                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-6-1996

USA v. Smith
Precedential or Non-Precedential:

Docket 95-5257




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"USA v. Smith" (1996). 1996 Decisions. Paper 170.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/170


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                     N0. 95-5257


                UNITED STATES OF AMERICA

                          v.

                    J. DAVID SMITH

                              David Smith,
                              Appellant



   On Appeal From the United States District Court
           For the District of New Jersey
        (D.C. Crim. Action No. 94-cr-00524-1)


                Argued October 26, 1995

BEFORE:   STAPLETON, McKEE and GIBSON,* Circuit Judges

             (Opinion Filed     May 6, l996)



                    Faith S. Hochberg
                    United States Attorney
                    Kevin McNulty
                    Kimberly M. Guagdagno (Argued)
                    Patrick L. Rocco
                    Assistant U.S. Attorneys
                    970 Broad Street - Room 502
                    Newark, NJ 07102

                              Attorneys for Appellee

                    Dominic F. Amorosa (Argued)
                    233 Broadway, Suite 3008
                    New York, NY 10279

                          Attorney for Appellant




                          1
* Honorable John R. Gibson, United States Circuit Judge for the
  Eighth Circuit, sitting by designation.




                               2
                        OPINION OF THE COURT




STAPLETON, Circuit Judge:



            J. David Smith contends that multiple conspiracy

indictments have put him twice in jeopardy for the same offense.

The defendant was indicted in New Jersey for conspiring to

defraud GTECH, his employer, through a kickback scheme.   On the

same day, he was indicted in Kentucky for conspiring to defraud

GTECH with a different co-conspirator, also through a kickback

scheme.    After he was acquitted of the Kentucky charges, Smith

filed a pretrial motion in the New Jersey prosecution to dismiss

the conspiracy charges on double jeopardy grounds and both the

conspiracy and substantive charges on collateral estoppel

grounds.    The court denied his motion, finding that he had failed

to make the required showing under United States v. Liotard, 817
F.2d 1074 (3d Cir. 1987), and that the issues raised in the New

Jersey indictment were not identical to those decided in the

Kentucky trial.

We will affirm.



                                 I.

            All charges against J. David Smith stem from his

employment with GTECH, a lottery service company located in Rhode

Island.    Smith was the national sales manager for GTECH until


                                 3
December 1993, with offices at the Rhode Island headquarters.      He

also maintained a farm and residence in Kentucky.    During the

time periods covered by the indictments, GTECH provided services

to the state lotteries of New Jersey and Kentucky, as well as

other states.

            Steven D'Andrea and Joseph LaPorta are New Jersey

residents who owned and controlled three New Jersey consulting

companies, Benchmark Enterprises, Inc. ("Benchmark"), Sambuca

Consultants ("Sambuca"), and Production Group Incorporated

("PGI").    Luther Roger Wells, Jr., was a Kentucky resident who

owned Bluegrass Industrial ("Bluegrass") and Bluegrass Industrial

Distributors ("BID").    BID ostensibly provided ribbons used to

print lottery tickets.    Karen Smith, the defendant's wife, lived

in Kentucky with her husband.    She owned International Marketing

Concepts, Inc. ("IMC").

            The Federal Bureau of Investigations ("FBI") began

investigating D'Andrea in June of 1993.   Investigators had

Benchmark corporate records, GTECH records, and Smith's Kentucky

bank records subpoenaed.    By April 11, 1994, the investigation

had produced information that prompted the New Jersey Division of

the United States Attorney's Office to send Smith a target

letter.    Smith was thereafter advised that the FBI's evidence

indicated that he was involved in a kickback scheme to defraud

GTECH.    Smith allegedly would arrange for service providers in

New Jersey, New York, Texas, and Kentucky to be engaged by GTECH




                                 2
and to be paid for non-existent or over-valued services.1    These

service providers included Benchmark, Sambuca, and PGI in New

Jersey, and BID in Kentucky.    In return, these service providers

would send kickbacks to third parties in Kentucky designated by

Smith.   These third parties included IMC and Billy Adams, a

carpenter who frequently did work on Smith's farm.   When IMC,

Adams, and the three other designated third parties received the

"consulting fees" from the service providers in the various

states, they would transmit the funds to Smith and his wife or

apply them for their benefit.   According to an affidavit of

Smith's counsel, the United States Attorney sought Smith's

cooperation and threatened him with indictments in all four

states if he failed to cooperate.    Smith declined to cooperate

and indictments against him were simultaneously returned in

Kentucky and New Jersey.

           The federal grand jury in Kentucky returned a ten count

indictment charging Wells and Smith with conspiracy to commit

mail fraud in violation of 18 U.S.C. § 371, aiding and abetting

mail fraud in violation of 18 U.S.C. §§ 1341 & 1346, money

laundering in violation of 18 U.S.C. § 1956, and assisting in the

preparation of a false corporate tax return in violation of 26

U.S.C. § 7206(2).   The fraud counts charged Smith and Wells of

defrauding GTECH of money and Smith's "honest services."     See



1
  Although the investigations uncovered activities in Texas and
New York, Smith limits his double jeopardy arguments to the
activities alleged in Kentucky and New Jersey.

