U.S. v. Farmigoni

• Decision Date: 07 June 1991
• Docket Number: No. 90-1494,90-1494
• Citation: 934 F.2d 63
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert FARMIGONI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 63

934 F.2d 63

UNITED STATES of America, Plaintiff-Appellee, v. Robert FARMIGONI, Defendant-Appellant.

No. 90-1494.

United States Court of Appeals, Fifth Circuit.

June 7, 1991.

Frank G. DeSalvo, New Orleans, La., for defendant-appellant.

Victoria May, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN, KING, and GARWOOD, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Robert Farmigoni challenges on double jeopardy grounds his second conviction and sentence by his guilty plea arising out of a series of fraudulent banking transactions. Farmigoni was first convicted in the federal District Court for the Eastern District of Louisiana after entering a plea of nolo contendere to bank fraud in violation of 18 U.S.C. Secs. 2, 215 and 1344. His second conviction on a guilty plea to violation of 18 U.S.C. Secs. 2 and 1344, in the District Court for the Southern District of Mississippi, is now before us on appeal. Finding that the charges arose from two separate and distinct violations of the bank fraud statutes, we affirm the conviction and sentence imposed by the Mississippi district court.

The Double Cross

Farmigoni served as a senior vice president and loan officer of First Financial Savings and Loan Association in Lutcher, Louisiana (First Financial), from March 1985 until his resignation on June 6, 1986. Throughout his tenure with First Financial, Farmigoni was involved with Loretta Lustig, a customer of the bank, in a scheme to defraud the institution by issuing unauthorized letters of credit in favor of various of Lustig's concerns. Lustig used the documents to obtain funds from other financial institutions and paid Farmigoni for his key complicity.

Shortly before his resignation from First Financial, Farmigoni signed a fraudulent letter of credit for the benefit of Double Development, Inc. (Double Development), a business owned by Lustig. The letter of credit ostensibly committed First Financial to pay Trustmark National Bank of Jackson, Mississippi (Trustmark), up to $550,000 in the event that Lustig's company defaulted on a loan. Farmigoni was not authorized to issue the letter, and First Financial had no knowledge of his actions.

A few days after the letter of credit was prepared, Lustig presented it with a loan application to Trustmark. Trustmark, relying on this bogus letter, loaned Double Development $500,000.

On April 19, 1988, Farmigoni was charged in the Eastern District of Louisiana with bank fraud and aiding and abetting for these and related activities. The grand jury by indictment and subsequent supplemental indictment (the Louisiana indictment) charged him on eleven counts, including one count that Farmigoni defrauded First Financial in violation of 18 U.S.C. Sec. 1344. ¹ Farmigoni entered a plea of nolo contendere, and the district court convicted and sentenced him on these charges in February 1990.

In April 1989, while the Louisiana case was pending, Farmigoni was indicted in the Southern District of Mississippi for defrauding Trustmark in violation of the same bank fraud statute. ² He pleaded guilty to this charge after the trial court rejected his motion to dismiss on double jeopardy grounds. Farmigoni was subsequently convicted and sentenced to three and one-half years. The court's sentence specified that he was to serve this time consecutive to the sentence imposed in the Louisiana case.

Farmigoni claims that the Mississippi district court erred (1) in refusing to dismiss the Mississippi indictment, and (2) in ordering him to serve consecutive, rather than concurrent, sentences. Since both of these contentions rest on purely legal grounds, we employ a de novo standard of review.

Seeing Double

Farmigoni argues that the Fifth Amendment prohibition against subjecting a person to double jeopardy bars the government from prosecuting and convicting him under his plea of guilty to the Mississippi indictment. ³ He asserts that the offenses in the Louisiana and Mississippi cases are the same because both indictments arise out of the same scheme charging him with using letter of credit number 1821 to commit bank fraud for the benefit of Double Development.

The Supreme Court declared in Blockburger v. United States that the Double Jeopardy Clause prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes unless "each provision requires proof of an additional fact which the other does not." 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Grady v. Corbin, 495 U.S. ----, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), without a doubt markedly extended the Blockburger doctrine to bar subsequent prosecutions "in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. at ----, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. Grady distinguished between the elements of the offense and the evidence used to prove the commission of an offense, observing that "[t]he critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.... [T]he presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding." Id. (citation omitted).

Initially we point out that both Blockburger and Grady involved different offenses from different statutes arising out of the same acts or occurrence. In contrast, in the instant case the government contends that Farmigoni violated the same statute on two separate occasions, in two different ways, involving two different victims--two separate offenses.

We accept the government's position that the subsequent prosecution was valid. Farmigoni's contention that double jeopardy attaches because both indictments arose out of the same scheme ignores the fact that a single transaction, especially if, as here, of an extended sort, can produce numerous infractions. See Gore v. United States, 357 U.S. 386, 389, 78 S.Ct. 1280 1283, 2 L.Ed.2d 1405, 1408 (1958). The Mississippi indictment required proof that the fraudulent letter of credit was presented to Trustmark as collateral for the $500,000 loan request. The Louisiana indictment, however, required the government to show only that the fraudulent letter of credit was issued but not authorized, for the purpose of defrauding some financial institution, and that Farmigoni's participation in its issuance constituted a scheme to defraud First Financial. The charge did not involve Trustmark, and no proof of presentment of the letter of credit was necessary for the government to convict under the Louisiana indictment.

Second, as the trial court explained, the bank fraud statute requires proof of two basic elements: (1) the defendant executed or attempted to execute a scheme or artifice to defraud or to obtain money or funds from a financial institution by false or fraudulent pretenses; and (2) the defendant knowingly...