294 F.3d 540 (3rd Cir. 2002), 01-1812, U.S. v. Gebbie

Docket Nº:01-1812.
Citation:294 F.3d 540
Party Name:UNITED STATES of America, Appellant, v. James M. GEBBIE, Midwest Presort Mailing Services, Inc., and James D. Richter
Case Date:June 28, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 540

294 F.3d 540 (3rd Cir. 2002)

UNITED STATES of America, Appellant,


James M. GEBBIE, Midwest Presort Mailing Services, Inc., and James D. Richter

No. 01-1812.

United States Court of Appeals, Third Circuit

June 28, 2002

Argued Oct. 29, 2001.

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[Copyrighted Material Omitted]

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Paul J. Brysh (Argued), Office of the United States Attorney, Pittsburgh, PA, Counsel for Appellant.

Michael R. Hamed (Argued), Messerman & Messerman, Cleveland, OH, Counsel for Appellee, James M. Gebbie.

J. Alan Johnson, Johnson & Eddy, Pittsburgh, PA, Counsel for Appellee, Midwest Presort.

Before: SLOVITER, NYGAARD, and AMBRO, Circuit Judges.


NYGAARD, Circuit Judge.

We are asked to determine whether plea agreements between Appellees and the U.S. Attorneys for the Northern and Southern Districts of Ohio bar the present prosecution. Appellees pleaded guilty to misprision of felony in Ohio, and now the U.S. Attorney for the Western District of Pennsylvania is prosecuting Appellees for the felony that formed the basis of the misprision pleas. The District Court dismissed that count of Appellees' indictment, holding that it violated the Fifth Amendment's prohibition against being twice placed in jeopardy, and the Government appealed. We conclude that the District Court erred, but will affirm the dismissal because the plea agreements protect Appellees from prosecution in Pennsylvania for the same crimes and offenses that were charged against them in Ohio.


Appellee James Gebbie is the founder, president, and owner of Appellee Mid-West Presort Mailing Services, Inc. ("Midwest"). Midwest is headquartered in Cleveland, Ohio, and operates facilities in Pittsburgh, Syracuse, Akron, and Columbus. Appellee James Richter was the plant manager in Pittsburgh and the senior director of operations in Akron and Columbus. Midwest sorted and barcoded mail for business customers seeking to obtain lower first-class letter rates for presorted and bar coded mail from the United States Postal Service. The rates for such mail depended upon the proportion of mail that was sorted and the extent of sorting.

Mail from certain business customers was given to Midwest with reduced rate postage already affixed. If Midwest was able to sort their mail more extensively than anticipated, the Postal Service paid Midwest a rebate. Conversely, if Midwest sorted their mail less extensively than anticipated, Midwest owed the Postal Service additional postage. The Postal Service checked only small samples of the presorted mail. Refunds and charges were based upon two forms submitted by Midwest: P.S. Form 3600, entitled "Mailing Statement," and P.S. Form 3533, entitled "Application and Voucher for Refund of Postage and Fees."

On March 18, 1999, a twenty-two-count indictment was returned in the Southern District of Ohio naming Gebbie, Richter, Midwest, and one other former Midwest employee as Defendants. Among other things, the Ohio Indictment alleged that all Defendants conspired to make false statements to the Postal Service between January 1, 1993 and August 31, 1994. The Ohio Indictment alleged that the conspiracy occurred in the Southern District of Ohio "and elsewhere."

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Midwest pleaded guilty to Count Eighteen of the Ohio Indictment, which charged a conspiracy to make false statements in violation of 18 U.S.C. §§ 371, 1001. The remaining twenty-one counts in the Ohio Indictment against Midwest were dismissed. Gebbie and Richter pleaded guilty to a single count of misprision of a felony in violation of 18 U.S.C. § 4. This was pursuant to a plea agreement in which the Ohio Indictment was dismissed in its entirety and a Superseding Information alleging misprision was issued to replace it. The felony underlying the misprision charge was the same conspiracy to which Midwest had pleaded guilty, i.e., "conspiracy to make false statements on Form 3600 mailing statements submitted to the United States Postal Service in 1993 and 1994." Appellees were then sentenced in the Southern District of Ohio.