                                 3
Indictment in United States v. Smith, ¶¶ 6, 19 (W.D. Ky.,

September 29, 1994).

            Allegedly, Smith authorized BID to receive 8% brokerage

commissions on paper sales from RMF Business Forms, Inc., a New

York corporation, to GTECH and the Kentucky Lottery Corporation.

Wells set up BID for the sole purpose of receiving the brokerage

payments.    Neither Wells nor BID provided services of any kind to

GTECH or the Kentucky Lottery Corporation.       Smith had GTECH

employees in Kentucky fill out false invoices from Wells

requesting his 8% commission, which were then processed in Rhode

Island.

            When Wells received his payments, he sent a portion to

IMC, Adams, and other designated third parties.       The payments

were disguised as "consulting fees."       The alleged conspiracy

lasted from April 1992 to February 1994, and a total of $31,000

was purportedly kicked back to Smith and his wife during this

period.

            The Kentucky prosecution went to trial.     After the

prosecution presented its case, the judge entered a judgment of

acquittal on all the charges pursuant to Fed. R. Crim. P. 29.          He

found that (i) the record contained insufficient evidence

indicating that GTECH lost any money; (ii) a violation of GTECH's

intangible right to Smith's honest services could not support a

criminal fraud conviction; and (iii) the government failed to

prove that GTECH was unaware of the kickback payments and that

the payments were unauthorized.       The judge found that the facts



                                  4
indicated that GTECH had willingly paid BID fees for the purpose

of generating goodwill, and no fraud had occurred.

           The New Jersey federal grand jury returned a nineteen

count indictment charging Smith, D'Andrea, and LaPorta with

conspiring unlawfully to transport money obtained by fraud in

violation of 18 U.S.C. § 371, transporting such money in

violation of 18 U.S.C. § 2314, violating the New Jersey

commercial bribery statute in violation of 18 U.S.C. § 1952, and

laundering the proceeds of their fraud in violation of 18 U.S.C.

§ 1956.   See Indictment in United States v. Smith (D.N.J.,

September 29, 1994).

           Allegedly, Smith met with D'Andrea and LaPorta in April

1992.   LaPorta agreed to introduce GTECH employees to

representatives of the State of New Jersey to discuss

implementing a new lottery game called "Keno."   Smith recommended

to officers of GTECH that GTECH employ Benchmark as a consultant

in New Jersey.   He eventually had $579,047 in consulting fees

paid to Benchmark, and in return, D'Andrea and LaPorta gave Smith

$157,000 in kickbacks.   Over the course of the alleged

conspiracy, Smith also directed GTECH to pay consulting fees to

PGI and Sambuca.   As in the Kentucky scheme, the consultants sent

the payments to IMC, Adams, and other third parties in Kentucky

designated by Smith, who then applied the balance for the benefit

of Smith and his wife.   The conspiracy allegedly lasted from

March 1992 to March 1994.




                                5
           The trial in the New Jersey case was scheduled to

proceed in April 1995.   In pretrial motions, Smith raised double

jeopardy and collateral estoppel as defenses to all the New

Jersey counts.   Applying the analysis set forth in Liotard, the

court found, without an evidentiary hearing, that the conspiracy

charge was not barred because Smith had failed to make the

required non-frivolous showing that there had been only one

conspiracy.   Issue preclusion was found to be inapposite since

none of the issues decided in Kentucky were presented by the New

Jersey indictment.   Smith appeals the court's ruling on the

conspiracy charge and denial of collateral estoppel on all the

charges.   He does not appeal the ruling that the substantive

charges are not barred by double jeopardy.



                                II.

           The district court had subject matter jurisdiction

pursuant to 18 U.S.C. § 3231.   Pretrial orders denying motions to

dismiss an indictment on double jeopardy grounds are within the

"collateral order" exception to the final order requirement.     See

United States v. Esposito, 912 F.2d 60, 61 (3d Cir. 1990), cert.

dismissed, 498 U.S. 1075 (1991).      Consequently, we have appellate

jurisdiction to consider Smith's appeal under 28 U.S.C. § 1291.

Our review of double jeopardy challenges is plenary.     See United

States v. Ciancaglini, 858 F.2d 923, 926 (3d Cir. 1988).     Since

collateral estoppel as a bar to reprosecution is a component of

the Double Jeopardy Clause, see Ashe v. Swenson, 397 U.S. 436,



                                6
445-46 (1970), and is an issue of law, see Swineford v. Snyder

County, 15 F.3d 1258, 1265 (3d Cir. 1994), our review of the

collateral estoppel claims is also plenary.



                                III.

