Opposition Brief — Farmigoni v. United States

2 Supreme Court, U.S.

4.4.8 D

JAN 13 1992

OFFICE OF THE CLERK

No. 91-659

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

ROBERT FARMIGONI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT —

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General -

ROBERT S. MUELLER, III

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

_ QUESTIONS PRESENTED

1. Whether the Double Jeopardy Clause bars peti-

tioner’s conviction for defrauding a Mississippi bank

by using a fraudulently issued letter of credit in an

attempt to obtain a loan, where petitioner had previ-

ously been convicted of defrauding the Louisiana

bank that employed him by issuing the letter of

credit, which was drawn on that bank without au-

thorization.

2. Whether the district court erred in directing

that petitioner’s sentence for the Mississippi offense

run consecutively to the sentence he received for the

Louisiana offense.

(1)

—————

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Bell v. United States, 349 U.S. 169 (1955) —.......... 7

Blockburger v. United States, 284 U.S. 299

(ee I EAS Pe AIR eo Oa 8,

Grady Vv. Corbin, 495 U.S. 508 (1990) _.....0000.0000..... 8,

Harris v. Oklahoma, 433. U.S. 682 (1977) ~.............

Illinois v. Vitale, 447 U.S. 410 (1980) —.....000000000.....

Ladner Vv. United States, 358 U.S. 169 (1958) .......

Menna Vv. New York, 423 U.S. 61 (1975) ..... pees

Missouri V. Hunter, 459 U.S. 359 (1983) ...............

Sanabria v. United States, 437 U.S. 54 (1978) .......

Snow, In re, 120 U.S. 274 (1887) .....................-...-.-.

United States v. Broce, 488 U.S. 563 (1978) -.........

United States v. Universal C.I.T. Credit Corp.,

344 U.S. 218 (1952) .....: PIRI bad ENS sh ON AR an 7

Whalen v. United States, 445 U.S. 684 (1980) .-....... 7

PANIKHWRAQQIQ4

Constitution and statute:

U.S. Const. :

Amend. V (Double Jeopardy Clause) ...... 3, 4, 5, 6, 7,8

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(IIT)

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-659 ‘

ROBERT FARMIGONI, PETITIONER

U.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 31-

39) is reported at 934 F.2d 63.

JURISDICTION

The judgment of the court of appeals was entered

on June 7, 1991. The petition for a writ of certiorari

was filed on September 8, 1991, and is therefore out

of time under Rule 13.4 of the Rules of this Court.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

After pleading guilty in the United States District

Court for the Southern District of Mississippi, peti-

tioner was convicted of bank fraud, in violation of

18 U.S.C. 1344. He was sentenced to three and one-

(1)

2

half years’ imprisonment, to be served consecutively

to his earlier sentence for bank fraud in the Eastern

District of Louisiana. The court of appeals affirmed.

Pet. App. 31-39.

1. The evidence showed that, from March 1985

until his resignation on June 6, 1986, petitioner

served as a senior vice president and loan officer of

First Financial Savings and Loan Association in

Lutcher, Louisiana. Throughout that period, peti-

tioner, together with Loretta Lustig, a customer of

the bank, engaged in a scheme to defraud First Fi-

nancial by issuing unauthorized letters of credit in

favor of various of Lustig’s concerns. Lustig used the

documents to obtain funds from other financial insti-

tutions and paid petitioner for his complicity. Pet.

App. 32.

Shortly before his resignation from First Finan-

cial, petitioner signed a fraudulent letter of credit

for the benefit of Double Development, Inc., a busi-

ness owned by Lustig. The letter of credit ostensibly

committed First Financial to pay Trustmark Na-

tional Bank of Jackson, Mississippi, up to $550,000

in the event that Lustig’s company defaulted on a

loan. Petitioner was not authorized to issue the let-

ter of credit, and First Financial had no knewledge

of his actions. Pet. App. 32.

A few days after the letter of credit was prepared,

Lustig presented it with a loan application to Trust-

mark. Relying on the bogus letter, Trustmark loaned

Double Development $500,000. Pet. App. 33.

2. On April 19, 1988, prior to the commencement

_ of the instant case, petitioner was charged in the

Eastern District of Louisiana with defrauding First

Financial. Count 9 of the 11-count indictment alleged

that petitioner provided Lustig with the unauthorized

letter of credit for the benefit of Double Development.

3

The Louisiana indictment did not name any financial

institution other than First Financial. Petitioner en-

tered a plea of nolo contendere to the Louisiana in-

dictment, and the district court convicted and sen-

tenced him in February 1990. Pet. App. 33.