Before the plea agreements in Ohio were finalized, the U.S. Attorney for the Southern District of Ohio and defense counsel learned that the U.S. Attorney for the Western District of Pennsylvania was investigating Defendants. They made an attempt to resolve all potential charges in a global agreement among the Northern District of Ohio, the Southern District of Ohio, the Western District of Pennsylvania, and Defendants, but the U.S. Attorney's Office for the Western District of Pennsylvania believed it was investigating crimes other than those committed in Ohio, so it declined to enter into an agreement.

A few months later, Gebbie, Richter, and Midwest were indicted in the Western District of Pennsylvania. That indictment was later replaced by an eight-count superseding indictment. Count One of the Pittsburgh Indictment charged Midwest, Gebbie, and Richter with a conspiracy, from 1992 to 1995, to commit mail fraud by undercounting mail processed for Mellon Bank and then "hiding" the mail among other customers' mail. Defendants allegedly would submit P.S. Forms 3600 that understated Mellon Bank's mail and Forms 3533 that overstated the refunds to which Midwest was entitled. In that manner, they caused the Postal Service to issue refund checks that were inflated. Counts Two and Three charged all three Defendants with substantive mail fraud offenses. Counts Four through Eight charged all three Defendants with making false statements to a federal agency.

Defendants filed motions to dismiss on double jeopardy grounds, based upon the prior federal prosecution in the Southern District of Ohio. Midwest and Gebbie filed a joint motion to dismiss the conspiracy charge. Richter filed a separate motion to dismiss the conspiracy charge and the false statements charges. Defendants also moved to dismiss the Pittsburgh Indictment in its entirety on the basis of unconstitutional pre-indictment delay.

The District Court granted the motions to dismiss the conspiracy count, but denied Richter's motion to dismiss the substantive false statements counts. The court held that the mail fraud conspiracy charged in the Pittsburgh Indictment is the same offense as the false statements conspiracy to which Midwest had pleaded guilty in Ohio. The court also held that the misprision charge to which Gebbie and Richter had pleaded guilty in Ohio was a lesser-included offense of the conspiracy charge alleged in Count One of the Pittsburgh Indictment, and thus violated the Double Jeopardy Clause of the Fifth Amendment to the Constitution which "forbids successive prosecution and cumulative punishment for a greater and lesser included offense." 1

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Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The Government argues on appeal that the District Court's double jeopardy analysis is constitutionally infirm.


Because we decide this case based upon the plea agreements, we do not need to reach the constitutional issue. Nonetheless, we think it is instructive to briefly explain why the District Court erred by treating misprision of felony as a lesser-included offense of the mail fraud conspiracy. When determining whether one crime is a lesser-included offense of another, we apply the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The test is "whether each provision requires proof of an additional fact which the other does not." Blockburger, 284 U.S. at 304, 52 S.Ct. 180.

The elements of misprision of felony under 18 U.S.C. § 4 are (1) the principal committed and completed the felony alleged; (2) the defendant had full knowledge of that fact; (3) the defendant failed to notify authorities; and (4) the defendant took steps to conceal the crime. See United States v. Cefalu, 85 F.3d 964, 969 (2d Cir. 1996). The elements of conspiracy to commit mail fraud under 18 U.S.C. §§ 371, 1341 are (1) an agreement between two or more persons to commit mail fraud; (2) the defendant knowingly joined the conspiracy; and (3) one of the conspirators committed an overt act in furtherance of the conspiracy. See United States v. Conley, 37 F.3d 970, 976-77 (3d Cir. 1994). Each requires proof of an additional fact that the other does not. For example, misprision requires that the defendant took steps to conceal the crime. There is no analogous element in the mail fraud or conspiracy statutes. Likewise, conspiracy to commit mail fraud requires an agreement, whereas there is no analogous element in the misprision statute. Therefore, misprision of the felony of conspiracy is not a lesser-included offense of the conspiracy itself, and Appellees have not been twice placed in jeopardy for the same offense.


Gebbie and Richter also argue that their plea agreements in Ohio bar their prosecution in the Western District of Pennsylvania.2 They argue that the Government cannot reindict them for the same conspiracy that it voluntarily dismissed in Ohio in exchange for their pleas to misprision. They point to the language in their plea agreements stating that their agreements were made "in exchange for the dismissal" of the conspiracy counts, and they contend that under contract principles as applied to plea agreements, the Government must live up to its side of the bargain. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) ("[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise...

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