            The Fifth Amendment guarantees that no person shall "be

subject for the same offense to be twice put in jeopardy of life

or limb."   U.S. Const. amend. V.    The Supreme Court has

emphasized the importance of protecting individuals not only from

double punishment, but also from being twice subject to trial:
          [T]he guarantee against double jeopardy assures an
          individual that, among other things, he will not be
          forced, with certain exceptions, to endure the personal
          strain, public embarrassment, and expense of a criminal
          trial more than once for the same offense. It thus
          protects interests wholly unrelated to the propriety of
          any subsequent conviction. . . . [E]ven if the accused
          is acquitted, . . . he has still been forced to endure
          a trial that the Double Jeopardy Clause was designed to
          prohibit. Consequently, if a criminal defendant is to
          avoid exposure to double jeopardy and thereby enjoy the
          full protection of the Clause, his double jeopardy
          challenge to the indictment must be reviewable before
          that subsequent exposure occurs.


Abney v. United States, 431 U.S. 651, 661-62 (1977).
            Following Abney, we established in United States v.

Inmon, 568 F.2d 326 (3d Cir. 1977), the procedure by which a

defendant could vindicate his double jeopardy rights prior to

trial.   We held that "when a defendant has made a non-frivolous

showing that a second indictment is for the same offense for

which he was formerly in jeopardy, the government must prove by a

preponderance of the evidence that there were in fact separate



                                 7
offenses before the defendant may be subjected to trial."        Id. at

332.     In allocating the burden of proof, the paramount

consideration was the "impracticality of placing the evidentiary

burden on" the defendant:
          Inmon would be required to prove facts establishing the
          charge of conspiracy to which he pleaded guilty and to
          prove facts establishing the second conspiracy as well.
          How he could do either, without access to the proof on
          which the government proposed to rely and without the
          ability to offer immunity to prospective witnesses, is
          not readily apparent. Even after a trial on the first
          indictment, the defendant would lack access to the
          government's proof of the second offense.


Id. at 329-30.
            We have been keenly aware of the difficulty of

vindicating double jeopardy rights prior to trial.     We have

stressed that the possibility of making a non-frivolous showing

must be within the reach of a defendant innocent of the charges

and without knowledge of the evidence the government may put

forth.    Were the threshold showing made any higher, a conspiracy

defendant would be without a meaningful opportunity to protect

his right to avoid exposure to a second trial for the same crime.

These considerations define an important difference between an

assessment of double jeopardy rights prior to an evidentiary

hearing and after a hearing or full trial when we have the

benefit of a developed record.    Compare, e.g., Ciancaglini, 858

F.2d at 926-30; Liotard, 817 F.2d at 1077-79; and Inmon, 568 F.2d

at 329-33 with, e.g., United States v. Becker, 892 F.2d 265 (3d

Cir. 1989); United States v. Felton, 753 F.2d 276 (3d Cir. 1985);

and United States v. Inmon, 594 F.2d 352 (3d Cir.) (affirming


                                  8
denial of double jeopardy claim after evidentiary hearing), cert.

denied, 444 U.S. 859 (1979).

          Although the "same evidence" test is normally used to

ascertain whether successive prosecutions charge the same crime,

in Liotard we recognized that multiple conspiracy indictments

raised special concerns that the "same evidence test" might not

adequately address.2   "The danger is that successive indictments

against a single defendant for participation in a single

conspiracy might withstand same evidence scrutiny if the court

places undue emphasis upon the evidence used to prove the

commission of the overt acts alleged." Id. at 1078.   We noted

that "[i]t is the agreement which constitutes the crime, not the

overt acts. . ."   Id. (quoting Young, 503 F.2d at 1076).   To

address this concern, we adopted the "totality of the

circumstances" test, which did not emphasize overt acts.    From

prior cases of this Court that had implicitly used that test, we

extracted four factors to consider when determining whether there

was one or more agreements: (a) the "locus criminis" of the

alleged conspiracies; (b) the degree of temporal overlap between

the conspiracies; (c) the overlap of personnel between the

conspiracies, including unindicted co-conspirators; and (d) the

similarity in the overt acts charged and role played by the


2
  The same evidence test asks whether "the evidence required to
support a conviction upon one of [the indictments] would have
been sufficient to warrant a conviction upon the other." United
States v. Young, 503 F.2d 1072, 1075 (3d Cir. 1974) (quoting
United States v. Pacelli, 470 F.2d 67, 72 (2d Cir. 1972), cert.
denied, 410 U.S. 983 (1973)).


                                 9
defendant in each indictment.   Id.   If the defendant makes the

requisite showing, he is entitled to a pretrial evidentiary

hearing to adjudicate his double jeopardy claim.    Id. at 1077.

