Case: 09-60683 Document: 00511323351 Page: 1 Date Filed: 12/16/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 16, 2010
No. 09-60683 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ERWIN DAVID RABHAN
Defendant-Appellant
Appeal from the United States District Court for the
Northern District of Mississippi
Before DAVIS, WIENER, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant-Appellant Erwin David Rabhan is charged in the Northern
District of Mississippi under 18 U.S.C. § 371 for conspiracy to violate 18 U.S.C.
§ 1014 by making material false statements for the purpose of influencing a
federally insured bank and a United States agency in connection with a loan to
procure a catfish farm in Mississippi. Rabhan previously pled guilty in the
Southern District of Georgia to a single count bill of information charging a § 371
conspiracy to violate § 1014 and 18 U.S.C. § 1344 in connection with making
false statements to obtain a loan from a different federally insured bank to build
a catfish processing plant in Georgia. Rabhan moved to dismiss the conspiracy
count in this case on double jeopardy grounds, arguing that the conspiracy count
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he pled guilty to in Georgia and the conspiracy count he is charged with in
Mississippi are not separate conspiracies but rather are a single overall
conspiracy.
The district court denied Rabhan’s motion, and he lodged this appeal from
that order. Because the government failed to rebut Rabhan’s prima facie
showing that the conspiracies charged in Georgia and Mississippi are a single
conspiracy, we reverse the district court’s ruling and conclude that prosecution
of the conspiracy count in the Mississippi indictment is barred by double
jeopardy.
I. BACKGROUND
A. The Georgia Loan
In 2002, Rabhan was indicted in the Southern District of Georgia for
conspiracy to defraud the United States and Enterprise National Bank
(Enterprise), a federally insured bank located in Florida.1 The object of the
alleged conspiracy was to violate 18 U.S.C. § 1344 (defrauding a financial
institution) and § 1014 (making false statements to influence a federally insured
institution). The relevant counts in the indictment focused on representations
Rabhan made on behalf of Catfish International, Inc. (CII) in his application to
Enterprise for a Business and Industry (B&I) loan2 expected to be guaranteed
by the U.S. Department of Agriculture (USDA). The indictment alleged a
1
He was originally indicted on March 27, 2002, and a superseding indictment was
handed down on November 8, 2002. All references to the Georgia indictment are to the
superseding indictment. The indictment contained 27 counts, but only counts 23-27 are
relevant to his double jeopardy claim.
2
Under the USDA’s Business and Industry Guaranteed Loan Program, the USDA
guarantees up to 90 percent of a loan obtained from a bank. To obtain the guaranty, a
borrower must provide a “minimum of 20 percent tangible balance sheet equity.”
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conspiracy from April 1998 to September 2000 based on the following relevant
facts.
Rabhan, a resident of Georgia, was the sole owner of Ehrlich Farms, Inc.
(EF). CII, a wholly owned subsidiary of EF, was created to build and operate a
catfish processing plant in Georgia that Rabhan planned to build using funds
from the loan he and his corporation ultimately obtained from Enterprise. In
April 1998, Rabhan submitted to Enterprise an application on behalf of CII for
a B&I loan to fund the construction and operation of the processing plant.
Relying on the representations in Rabhan’s application, Enterprise applied
to the USDA in May and June 1998 to approve and guarantee a portion of the
loan. Rabhan’s application falsely represented his personal and business
income, the membership of CII’s board, that Rabhan and CII would contribute
$2.1 million for plant equipment, and that a company had expressed interest in
buying all of the plant’s products. In July 1998, the USDA issued conditional
approval for the loan. During the process of negotiating with Enterprise
regarding the loan, Rabhan continued to make false representations. In July
1999, he and Lee Jones (the plant’s general contractor) prepared false affidavits
claiming that Rabhan had prepaid Jones $2.95 million for plant equipment.
Rabhan also submitted false financial statements for three of his companies (EF,
CII, and Nutrition Dynamics International, Inc.) and false tax returns for EF.
After signing the Enterprise loan agreement in July 1999, Rabhan continued to
deal with the bank in order to get portions of the loan disbursed. In his
applications for those disbursements, he made numerous fraudulent statements
regarding costs and the nature and extent of the construction completed. All
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fraudulent representations were made in Georgia and received by Enterprise in
Florida.
The Georgia indictment was dismissed when Rabhan pled guilty to a
single count bill of information alleging that he, with others “known and
unknown,” committed a § 371 conspiracy to violate § 1014 and § 1344 from July
1999 to April 2001. In the overt acts section, the bill of information mirrored the
language of § 1014 in alleging that Rabhan made false statements to Enterprise
to obtain the processing plant loan.3 The district court accepted Rabhan’s plea
and sentenced him to serve five years in prison.
