105 F.3d 813 (2nd Cir. 1997), 1889, United States v. Podde

Docket Nº:1889, Docket 96-1094.
Citation:105 F.3d 813
Party Name:UNITED STATES of America, Appellee, v. Raphael PODDE, Defendant, Gabriel Reguer, Defendant-Appellant.
Case Date:January 29, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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105 F.3d 813 (2nd Cir. 1997)

UNITED STATES of America, Appellee,


Raphael PODDE, Defendant,

Gabriel Reguer, Defendant-Appellant.

No. 1889, Docket 96-1094.

United States Court of Appeals, Second Circuit

January 29, 1997

Submitted Aug. 6, 1996.

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Stuart J. Grossman, Grossman, Lavine & Rinaldo, Forest Hills, NY, for Defendant-Appellant.

David C. James, Kelly Anne Moore, Assistant United States Attorneys, Zachary W. Carter, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee.

Before CALABRESI and PARKER, Circuit Judges, and POLLAK, [*] District Judge.

CALABRESI, Circuit Judge:

The defendant in this case was indicted on charges of conspiracy and wire fraud, but pleaded guilty to the lesser charge of illegally structuring financial transactions with the intent to evade federal reporting requirements. Later, after the Supreme Court held that a person cannot be found guilty of structuring without knowledge of the unlawful nature of his conduct, the defendant was able to withdraw his guilty plea. He was then reindicted and convicted on the original charges of conspiracy and wire fraud.

In this appeal, we consider two questions. The first is whether the government's decision to prosecute the defendant after the withdrawal of his guilty plea violated the Double Jeopardy Clause. We agree with the unanimous line of authority that holds that there is no double jeopardy bar to reprosecution in these circumstances. The second is an issue we believe to be of first impression in this or any other circuit: whether the government was permitted to reindict the defendant on the original charges after the statute of limitations had ostensibly expired. We conclude that the government should not have been permitted to do so. In reaching this result, we note that the government can

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prevent the situation from arising in the future by securing waivers of the statute of limitations in its plea agreements.


Raphael Podde, the brother-in-law of the defendant-appellant, Gabriel Reguer, is an expert restorer of ancient Hebrew books. In 1986, Podde and Reguer devised a scheme to manufacture and sell counterfeit copies of an extremely valuable fifteenth century Jewish prayer book called the Guadalaxara Haggadah, only one of which is known to survive today. 1 Reguer, using an alias and a fake address, contacted two investors by telephone and described to them an ancient Haggadah that he had supposedly inherited from his deceased father. Believing the document to be a second original print of the famed Guadalaxara Haggadah, the investors paid $60,000 in cash for it. Following this success, Reguer attempted to sell other counterfeit copies of the book on two additional occasions, but in each case the prospective buyers were able to spot the forgery and the scheme failed.

Based on the FBI's investigation of this scam, Reguer and Podde were indicted in March 1988 on three counts of wire fraud under 18 U.S.C. § 1343 and one count of conspiracy to commit wire fraud under 18 U.S.C. § 371. A superseding indictment repeating the same counts was filed on May 23, 1988, and a trial soon followed. On June 2, 1988, just after the jury had been empaneled and the government had made its opening statement, both Reguer and Podde pleaded guilty: Podde to the whole indictment, Reguer to a lesser charge pursuant to a plea bargain. In return for the government's agreement to drop the other charges, Reguer pleaded guilty to causing the First National Savings Bank to fail to file a currency transaction report in violation of 31 U.S.C. §§ 5313, 5322(a) and 18 U.S.C. § 2. A mistrial on the original charges was declared, and Reguer was sentenced on his guilty plea to three years probation and a fine of $150,000.