           In applying the Liotard totality of the circumstances

analysis, we have understood that the ultimate inquiry presented

by conspiracy double jeopardy claims is whether there are two

agreements or only one.   See Becker, 892 F.2d at 268 ("The

critical determination is whether one agreement existed."); see

also Ciancaglini, 858 F.2d at 927.    To that end, we have not

applied the Liotard factors in a rigid manner, as different

conspiracies may warrant emphasizing different factors.    See id.

at 930 ("[I]t is neither wise nor possible to attempt an

exhaustive listing of the factors that may enter into the

totality of the circumstances test. . . .").    In Becker, the

defendant was convicted in Pennsylvania of a conspiracy to

possess with intent to distribute marijuana in Pennsylvania, New

Jersey, and Massachusetts.   He had a prior conviction in West

Virginia for a conspiracy to manufacture and distribute

marijuana, and argued that the West Virginia conviction barred

the Pennsylvania conviction.    In this particular conspiracy case,

we found important the fact that the conspiracies had different

objects.   The object of the West Virginia conspiracy had been to

manufacture and possess with intent to distribute.    In contrast,

the Pennsylvania indictment alleged that the objects were to

smuggle, store, and distribute marijuana.    "These were two

different objectives and agreements, and hence two conspiracies."



                                 10
Becker, 892 F.2d at 268.    Although we noted that the time periods

alleged in both indictments overlapped, such temporal overlap by

itself did not prove one conspiracy.     Id.   Similarly, when we

applied the totality of the circumstances test to successive RICO

prosecutions in Ciancaglini, we found most important the fact

that the indictments alleged different patterns of racketeering

activity.   See 858 F.2d at 930.    One indictment alleged a pattern

of illegal gambling and extortion; the other focussed on murder

and drug distribution.     We noted that the outcome was sensitive

to a different mix of factors:     "[U]nder our totality of the

circumstances test, a more significant overlap of time, or a more

substantial identity of overt acts or similarity in predicate

acts could dictate a different result."    Id.

            Finally, we must keep in mind that a primary objective

of our jurisprudence in this area is to assure that the substance

of the matter controls and not the grand jury's characterization

of it.   Thus, for example, the fact that the Kentucky indictment

here alleges a conspiracy to commit mail fraud while the New

Jersey one alleges a conspiracy to transport in interstate

commerce the proceeds of a fraud is wholly unimportant if the

evidence indicates that there was but one agreement to defraud

GTECH utilizing both the mails and the interstate transportation

of funds.   E.g., Braverman v. United States, 317 U.S. 49 (1942);

United States v. Reyes, 930 F.2d 310, 312 (3d. Cir. 1991); United

States v. Morrow, 717 F.2d 800, 804 (3d Cir. 1983), cert. denied,

464 U.S. 1069 (1984).    We must not allow the double jeopardy



                                   11
clause to be subverted by artful pleading or by the selective and

strategic reservation of evidence in one prosecution so that it

can be used in a subsequent one premised upon the same agreement.

           The government has argued here that the details and

scope of the criminal conspiracies as revealed by a simple

reading of the New Jersey and Kentucky indictments should control

our inquiry.   We decline the government's invitation to look

solely to the acts as alleged in each indictment.   Those acts

are, of course, primarily the overt acts which the grand jury

chose to allege in each instance.    Undue emphasis on the alleged

overt acts is precisely the problem we sought to avoid when we

adopted the totality of the circumstances approach.    That

approach requires us to look into the full scope of activities

described and implied in the indictments.

           In Felton, for example, we looked not only to the overt

acts alleged but also to aspects of the conspiracy implied but

not emphasized or even described in the indictments.   The

defendant Hathorn had already pled guilty in Florida to a charge

of conspiracy to possess with intent to distribute marijuana when

he was indicted in Pennsylvania as Felton's drug supplier.    The

Pennsylvania indictment simply stated that Felton purchased large

quantities of marijuana from Hathorn in 1980.   Prior to trial, an

evidentiary hearing had been held following a successful non-

frivolous showing, but the court denied his double jeopardy

claim.   We reversed, finding that testimony indicated that

Hathorn was involved in one "continuing, albeit loosely



                                12
organized, conspiracy" to smuggle drugs into the country by plane

and distribute them.   Felton, 753 F.2d at 279.    Hathorn and his

co-conspirators had made at least four drug smuggling flights in

1980 and 1981.   The smuggling flight that was the basis of the

Florida indictment was one of these flights, and at the

Pennsylvania hearing, an agent of the Drug Enforcement Agency

linked the marijuana sold to Felton to another of these flights.

We noted that these flights were very similar, all originating in

Atlanta, picking up marijuana in Columbia, and returning to

similar locations.   Id. at 280.    Had we not looked beyond the

acts alleged in the Pennsylvania indictment, we would not have

uncovered the operational and locational similarity of the

conspiracies in which Hathorn participated.    Thus, we must look

to the entire record before the district court in examining the

totality of the circumstances to determine if the conspiracies

alleged in the two indictments truly are different agreements.



                                 IV.

          Using the Liotard factors as a framework for evaluating

the totality of the circumstances, we have carefully examined

Smith's double jeopardy claim.     He insists that the indictments

paint a picture of a single, over-arching conspiracy in which he

acted in concert with IMC, Adams, his Kentucky and New Jersey co-

defendants, and others to divert funds from GTECH in Rhode Island

for the benefit of himself and his wife in Kentucky.    While we

agree that the two alleged conspiracies are similar in location,



                                   13
time frame, and the roles he played, Smith has failed to provide

a basis for inferring that all of the conspirators were tied

together into one conspiracy.   There is some overlap among the

alleged conspirators, but he has shown no reason to believe that

the New Jersey defendants and Kentucky defendants may have been

committed to the same agreement.

