rehearing.
For the reasons that follow, we will vacate and remand to the
District Court to conduct an evidentiary hearing.
II. Discussion
The Rigases argue that the Pennsylvania conspiracy count
subjects them to double jeopardy since they were already
prosecuted and convicted for conspiring to commit an offense

6
The Superseding Indictment alleges that the Rigases
diverted an additional $900 million and claims a
correspondingly larger tax loss.

12
against the United States in New York. They reason that
because 18 U.S.C. § 371 creates a single statutory offense of
conspiracy that can be violated in alternative ways, they can only
be tried once for a single conspiratorial agreement in violation
of that statute. The Rigases also argue 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
contained in the Pennsylvania Indictment are barred by the
collateral estoppel component of double jeopardy. The District
Court denied the Rigases’ motion to dismiss the Pennsylvania
Indictment, rejecting both of their arguments.7
A. 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, & footnote omitted)

7
The District Court had subject matter jurisdiction
pursuant to 18 U.S.C. § 3231. We 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
law, our review is plenary.” United States v. Merlino, 310 F.3d
137, 141 (3d Cir. 2002).

13
(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
or her 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. See Albernaz v.
United States, 450 U.S. 333, 344 (1981). In other words, a
defendant generally may be subject to multiple prosecutions so
long as each prosecution involves a different offense.
1. The Blockburger Test
Before evaluating the merits of the Rigases’ double
jeopardy claims, we must determine the appropriate analytical
test to apply. The Government contends that to determine
whether § 371 reveals Congress’ intent to separately punish the
same course of conduct, we should apply the test the Supreme
Court outlined in United States v. Blockburger, 284 U.S. 299,
304 (1932). The Rigases, on the other hand, argue in favor of

14
utilizing the broader totality-of-the-circumstances test to discern
congressional intent.
In Blockburger the Supreme Court 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. (citations
omitted). 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). Thus, in Albernaz the Supreme Court
concluded that the Blockburger test applies where the
defendant’s conduct violated multiple conspiracy statutes. 450
U.S. at 339-40; 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).
The Blockburger test is a tool for determining whether
Congress intended to separately punish violations of distinct
statutory provisions, and is therefore inapplicable where a single
statutory provision was violated. In other words, distinct
statutory provisions are a condition precedent to applying the
Blockburger test. 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 the Blockburger test did not apply to violation of a single

15
statute); United States v. Evans, 854 F.2d 56, 58 (5th Cir. 1988)
(concluding that the “Blockburger test is not applied to find
separate offenses where the act or transaction violates but a
single statutory provision”).
Nevertheless, the Government argues that our precedent
in Xavier mandates application of the Blockburger test to § 371.
(See Appellee’s Br. for Rehearing 13.) In Xavier, the defendant
was convicted of possession of a firearm and possession of a
firearm during a violent crime in violation of Virgin Islands’
law. 8 2 F.3d. at 1290. The defendant challenged the district
court’s sentence, arguing that imposition of consecutive
sentences on both counts placed him in double jeopardy. Id. In
evaluating his claim, we first looked to the statutory scheme to
discern whether the Virgin Islands’ legislature intended multiple
punishments for convictions under the statute. We then applied

8
At the time Xavier was decided, V.I. Code Ann. Tit.
14, § 2253(a) provided:
Whoever, unless otherwise authorized by law,
has, possesses, bears, transports or carries either
openly or concealed on or about his person, or
under his control in any vehicle [ ] any description
of firearm . . . shall be sentenced to imprisonment
of not less than six months nor more than three
years and shall be fined not more than $5,000,
except that . . . if such firearm or an imitation
thereof was had, possessed, borne, transported or
carried by or under the proximate control of such
person during the commission or attempted
commission of a crime of violence . . . then such
person shall be sentenced to imprisonment of not
less than five years nor more than ten years and
shall be fined not more than $10,000.
2 F.3d at 1291.

16
the Blockburger test to determine whether the inference that the
Virgin Islands’ legislature “intended multiple punishments [was]
a reasonable one.” Id. at 1291 (quoting United States v.
Maldonado-Rivera, 922 F.2d 934, 981 (2d Cir. 1990)). Finally,
we reviewed the statute’s legislative history. Using all three
interpretative tools, we determined that consecutive sentences
for possession of a firearm and possession of a firearm during a
crime of violence did place the defendant in double jeopardy,
and therefore vacated the defendant’s sentence and remanded
the case to the district court for re-sentencing.
Xavier, however, does not stand for the proposition that
Blockburger is the test used to evaluate whether a statute creates
single or multiple offenses, the issue presented in this case.
Rather, Xavier merely held that where it may be inferred that a
legislature intended multiple punishments for offenses charged
under separate statutes or in different parts of a statute,
Blockburger may be utilized to confirm that inference. Id.
Indeed, in Xavier, the government conceded that the two crimes
were the same offense under a Blockburger analysis because
possession of a firearm was a lesser included offense of
possession of a firearm during a violent crime. Id. Thus, Xavier
does not inform or govern our analysis here, where the sole issue
is whether § 371 creates a single offense that may be violated in
alternative ways or distinct offenses that may be prosecuted
successively without running afoul of double jeopardy.
Simply put, utilizing Blockburger to discern
congressional intent as to whether § 371 creates a single crime
or distinct crimes puts the cart before the horse. Before
determining whether application of the Blockburger test is
appropriate, we must determine whether § 371 creates a single
offense.
Both the New York and Pennsylvania actions allege
violations of 18 U.S.C. § 371, which contains two prongs. The
heart of the Rigases’ challenge is that 18 U.S.C. § 371 creates a

