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Case 1:20-cr-00330-PAE Document 657 Filed 04/29/22 Page 6 of 45

(summary order) (citing United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985) (per curiam)); United States v. Villa, 744 F. App’x 716, 720 (2d Cir. 2018) (summary order). Those factors include:

(1) the criminal offenses charged in successive indictments; (2) the overlap of participants; (3) the overlap of time; (4) similarity of operations; (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. Macchia, 35 F.3d 662, 667 (2d Cir. 1994) (quoting Korfant, 771 F.2d at 662). In applying the Korfant factors, “no dominant factor or single touchstone” determines whether two allegedly distinct conspiracies “‘appear in fact and in law the same.’” Id. at 668 (quoting United States v. Reiter, 848 F.2d 336, 340 (2d Cir. 1988)). Moreover, “the Korfant list is not exhaustive, and every case must be assessed on its own terms . . . based on the entire record.” United States v. Maslin, 356 F.3d 191, 196 (2d Cir. 2004).

In assessing the evidence, the Second Circuit applies a burden-shifting framework. The defendant carries the initial burden of making a non-frivolous showing that the two counts in fact charge only one conspiracy. If met, the burden then shifts to the Government to show, “by a preponderance of the evidence, that there are in fact two distinct conspiracies and that the defendant is not being placed in jeopardy twice for the same crime.” United States v. Lopez, 356 F.3d 463, 467 (2d Cir. 2004) (per curiam) (citing United States v. DelVecchio, 800 F.2d 21, 22 (2d Cir. 1986)); see also United States v. Mallah, 503 F.2d 971, 986 (2d Cir. 1974) (applying this burden-shifting approach post-conviction); United States v. Hernandez, No. 09-CR-625 (HB), 2009 WL 3169226, at *9 (S.D.N.Y. Oct. 1, 2009).

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