                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT
                          __________________

                               No. 98-21120
                            __________________

                      UNITED STATES of AMERICA,

                                                  Plaintiff-Appellee,

                                  versus

               CRAIG MICHAEL COSCARELLI, also known as
                           John Coscarelli,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (H-94-CR-284-1)
_________________________________________________________________
                         February 10, 2000

Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     By interlocutory appeal, Craig Michael Coscarelli, having

pleaded guilty to conspiracy to commit mail fraud, wire fraud,

using a fictitious name with a scheme to defraud, and money

laundering, challenges, as violative of double jeopardy, the denial

of his motion to dismiss a second indictment’s conspiracy count,

which alleges conspiracy to commit the same form of objects of the

conspiracy as did the first indictment: mail fraud, wire fraud,

using a fictitious name with a scheme to defraud, and money

laundering.    We AFFIRM.

                                    I.


     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
       Two telemarketing schemes that began in 1993 are the subjects

of the two indictments:    American Business Enterprises (ABE; first

indictment)     and   American    Family   Publishers      (AFP;   second

indictment).     AFP targeted persons having previously done business

with a telemarketer, informing them they had won a prize and to

send money to cover related expenses; ABE, those with poor credit

histories, informing them they could receive a loan or credit card

if they paid an advance-fee.

       In May 1994, Coscarelli was indicted for his activities with

ABE.    He pleaded guilty that October to the conspiracy count; in

March 1995, he was sentenced to 60 months imprisonment.

       That November, after having pleaded guilty the prior month to

the ABE conspiracy count, Coscarelli was indicted for his activity

with AFP.     In June 1995, he pleaded guilty and was sentenced; but,

in 1998, he was allowed to withdraw his guilty plea.               (This

followed an appeal by the Government concerning the sentence and

the matter being remanded.       United States v. Coscarelli, 105 F.3d

984 (5th Cir. 1997), rev’d in part en banc, 149 F.3d 342 (5th Cir.

1998).) Thereafter, his motion to dismiss the second indictment on

double jeopardy grounds was summarily denied; subsequently, for

purposes of this appeal, the court found that the issues raised

were    not   frivolous.    Accordingly,    it   granted    Coscarelli’s

interlocutory appeal request.      See United States v. Brackett, 113

F.3d 1396, 1398 (5th Cir.), cert. denied, 522 U.S. 934 (1997);

United States v. Dunbar, 611 F.2d 985 (5th Cir.)(en banc), cert.




                                  - 2 -
denied,    447   U.S.   926     (1980).    As   a   result,   trial   on   the

remaining/substantive counts is stayed.

                                     II.

     The Fifth Amendment protects, inter alia, against a second

prosecution for the same offense post-conviction.              E.g., United

States v. Beszborn, 21 F.3d 62, 67 (5th Cir. 1994).                    Double

jeopardy claims are reviewed de novo.           Brackett, 113 F.3d at 1398.

But, the district court’s underlying factual findings are reviewed

only for clear error.         United States v. Cihak, 137 F.3d 252, 257

(5th Cir.), cert. denied, ___U.S.___, 119 S. Ct. 118 (1998).               The

district court summarily denied Coscarelli’s motion; thereafter, it

denied his request for an evidentiary hearing. In short, there are

no factual findings to review.        (As noted, the district court did

find, for interlocutory appeal purposes, that the issues raised in

the motion were not frivolous.)

     For our de novo review, we examine the indictments, as well as

evidence from trials or hearings.               United States v. Vasquez-

Rodriguez, 978 F.2d 867 (5th Cir. 1992).            Therefore, we review the

documents cited by the parties to the district court, but limited,

of course, to those in the record (pertinent information), as

discussed below. Accordingly, concerning the ABE-first-indictment,

pertinent information is found in it, the plea agreement, the

presentence report (PSR) and the sentencing hearing transcript.