17
single offense that may be committed in two ways, i.e., either by
“conspiring to commit an offense against the United States,” as
charged in the Southern District of New York Indictment, or by
“conspiring to defraud the United States,” as charged in the
Middle District of Pennsylvania Indictment. Thus, “[i]n order
to sustain a conviction under § 371, the government must show:
(1) the existence of an agreement to achieve an unlawful
objective; (2) the defendant’s knowing and voluntary
participation in the conspiracy; and (3) the commission of an
overt act in furtherance of the conspiracy.” United States v.
Harmas, 974 F.2d 1262, 1267 (11th Cir. 1992).9
The Rigases therefore argue that double jeopardy bars the
Middle District of Pennsylvania’s successive prosecution
because it is based on a violation of the same statute they were

9
The specific elements of conspiracy to defraud the
United States are: (1) an agreement to defraud the United States;
(2) the defendants intentionally joining the agreement; (3) one
of the conspirators committing an overt act; and (4) an overt act
in furtherance of the conspiracy. See United States v. McKee,
506 F.3d 225, 238 (3d Cir. 2007). The specific elements of
conspiracy to violate federal law are: (1) an agreement to
commit an offense proscribed by federal law; (2) the defendants
intentionally joining in the agreement; (3) one of the
conspirators committing an overt act; and (4) an overt act in
furtherance of the conspiracy. See O’Malley, et al., Federal Jury
Practice and Instructions, Pattern Criminal Jury Instructions,
Instruction 62 (1988). The District Court found that each prong
of § 371 contained a separate element, and thus, that the
Blockburger test was satisfied.
At argument, the Rigases conceded that if we were to
apply the Blockburger test, we would affirm the District Court’s
decision because the “offense” and “defraud” clauses each
contain an element that the other does not contain.

18
convicted of violating in the New York prosecution, and
because application of the totality-of-the-circumstances test,
outlined in Liotard, 817 F.2d at 1078, reveals that the
conspiracies charged in both jurisdictions are the same. Cf.
Sanabria, 437 U.S. at 70 n.24 (rejecting application of the
Blockburger test when the defendant was accused of a “single
violation of a single statute”). Accordingly, the Rigases fault
the Government for not bringing both conspiracy charges in the
same indictment.
The Government argues, on the other hand, that the
totality-of-the-circumstances test is reserved for situations in
which a defendant is charged with successive violations of the
same conspiracy statute, and that here the Rigases are charged
with committing two distinct offenses prohibited by § 371. In
other words, the Government maintains that § 371 creates
separate, distinct crimes. In turn, the Government rejects
application of the totality-of-the-circumstances test, arguing that
Blockburger’s elements test demonstrates that the successive
prosecutions do not violate the Rigases’ Fifth Amendment right
because Congress may authorize cumulative punishments for
separate criminal offenses that occur in the same act. See
Albernaz, 450 U.S. at 344; United States v. Kimbrew, 406 F.3d
1149, 1151-52 (9th Cir. 2005) (applying Blockburger test to
separate criminal conspiracy counts). Accordingly, a single
conspiratorial agreement can be prosecuted twice if it violates
two separate conspiracy statutes. Braverman, 317 U.S. at 54;
Albernaz, 450 U.S. at 344.
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

19
fraud). We have not yet, however, explicitly addressed whether
these types of conspiracy are parts of a single statutory offense.
Thus, we must determine whether the New York and
Pennsylvania prosecutions are based on a violation of the same
statutory provision. We conclude that they are.
“Whether a particular course of conduct involves one or
more distinct ‘offenses’ under the statute depends on
congressional choice.” Sanabria, 437 U.S. at 70. We discern
congressional intent by first analyzing the statutory text, and we
“interpret a statute by giving it its most natural reading.” United
States v. Easter, 553 F.3d 519, 525 (7th Cir. 2009) (citing
United States v. Ressam, 553 U.S. 272, 274 (2008)).10 As
previously noted, § 371 provides that:
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.
Thus, § 371 contains three key components. 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

10
We reiterate that Blockburger is a tool of statutory
construction that is utilized to determine whether prosecution
under two distinct statutory provisions violates double jeopardy,
but does not control “where . . . there is a clear indication of
contrary legislative intent.” Albernaz, 450 U.S. at 340. Plain
language analysis, on the other hand, is the appropriate tool of
statutory construction that is utilized to determine whether
Congress created distinct statutory provisions.