           "Locus criminis" is defined very simply as the

"locality of a crime; the place where a crime was committed."

Black's Law Dictionary 941 (6th ed. 1990).   Smith argues that the

primary locations for both conspiracies was in Rhode Island,

where GTECH's headquarters and his office were located, and where

the funds were allegedly diverted, and Kentucky, where he

allegedly received the kickbacks.    The government stresses that

all the acts alleged in the Kentucky indictment occurred in

Kentucky, and all those alleged in the New Jersey indictment

occurred in New Jersey.   We agree with Smith that events

underlying the New Jersey and Kentucky indictments commence and

end at the same spots and that the geography of his alleged

criminal activity is consistent with the existence of what he

describes as an over-arching conspiracy.   Although the

indictments focus on acts in different states, they both

implicate important acts in furtherance of the alleged

conspiracies in both Rhode Island and Kentucky.

           With respect to the chronological component of the

Liotard analysis, extensive temporal overlap is apparent from the

record:   the New Jersey conspiracy spanned March 1992 to March



                                14
1994, and the Kentucky conspiracy spanned April 1992 to February

1994.

          Also, we agree with Smith that the government's

evidence indicates he played a virtually identical role in the

activities that the government characterizes as two conspiracies.

In each instance, he used his influence as national sales manager

to procure contracts or fraudulent sales for his alleged co-

conspirators.    He then used his relationships with his creditors

and others in Kentucky to launder the kickback proceeds.

          While we agree with Smith that these three factors are

consistent with a single conspiracy, they are neither alone nor

together dispositive in his case.     Two conspiracies may be found

despite similarity in location, see, e.g., United States v.

Macchia, 35 F.3d 662, 671 (2d Cir. 1994); Ciancaglini, 858 F.2d

at 929, and extensive overlap in time periods, see, e.g.,

Macchia, 35 F.3d at 669-70; United States v. Brown, 926 F.2d 779,

782 (8th Cir. 1991); Becker, 892 F.2d at 268; Ciancaglini, 858

F.2d at 930.    A defendant may play a similar role in multiple,

unrelated conspiracies.    See, e.g., United States v. Robinson,

774 F.2d 261, 273-75 (8th Cir. 1985) (holding that organizer of

two similar, contemporaneous loan scams could be tried for each

loan scam conspiracy); United States v. Somers, 950 F.2d 1279,

1282 (7th Cir. 1991) (holding two, overlapping conspiracies were

distinct even though defendant acted as major distributor of

cocaine in each), cert. denied, 504 U.S. 917 (1992).




                                 15
          That brings us to the factor most critical in the

context of Smith's case -- the extent of the overlap of personnel

between the two alleged conspiracies.    Smith correctly points out

that he and IMC and the other designated third parties in

Kentucky played a role in the activities alleged in both the

Kentucky indictment and the New Jersey indictment.    To this

extent, there is an overlap.   But Smith's argument, we believe,

misses a critical point.

          An overlap in membership is useful to a double jeopardy

analysis to the extent that it helps determine whether the

alleged conspirators in both indictments were committed to the

same objectives and consequently were members of a single

conspiracy.   When the same people are involved in the activities

which the government alleges to be undertaken in furtherance of

two different conspiracies, it will normally be possible to infer

that they were aware of each other, of each other's activities,

and of each other's objectives.    When the activities are

interdependent or mutually supportive to any degree, the

inference becomes compelling that the participants are involved

in but one conspiracy.   Even where there are participants in one

alleged conspiracy who are not involved in the activities of the

other alleged conspiracy, these inferences may still have

persuasive force when the common participants predominate.

However, in evaluating the degree of overlap-in-participants

factor in a particular case, one must look to the circumstances

of both the common participants and the participants apparently



                                  16
connected with only one of the alleged conspiracies.    When the

evidence indicates that the activities of the alleged

conspiracies are not interdependent or mutually supportive and

that there are major participants in each conspiracy who lack

knowledge of, or any interest in, the activities of the other,

this factor weighs heavily in favor of a conclusion that two

conspiracies exist.

             The necessity of looking to the circumstances of all

participants in the two alleged conspiracies arises from basic

conspiracy law.    A criminal agreement is defined by the scope of

the commitment of its co-conspirators.     See generally Marcus, P.,

Prosecution and Defense of Conspiracy Cases, §§ 4:01-4:02 (1995).

