United States v. Pierre, 14–2904.

• Decision Date: 31 July 2015
• Docket Number: No. 14–2904.,14–2904.
• Citation: 795 F.3d 847
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Frantz PIERRE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

795 F.3d 847

UNITED STATES of America, Plaintiff–Appellee

v.Frantz PIERRE, Defendant–Appellant.

No. 14–2904.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2015.

Filed: July 31, 2015.

Robert W. Owens, Jr., Owens Law, L.L.C., Bloomington, MN, argued, for appellant.

Joseph H. Thompson, Asst. U.S. Atty., Minneapolis, MN, argued (Andrew M. Luger, U.S. Atty., on the brief), for appellee.

Before WOLLMAN and COLLOTON, Circuit Judges, and WHITE,¹ District Judge.

Opinion

COLLOTON, Circuit Judge.

This is an interlocutory appeal from an order of the district court² denying Frantz Pierre's motion to dismiss an indictment on double jeopardy grounds. A grand jury in Minnesota charged Pierre with one count of conspiracy to defraud the United States and one count of money laundering. He argues that the Double Jeopardy Clause of the Fifth Amendment bars the prosecution because he was previously convicted in Florida for the same conspiracy offense charged in the Minnesota indictment. We conclude that the prior conviction did not encompass either the same conspiracy as the present charged conspiracy or the money laundering offense charged in the Minnesota indictment. We therefore affirm the district court's order.

I.

In May 2013, a grand jury in the District of Minnesota charged Pierre and three co-defendants with conspiracy to defraud the government, in violation of 18 U.S.C. § 286. The indictment alleges that the defendants agreed to defraud the Internal Revenue Service by submitting false tax returns and claiming undeserved tax refunds. According to the charge, Pierre and his co-conspirators filed approximately 1066 false tax returns, claiming approximately $6.9 million in fraudulent refunds, from July 2010 through May 2011. They used social security numbers belonging to Florida prisoners on returns for tax years 2009 and 2010. The defendants also allegedly incorporated fictitious businesses in Minnesota, opened bank accounts on behalf of those businesses, and collected tax refunds in the bank accounts. In a second count, the indictment charged Pierre with money laundering, in violation of 18 U.S.C. § 1957.

In September 2012, before the Minnesota indictment was returned, Pierre and two co-defendants were indicted in the Southern District of Florida. Pierre's co-defendants in the Florida indictment were not mentioned in the Minnesota indictment. The Florida indictment charged all defendants with conspiracy to defraud the United States under 18 U.S.C. § 286, conspiracy to use unauthorized access devices under § 1029(b)(2), use of unauthorized access devices under § 1029(a)(2), and aggravated identity theft under § 1028A(a)(1). The indictment also charged Pierre with possession of fifteen or more unauthorized access devices (i.e. , debit cards and social security numbers), in violation of § 1029(a)(3).

The Florida indictment alleged that Pierre and his co-conspirators agreed to file fraudulent tax returns, use debit cards to receive tax refunds, and withdraw fraudulently-obtained proceeds from those debit cards. At trial, the government presented evidence that defendants used social security numbers of Florida prisoners on false tax returns for tax year 2009. The defendants filed approximately 338 tax returns and claimed approximately $2.2 million in refunds. To collect the refunds, defendants applied for pre-paid debit cards on behalf of a fictitious business and directed the Internal Revenue Service to deposit tax refunds onto the debit cards. Defendants withdrew approximately $560,000 from the debit cards. On June 1, 2010, law enforcement discovered some of the cards in a traffic stop and then froze all debit cards registered to the business. Agents searched Pierre's Florida home in July 2012 and recovered seventy debit cards and a USB drive containing a list of social security numbers. A jury convicted Pierre on all counts charged against him in the Florida indictment.