In January 1994, subsequent to the Supreme Court's holding in Ratzlaf v. United States, 510 U.S. 135, 149, 114 S.Ct. 655, ----, 126 L.Ed.2d 615 (1994), that a defendant cannot be found guilty of structuring financial transactions under 31 U.S.C. § 5313 unless he knew that his conduct was illegal, Reguer moved to vacate his plea and expunge his record. Since Reguer had maintained at the time of his plea that he was unaware that his attempts to avoid the federal reporting requirements were unlawful, Chief Judge Sifton vacated Reguer's conviction on January 9, 1995. See United States v. Reguer, 901 F.Supp. 515 (E.D.N.Y.1995). On January 30, 1995, the government moved to reinstate the original indictment charging Reguer with conspiracy and wire fraud. The district court granted that motion orally in March 1995, and in a written opinion dated May 4, 1995. See United States v. Reguer, 901 F.Supp. 522 (E.D.N.Y.1995). In April 1995, Reguer moved to dismiss the indictment as time-barred. The court denied that motion the following month. See United States v. Reguer, 901 F.Supp. 525 (E.D.N.Y.1995).

Reguer's second trial began in June 1995. The jury found him guilty, and a judgment of conviction was entered on February 2, 1996. Reguer was sentenced to five years probation, fined $12,734, assessed an additional $200, and ordered to make restitution in the amount of $61,300. He now challenges that conviction on appeal.


  1. Double Jeopardy

    The Double Jeopardy Clause guarantees that criminal defendants shall not "be twice put in jeopardy of life or limb" for the "same offence." U.S. CONST. amend. V. Reguer contends that this provision should have barred his second trial. Like the district court, see Reguer, 901 F.Supp. at 523-25, we disagree.

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    A defendant may only raise a Double Jeopardy claim if he has been put in jeopardy (i.e. jeopardy has "attached") sometime before the alleged "second" prosecution. See, e.g., Crist v. Bretz, 437 U.S. 28, 32-33, 98 S.Ct. 2156, 2159-60, 57 L.Ed.2d 24 (1978). It is undisputed that jeopardy attaches to the entire indictment as soon as a jury is empaneled. See id. at 35, 98 S.Ct. at 2160-61 (citing Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), as "explicit authority for the proposition that jeopardy attaches when the jury is empaneled and sworn"). Since Reguer entered into his plea agreement with the government after the jury had been empaneled in his first trial, jeopardy had attached to the charges in the indictment. However, "in cases in which a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial." Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973). 2

    A double jeopardy inquiry must be conducted with the purposes served by the Clause in mind. See, e.g., United States v. Baggett, 901 F.2d 1546, 1550 (11th Cir.1990) (per curiam). In a frequently quoted passage, the Supreme Court in 1957 articulated those purposes:

    The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

    Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957).

    Consistent with those purposes, the law is clear that double jeopardy does not apply when a mistrial is declared at the request of the defendant. "A defendant's motion for a mistrial constitutes 'a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact,' " and he may not defend on double jeopardy grounds if the state seeks to determine his guilt before a second trier of fact. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089-90, 72 L.Ed.2d 416 (1982) (quoting United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978)). In such circumstances, the need to restrain the power of the state is not implicated.

    In the case before us, Reguer's lawyer specifically affirmed upon agreeing to the plea bargain at the first trial that it was "the application of all parties, including the defendant, to have the jury excused and a mistrial declared." Since the mistrial was declared at the request of the defendant (among others), the letter of Oregon v. Kennedy may well control here. In any event, the spirit of that case, and the broader principle for which it stands--that double jeopardy does not apply when the defendant, and not the state, is responsible for terminating the first prosecution and causing the second prosecution--would resolve the issue.

    Because " 'the Double Jeopardy Clause ... does not relieve a defendant from the consequences of his voluntary choice,' " Ricketts v. Adamson, 483 U.S. 1, 11, 107 S.Ct. 2680, 2686, 97 L.Ed.2d 1 (1987) (quoting

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    Scott, 437 U.S. at 99, 98 S.Ct. at 2198), it is well-settled that double jeopardy does not apply to the original counts in an indictment when a defendant has withdrawn or successfully challenged his plea of guilty to lesser charges. See, e.g., United States v. Barker, 681 F.2d 589, 592 (9th Cir.1982); Hawk v. Berkemer, 610 F.2d 445, 447-48 (6th Cir.1979); United States v. Williams, 534 F.2d 119, 120-22 (8th Cir.1976); United States v. Anderson, 514 F.2d 583, 587 (7th Cir.1975). The numerous cases that consider this issue "hold with...

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