09-4506-cr
U nited States v. Samuels



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 6 th day of October, two thousand ten.

PRESENT:         ROGER J. MINER,
                 BARRINGTON D. PARKER,
                 REENA RAGGI,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                            v.                                 No. 09-4506-cr

DWAYNE SAMUELS,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                          SALLY J. M. BUTLER, Esq., Bayside,
                                                  New York.

APPEARING FOR APPELLEE:                           DEMETRI M. JONES, Assistant United States
                                                  Attorney (Scott B. Klugman, Assistant United
                                                  States Attorney, on the brief), for Loretta E.
                                                  Lynch, United States Attorney for the Eastern
                                                  District of New York, Brooklyn, New York.
       Appeal from the United States District Court for the Eastern District of New York

(Thomas C. Platt, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court entered on October 16, 2009, is AFFIRMED

in part and the appeal is DISMISSED in part.

       Defendant Dwayne Samuels, who stands indicted on charges of embezzlement in

connection with a health care benefit program, see 18 U.S.C. § 669, and mail fraud, see id.

§ 1341, appeals from an interlocutory order denying his motion to dismiss the indictment as

barred by both the Fifth Amendment protection against double jeopardy and a plea agreement

entered in connection with an earlier conviction for health care fraud. We assume the

parties’ familiarity with the facts and the record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

       1.     Jurisdiction

       “Although this court generally lacks jurisdiction to review rulings before a final

judgment has been entered, the collateral order doctrine creates an exception for the denial

of a pre-trial motion to dismiss criminal charges on double jeopardy grounds.” United States

v. Basciano, 599 F.3d 184, 196 (2d Cir. 2010) (internal citations omitted). Because no such

exception exists for the denial of a motion to dismiss an indictment on account of an alleged

breach of a plea agreement, however, we lack jurisdiction over that aspect of Samuels’s

appeal. See United States v. Ecker, 232 F.3d 348, 350 (2d Cir. 2000) (holding denial of


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dismissal on ground of allegedly breached plea agreement not appealable prior to final

judgment). Accordingly, we dismiss the appeal insofar as Samuels invokes a plea agreement

to challenge his pending prosecution and consider only his double jeopardy claim.

       2.     Double Jeopardy Challenge

       Samuels submits that the pending indictment must be dismissed because it places him

in jeopardy for an offense of which he already stands convicted. The “critical inquiry,”

which we review de novo, is whether the offenses at issue “are the same in fact and in law.”

United States v. Basciano, 599 F.3d at 196 (internal quotation marks omitted).

       In urging us to conclude that the offenses are the same, Samuels contends that

“multiple and successive prosecutions . . . warrant greater protection than that articulated in

Blockburger [v. United States, 284 U.S. 299, 304 (1932)].” Appellant’s Br. at 29. He

therefore urges us to apply the “same conduct” test articulated in Grady v. Corbin, 495 U.S.

508, 521-22 (1990). That approach is foreclosed by United States v. Dixon, 509 U.S. 688,

704 (1993), which “expressly overruled Grady’s conduct-based test and reaffirmed

Blockburger’s same-elements test as the appropriate standard for determining whether

successive prosecutions under different statutes effectively charge the same crime.” United

States v. Basciano, 599 F.3d at 197-98. Samuels does not – and cannot – dispute that his

crime of conviction, health care fraud, see 18 U.S.C. § 1347, requires proof of at least one

element, a scheme to defraud, not required for proving either of the crimes on which he

stands indicted. Meanwhile, § 669(a) embezzlement requires an element, conversion of the


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stolen funds, not required to support either a § 1347 or § 1341 conviction. Finally, the

mailing element of § 1341 is not required by § 669 or § 1347. Thus, under the Blockburger

test, as reaffirmed by Dixon, we reject Samuels’s double jeopardy challenge as without merit.

       3.     Conclusion

       We have considered Samuels’s remaining arguments on appeal and conclude that they

lack merit. For the foregoing reasons, the district court’s October 16, 2009 order is

AFFIRMED in part and the appeal is DISMISSED in part.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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