For the AFP-second-indictment, such information is found in it, and

the PSR.     (Because Coscarelli initially pleaded guilty to the

second-indictment, a PSR was prepared and sentencing held.                  As


                                    - 3 -
noted, he was later allowed to withdraw that plea.)                 We also

consider the Government’s opposition to the motion to dismiss (for

admissions).

     In district court, the parties referred also to statements

given to the FBI; Coscarelli does so here, extensively, and even

includes them in his record excerpts.            But, those statements are

not in the record.   Therefore, they are not considered here.

     To prevail on a double jeopardy claim, a defendant must show

that the two charged offenses are the same in law and in fact.

United States v. Marable, 578 F.2d 151, 153 (5th Cir. 1978).              If

the defendant establishes a prima facie claim, the Government bears

the burden of proving that the two indictments involve separate and

discrete offenses.   United States v. Schinnell, 80 F.3d 1064, 1066

(5th Cir. 1996); Beszborn, 21 F.3d at 69.

     “The   essential   issue   in        the   double   jeopardy   analysis

respecting conspiracy is whether one, or more than one, agreement

existed.”   United States v. Deshaw, 974 F.2d 667, 673 (5th Cir.

1992). To determine whether a prior conspiracy conviction involves

the same offense as one subsequently charged, five factors are

considered, as framed in Marable, 578 F.2d at 154: (1) the time

frame of each conspiracy; (2) the co-conspirators; (3) the charged

statutory offenses; (4) the overt acts charged, or any other

description of conduct that indicates the nature and scope of the

activity the Government seeks to punish; and (5) where the alleged

events for the conspiracy occurred.         E.g., Cihak, 137 F.3d at 258.

                                     A.


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     Based on our review of the above listed pertinent information,

and in the light of these five factors, Coscarelli has established

a prima facie claim.        There is some overlap in the indictments’

time frames.      Both charge violating the same statute.           Some of the

conspirators in both indictments are the same, although some were

unindicted in the first, and some were unknown in the second.

     In addition, the overt acts are similar; each involves using

the telephone to convince an individual, through fraud, to send

money in exchange for a larger benefit.             The primary difference is

the lie told the individual.        Additionally, the overt acts alleged

in   the    AFP-second-indictment      end     in     May   1994,   supporting

Coscarelli’s contention that both schemes ended then.

     It appears that the two schemes were in the same building at

least once; and frequently, because of their fraudulent nature, the

two entities’ names and locations were changed to avoid postal

inspectors and defrauded individuals.

     Coscarelli having established a prima facie claim, the burden

shifts to the Government.         We consider the five earlier described

factors.        (Despite    the   Government    addressing      each   factor,

Coscarelli did not file a reply brief.              Perhaps counsel felt the

factors had been covered adequately in his affirmative brief.                But

there,     as   noted,   great/repeated    reliance     was   placed   on   FBI-

statements that are not in the record.)

                                      1.

     The Government’s contention that there were two separate and

distinct conspiracies is premised, as reflected in Coscarelli’s


                                     - 5 -
plea agreement, on ABE operating, from February 1993 to July 1993;

and AFP, as alleged in the second-indictment, operating from that

July to August 1994.     Restated, the Government relies on that plea

agreement to support its claim that ABE’s activities ceased in July

1993.    The ABE-first-indictment alleges, however, overt acts by

“defendants” as late as September 1993.             And, as noted, the overt

acts alleged in the AFP-second- indictment ceased in May 1994.                The

Government contends that the time-frame-overlap is not significant;

and that, even if it is, this one factor is not dispositive.                  See

United States v. McHan, 966 F.2d 134, 138 (4th Cir. 1992).

       We find little, if any, overlap.              As the record vividly

reflects, fraudulent telemarketing schemes have very short lives;

they must frequently move and change names. Coscarelli and his two

named co-conspirators (Garcia and Levings) for the ABE-first-

indictment,   parted    company    after    about    a   month.     Coscarelli

testified at the first sentencing hearing that he was not part of

the newly named scheme — Financial Network — which operated at a

new location from May 1993 into July of that year.            From that July

into that October, Garcia and Levings operated under yet another

name    (Omega)   at   another    location.     Therefore,        some   of   the

defendants in the ABE-first-indictment were engaged in the scheme

into the Fall of 1993.     It appears that Coscarelli parted company,

at the latest, in July 1993.