20
or for any purpose.” Third, “one or more of such persons [must]
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, 636
(1991) (noting that “legislatures frequently enumerate
alternative means of committing a crime without intending to
define separate elements or separate crimes”); Milanovich v.
United States, 365 U.S. 551, 553-54 (1961) (holding that a
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); United
States v. Yeaman, 194 F.3d 442, 453 (3d Cir. 1999) (holding
that a statute criminalizing a “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 that can be committed in three alternate
ways).
We believe that, under a plain and natural reading of its
text, § 371 creates one offense, not two distinct offenses. First,
Congress’ use of the word “either” before “to commit any
offense” and “to defraud” demonstrates that these objects
provide alternative means of committing a single type of offense
rather than creating separate offenses. Indeed, Merriam-

21
Webster defines “either” as: “the one or the other of the two.”
Webster’s Third New International Dictionary 728 (3d ed.
1993). The dictionary also notes that “either” is “used as a
function word before . . . or to indicate that what immediately
follows is the first of two or more alternatives that are equally
applicable.” Id. Next, in cases “[w]hen the term ‘or’ is used, it
is presumed to be used in the disjunctive sense unless the
legislative intent is clearly contrary.” United States v. Driscoll,
761 F.2d 589, 597 (10th Cir. 1985). Importantly, “in penal
statutes, the word ‘or’ is seldom used other than as a
disjunctive.” Id. at 598 (citing 21 Am. Jur.2d, Criminal Law, §
540). Merriam-Webster defines “either-or” as “an unavoidable
choice or exclusive division between only two alternatives.”
Webster’s Third New International Dictionary 728 (3d ed.
1993). Finally, these alternatives come in the middle of the
sentence, and are followed by the description of an additional
element, i.e., the overt act requirement, signaling that objects are
alternative means of violating § 371. Thus, the plain and literal
meaning of the words “either . . . or” suggests that Congress
enacted § 371 intending to create a single, criminal offense that
may be committed in two alternative ways.
By endorsing this interpretation of the phrase “either . .
. or,” we join several other circuits which have also concluded
that Congress’ use of disjunctive language creates alternative
ways of violating a statute. For example, relying on the “either
. . . or” construction of § 371, the Eleventh Circuit reached the
same conclusion in Harmas, noting that because the conspiracy
statute is “written in the disjunctive [it] should be interpreted as
establishing two alternative means of committing a violation.”
974 F.2d at 1266;11 see also Foutz v. United States, 72 F.3d 802,

11
We also note that there is nothing in § 371’s sparse
legislative history, see Smith, 891 F.2d at 712, suggesting that
Congress had a contrary intent, see Scrimgeour, 636 F.2d at
1023-24 (noting that a statute’s words should be given their

22
805 (10th Cir. 1995) (noting that as a general rule the use of a
disjunctive in a statute indicates that alternatives were intended);
United States v. Garcia, 718 F.2d 1528, 1532-33 (11th Cir.
1983) (same); United States v. Scrimgeour, 636 F.2d 1019, 1024
(5th Cir. 1981) (same).
Thus, we conclude that the most natural reading of the
statute is that Congress created a single offense that may be
committed in alternative ways. The Government argues,
however, that such an interpretation is overly formalistic, and
contends that Congress may—and indeed does—regularly
combine distinct, multiple, and sometimes incongruent offenses
within a single statute. Thus, the Government posits that the
statute is similar to, and should be read as if, it contains a §
371(a), i.e., the “offense” clause, and a § 371(b), i.e., the
“defraud” clause, evidencing Congress’ clear intent to create
distinct offenses. This argument, however, is unpersuasive and
only undermines the Government’s position.
When Congress crafts a statute to create distinct offenses,
it typically utilizes multiple subsections or separates clauses
with semicolons to enumerate the separate crimes. See, e.g.,
Jones v. United States, 526 U.S. 227, 252 (1999) (interpreting
the three subsections of 18 U.S.C. § 2119, the federal carjacking
statute, as creating three distinct crimes); see also 18 U.S.C. §
922(a)-(p) (defining separate firearm offenses). Here, unlike
most statutes that create multiple offenses, § 371 is a single
sentence, divided only by commas. The fact that Congress
declined to structure § 371 in such a manner undermines the
interpretation advanced by the Government and supports our
single-offense rendering of the statute.

plain meaning and that “there is ‘ordinarily’ no need to resort to
legislative history” unless “a clear contrary legislative intention
is shown”).

23
 Furthermore, what § 371 criminalizes is the unlawful
agreement and not the substantive offenses which may be the
object of the conspiracy. See Iannelli v. United States, 420 U.S.
770, 777 (1975) (noting that the “essence” of a conspiracy “is an
agreement to commit an unlawful act”); United States v.
Dansker, 537 F.2d 40, 51 (3d Cir. 1976) (“[T]he crime of
conspiracy is [a] separate and distinct [offense] from the related
substantive offense.”). “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.” Braverman, 317 U.S. at 53. Indeed, the
“basic rationale of the law of conspiracy is that a conspiracy
may be an evil in itself, independently of any other evil it seeks
to accomplish.” Dennis v. United States, 341 U.S. 494, 573
(1951) (Jackson, J., concurring). “This settled principle derives
from the reason [that] . . . collective criminal agreement . . .
presents a greater potential threat to the public than individual
delicts. . . . [T]he danger of a conspiratorial group [is not]
limited to the particular end toward which it has embarked. . . .
[T]he danger which a conspiracy generates is not confined to the
substantive offense which is the immediate aim of the
enterprise.” Callanan v. United States, 364 U.S. 587, 593-94
(1961). For this reason, “[i]t is elementary that a conspiracy
may exist and be punished whether or not the substantive crime
ensues.” Salinas v. United States, 522 U.S. 52, 65 (1997).
Therefore, however diverse the objects of a § 371 conspiracy
may be, the emphasis remains on—and the statute is aimed at—
criminalizing the illegal agreement.12