Thus, where a defendant is unaware of the overall objective of an

alleged conspiracy or lacks any interest in, and therefore any

commitment to, that objective, he is not a member of the

conspiracy.    In Kotteakos v. United States, 328 U.S. 750 (1946),

for example, the indictment alleged a single conspiracy to obtain

loans from the FHA using fraudulent information.     The evidence,

however, showed that while a single individual, Brown, was at the

"hub" of the scheme and assisted in the preparation of each loan

application, the other individuals in each loan transaction had

no interest in the success of any loan application other than

their own.    As described in a subsequent Supreme Court case, the

evidence in Kotteakos did not show a single conspiracy:
          Except for Brown, the common figure, no conspirator was
          interested in whether any loan except his own went
          through. And none aided in any way, by agreement or
          otherwise, in procuring another's loan. The


                                  17
          conspiracies therefore were distinct and disconnected,
          not parts of a larger general scheme, both in the phase
          of agreement with Brown and also in the absence of any
          aid given to others as well as in specific object and
          result. There was no drawing of all together in a
          single, over-all, comprehensive plan.

Blumenthal v. United States, 332 U.S. 539, 558 (1947).    "The jury

could not possibly have found, upon [this] evidence, that there

was only one conspiracy."   Kotteakos, 328 U.S. at 768.

          In contrast, the Supreme Court in Blumenthal found that

the evidence showed a single conspiracy to market whiskey at

prices above the legal ceiling price in a manner that would

appear lawful.   Even though some of the multiple participants in

the scheme were unaware of the identity or role of other

participants, all were committed to a single, common objective.

As the Court explained the evidence:
          All knew of and joined in the overriding scheme. All
          intended to aid the owner, . . . to sell the whiskey
          unlawfully, though the two groups of defendants
          differed on the proof in knowledge and belief
          concerning the owner's identity. All by reason of
          their knowledge of the plan's general scope, if not its
          exact limits, sought a common end, to aid in disposing
          of the whiskey. True, each salesman aided in selling
          only his part. But he knew the lot to be sold was
          larger and thus that he was aiding in a larger plan. He
          thus became a party to it . . . ."

Blumenthal, 332 U.S. at 559.
          Following the law established in Kotteakos and

Blumenthal, in numerous variance cases we have drawn a

distinction between multiple and single conspiracies based upon

the existence of a commitment to a single set of objectives.     See

United States v. Kenny, 462 F.2d 1205, 1216 (3d Cir.) (holding

that "evidence of a large general scheme, and of aid given by



                                18
some conspirators to others in aid of that scheme" is sufficient

to establish single conspiracy), cert. denied, 409 U.S. 914

(1972); see also Reyes, 930 F.2d at 313; United States v.

Theodoropoulos, 866 F.2d 587, 593 (3d Cir. 1989); United States

v. Adams, 759 F.2d 1099, 1109-10 (3d Cir.), cert. denied, 474

U.S. 906, and 474 U.S. 971 (1985).

           We have found this distinction between multiple and

single conspiracies no less compelling in the double jeopardy

context.   In Becker, we compared a conspiracy to grow and

distribute marijuana with a conspiracy to smuggle and distribute

foreign-grown marijuana and found decisive that "[t]hese were two

different objectives" and "hence two conspiracies." 892 F.2d at

268 (emphasis added).   In Liotard, we compared two conspiracies

to steal different truckloads of goods from the same trucking

company.   The government argued that the fact that the separate

heists were arranged in distinct conversations proved two

conspiracies.   We held, however, that the defendant had made a

non-frivolous showing of a single conspiracy.    We noted, inter

alia, that the conspirators in each alleged conspiracy were

committed to a common goal.    "The . . . goal of each conspiracy

was, in addition to the personal enrichment of the participants,

the financial ruination of the alleged co-conspirators' employer

. . . ."   817 F.2d at 1077.   We rejected the government's

contention because once all the conspirators had agreed to the

common objective, the organization of sub-plots would not be

"indicative of a separate conspiracy."    Id. at 1079 n.8.    As



                                 19
succinctly stated by the court in United States v. Mintz, "[i]n a

double jeopardy analysis involving conspiracies, the court must

determine whether the two transactions were interdependent and

whether the Defendants were 'united in a common unlawful goal or

purpose.'" 16 F.3d 1101, 1104 (10th Cir.), cert. denied, 114 S.

Ct. 2723, and 114 S. Ct. 2760 (1994); see also Macchia, 35 F.3d

at 771-72 (examining interdependence as one factor in double

jeopardy analysis); United States v. Dortch, 5 F.3d 1056, 1063-64

(7th Cir. 1993) (same), cert. denied, 114 S. Ct. 1077 (1994);

United State v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990) ("Of

principle concern is whether the conduct of the alleged co-

conspirators, however diverse and far-ranging, exhibits an

interdependence."), cert. denied, 502 U.S. 952 (1991).   Cf.

United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987)

(discussing interrelatedness of several conspiracies).

          The ultimate purpose of the totality of the

circumstances inquiry is to determine whether two groups of

conspirators alleged by the government to have entered separate

agreements are actually all committed to the same set of

objectives in a single conspiracy.   A non-frivolous showing of a

single conspiracy will be made when the record reveals a degree

of participant overlap, which together with other factors,

permits an inference that members of each alleged conspiracy were

aware of the activities and objectives of the other conspiracy

and had some interest in the accomplishment of those objectives.