B. The Mississippi Loan
The Mississippi indictment filed in the underlying case charges Rabhan
with conspiring in violation of § 371 to obtain a USDA-guaranteed B&I loan
from the Gulf Coast Bank (a Louisiana bank) by making material false
statements and willfully overvaluing collateral in order to influence the USDA
and Gulf Coast, an FDIC-insured institution. Rabhan applied for the loan on
behalf of Ehrlich Fish Farms, Inc. (EFFI), another wholly owned subsidiary of
EF owned by Rabhan. The indictment names Wilbur Peer, Jimmy Winemiller,
William Michael Winemiller, and Charles “Brett” Merrill as coconspirators.
Separately indicted coconspirators Paul Barrett and Gregory McMillon have pled
guilty to participating in the conspiracy. The indictment alleges a conspiracy
from January 1999 to March 2001 based on the following relevant facts.
Rabhan became interested in purchasing a Mississippi catfish farm owned
by Jimmy Winemiller in January 1999, and they began to discuss the sale in the
3
The other overt acts in the bill of information referred to a different conspiracy
involving Rabhan’s business ventures in Africa.
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spring. McMillon and the Winemillers sought to help Rabhan secure a B&I loan
so he could purchase the farm. They enlisted the aid of Wilbur Peer, a friend of
Jimmy Winemiller and the Acting Administrator of the USDA Rural Business
Cooperative Services, whose duties included determining whether loans
guaranteed by his agency should be approved. To obtain the loan to purchase
the Mississippi catfish farm, Rabhan falsely claimed that one of his corporations,
EFFI, owned 920 acres in Georgia that would serve as collateral for the loan. To
prevent the USDA from discovering that this representation was false, Rabhan
and his attorney, Merrill, forged a sales contract purporting to sell the property
and sent the USDA a letter assigning the sales proceeds as security for the
Mississippi loan.
Michael Winemiller provided false information to two appraisers to inflate
the value of the farm; McMillon and the Winemillers bribed Paul Barrett for a
false inventory of the farm’s fish ponds; and Rabhan had Michael Winemiller
and Greg McMillon bribe Kent Toler for a fraudulent seining 4 report. Jimmy
Winemiller bribed USDA official Wilbur Peer to approve the loan, and Rabhan
forged a catfish inventory under the name of appraiser Paul Barrett. These
events took place in Georgia, Mississippi, Arkansas, and Louisiana, but
Rabhan’s alleged actions all occurred in Georgia. The false appraisals and
inventories were performed in Mississippi.
C. District Court Proceedings
Rabhan filed a motion to dismiss the Mississippi indictment on the basis
of double jeopardy. The district court acknowledged the additional evidence
Rabhan filed in support of his motion but, without discussing that evidence,
4
Seining is used as a method of estimating the number and weight of fish in a pond.
5
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concluded that because the Georgia superceding indictment did not focus on the
loan to the Gulf Coast Bank, the Mississippi indictment alleged a separate
conspiracy. The court agreed with Rabhan that the time periods in the Georgia
and Mississippi schemes overlapped and that Rabhan was charged with the
same statutory offense in both cases. However, the court determined that the
“different co-conspirators, different geographical regions, and different overt
acts” involved in the Mississippi case established that the Mississippi indictment
alleged a separate conspiracy that was not barred by double jeopardy. In a later
order, the district court certified that Rabhan’s double jeopardy claim was
nonfrivolous, allowing Rabhan to appeal the denial of his motion to dismiss.
II. Standard of Review
The denial of a nonfrivolous motion to dismiss on double jeopardy grounds
is immediately appealable under the collateral order doctrine. Abney v. United
States, 431 U.S. 651, 662 (1977); United States v. Dunbar, 611 F.2d 985, 988-89
(5th Cir. 1980). We review such an order de novo. United States v. Arreola-
Ramos, 60 F.3d 188, 191 (5th Cir. 1995).
III. DISCUSSION
A. Double Jeopardy
Rabhan argues that the Mississippi indictment subjects him to double
jeopardy in violation of the Fifth Amendment. The Double Jeopardy Clause
provides that no person shall “be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. C ONST. amend. V. The prohibition against double
jeopardy provides three categories of protection: “It protects against a second
prosecution for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects against
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multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S.
711, 717 (1969) (footnotes omitted), overruled on other grounds by Alabama v.
Smith, 490 U.S. 794 (1989). In this case, Rabhan seeks protection under the
second category.