12
Albernaz does not compel a different conclusion. In
Albernaz, the Supreme Court focused, in part, on the objects of
the conspiracies—the fact that importation and distribution of
marijuana impose diverse societal harm—to reach its conclusion
that convictions under 21 U.S.C. §§ 846 and 963 could result in
consecutive sentences. 450 U.S. at 343. Here, unlike in

24
 In holding that § 371 creates a single offense, we join the
majority of circuits that have reached the same conclusion when
faced with challenges to indictments based on duplicity.
“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). An impermissibly duplicitous
indictment is subject to dismissal.
In United States v. Smith, the defendants claimed that the
indictment against them was infirm and must be dismissed
because it charged two separate offenses—conspiracy to commit
an offense against the United States and conspiracy to defraud
the United States in violation of 18 U.S.C. § 371—in the same
count. 891 F.2d 703, 705 (9th Cir. 1989). The Ninth Circuit
disagreed, reasoning that the “two clauses [of § 371] should be
interpreted to establish alternate means of commission, not
separate offenses.” Id. at 712. The Ninth Circuit further noted
that:

Albernaz, we are analyzing a single statute and not separate
statutes which clearly create two distinct crimes. See 21 U.S.C.
§ 846 (criminalizing conspiracies to violate the subchapter on
control and enforcement) and 21 U.S.C. § 963 (criminalizing
conspiracies to violate the subchapter addressing the import and
export of narcotics). Furthermore, the Supreme Court rested its
holding primarily on the statutes’ language, focusing on the
objects of the conspiracies as a way to glean congressional
intent only to confirm its plain language analysis. Albernaz, 450
U.S. at 343. As we have stated, the plain language here clearly
demonstrates that Congress intended to create one crime with
multiple means of commission.

25
 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.
Id. at 712-13 (9th Cir. 1989) (citing See Prince v. United States,
352 U.S. 322, 329 (1957)). Consequently, the Ninth Circuit
refused to dismiss the indictment on duplicity grounds because
“the defendants were charged with a conspiracy under separate
clauses of the same statute, not two separate statutes.” Id. at
712.
The Second, Ninth, Eleventh and District of Columbia
Circuits have reached the same conclusion and held that single
counts alleging violations of both the “offense” and “defraud”
prong of § 371 are not duplicitous. In other words, because
these counts charge one crime, not two, it logically follows that
§ 371 creates a single offense. See, e.g., United States v.
Manton, 107 F.2d 834, 839 (2d Cir. 1939) (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”)13 ;
United States v. Williams, 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

13
Both Manton and Blockburger were authored by
Justice Sutherland, who sat by designation in Manton. We note
that Manton, which was written some years later, did not apply
the Blockburger test to resolve whether the predecessor to the
modern-day conspiracy statute created one or more offenses.

26
fraud—further the general agreement and are multiple facets of
one conspiracy.”); United States v. 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”); Smith, 891 F.2d at 712-13 (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. 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”); Harmas, 974 F.2d at 1266; May v. United States, 175
F.2d 994, 1002-03 (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) (applying the Blockburger test to conclude that
the defendant had not presented a discernable double jeopardy
claim even though the first prosecution charged conspiracy to
commit mail fraud under “offense” prong of § 371 and the
second charged conspiracy to impede lawful function of United
States under “defraud” prong of § 371).14 The majority of these
cases support our conclusion that the plain language of § 371
creates a single crime.
The Government urges us to disregard cases holding that
§ 371 creates a single offense for duplicity purposes, contending

14
The Fifth, Eighth and Tenth Circuits have inconsistent
precedent.

27
that those cases are irrelevant because duplicity is a mere
pleading requirement.15 We reject this argument for two
reasons. First, it is simply untenable, as urged by the
Government, that Congress intended the plain language of the
statute to have one meaning in the duplicity context and an
entirely different meaning for double jeopardy purposes. Even
assuming that duplicity and double jeopardy concerns are aimed
at different purposes, the distinct aims of the analyses do not
alter the fact that the text we are interpreting is the same.
Statutory text is not so malleable.
Second, the Government too readily dismisses duplicity
as a mere pleading requirement, detached from double jeopardy
concerns. To the contrary, the issue in both duplicity and double

15
We note that on numerous instances the United States
Attorneys’ Offices in the Third Circuit, including the United
States Attorney’s Office for the Middle District of Pennsylvania,
have charged both provisions of § 371—to commit an offense
and/or to defraud the United States—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. Alston, 77 F.3d 713, 714 (3d Cir. 1996) (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. 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 & quotation
marks omitted)).