3. In April 1989, while the Louisiana prosecution

was pending, petitioner was indicted in the instant

ease for defrauding Trustmark. Count 2 of the in-

dictment charged petitioner and Lustig with applying

for a loan at Trustmark on behalf of Double Develop-

ment using the same fraudulently issued letter of

credit that was the subject of Count 9 of the Louisi-

ana indictment. Petitioner moved to dismiss the Mis-

sissippi indictment on double jeopardy grounds,

claiming that the offenses in the Louisiana and Mis-

sissippi cases were the same. After the district court

rejected that contention, petitioner pleaded guilty to

Count 2. Pet. App. 33.

4. Petitioner appealed, reasserting his claim that,

under the Double Jeopardy Clause, his conviction on

Count 9 of the Louisiana indictment barred his prose-

cution on Count 2 of the Mississippi indictment. The

court of appeals rejected that contention. Citing

Blockburger v. United States, 284 U.S. 299 (1932),

and Grady v. Corbin, 495 U.S. 508 (1990), the court

acknowledged that successive prosecutions may be

foreclosed for “different offenses from different stat-

utes arising out of the same acts or occurrence.”

Pet. App. 36. The court observed, however, that this

case does not present that situation; rather, peti-

tioner “violated the same statute on two separate

occasions, in two different ways, involving two dif-

ferent victims.” Jbid. The court explained that the

Mississippi indictment charged the fraudulent presen-

tation of the letter of credit to Trustmark as collat-

eral for the $500,000 loan, whereas the Louisiana

4

indictment charged the fraudulent issuance of the

letter of credit by petitioner as part of a scheme to

defraud First Financial. /d. at 36-37. The court

concluded that ‘‘[a]lthough both indictments arose

out of the same initial scheme, neither requires proof

of intent to defraud the other unnamed financial in-

stitution.” /d. at 37. Accordingly, the court held that

the two indictments “‘set[] forth * * * separate and

independent violation[s].” Jd. at 38.

Petitioner also contended on appeal that the dis-

trict court erred in directing that his sentence run

consecutively to the Louisiana sentence, arguing that

cumulative sentencing is improper for violations of

the same statute arising from the same fraudulent

scheme. The court of appeals upheld the sentence,

reiterating that petitioner “committed two separate

violations of a single statute, involving distinct acts

and independent intent to defraud two discrete finan-

cial institutions.” Pet. App. 39.

ARGUMENT

1. Petitioner renews his contention (Pet. 8-11)

that he was prosecuted twice for the same offense in

violation of the Double Jeopardy Clause.’ According

1 In light of its decision on the merits, the court of appeals

did not address the issue, not raised by the parties in the

court of appeals, whether petitioner’s guilty plea waived his

double jeopardy claim. See Pet. App. 35 n.3. This Court has

held that ‘‘a plea of guilty to a charge does not waive a claim

that—judged on its face—the charge is one that the State

may not constitutionally prosecute.” United States v. Broce,

488 U.S. 563, 575 (1989), quoting Menna v. New York, 423

U.S. 61, 63 n.2 (1975). Here, we understand petitioner to

argue that the instant prosecution is facially duplicative of

the earlier one, and he does not seek to adduce additional

5

to petitioner, both indictments charged his attempt

to defraud First Financial--the Louisiana bank that

employed him—as a violation of the mail fraud stat-

ute, and prosecution twice for that offense under the

same statute would violate the Double Jeopardy

Clause.

a. Petitioner is incorrect in asserting that both

indictments charged that he attempted to defraud

First Financial. The court of appeals explained that

“a single transaction, especially if, as here[,] of any

extended sort, can produce numerous infractions.”

Pet. App. 36. After analyzing the two indictments,

the court of appeals agreed with the district court

that ‘“[a]lthough both indictments arose out of the

Same initial scheme, neither requires proof of intent

to defraud the other unnamed financial institution.”

Id. at 37. That conclusion concerning the meaning of

the two indictments brought against petitioner, con-

curred in by both lower courts, was correct and would

not in any event warrant further review. In light of

that conclusion, the court of appeals correctly deter-

mined that petitioner violated the bank fraud statute

twice.”

evidence to support his claim. In these circumstances, we do

not contend that petitioner’s guilty plea constituted a waiver.

? Petitioner does not challenge the court of appeals’ conclu-

sion, as a matter of statutory construction, that the unit of

prosecution under the bank fraud statute, at least in circum-

stances similar to those presented here, turns on the number

of victims, not the number of financial instruments involved.

In any event, the court of appeals’ decision that the two

attempts to defraud the two banks in two different ways—

attempts that were completed at two different times—con-

stituted two violations of the statute was plainly correct and

not in conflict with any decision of any other court.