                                      2.

       The Government admits in its opposition to the motion that

Coscarelli and his son were principal co-conspirators in both


                                    - 6 -
operations.     It contends, however, that Garcia and Levings, the

earlier referenced other named co-conspirators in the ABE-first-

indictment, were not alleged to be involved in the AFP-second-

conspiracy.     The second indictment alleges that persons unknown

were co-conspirators; but, we are not persuaded that Garcia and

Levings’ role, if any, in the AFP-second-conspiracy has been shown.

                                         3.

     The    Government      concedes      that   both   indictments      charge

Coscarelli under the same statute.            It contends, correctly, that

“[i]t is possible to have two different conspiracies to commit

exactly the same type of crime”, United States v. Thomas, 759 F.2d

659, 666 (8th Cir. 1985); and that, where the second conspiracy has

a different goal than the first, a second prosecution is not barred

by double jeopardy.       United States v. Guzman, 852 F.2d 1117, 1120-

24 (9th Cir. 1988).         For purposes of our review for these two

schemes, we agree.

                                         4.

     Regarding      the   overt   acts    alleged,   both   schemes   involved

telemarketing.      The Government notes that the misrepresentations

differed.     For   the    AFP-second-indictment,       the    targets    were

susceptible to telemarketing fraud (had previous telemarketing

history); they were informed they had won a prize for which they

had to make advance payment of the taxes or a delivery fee.                For

the ABE-first-indictment, targeted were persons with poor credit

histories, who were told to pay an advance fee to secure a loan or

credit card.


                                    - 7 -
     Although the misrepresentation was different in each scheme,

the end result was the same:           defrauding an individual into paying

money for a larger promised benefit, which was never delivered.

But, the overt acts alleged differed.

                                          5.

     For the final factor, the Government contends that, although

both operations were conducted in Houston, Texas, different offices

and mailing addresses were used.            Coscarelli agrees, but maintains

that such activity is the nature of telemarketing fraud.

     Based on our review of the pertinent data, and pursuant to our

consideration of the five factors, we conclude that the Government

has met    its   burden    to     establish      that    the   indictments       charge

separate offenses.       The conspiracies cover substantially different

time frames; do not involve all the same key co-conspirators;

concern different schemes for which Coscarelli is charged with

violation of the same statute; do not involve the same basic overt

acts; and    usually      took    take    place    in    different   locations      in

Houston.

                                          B.

     In    the   alternative,       the     Government,        advances    the    “due

diligence” exception, recognized in United States v. Tolliver, 61

F.3d 1189 (5th Cir. 1995), that it raised in the district court.

Because    the   court    did    not     reach    this   contention       in   denying

Coscarelli’s     motion,    the    Government       maintains     summarily      that,

should we find double jeopardy, the case should be remanded for

consideration of this alternative position.


                                         - 8 -
     Obviously, our having found no double jeopardy, we do not

reach    this    alternative   point.      Instead,   in   our    supervisory

capacity, we comment on this alternative point only in regard to

the incorrect manner in which it is addressed (better yet, not

addressed) by the Government here.

     The    “due    diligence”   point   is   addressed    in    Coscarelli’s

affirmative brief. The Government does not respond, other than, as

noted, to state summarily that, if a double jeopardy violation is

found, the case should be remanded to consider this alternative

point.   The Government does not even state why the exception might

be applicable.      The Government having failed to brief this point,

we would have considered it abandoned, had we been required to

reach it.       FED. R. APP. P. 28(a)(9)(A), (b); 5TH CIR. R. 28.3(j);

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

                                   III.

     For the foregoing reasons the denial of the motion to dismiss

the conspiracy count is

                                                                 AFFIRMED.




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