United States v. Fisher

1

UNITED STATES OF AMERICA v. JACK FISHER, Defendant.

Criminal Action No. 1:21-cr-231-TCB

United States District Court, N.D. Georgia, Atlanta Division

November 3, 2022

ORDER

Timothy C. Batten, Sr. Chief United States District Judge

This case comes before the Court on Magistrate Judge Catherine M Salinas's non-final report and recommendation (the “R&R”) [285], which recommends denying Defendant Jack Fisher's motion [219] to dismiss count two as multiplicitous of count one under the Double Jeopardy Clause. Fisher filed objections [310] to the R&R.

I. Background

Fisher and six other Defendants face various tax-related charges in this Court. Defendants allegedly created illegal tax shelters whereby high-income taxpayers claimed unwarranted and inflated charitable- contribution tax deductions in connection with the donation of conservation easements.^[1]

On February 24, 2022, a grand jury returned a 135-count first superseding indictment against seven Defendants for fraudulently inflating the valuation of syndicated conservation easements as a tax shelter tactic.^[2] Relevant to this order, Fisher faces one count under 18 U.S.C. § 371 for conspiracy to defraud the United States and one count under 18 U.S.C. § 1349 for wire fraud conspiracy.

On August 4, Fisher filed a motion to dismiss count two of the superseding indictment for wire fraud under § 1349. He argued that the count was multiplicitous under the Double Jeopardy Clause of the count for conspiracy under § 371.

On September 29, Judge Salinas issued an R&R that recommended denying Fisher's motion. He timely filed objections to the R&R. The Government did not file a response.

II. Legal Standard

“A district judge may refer to a magistrate judge for recommendation a defendant's . . . motion to suppress evidence . . . or any matter that may dispose of a charge or defense.” FED. R. CRIM. P. 59(b)(1). “Within 14 days after being served with a copy of the recommended disposition . . . a party may serve and file specific written objections to the proposed findings and recommendations.” FED. R. CRIM. P. 59(b)(2).

“The district judge must consider de novo any objection to the magistrate judge's recommendation. The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions.” FED. R. CRIM. P. 59(b)(3).

A district judge has a duty to conduct a “careful and complete” review of a magistrate judge's R&R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. Unit B 1982)). This review may take different forms, however, depending on whether there are objections to the R&R. The district judge must “make a de novo determination of those portions of the [R&R] to which objection is made.” 28 U.S.C. § 636(b)(1)(C). In contrast, those portions of the R&R to which no objection is made need only be reviewed for “clear error.” Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006) (per curiam) (quoting Diamond v. Colonial Life & Accident Ins., 416 F.3d 310, 315 (4th Cir. 2005)).^[3]

III. Analysis

Fisher does not object to the R&R's Blockburger analysis. In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court held that the Double Jeopardy Clause does not prohibit prosecution under multiple charges for the same conduct when each charge requires “proof of a fact which the other [charge] does not.” See id. at 304 (citing Gavieres v. United States, 220 U.S. 338, 342 (1911)). See generally United States v. Lee, 29 F.4th 665, 670 (11th Cir. 2022) (stating that the Blockburger test is ultimately a rule of “statutory construction”).

It is clear beyond cavil that the two counts of conspiracy against Fisher-count one under 18 U.S.C. § 371 to defraud the United States and count two under 18 U.S.C. § 1349 for wire fraud conspiracy-do not violate the Double Jeopardy Clause under Blockburger.^[4] Instead of arguing against the Blockburger analysis, Fisher objects to the R&R for two closely related reasons. First, he argues that Blockburger's elemental analysis does not apply to a circumstance as here when two counts of conspiracy are based on similar underlying circumstances. He asks the Court to apply a totality-of-the-circumstances approach, used by some circuits, to evaluate whether the two counts of conspiracy violate the Double Jeopardy Clause. Second, and relatedly, he argues that the R&R erred by not applying the totality-of-the-circumstances approach, instituting a burden-shifting test, and looking to factors instead of elements to decide the issue.

“Some cases present novel issues that we must resolve without help from precedent. Others require us to faithfully apply well-established law. This case falls into the second camp. And the precedent that controls our analysis from start to finish comes from no less than the Supreme Court.” United States v. Malone, No. 20-12744, slip op. At 2 (11th Cir. Oct. 26, 2022) (selected). As stated in a different context in Malone, this Court need not address this issue anew. That is because the Eleventh Circuit has made clear that Fisher's argument does not have merit.

