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Case 1:20-cr-00330-PAE Document 657 Filed 04/29/22 Page 5 of 45

A. Applicable law

The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall “be
subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.
That guarantee “serves principally as a restraint on courts and prosecutors,” ensuring that a court
does not “exceed its legislative authorization by imposing multiple punishments for the same
offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977); see also Morris v. Reynolds, 264 F.3d 38,
48 (2d Cir. 2001). An indictment is multiplicitous, and therefore implicates double jeopardy,
“when it charges a single offense as an offense multiple times, in separate counts, when, in law
and fact, only one crime has been committed.” Maxwell, 534 F. Supp. 3d at 322 (quoting United
States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999)). “A claim of multiplicity cannot succeed,
however, ‘unless the charged offenses are the same in fact and in law.’” United States v. Jones,
482 F.3d 60, 72 (2d Cir. 2006) (quoting United States v. Estrada, 320 F.3d 173, 180 (2d Cir.
2003)).

If the two offenses at issue are both conspiracies charged under the same statute, then the
multiplicity inquiry turns on whether the two conspiracies are the same “in fact,” meaning they
involve the same agreement. United States v. Araujo, No. 17-CR-438 (VEC), 2018 WL
3222527, at *3 (S.D.N.Y. July 2, 2018) (citing United States v. Ansaldi, 372 F.3d 118, 124–25
(2d Cir. 2004)); United States v. Gaskin, 364 F.3d 438, 454 (2d Cir. 2004) (“[T]o survive a
double jeopardy attack, the government would have to show that the two schemes involved
‘distinct’ agreements.”). Yet “whether the evidence shows a single conspiracy or more than one
conspiracy is often not determinable as a matter of law or subject to bright-line formulations.”
Jones, 482 F.3d at 72. Rather, the parties agree that the Court’s inquiry is guided by the Second
Circuit’s Korfant factors. See, e.g., United States v. Diallo, 507 F. App’x 89, 91 (2d Cir. 2013)

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