To support a claim of double jeopardy protecting himself against a second
prosecution for the same offense after conviction, Rabhan must show that the
offense charged in this case is the same as the offense charged in the Georgia
case. The central inquiry in a double jeopardy claim involving conspiracies is
whether one agreement and one conspiracy exists or more than one agreement
and more than one conspiracy exist. As the Supreme Court stated in Braverman
v. United States:
When a single agreement to commit one or more substantive crimes
is evidenced by an overt act as the statute requires, the precise
nature and extent of the conspiracy must be determined by
reference to the agreement which embraces and defines its objects.
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. The one agreement cannot
be taken to be several agreements and hence several conspiracies
because it envisages the violation of several statutes rather than
one.
317 U.S. 49, 53 (1942); see United States v. Levy, 803 F.2d. 1390, 1393-94 (5th
Cir. 1986).
The defendant carries the initial burden of establishing “a prima facie
nonfrivolous double jeopardy claim” that the two conspiracies charged are in fact
a single conspiracy and therefore charge a single offense. United States v.
Stricklin, 591 F.2d 1112, 1117-18 (5th Cir. 1979). After a defendant establishes
a prima facie nonfrivolous case that a single conspiracy exists, the burden of
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persuasion shifts, and the government must show by a preponderance of the
evidence that the defendant has been charged in separate conspiracies. Id. at
1118-19. This shift is appropriate because the government controls the
particularity of an indictment; therefore, it should bear the burden of
establishing that two different crimes are being charged if the indictments are
vague enough to allow a defendant to establish a prima facie case that only a
single conspiracy exists. Id. Furthermore, it would be impractical to place the
burden of persuasion on the defendant, who lacks access to the government’s
theory of its case or the proof relied on to establish its case. Id. at 1118. The
clandestine nature of conspiracy makes it difficult for a reviewing court to
discern the scope of an alleged conspiratorial agreement. This problem is made
more difficult when, as here, the defendant pled guilty to the earlier offense
presented in a vague bill of information and no trial record is available from the
first offense.
The defendant can satisfy his prima facie case by introduction of the
indictment from his previous case, or by offering other record material and
evidence normally available at the pretrial stage. Id.5 To meet its burden to
rebut the prima facie case, the government “may present however much or little
evidence . . . as it deems advisable, subject, of course, to dismissal of the
indictment if not enough evidence to rebut the defendant’s prima facie showing
5
This court has used information from different sources to inform its analysis of double
jeopardy claims. See, e.g., United States v. Vasquez-Rodriguez, 978 F.2d 867, 870 (5th Cir.
1992) (using indictment and evidence at trial); United States v. Kalish, 690 F.2d 1144, 1147,
1149-50 (5th Cir. 1982) (using trial record, signed pre-trial statements, and grand jury
testimony); United States v. Futch, 637 F.2d 386, 390 (5th Cir. 1981) (using live testimony).
In United States v. Atkins, we stated that none of our cases suggested a limitation to sources
a court could turn to for facts in the double jeopardy analysis. 834 F.2d 426, 433 (5th Cir.
1987), overruled on other grounds by Taylor v. Whitney, 933 F.2d 325 (5th Cir. 1991).
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is introduced.” Id. at 1119. Rabhan submitted the indictments, the Georgia bill
of information, Georgia grand jury testimony, documents, and other evidence
that the government produced during discovery in both cases in an effort to
make his prima facie case. The government produced no evidence to rebut
Rabhan’s submissions. The documents described above are the source material
for the facts in the discussion that follows.
B. Conspiracy
In United States v. Marable, we established five factors that we consider
in determining whether a defendant is being prosecuted for participation in one
conspiracy or multiple conspiracies:
(1) [T]ime, (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.
578 F.2d 151, 154 (5th Cir. 1978). All of the Marable factors must be considered
together because no single factor is determinative. United States v. Delgado, 256
F.3d 264, 272 (5th Cir. 2001).
1. Time:
An overlap in time periods between two alleged conspiracies favors a
finding of a single conspiracy, especially when that overlap is substantial. United
States v. Winship, 724 F.2d 1116, 1126 (5th Cir. 1984). The time periods alleged
in the indictments have a 21-month overlap (Georgia: April 1998 to September
2000; Mississippi: January 1999 to March 2001). The overlap in time periods is
substantial and favors a finding of a single conspiracy.
2. Persons acting as co-conspirators:
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An overlap in personnel participating in the conspiracy, particularly in key
personnel, indicates a single conspiracy. Levy, 803 F.2d at 1395. Rabhan is the
only individual named in the Georgia indictment. However, through submission
of additional evidence discussed below, Rabhan established that other persons
participating in the conspiracy in the instant case may also have participated
with him in obtaining the Georgia loan.