28
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 Charles Alan
Wright, Federal Practice and Procedure § 142, at 17-20 (3d ed.
1999) (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). Indeed, duplicity does
have constitutional dimensions, undermining the Government’s
suggestion that it is a mere pleading requirement. See United
States v. Aguilar, 756 F.2d 1418, 1420 n.2 (9th Cir. 1985) (“The
vices of duplicity arise from breaches of the defendant’s Sixth
Amendment right to knowledge of the charges against him,
since conviction on a duplicitous count could be obtained
without a unanimous verdict as to each of the offenses contained
in the count. A duplicitous indictment also could eviscerate the
defendant’s Fifth Amendment protection against double
jeopardy, because of a lack of clarity concerning the offense for
which he is charged or convicted.”) (internal citations omitted).
Further, “[o]ne 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). Consequently, there is simply no principled
basis for distinguishing the cases that held that § 371 creates a
single offense for duplicity purposes from the case at bar.

2. Totality of the Circumstances

29
 Given our determination that the plain language of 18
U.S.C. § 371 reveals Congress’ intent to create a single criminal
offense that may be violated in two alternative ways, the
Blockburger test is not the appropriate interpretive tool to
ascertain whether the successive Pennsylvania prosecution
places the Rigases in double jeopardy since the same-elements
test is applicable only to distinct statutory provisions. Rather,
we apply the totality-of-the-circumstances test to determine
whether the Government impermissibly split a single conspiracy
into multiple conspiracies, thereby violating the Rigases’ Fifth
Amendment rights. Accordingly, we must consider whether the
Rigases’ conduct violated the 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)
(citation omitted). Additionally, a single conspiracy should not
be divided into multiple prosecutions, each alleging different
overt acts. See Liotard, 817 F.2d at 1078. In the conspiracy
context:
It is the agreement which constitutes the crime,
not the overt acts. . . . Proper weight must be
given to consideration of whether the overt acts
alleged in the first conspiracy charge were carried
out in furtherance of the broad agreement alleged
in the second indictment or whether these acts
were carried out in furtherance of a different
agreement.
Id. (quoting United States v. Young, 503 F.2d 1072, 1076 (3d
Cir. 1974)). 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

30
acts alleged.” Id.; 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 majority of the Courts of
Appeals, including the Third Circuit, have developed a totality-
of-the-circumstances test to distinguish conspiracy prosecutions.
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. 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.”).
Factors that 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)).
We also consider whether:
(a) the [location] 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

31
 played by the defendant according to the
two indictments are similar.
Liotard, 817 F.2d at 1078 (internal citations omitted). In other
words, the defendant must show that the place, time, people,
actions, and responsibilities are similar in both prosecutions.
This list, however, is not exhaustive, and “different conspiracies
may warrant emphasizing different factors.” Smith, 82 F.3d at
1267. Further, when examining the totality of the
circumstances, a district court must “assure that the substance of
the matter controls and not the grand jury’s characterization of
it.” Id. Thus, a court must “look into the full scope of activities
described and implied in the indictments.” Id. at 1268.
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 a § 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 because 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 insignificant that the two
indictments alleged conspiracy to commit different underlying
offenses. Id. at 1078 n.7 (holding that “these differences in

32
statutory violation are immaterial and fortuitous”). Thus, we
concluded that Liotard was entitled to a pretrial evidentiary
hearing. Id. at 1079.
Against this background, we turn to the Rigases’ claim
that the totality of the circumstances reveals that the
Government impermissibly split a single conspiracy into
multiple prosecutions, violating the Rigases’ Fifth Amendment
right to be free from double jeopardy. While, as we explain
below, we are inclined to agree with the Rigases’ assertion, we
will remand the case to the District Court to conduct a full
evidentiary hearing in accordance with this opinion.
i. Common Goal Among the Conspirators
We first conclude that the Rigases had a common goal –
namely, to enrich themselves through the looting of Adelphia.
As we have stated, the Government alleged in the Pennsylvania
Indictment that, after a particularly high tax bill, the Rigases
decided “that they would never pay [a] large amount of taxes
again.” Pennsylvania Indictment 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 that charged in Pennsylvania. The
charges in both indictments relate to a common goal of
enriching the Rigases through the plunder of 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

33
by the Rigases—a subsidiary scheme within the New York
Indictment appear to be the same in both indictments.
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, bank fraud, and wire 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.
This argument, however, misses the point of the totality-of-the-
circumstances test. It is well established that a single
conspiratorial agreement can envisage the violation of several
statutes. See, e.g., Braverman, 317 U.S. at 53. 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.” Smith, 82 F.3d at
1267. Thus, in considering whether 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’”).
ii. Continuous Result Requiring Continuous Cooperation
We next conclude that “the [Rigases’] agreement
contemplated bringing to pass a continuous result that [would]
not [have] continue[d] without the continuous cooperation of the
conspirators.” Kemp, 500 F.3d at 287 (internal quotation marks
& citation omitted). The first part of this factor overlaps with
the time factor set forth in Liotard. 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.” Greenidge, 495 F.3d at
93 (internal quotation marks, ellipsis, & citation omitted). In

34
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 &
quotation marks omitted)).
As to time, the Pennsylvania Indictment covers a wider
time span than the New York Indictment, but 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 2002.16 Pennsylvania
Indictment 2. The majority of the allegations in the conspiracy
count relate to the period between 1996 and 2002. The alleged
tax loss is further limited to the period of 1998 to 2000.17
The New York Indictment charged a conspiracy between
1999 and May 2002. The New York Indictment, however,
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 reiterate that the Government
claims that the Rigases appropriated money from Adelphia to
avoid taking salaries on which they would have had to pay

16
The Pennsylvania Superseding Indictment expands
the period of the conspiracy to include 1989 to 2008, but does
not allege any continuing conspiratorial activity after 2002.
17
The Pennsylvania Superseding Indictment expands
the alleged tax loss to include the 2001 tax year.

