Friday, September 16, 2005

Case o' The Week: Conspiracy Theory - Smith and Multiplicity

Accounts on the Cayman Islands were one of the many aspects of multiplicitous conspiracy allegations in United States v. Smith, __ F.3d __, 2005 WL 2210206 (9th Cir. Sept. 13, 2005), available here. Judge Hawkins writes an interesting opinion that lays out the multiplicity attack -- but ultimately falls short of finding plain error.

Players: Creative and exhaustive appellate attacks by former E.D. Cal. AFPD John Balazs.

Facts: David Smith and his colleagues were accused of tax, mail, and wire fraud, and money-laundering. Among other counts of conviction, the jury convicted the defendant of conspiracy to defraud the US in the ascertainment of taxes, conspiracy to engage in mail and wire fraud, and conspiracy to launder money – all in violation of 18 USC § 371.

Issue(s): (Most interesting among many): Were the three conspiracy counts multiplicitous “because there was only one combined scheme, i.e., one conspiracy?” Id. at *4.

Held: Considering all five Arnold factors, it was arguably error for Bates and Smith to be sentenced to consecutive terms on the three conspiracy counts. However, an error is not plain unless it is ‘clear’ or obvious. . . . . [I]t was not clear or obvious that the three conspiracies were multiplicitous, even at the sentencing stage.”

Of Note: The Court relies on the five Arnold factors to determine whether the conspiracy counts were multiplicitous and violate double jeopardy: 1. the differences in the periods of time covered by the alleged conspiracies; 2. the places where the conspiracies were alleged to occur; 3. the persons charged as the coconspirators; 4. the overt acts alleged to have been committed; and 5. the statutes alleged to have been violated. Id. at *5 (quoting Stoddard).

How to Use: Trial counsel can hardly be faulted for not clearly raising the multiplicitous argument below – the stuff is so complex that it is almost impossible to understand the argument on appeal, after full appellate briefing and when summarized in Judge Hawkins’ opinion.

In essence, the lesson of Smith is to look carefully multiple conspiracies involving essentially the same conduct. In Smith, that meant three conspiracy counts that all essentially involved a “single unified plan from the very beginning.” Id. at *7 (The language that the AUSA used to describe the scheme in closing argument). When separate conspiracy allegations involve the same players, time-frame and conduct, remember Smith and multiplicity.

For Further Reading: The government’s summary of the facts of this case can be found in a DOJ press release.


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