When, as here, a defendant claims that there was a single hub and



                               20
spoke conspiracy despite the presence of spoke conspirators who

lacked knowledge of each other's activities, a factfinder will be

unable to infer the existence of but one conspiracy in the

absence of evidence that the activities of the spoke participants

were, to some degree, interdependent or mutually supportive.

           In the context of this case, we must look to whether

Wells and his companies and D'Andrea and LaPorta and their

companies were engaged in any common activities that are alleged

in either or both indictments or are otherwise revealed in the

record, or if their respective schemes were interdependent in any

way.   The answer to this inquiry is readily apparent -- there is

nothing to indicate that the co-conspirators named in the

Kentucky indictment and those named in the New Jersey indictment

engaged in any common activities or that their respective schemes

were interdependent.

           The lack of common activities or interdependence is the

root problem with Smith's position.   He gives us no reason to

believe that the New Jersey and Kentucky conspiracies were

interdependent or mutually supportive in any way.   He can

identify nothing in the record suggesting that Wells was actually

aware of D'Andrea and LaPorta, or vice versa, and he cannot point

to any common activities engaged in for the benefit of all

participants.   The co-conspirators in each state derived no

benefit, financial or otherwise, from Smith's activities in the

other state, nor was the success of the conspiracy in one state

contingent on the success of the conspiracy in the other.      To the



                                21
contrary, what the record reveals of the economics of the

kickback schemes strongly suggests that Wells had no motive to

commit himself to anything beyond the receipt of his commissions

and that the same is true for D'Andrea and LaPorta and their

consulting fees.   From the lack of mutual awareness and

interdependence, economic or otherwise, we can only conclude that

each group of conspirators had an interest in and were committed

only to receiving their own unearned compensation.

            Smith also suggests that the indictments show that he

may have been involved in a hub or core conspiracy that planned

the subconspiracies in each state.     Such a core conspiracy

conceivably could exist even where the subconspiracies are not

interdependent except for the overlap in membership and common

planning.   Put differently, he is suggesting that there may be

three conspiracies, one core conspiracy and two or more

subconspiracies, and that acquittal on one subconspiracy

precludes prosecution on the others.    We agree that if Smith,

IMC, and the other designated third parties in Kentucky

conspired, they may well have been core conspirators in an

interstate conspiracy headed by Smith.3    The possibility that a

core conspiracy existed, however, does not change our conclusion.


3
  The current record would permit a trier of fact to infer that
(1) the kickbacks paid by the service providers in both Kentucky
and New Jersey were intended to, and did, benefit Mrs. Smith; (2)
IMC received kickbacks from the service providers in both
Kentucky and New Jersey and passed them on to, or applied them
for the benefit of, Mr. and Mrs. Smith; and (3) Mrs. Smith was
the sole principal in IMC. Based on these inferences, we believe
a trier of fact could further infer that Smith, Mrs. Smith and

                                 22
          If Smith had perceived the opportunity to defraud GTECH

through the submission of fraudulent invoices from service

providers, and acting alone like Brown in Kotteakos, had

independently recruited service providers in several states to

submit such invoices, arranged for the payment of the invoices by

GTECH, and received kickbacks from the service providers in each

state, he and the service providers in each state, like Brown and

each of the loan applicants, would have been members of separate

conspiracies.   Under the principles discussed in Kotteakos and

applied in subsequent decisions,4 the service providers in each

state, assuming that they lacked commitment to the success of

Smith's overall, interstate scheme to defraud, would have been

members of distinct conspiracies, and Smith could have been

prosecuted separately for each.

IMC were aware of, and committed to, the success of an interstate
conspiracy to defraud GTECH.
4
  See, e.g., Robinson, 774 F.2d at 265, 273-75 (holding that
"mastermind" behind two similar loan scams involving different
sets of co-conspirators could be tried for both conspiracies);
United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985)
(holding that company participating in two price fixing schemes
with different sets of co-conspirators could be tried for both
because "[t]he participation of a single common actor in what are
allegedly two sets of conspiratorial activities does not
establish the existence of a single conspiracy . . . . This is
true even where the common actor is alleged to have directed both
sets of activities") (citations omitted); United States v. Papa,
533 F.2d 815, 822 (2d Cir. 1976) (holding that defendant could be
tried for two conspiracies with different co-conspirators because
he "was the director of two unrelated chains distributing
narcotics" and "the mere fact that he supervised each chain does
not transform two separate conspiracies into one" (emphasis
added)); see also Somers, 950 F.2d at 1282 (holding that cocaine
distributor could be convicted of two, contemporaneous
conspiracies to distribute cocaine in same locality where
distributees and suppliers differed in each conspiracy).