The Mississippi indictment alleges that Wilbur Peer, a USDA official who
approved the USDA guaranty of the Mississippi loan, accepted a bribe in
connection with that approval. According to the Georgia indictment, Rabhan
signed the Georgia loan agreement with Enterprise on July 19,1999. Discovery
documents show that Peer traveled to Georgia in August 1999 to meet with some
of the indicted Mississippi coconspirators and that he went again in September
to visit Rabhan. While in Georgia, he held public meetings to garner local
support for catfish farming to help supply Rabhan’s Georgia plant. The
documents indicate that, during the August visit, Rabhan offered to use Peer’s
trucking company to ship catfish from the Mississippi farm to the Georgia plant.
Rabhan and Peer also discussed Rabhan’s “future plans involving B&I loans.”
Peer’s association with Rabhan with respect to the processing plant around the
time the Georgia loan was approved suggests that he was involved in both loans.
Rabhan also provided evidence that Gregory McMillon, who has pled guilty
in the Mississippi conspiracy, was involved in the Georgia loan. According to
McMillon’s interview with government agents, in July 1998 Michael Winemiller
told McMillon that Rabhan was interested in buying the catfish farm and hired
McMillon to act as the broker for the deal. Sometime after June 1999 (when the
Georgia plant loan was made) Rabhan hired McMillon to assist on the plant
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construction and deal with the Enterprise Bank. Lee Jones (the Georgia plant
contractor) testified before the Georgia grand jury that McMillon assisted Rabhan
in obtaining progress payments on the Georgia loan. From July 1999 to
September 2000, the Georgia indictment charged Rabhan with submitting
disbursement application forms containing fraudulent statements about the
amount needed to pay contractors, constructions costs, and the type and extent
of construction completed. As part of the effort to gain approval for these
disbursement applications, Jones testified that Rabhan drafted letters concerning
the subcontractor’s work on the plant, McMillon re-typed and signed the letters,
and they then sent copies to Jones and Enterprise.
According to the USDA and Gulf Coast underwriting files for the
Mississippi loan, McMillon was the general manager of Rabhan’s parent company
and oversaw both the catfish farm and processing plant operations. When he was
interviewed by government agents in connection with the Georgia case, McMillon
claimed he worked “a great deal” on the processing plant and was able to
estimate the percentage of loan funds that were kicked back to Rabhan from the
Georgia loan. This information provides circumstantial evidence that McMillon
was involved as a conspirator with regard to the Georgia as well as the
Mississippi loan.
Although Gregory Hirsch, Rabhan’s CPA, was granted immunity in both
cases, his grand jury testimony in Georgia indicates that his CPA firm compiled
the allegedly false financial statements for Rabhan’s parent company involved in
both loans. Other evidence indicates that those statements were submitted to
obtain both the Georgia and Mississippi loans. In Gulf Coast’s review of the
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Mississippi farm loan application, it noted that Hirsch was acting as the Chief
Financial Officer/Controller of the applicant company.
Rabhan’s evidence that McMillon actually presented some of the false
information to Enterprise Bank and the implication that Peer was involved in the
USDA guaranty of that loan raise a reasonable inference that they participated
in the Georgia conspiracy. The evidence that Hirsch compiled the financial
statements used in obtaining both loans also raises a reasonable inference that
he was involved in the conspiracy in both Mississippi and Georgia. Contrary to
the government’s argument, the evidence reflects that they were more than mere
business associates of Rabhan. See United States v. Henry, 661 F.2d 894, 897
(5th Cir. 1981). Although the government alleged in the Georgia indictment and
bill of information that “others known and unknown” conspired with Rabhan, the
government offered no evidence to show the identity of the “known” conspirators
to rebut Rabhan’s proof.
In sum, Rabhan, who was clearly a central figure in both indictments, has
presented evidence sufficient to raise the inference that McMillon, Peer, and
Hirsch were connected to both loans and both cases. As the overlap of central
characters between cases is even more important than the number of overlapping
characters, Rabhan has satisfactorily carried this factor even though some of the
Mississippi personnel were not involved in both loans. See Levy, 803 F.2d at
1395.