In the present case, Pierre moved three times to dismiss his indictment on double jeopardy grounds, and the district court denied the motions. Pierre filed this interlocutory appeal, arguing that the Double Jeopardy Clause bars the indictment against him because the indictment charges him with the same conspiracy for which he was convicted in Florida. Pierre also argues the district court erroneously denied his request for an evidentiary hearing.

II.

The Double Jeopardy Clause prohibits the government from subdividing a single criminal conspiracy into multiple violations. Braverman v. United States, 317 U.S. 49, 53–54, 63 S.Ct. 99, 87 L.Ed. 23 (1942). In determining whether separately-charged conspiracies are really a single conspiracy, this court applies a “totality of the circumstances” test. United States v. Thomas, 759 F.2d 659, 662 (8th Cir.1985).

In applying that test, our cases consider: (1) the timing of the alleged conspiracies; (2) the identity of alleged co-conspirators; (3) the offenses charged in the indictments; (4) the “overt acts charged ... or any other description of the offenses charged which indicate the nature and the scope of the activity” charged; and (5) the locations of the alleged conspiracies. Id. “The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement, each with a separate object.” Id. In evaluating these factors, courts may look beyond the indictments and consider evidence adduced at a previous trial. Id.

We review the district court's denial of a motion to dismiss an indictment on double jeopardy grounds de novo and its related factual findings for clear error. Id. Although the indictment charges both a conspiracy to defraud and a substantive count of money laundering, Pierre's argument focuses primarily on the conspiracy. Because the district court concluded that Pierre's double-jeopardy claim was non-frivolous, the government must show by a preponderance of the evidence that the Minnesota and Florida indictments charge separate conspiracies. Id.

As to the first factor, we agree with the district court that the conspiracies transpired at different times. The Florida conspiracy began as early as January 2010, when defendants incorporated Tax Professors, Inc., and then ordered debit cards on behalf of the business. That conspiracy ended shortly after June 1, 2010, when investigators found a portion of the cards during a traffic stop and froze all debit cards associated with Tax Professors, Inc. In contrast, the Minnesota conspiracy began at the earliest in July 2010, when Pierre allegedly filed false tax returns, incorporated the first business in Minnesota, and opened bank accounts for that business. Defendants continued to receive tax refunds until May 2011.

Pierre points to testimony by an IRS agent at the Florida trial that one of the fictitious Minnesota businesses began receiving undeserved tax refunds on July 22, 2010. This testimony, Pierre asserts, shows that some of the tax returns requesting refunds directed to Minnesota bank accounts were filed before June 1, 2010, and that the alleged Minnesota conspiracy thus began before the end of the Florida conspiracy. The record does not show precisely when the conspirators filed the tax returns that led to the Minnesota refunds in July 2010. But even assuming that the first tax returns in the Minnesota conspiracy were filed before the end of the Florida conspiracy, the Minnesota conspiracy continued until May 2011, while the Florida conspiracy ended in June 2010. Some temporal overlap does not preclude a determination of separate conspiracies, particularly where the timing of one conspiracy extends beyond the end of the other. See United States v. Kienzle, 896 F.2d 326, 329 (8th Cir.1990).

Pierre also argues that the Florida conspiracy continued beyond June 2010 because tax returns involved in the Minnesota indictment were filed from Florida computers after the alleged end of the Florida conspiracy. That tax returns in the Minnesota conspiracy were filed from a Florida computer, however, does not establish that the post-June 2010 tax returns were part of the conspiracy charged in Florida. Other factors show that the Florida computers were used after June 2010 in furtherance of the separate conspiracy charged in Minnesota.

The second factor concerning the identity of conspirators likewise suggests that the conspiracies are separate. The Florida conspirators were Pierre, Terry Pierre, and Christmanie Bissainthe, while the Minnesota indictment identifies Pierre, Ronnie Bussell, Christopher Torh, Junior Tervil, N.W., and C.M. as conspirators. There was no evidence at the Florida trial that the conspirators identified in the Minnesota indictment took part...