6

b. Petitioner’s second prosecution did not violate

the Double Jeopardy Clause. The Double Jeopardy

Clause does not control Congress’s power to define

the unit of prosecution under a criminal statute. If

a defendant is prosecuted twice for violation of the

same statute in circumstances under which Congress

intended only a single unit of prosecution, the second

conviction must be reversed as a matter of substan-

tive criminal law, because Congress intended the de-

fendant’s conduct to result in only one violation of

the statute. If, on the other hand, a defendant is

prosecuted twice for violation of the same statute in

circumstances under which Congress intended there

to be two units of prosecution, then the second convic-

tion is valid under the statute and raises no issue

under the Double Jeopardy Clause.

This Court has long held that congressional intent

is determinative as to the definition of the unit of

prosecution under a federal criminal statute. As the

Court explained in Sanabria v. United States, 437

U.S. 54, 69-70 (1978):

It is Congress, and not the prosecution, which

establishes and defines offenses. Few, if any,

limitations are imposed by the Double Jeopardy

Clause on the legislative power to define offenses.

But once Congress has defined a statutory offense

by its prescription of the “allowable unit of

prosecution,” that prescription determines the

scope of protection afforded by a prior convic-

tion or acquittal. Whether a particular course

of conduct involves one or more distinct ‘“‘of-

fenses” under the statute depends on this con-

gressional choice.

See id. at 70 n.24 (analysis under the Blockburger

double jeopardy test is appropriate where “a single

transaction may give rise to separate prosecutions

7

* * * under separate statutes’) (emphasis added) ;

see also Ladner v. United States, 358 U.S. 169, 173

(1958) (“[t]here is no constitutional issue pre-

sented” in a case involving the appropriate unit of

prosecution under a federal criminal statute); Bell

v. United States, 349 U.S. 81, 82 (1955) (‘The

punishment appropriate for the diverse federal of-

fenses is a matter for the discretion of Congress, sub-

ject only to constitutional limitations, more particu-

larly the Eighth Amendment.’); United States v.

Universal C.1.T. Credit Corp., 344 U.S. 218, 221

(1952); In re Snow, 120 U.S. 274, 283-286 (1887).

See also Whalen v. United States, 445 U.S. 684, 703-

704 (1980) (Rehnquist, J., dissenting) (discussing

rule that “the proper unit of prosecution [is] com-

pletely dependent upon the legislature’s intent’’).

Nothing in Grady v. Corbin, on which respondent

relies, altered the well-settled principle that definition

of the unit of prosecution under a federal criminal

statute is a matter of congressional intent. Like its

predecessors, Harris v. Oklahoma, 433 U.S. 682

(1977), and Illinois vy. Vitale, 447 U.S. 410 (1980),

Grady involved the question whether violations of

different statutes arising from a single act or trans-

action are the “same offense” under the Double Jeop-

ardy Clause, and hence may not be prosecuted sepa-

rately. Cf. Blockburger v. United States, 284 U.S.

299, 304 (1932) (stating test for when “the same act

or transaction constitutes a violation of two distinct

statutory provisions’). The question presented by

this case, by contrast, is whether respondent’s use of

the same instrument to defraud two different banks

at two different times constitutes a single violation

or two separate violations of a single statute. Ac-

cordingly, Grady v. Corbin has no bearing on the

analysis of this case, which turns entirely on the

8

question of the congressional intent underlying the

bank fraud statute.*

2. Petitioner further contends (Pet. 12-13) that

the district court violated the Double Jeopardy Clause

in directing that the sentence imposed in this case

run consecutively to the sentence imposed for his

earlier bank fraud conviction. He argues that that

is so because the two offenses are the same. To be

sure, absent clear congressional intent to the con-

trary, a court may not impose cumulative punish-

ment where multiple offenses arising out of a single

act or transaction are the same. See, ¢.g., Missouri

v. Hunter, 459 U.S. 359, 365-366 (1983). But, as

we have shown, petitioner’s bank fraud offenses arose

out of distinct criminal acts committed on different

days against different banks. Nothing in the Double

Jeopardy Clause precludes consecutive sentences for

separate violations of the same statutory provision,

and petitioner cites no authority to the contrary.

’This case need not be held for this Court’s decision in

United States v. Felix, No. 90-1599. Felix presents two issues

concerning the interpretation of the Double Jeopardy Clause,

in light of this Court’s decision in Grady: whether a person

may be prosecuted for a drug conspiracy after previously

having been prosecuted for a substantive drug offense based

on the same conduct that is alleged in some of the overt acts

of the conspiracy charge; and whether prosecution for sub-

stantive drug offenses is barred because the defendant was

previously prosecuted for drug offenses arising out of alto-

gether different conduct, where evidence of the later-

prosecuted offense had been introduced in the earlier prosecu-

tion to prove intent. Feliz, like Grady, raises no “unit of

prosecution” issue, much less any question having to do with

the interpretation of the bank fraud statute. Accordingly,

this Court’s disposition of Felix would be unlikely to have any

bearing on this case.

9

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

JANUARY 1992

Ww U. S$. GOVERNMENT PRINTING OFFICE; 1992 312324 45251