35
income tax. See Pennsylvania Indictment 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.
iii. Overlapping Participants
It is also clear that there is overlap between the
participants of the conspiracies charged in New York and in
Pennsylvania. 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 of co-
conspirators, including Michael Rigas, Michael Mulcahey,
James R. Brown, and Timothy A. Werth.18 Although other
Rigas 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

18
Mulcahey was responsible for managing Adelphia’s
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 ongoing investigation.

36
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]
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.
iv. Place
The locations of the crimes outlined in the two
indictments also weigh in favor of concluding that the
conspiracies alleged in the New York and Pennsylvania
Indictments are the same.
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, New York 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

37
York Indictment—appear to be the same in both indictments,
and thus occurred in the same locations.
v. Overt Acts
We similarly conclude that the overt acts alleged in both
indictments are sufficiently similar to support the Rigases’
assertion that the charged conspiracies are the same. 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
Y ork Indictm en t, w hich 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.
The same acts, including transactions in which the Rigases
secretly took Adelphia’s corporate assets, are, however, key to
both indictments.
vi. Role Played by the Defendants
Finally, because the Rigases were central figures in both
conspiracies, this factor also weighs in favor of a finding that
there was a single conspiracy. The Rigases caused the wrongful
transactions and were personally responsible for hiding those
transactions. Putting all of these factors together, under the
totality of the circumstances, the Rigases have made out a non-
frivolous showing of double jeopardy. The New York
Indictment alleges that the Rigases took Adelphia’s corporate
assets for their personal use and hid those transactions from
investors and regulators. The Pennsylvania Indictment alleges
that one reason the Rigases took those same assets was to avoid
publicly receiving large salaries so that they could evade paying
taxes.

38
 In sum, 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 interdependent. Indeed, the record
reveals no factor that would have prevented the Government
from bringing the counts charged in the Pennsylvania Indictment
in the New York prosecution. 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.
B. 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) (citing Ashe v. Swenson, 397
U.S. 436, 443 (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.” Ashe, 397 U.S. 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. The New York jury,
however, 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

39
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.19 Accordingly, even if we found
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 seeking to invoke
collateral estoppel 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. See United States v.
Console, 13 F.3d 641, 665 n.28 (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) (internal
quotation marks & 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.
However, “the rule of collateral estoppel in criminal
cases is not to be applied with the hypertechnical and archaic

19
These transactions relate to “margin loans” the
Rigases borrowed from third parties to buy Adelphia stock on
behalf of their family and correspond to payments the Rigases
caused Adelphia to make on those loans. These transactions are
also described as overt acts in the Pennsylvania Indictment.

40
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 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 & citation omitted). Nonetheless,
the Rigases fall far short of meeting their burden of establishing
that 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

41
Rigases received the wire transfers as income.20 In other words,
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. Consequently, it is impossible to determine with
any 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.

20
Under 18 U.S.C. § 1343, a defendant is guilty of wire
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.

42
 III. Conclusion
For the reasons stated above, we will remand to the
District Court to conduct an evidentiary hearing into the totality
of the circumstances surrounding the conspiracies alleged in the
New York and Pennsylvania Indictments to determine whether
the conspiracy charged in Pennsylvania was part of the
conspiratorial agreement charged in New York. We will affirm,
however, the District Court’s denial of the Rigases’ motion on
collateral estoppel grounds.

43
RENDELL, Circuit Judge, with whom SCIRICA, CHAGARES
and HARDIMAN, Circuit Judges, join - dissenting.

The majority concludes that 18 U.S.C. § 371, read plainly
and naturally, creates one offense, because the use of the words
“either” and “or” demonstrates that “these objects provide
alternative means of committing a single type of offense rather
than creating separate offenses.” Maj. Op. Section II.A.1 ¶ 13.
I suggest that the plain, natural reading is that § 371 creates
separate offenses.

First, the statutory phrases typically used to set forth
“alternative ways” of committing one crime are quite unlike
§ 371. Characteristically, they are a string of “alternative routes
to a conviction” purposely included lest some conduct that is
intended to be criminalized is omitted. United States v.
Navarro, 145 F.3d 580, 586 (3d Cir. 1998). In Milanovich v.
United States, the Supreme Court held that an individual cannot
be convicted and cumulatively sentenced for both stealing
property and receiving the same stolen property under 18 U.S.C.
§ 641 because, in adding the “receiving” clause to the statute,
“Congress was trying to reach a new group of wrongdoers, not
to multiply the offense of the robbers themselves.” 365 U.S.
551, 554 (1961) (internal quotation marks omitted). In Navarro,
we held that the three mental states in a statute (intent to
promote, knowing concealment, and knowing avoidance) did
not create three separate offenses, but were three alternative
ways to commit the same offense. 145 F.3d at 585. In United
States v. Yeaman, we held that engaging in a scheme to defraud,
obtaining money by a material misrepresentation, and
conducting a transaction that operates as a fraud on a purchaser
are alternate means of committing a single offense, not separate
offenses. 194 F.3d 442, 453-54 (3d Cir. 1999). We noted that
the statute at issue in Yeaman did not cover “many different
kinds of behavior of varying degrees of seriousness.” Id. at 454
(internal quotation marks omitted). In United States v. Oliver,
the Court of Appeals for the Seventh Circuit found that, for
purposes of a statute criminalizing the receipt of “any firearm or
ammunition,” firearms and ammunition are interchangeable and
the receipt of both at the same time cannot create two separate
offenses. 683 F.2d 224, 232-33 (7th Cir. 1982). In each of
these instances, the alternative language sets forth similar
conduct integrally related so as to encompass all possible modes
of commission of the same crime. The two phrases of § 371 at
issue here do not fit this pattern; they do not encompass similar,
related conduct but set forth distinct offenses as defined by the
Supreme Court.

