DOJ-OGR-00002304(1).pdf

--- Page 1 --- **Document Header** * Case Number: 1:20-cr-00330-AJN * Document Number: 122 * Filed Date: 01/25/21 * Page Number: 5 of 9 **Text Content** the defendant from the repetition of detail of a single course of conduct." United States v. Swaim, 757 F.2d 1530, 1534 (5th Cir. 1985). Generally, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test . . . to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). However, where an accused is charged with two or more conspiracies in violation of the same statutory provision—in this case, the general conspiracy statute, 18 U.S.C. § 371—the Second Circuit has adopted a multifactor test for determining whether the conspiracies amount to the same offense for double jeopardy purposes. These factors include: (1) the criminal offenses charged in successive indictments; (2) the overlap of participants; (3) the overlap of time; (4) similarity of operation; (5) the existence of common overt acts; (6) the geographic scope of the alleged conspiracies or location where overt acts occurred; (7) common objectives; and (8) the degree of interdependence between alleged distinct conspiracies. United States v. Estrada, 320 F.3d 173, 180-81 (2d Cir. 2003) (citing the "Korfant factors" from United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985) (per curiam)); accord United States v. Macchia, 35 F.3d 662, 667-68 (2d Cir. 1994); see also United States v. Diallo, 507 Fed. App'x 89 (2d Cir. 2013) (referring to Korfant factors as correct test to determine whether two conspiracies charged in same indictment are same offense and therefore multiplicitous). "[N]o dominant factor or single touchstone determines whether the compared conspiracies are in law and fact the same." Estrada, 320 F.3d at 181 (internal quotation marks and citation omitted). **Footer** * DOJ-OGR-00002304