Tuesday, August 7, 2012

Grand Theft, Defrauding a Financial Institution, and Double Jeopardy

The Supreme Court of Florida and each of the District Courts of Appeal have ruled that Grand Theft and Organized Fraud convictions based upon the same conduct violated the Double Jeopardy principles. The applicable rule of law is that offenses are separate if each offense contains an element that the other does not. This is known as the Blockberger analysis and has been codified in Florida Statutes, Section 775.021(4). When each offense does not contain an element that the other does not, they are considered to be the same offense for double jeopardy purposes. The Double Jeopardy clause protects those charged with crime with three separate protections. It guards against being tried twice for the same offense after acquittal. It guards against a second prosecution for the same offense after conviction. And it guards against multiple punishments for the same offense. Analysis is very technical and always complicated.

The question in a recent case is whether Grand Theft and Defrauding a Financial Institution based upon the same conduct, when the Defendants have already been tried and acquitted of Grand Theft, RICO and Conspiracy to Committ RICO, violate Double Jeopardy. The pending prosecution contains one count of aggravated white collar crime, based upon 13 separate instances of defrauding a financial institution, and three counts of defrauding. In 10 of the predicate offenses to count one, the Defendants were previously acquitted in prosecutions for Grand Theft, based upon the same conduct. Grand Theft, in essence, is a deprivation. Defrauding a Financial Institution is deprivation by fraud on a bank. The offenses are the same for double jeopardy purposes. The elements for DFI contain elements that Grand Theft does not. But Grand Theft does not contain an element that DFI does not. Thus, the Defendants cannot be tried again for the same offense.