The Supreme Court has recognized on several occasions
since this statute was first conceived 1 that the “offense” and

1
Section 5440 of the Revised Statutes of the United States,
codified in 1874 and corrected in 1878, is almost identical to the
current statute, § 371. Section 5440 reads:
If two or more persons conspire either to commit
any offense against the United States, or to
defraud the United States in any manner or for
any purpose, and one or more of such parties do
any act to effect the object of the conspiracy, all
the parties to such conspiracy shall be liable to a
penalty of not less than one thousand dollars and
not more than ten thousand dollars, and to

2
“defraud” provisions set forth very different crimes. In United
States v. Hirsch, the Supreme Court described the predecessor
statute to 18 U.S.C. § 371 as including “every form of
conspiracy against the United States, and every form of
conspiracy to defraud them.” 100 U.S. 33, 35 (1879) (emphasis
added). The Court further defined these conspiracies as
“crimes,” “which are punishable under [the statute].” Id. The
Hirsch Court stated, “[t]he conspiracy here described [in the
statute] is a conspiracy to commit any offence against the United
States. The fraud mentioned is any fraud against them. It may
be against the coin, or consist in cheating the government of its
land or other property. The offence may be treason . . . .” Id.
The very different nature of the two offenses demonstrates that
they are clearly not mere “alternative routes” to a single
conviction.

When discussing the defraud clause, the Supreme Court
has said:

To conspire to defraud the United States means
primarily to cheat the government out of property
or money, but it also means to interfere with or
obstruct one of its lawful governmental functions
by deceit, craft or trickery, or at least by means
that are dishonest.

imprisonment not more than two years.
Subsections and semicolons were not used in the Revised
Statutes. The fact that Congress did not rewrite section 5440 to
include subsections does not reflect on its original intent.

3
 ....

It is true that words ‘to defraud’ as used in some
statutes have been given a wide meaning, wider
than their ordinary scope. They usually signify the
deprivation of something of value by trick, deceit,
chicane, or overreaching. They do not extend to
theft by violence. They refer rather to wronging
one in his property rights by dishonest methods or
schemes. One would not class robbery or
burglary among frauds.

Hammerschmidt v. United States, 265 U.S. 182, 188
(1924).

The Supreme Court has explained that the statutory
language in the “specific [defraud] clause of § 371 . . . reaches
any conspiracy for the purpose of impairing, obstructing, or
defeating the lawful function of any department of government.”
Dennis v. United States, 384 U.S. 855, 860-61 (1966) (emphasis
added). In contrast, to establish a conspiracy to commit an
offense against the United States, the government need not
prove that the United States or an agency was the intended
victim of the conspiracy, but only that there was a conspiracy to
violate a United States law. United States v. Falcone, 960 F.2d
988, 990 (11th Cir. 1992) (en banc). The substantive offense in
the offense clause need not be criminal but must be “prohibited
in the interest of the public policy of the United States” and
punishable “by suit for penalty.” United States v. Hutto, 256

4
U.S. 524, 528-29 (1921).2 The contrast between these two
crimes is radically different from the contrast in conduct in
statutes found to contain “alternatives.” Indeed, in the latter,
there is no contrast at all, as the phraseology connotes similarity
and all-inclusiveness, not dissimilarity and distinctiveness.

Second, the fact that the use of the disjunctive generally
sets forth alternatives does not really dictate that the two
provisions of § 371 do not set forth separate crimes. The two
provisions at issue effectively say if you conspire to do A, or, if
you conspire to do B, you will be punished. The real issue is
whether Congress intended to punish only once under § 371 for
an agreement to do A and B, or did it intend that even if you
were tried, convicted, and punished for conspiring to do A, you
could also be tried, convicted, and punished later for conspiring

2
In Haas v. Henkel, the defendants were charged with
conspiring to defraud the United States (obtaining secret
government information) and conspiring to commit an offense
against the United States (using bribery to obtain the
information). 216 U.S. 462 (1910). The Haas Court found that
the indictment properly charged a conspiracy to defraud the
United States because “such a conspiracy [need not]
contemplate a financial loss,” but need only have as its purpose
“impairing, obstructing, or defeating the lawful function of any
department of government.” Id. at 479. The Court also found
that the indictment properly charged a conspiracy to commit an
offense against the United States because it is a crime to bribe
any government official “to do any act in violation of his lawful
duty.” Id. at 480.

