For cases involving conspiracy charges, "[t]he Double Jeopardy Clause also prohibits subdivision of a single conspiracy into multiple violations." United States v. Petty, 62 F.3d 265, 267 (8th Cir. 1995) (citing Braverman v. United States, 317 U.S. 49, 52-53, 63 S.Ct. 99, 87 L.Ed. 23 (1942)). "`A single conspiracy is composed of individuals sharing common purposes or objectives under one general agreement.'"
The parties are correct that, in this Circuit, the court must apply a "totality of the circumstances" analysis to determine whether two alleged conspiracies are in reality the same conspiracy. United States v. Petty, 62 F.3d 265, 267 (8th Cir. 1995) (citing United States v. Thomas, 759 F.2d 659, 662 (8th Cir. 1985), and United States v. Tercero, 580 F.2d 312, 315 (8th Cir. 1978)). "Under this test, the court considers the following five factors: (1) the time the conspiracies existed; (2) the identity of the conspirators involved; (3) the statutory offenses charged in the indictment; (4) the nature and scope of the activity charged; and (5) the location where the events alleged as part of the conspiracy took place."
See United States v. Wheeler, 535 F.3d 446, 449-50 (6th Cir. 2008) (concluding from application of Russotti factors that successive prosecutions involved same pattern of racketeering despite some differences in predicate acts); United States v. DeCologero, 530 F.3d 36, 71 (1st Cir. 2008) ("In comparing the charged patterns of racketeering, we consider the totality of the circumstances, including the similarities of the time, the place, the people, and the nature and scope of the activities involved in each indictment." (internal quotation marks deleted)); United States v. Calabrese, 490 F.3d 575, 581 (7th Cir. 2007); United States v. Cole, 293 F.3d 153, 158 (4th Cir. 2002); United States v. Smith, 82 F.3d 1261, 1267 (3d Cir. 1996); United States v. Petty, 62 F.3d 265, 267 (8th Cir. 1995); United States v. Beszborn, 21 F.3d 62, 69 (5th Cir. 1994) (observing that double jeopardy challenge to RICO prosecutions required court to "review the entire record" in view of same five factors outlined in Russotti); United States v. Ruggiero, 754 F.2d 927, 932-33 (11th Cir. 1985). This totality-of-the-circumstances approach to identifying a pattern of racketeering is in accord with the rationale underlying RICO's pattern requirement.
The Double Jeopardy Clause protects against a second prosecution after acquittal for the same offense. See United States v. Petty, 62 F.3d 265, 267 (8th Cir. 1995). To support a double jeopardy claim, a defendant must show the multiple charges reflect the same offense, both legally and factually.
We review the district court's denial of the motion to dismiss de novo. United States v. Petty, 62 F.3d 265, 267 (8th Cir. 1995). The Fifth Amendment provides that "No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb."
"We review a district court's denial of a motion to dismiss an indictment on double jeopardy grounds de novo." United States v. Petty, 62 F.3d 265, 267 (8th Cir. 1995). Clementi asserts that forfeiture under 18 U.S.C. § 924(d) is punishment for purposes of double jeopardy analysis, thus rendering his subsequent indictment for the same offense a violation of the Double Jeopardy Clause. Clementi's assertion rests on the Ninth Circuit's reasoning in United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994), amended on denial of reh'g, 56 F.3d 41 (9th Cir. 1995), petition for cert. filed, 64 USLW 3161 (U.S. August 28, 1995) (No. 95-346).
We apply a variety of factors under a "totality of the circumstances" test in determining whether single or multiple conspiracies exist, including the nature of the activities involved, the location where the alleged events of the conspiracy took place, the identity of the conspirators involved, and the time frame in which the acts occurred. United States v. Petty, 62 F.3d 265, 267 (8th Cir. 1995). In this case, the government offered more than ample evidence to link Zurita-Franco to the charged conspiracy.
Sykes got its standard of review from the 1995 case of United States v. Petty, which stated "[w]e review a district court's denial of a motion to dismiss an indictment on double jeopardy grounds de novo." See 62 F.3d 265, 267 (8th Cir. 1995). And Petty relied on United States v. Ivory, which likewise stated that "the district court's denial of a motion to dismiss on double jeopardy grounds is subject to de novo review."
Double jeopardy may not attach and retrial may not be barred should a jury fail to check a predicate act. See United States v. Petty, 62 F.3d 265, 266-67 (8th Cir. 1995); United States v. Ham, 58 F.3d 78, 85 (4th Cir. 1995). A jury's failure to decide an issue will be treated as an implied acquittal only where the jury's verdict necessarily resolves an issue in the defendant's favor.
Because a prosecutor might use different overt acts to bring separate prosecutions against the same person for the same conspiracy, the "same elements" test of Blockburger is not applicable to conspiracies. United States v. Petty, 62 F.3d 265, 267 (8th Cir. 1995). Rather, the court must apply a "totality of the circumstances" test that focuses on five factors: "the time the conspiracies existed; (2) the identity of the conspirators involved; (3) the statutory offenses charged in the indictment; (4) the nature and scope of the activity charged; and (5) the location where the events alleged as part of the conspiracy took place."