In United States v. Hassoun, 476 F.3d 1181 (11th Cir. 2007), defendants alleged that a specific conspiracy count was duplicative of a separate, general conspiracy count under § 371. Defendants argued against use of Blockburger, saying that the court should look to the substance of the offenses. The Eleventh Circuit was clear in its adherence to Blockburger:

The defendants misapprehend the proper application of the Blockburger analysis to the superseding indictment against them. Our precedent establishes that when comparing charges under different statutory provisions-such as the contested counts here-we examine only the elements themselves; if an offense requires proof of an element that the other offense does not, we need look no further in determining that the prosecution of both offenses does not offend the Fifth Amendment.

Id. at 1186 (citations omitted).

So too the Eleventh Circuit was clear that “[t]he strictly elemental analysis applies even where we are presented with an indictment that charges two conspiracy counts, each under a separate statutory provision, but both based on the same factual conspiracy as alleged.” Id. As is the case here. Indeed, Fisher's argument mirrors the exact language admonished in Hassoun-that Blockburger still applies to evaluate two counts of conspiracy based on the same underlying factual circumstance.

This conclusion should come as no surprise. Hassoun is not an outlier case. Indeed, the Eleventh Circuit has consistently held that Fisher's argument lacks support. See, e.g., United States v. Lanier, 920 F.2d 887, 895 (11th Cir. 1991) (“[W]e . . . hold that a defendant may properly be prosecuted under the general conspiracy statute and a specific conspiracy statute so long as each statute requires proof of an element not required by the other.”); see also United States v. Gonzalez, 834 F.3d 1206, 1219 (11th Cir. 2016) (applying Blockburger to one count of general conspiracy and one count of specific conspiracy).

Fisher attempts to re-shape Eleventh Circuit precedent by arguing that Hassoun left the door open for district courts to look past Blockburger's elemental approach. To be sure, Hassoun did state that

there may remain a few specific circumstances in which we are required to look beyond the elements of the offenses in order to assess potential multiplicity problems, such as in a ‘continuing criminal enterprise' prosecution where a drug conspiracy is separately charged, or in cases where two counts are charged under the same statutory provision.

Hassoun, 476 F.3d at 1186-87 (first citing United States v. Harvey, 78 F.3d 501, 505 (11th Cir. 1996); and then citing United States v. Anderson, 872 F.2d 1508, 1520 (11th Cir. 1989)).

However, as explained in the R&R, “[n]either charge asserted in this case constitutes a lesser-included offense or a ‘continuing criminal enterprise.' Fisher has failed to show that either circumstance is present in this case so as to merit a fact-based inquiry going beyond the elements of the offenses charged in the Superseding Indictment.” [285] at 5 n.1.^[5] Fisher's second, and related, objection is that the R&R did not evaluate the Double Jeopardy question under the totality-of-the-circumstances approach. The Court need not address this issue because the threshold question whether Blockburger applies was answered in the affirmative.

However, worth noting is that the Eleventh Circuit in Hassoun explained its disapproval of the case by which Fisher's beyond-the-elements test stems- United States v. Marable, 578 F.2d 151 (5th Cir. 1978). Harking to its holding that Blockburger applies except in limited circumstances, the court in Hassoun noted that “our precedent has since distinguished Marable, limiting its holding to, at most, cases in which two counts are charged under the same conspiracy statute.” 476 F.3d at 1187 n.7 (citations omitted). The court also questioned Marable's precedential value in light of subsequent Fifth Circuit and Supreme Court opinions.^[6]

Therefore, the R&R's analysis under Blockburger applies. The Court will not use the test espoused by Fisher, and his motion to dismiss count two under the Double Jeopardy Clause will accordingly be denied.

III. Conclusion

The Court has carefully reviewed the R&R and all objections thereto. Having done so, the Court finds no clear error in the portions of the R&R not objected to. Macort 208 Fed.Appx. at 784. Further, the Court finds that Magistrate Judge Salinas's factual and legal conclusions were correct and that Fisher's objections [31...