                                  23
          The question posed by Smith's possible participation in

a core conspiracy is whether this conclusion would be different

if the evidence were to show that Smith, while independently

recruiting the service providers in each state, had secured the

commitment of his wife, IMC, and perhaps other core conspirators

to his overall, interstate scheme to defraud.   While we have

found surprisingly little authority on the point, we are

convinced that the answer is "no."   Because a conspiracy is

defined by the scope of commitment of its participants, the

existence of a master, core conspiracy would not change the

character of the agreements with the service providers.    Each has

its own distinct scope of commitment and membership.   Whether or

not there was a core conspiracy, we perceive no reason why Smith

cannot be prosecuted both for his conspiracy with the Kentucky

service provider and for his conspiracy with the New Jersey

service providers.   As Justice Stevens observed in United States

v. Broce, the fact that there may be an ongoing, core conspiracy

is not inconsistent with the prosecution of a member of that

conspiracy for separate illegal agreements with others entered

into in furtherance of the overall objective of the core

conspiracy:
          [T]he continuous, cooperative effort among Kansas
          highway contractors to rig bids, which permeated the
          Kansas highway construction industry for more than 25
          years . . . was unquestionably a single, continuing
          conspiracy that violated § 1 of the Sherman Act, 15
          U.S.C. § 1. It does not necessarily follow, however,
          that separate bid-rigging arrangements carried out in
          furtherance of an illegal master plan may not be
          prosecuted separately.



                                24
                . . . .

                There is something perverse in the assumption that
           respondents' constitutional rights may have been
           violated by separately prosecuting them for each of two
           complete and flagrant violations of the Sherman Act
           simply because they may also have been guilty of an
           ongoing and even more serious violation of the same
           statute for more than a quarter of a century.

488 U.S. 563, 580-81 (Stevens, J., concurring).    See also Dortch,
5 F.3d at 1063 ("While it is likely that [defendants] only had

one agreement with each other, that does not prevent them, as a

partnership, from joining more than one conspiracy to distribute

cocaine in the East St. Louis/St. Louis area.    '[T]he guarantee

against double jeopardy does not insulate a criminal from

punishment for subsequent offenses merely because he chooses to

continue committing the same type of crime.'    West, 670 F.2d at
681.").5

           As we have indicated, a non-frivolous showing of a

single conspiracy under Liotard's totality of circumstances

approach is not a high threshold.    The defendant need only be

able to identify alleged facts and other evidence which, if
credited, gives reason to believe that any alleged conspiratorial

activity was in furtherance of a single conspiracy.    Having

considered the totality of circumstances in Smith's case, we
5
  This case does not present the issue of whether the
government, having first prosecuted a defendant for an over-
arching core conspiracy, can then prosecute him for a
subconspiracy with one who is not a core conspirator to
accomplish one of the objectives of the core conspiracy.
Arguably, this would be akin to a subsequent prosecution for a
lesser included offense. Since the Kentucky prosecution here was
limited to the conspiracy to defraud GTECH in the transactions
involving Kentucky invoices, we, of course, express no opinion on
that issue.

                                25
conclude that he has failed to make a non-frivolous showing

because there is nothing in the record that suggests that the New

Jersey defendants and Kentucky defendants are tied together into

a single conspiracy by a commitment to a single set of

objectives.   Our conclusion is the same whether we examine the

totality of the circumstances for a single conspiracy or for a

core conspiracy with multiple subconspiracies.



                                 V.

          Smith contends that under Ashe v. Swenson, 397 U.S. 436

(1970), the government is collaterally estopped from prosecuting

him in New Jersey.    He argues that because the Kentucky district

court found no "intent to defraud" GTECH on both the conspiracy

and mail fraud counts, the government is precluded from proving

any intent to defraud GTECH in New Jersey, defeating the

conspiracy and substantive fraud charges set forth in the

indictment there.    We are unpersuaded.

          The findings of the trial judge in Kentucky were, of

course, limited to the charges before him.    They were accordingly

limited to the payments made by GTECH to Bluegrass and the

illegal kick-back payments made by it.     The court concluded that

the government had not proved that the payments were made in

furtherance of a scheme to defraud GTECH.    While the government

should not be permitted to attempt to contradict these factual

findings in the New Jersey case, there is no reason to believe

that it will attempt to do so.    Clearly, there is no conflict



                                 26
between those findings and the facts alleged in the New Jersey

indictment and, accordingly, there is no basis for not allowing

the case to proceed to trial.6



                                 VI.

            The April 5, 1995, order of the district court will be

affirmed.




6
  Insofar as the conspiracy charge is concerned, the defendant's
double jeopardy and collateral estoppel claims both turn on
whether there is but one conspiracy. Smith recognizes this fact
himself. In the section of his brief arguing for estoppel, he
states that "[w]hen one considers that the Government fragmented
the single alleged fraud into two separate indictments for
tactical reasons, the acquittal in Kentucky was in reality an
acquittal for the whole fraud, no matter how the Government
divided up the charge." Appellant's Brief at 36-37. As we have
indicated, we perceive no bar to the government's proceeding to
attempt to prove the New Jersey conspiracy.

                                 27