5
to do B? I suggest that Congress intended the latter, but, in any
event, the “either . . . or” language does not dictate the former.

The majority’s reliance on cases in which courts engaged
in a duplicity analysis ignores the fact that a count does not
necessarily violate principles against duplicity just because it
contains allegations that could have been stated as separate
offenses. “[A] single count of an indictment should not be
found impermissibly duplicitous whenever it contains several
allegations that could have been stated as separate offenses, but
only when the failure to do so risks unfairness to the defendant.”
United States v. Root, 585 F.3d 145, 155 (3d Cir. 2009). A
finding that charging violations of the offense and defraud
clauses in one count is not impermissibly duplicitous does not
then, mean, a fortiori, that they are not separate offenses.
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.3

3
See United States v. Williams, 705 F.2d 603, 624 (2d Cir.
1983) (finding that one count alleging a conspiracy to defraud
the United States and to commit various substantive offenses
was not duplicitous because the conspiracy allegations were
specific); United States v. Wiley, 979 F.2d 365, 367-68 (5th Cir.
1992) (finding that one count charging a conspiracy to defraud
the United States and to commit an offense against the United
States was not duplicitous because it cited “the two underlying
statutes which [the defendant] is charged with conspiring to

6
 The double jeopardy inquiry, by contrast, focuses 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
punishments 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. These fundamentally distinct inquiries
preclude rote application of duplicity precedents to the double
jeopardy context.

While the majority employs various modes of analysis to
support reading the statute as it does - drawing on cases
involving duplicity and canons of construction - I come back to
the essential question as to congressional intent and believe it
unimaginable that Congress did not intend to punish separately
the two distinct types of conspiracies set forth in § 371 - as have
two of the three courts of appeals to have considered this issue.4

violate and list[ed] ten overt acts in furtherance of the
conspiracy”).
4
The Court of Appeals for the Eighth Circuit found with
little discussion (in the context of double jeopardy, not duplicity)
that § 371 “plainly establishes two offenses.” United States v.
Ervasti, 201 F.3d 1029, 1039 (8th Cir. 2000). In United States
v. Thompson, the Court of Appeals for the Tenth Circuit also
found that double jeopardy does not bar prosecutions for

7
Why would Congress separate out the defraud clause if it was
not intended to mean something different? 5

Congressional intent to impose separate punishments is
“reinforced” where the two conspiracy provisions address
separate evils. Albernaz v. United States, 450 U.S. 333, 343
(1981). Clearly, these provisions do. The “defraud” clause
focuses narrowly on conspiracies targeting the federal
government. See United States v. Brandon, 17 F.3d 409, 422
(1st Cir. 1994); Falcone, 960 F.2d at 990 (11th Cir. 1992);
United States v. Thompson, 814 F.2d 1472, 1476-77 (10th Cir.
1987). 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.

conspiracy to commit mail fraud and conspiracy to defraud the
United States under § 371. 814 F.2d 1472, 1476-77 (10th Cir.
1987). 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).

5
Congress also separated out the defraud clause for statute
of limitations purposes. Congress created a specific six-year
statute of limitations “for offenses involving the defrauding or
attempting to defraud the United States or any agency thereof,
whether by conspiracy or not.” 26 U.S.C. § 6531.

8
Rather, it broadly embraces conspiracies aimed at violating any
federal law. Id.; Hirsch, 100 U.S. at 35-36. Clearly, prohibiting
agreements to interfere with governmental agencies and
prohibiting agreements to violate United States laws address
“diverse societal harms.” Albernaz, 450 U.S. at 343. They are
directed at different evils. The majority casts this indicator aside
and also dismisses the applicability of the classic double
jeopardy test set forth in Blockberger v. United States, which
also reinforces congressional intent regarding separate
punishments. 284 U.S. 299 (1932).6

Examining this apparent intent, as well as the relevant
Supreme Court jurisprudence regarding this statute, and the
“evils” and “elements” tests for double jeopardy under Albernaz
and Blockberger, respectively, I can only conclude that the

6
Blockberger is “employed to ascertain whether the
inference that [the legislature] intended multiple punishments is
a reasonable one. If the Blockberger test is satisfied, it may be
presumed that multiple punishments are authorized.” United
States v. Xavier, 2 F.3d 1281, 1291 (3d Cir. 1993) (quoting
United States v. Maldonado-Rivera, 922 F.2d 934, 981 (2d Cir.
1990)). It is undisputed that the Blockberger test supports the
inference that Congress intended the provisions in § 371 to
create separate offenses because each requires proof of an
element which the other does not. Maj. Op. n. 9. The District
Court opinion by Judge Jones conducts a thorough analysis of
the “offense” and “defraud” provisions under Blockberger and
Albernaz. United States v. Rigas, 565 F.Supp. 2d 620 (M.D. Pa.
2008). I need not repeat it here.

9
“defraud” and “offense” provisions are not different ways of
committing the same crime, but, instead, set forth different
crimes. Accordingly, resort to United States v. Liotard is not
necessary. 817 F.2d 1074 (3d Cir. 1987). There simply is no
issue of double jeopardy.

I would accordingly affirm the District Court’s order and
permit the prosecution for conspiracy to commit tax evasion to
proceed.

10