3. Statutory offenses charged:
In both prosecutions, Rabhan was charged with a § 371 conspiracy to
defraud an FDIC-insured bank and a United States government agency through
violation of 18 U.S.C. § 1014, by making false statements to influence the actions
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of a federally insured institution. The Georgia indictment and bill of information
also included an underlying § 1344 bank fraud offense. The government argues
that this additional charge reflects separate conspiratorial agreements to engage
in different statutory offenses. Although the Georgia bill of information mirrored
only § 1014 in the overt acts section, the conduct alleged to violate § 1014 would
also establish a § 1344 violation. Additional charges in one case may still lead to
a finding that there is only one conspiracy, particularly when “the statutes that
do not overlap are related.” Levy, 803 F.2d at 1392. Rabhan therefore prevails
on this factor because the overlap in statutory offenses is almost identical and the
statutes that do not overlap are related.
4. Overt Acts/Nature and Scope of the Agreement:
Although there are no overlapping overt acts in the indictments, “the
precise bounds of a single conspiracy seldom will be clear from the indictment
alone.” Marable, 578 F.2d at 153. This prong of the test considers the overt acts
and other descriptions of the conduct charged, which may be helpful in gaining
insight “into the nature and scope of the allegedly separate conspiracies the
government seeks to punish.” Id. at 155. Rabhan submitted numerous
documents to the district court that he obtained from the government during
discovery in the Georgia and Mississippi cases, as well as testimony presented to
the Georgia Grand Jury, that are helpful in this respect.
It is telling to observe first that the government obtained and produced
witness statements and grand jury testimony in the Georgia case about the
Mississippi loan and the fraudulent actions Rabhan and others took to obtain it.
See United States v. Nichols, 741 F.2d 767, 772 (5th Cir. 1984) (evidence of what
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the government claimed was a second conspiracy was introduced at the first trial,
indicating a single conspiracy).
The documents indicate that the Georgia loan and the Mississippi loan are
related. The USDA State Office Executive Loan Committee Report for the
Mississippi loan considered the potential revenue the catfish farm could expect
to generate and concluded that the Gulf Coast Bank’s analysis was acceptable
because the Georgia processing plant committed to purchase 100 percent of the
farm’s fish. Both reports identified other possible purchasers, but the Gulf Coast
Bank recognized the company’s overall strategy to form a comprehensive
integrated catfish growing and processing operation. The report further stated
that Rabhan and McMillon had identified the Mississippi farm as a supplier for
the Georgia plant as part of this overall strategy.
In Levy, the defendants were involved in a series of fraudulently obtained
loans in which they obtained new loans to cover the previous loans. 803 F.2d at
1393. As with Rabhan, the indictments named separate overt acts, but the court
concluded that the transactions in the indictments were related and therefore
“tend[ed] to prove a single agreement rather than multiple agreements.” See id.
at 1396. As in Levy, the above described evidence shows that Rabhan’s loans
were related, raising the “inference that only one agreement existed.” Id. The
government argues that the loan files do not say that completion of the
processing plant was a requirement for the Mississippi loan. However, the
government again fails to draw our attention to or produce any evidence showing
that these loans were not part of an integrated project or strategy. Because the
conspiratorial agreement to make fraudulent representations to obtain the
Georgia loan from Enterprise Bank was interrelated with the loan obtained
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through fraud in the instant case, this prong favors a finding of a single
conspiracy.
5. Places where the events of the alleged conspiracy occurred:
When two alleged conspiracies overlap geographically, it is appropriate to
consider where they are based as an indicator of whether the geographic overlap
is significant. See Henry, 661 F.2d at 897. All events related to the Georgia loan
occurred in Georgia and Florida, with Georgia as the “base” of operations. The
events related to the Mississippi loan occurred in Mississippi, Georgia, Arkansas,
and Louisiana. The “base” of operations was in Georgia and Mississippi, where
the central co-conspirators created plans and made false representations.
Therefore, the geographic overlap between the bases of operation of the two
schemes is significant and favors a finding of a single conspiracy.
C. Analysis
Rabhan established a prima facie case in which all the Marable factors
weigh in favor (some more strongly than others) of finding a single conspiracy.
The time and statutory offense factors clearly overlap and favor a finding of a
single conspiracy. Rabhan has presented enough evidence to show that the loans
shared at least one operational base in Georgia. He has shown that several
persons may be common to both loan schemes. Rabhan has also presented
information showing the loans were linked, which suggests that the government
was prosecuting a single conspiracy involving multiple loans in the Georgia case.
In the face of a strong prima facie case, the government elected to produce
no evidence tending to show that more than one conspiracy existed. The
government has therefore failed to carry its burden of persuasion to establish by
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a preponderance of the evidence that two separate conspiratorial agreements
existed.
IV. CONCLUSION
For the reasons stated above, we REVERSE the district court’s order
denying the motion to dismiss and REMAND for entry of an order granting the
motion and dismissing the conspiracy count against Rabhan.
REVERSED and REMANDED.
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